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1 Commentary: Appellate Court Cases, Smith v. Smith, 976 F.3d 558 (5th Cir. 2020) 1 (2020)

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Commentary: Appellate Court Cases


Smith  v. Smith, 976  F.3d 558  (5th Cir. 2020)


                                     Habitual  Residence   I Parental Intent I
      Other Fifth Circuit CasesPrcdn
                                     Precedent
  Soto v. Contreras,
  880 F.3d 706 (5th Cir. 2018)   In a pre-Monasky' case, the   district court denied a
                                     father's petition for the return of his children to Ar-
  Madrigal v. T zr              gentina and found that the children's   habitual resi-
                                     dence  was  the United States. Since the district
  Delgado v. Osuna,                  court determined and considered all of the relevant
  837 F.3d 571 (5th Cir. 2016)   facts, its   decision satisfied Monasky's totality-of-
                                     circumstances test for determining habitual resi-
  Hernandez v. Pena,                 dne
  820 F.3d 782 (5th Cir. 2016) dence.

  Rodriguez v. Yanez,                Holding
  817 F.3d 466 (5th Cir. 2016)

  Berezowskyv. Ojeda (Berezowsky II), In determining habitual residence, the district court
  652 F. App'x 249 (5th Cir. 2016)   considered all of the relevant facts. The Fifth Cir-
                                     cuit reexamined the district court's findings of fact
  Berezowsky v. Ojeda (Berezowsky ), using  Monasky's  totality-of-circumstances test
  765 F.3d 456 (5th Cir. 2014)    and affirmed   the district court's ruling.

  Sanchez v. R.G.L.,
  761 F.3d 495 (5th Cir. 2014)    Facts

  Salazar v. Maimon,                 A father petitioned for the return of his four children
                                     to Argentina, alleging that Argentina was their ha-
  Larbie v. Larbie,                  bitual residence. The district court followed then-
  690 F.3d 295 (5th Cir. 2012)    binding circuit   precedent2 that looked initially to
                                     whether the parents had a shared intent to aban-
  94 Feale.d Appellant v. rSealed Appellee,  don their previous habitual residence or to estab-
                                     lish a new one.
  England v. England,
  234 F.3d 268 (5th Cir. 2000)    The family   moved to Argentina in June 2017. Eleven
                                     months later, while still in Argentina, the mother and
                                     father jointly filed for divorce. The district court
found that the parents and children were born in the United States and were U.S. citizens.
The father qualified for Argentinian citizenship but did not apply for it. The father's at-will
employment  contract allowed for home leave to San Francisco, and it provided a twenty-
four-month housing allowance. The mother owned property in Texas that she had inherited,
the children were enrolled in an American style school in Argentina, the parties had no
property or family in Argentina, and the mother only had a three-month tourist visa to remain
there. The parties' Argentinian divorce decree provided the mother with primary custody of


Commentary-Smith  v. Smith


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