ORDER

PATRICK R. WYRICK, District Judge.

Petitioner Kenneth Pope, an American permanently residing in Brazil, filed a Verified Petition (Dkt. 1) in this Court on December 2, 2019, seeking a court order requiring that his estranged wife, Respondent Lauren Lunday, "return" their newborn twin children to Brazil.1 Pope makes this request pursuant to the International Child Abduction Remedies Act, 22 U.S.C. §§ 9001-9011 et seq., claiming that the newborns are being wrongfully retained in the United States by Lunday—i.e., that this is a case of "International Child Abduction."2

Pope first asked the Court to issue a temporary restraining order (TRO) without notice to Lunday, directing Lunday to—among other things—remain in the Western District of Oklahoma pending resolution of this case.3 The Court set a hearing to determine whether proceeding without notice to Lunday was appropriate under Fed. R. Civ. P. 65(b), but just prior to that hearing, the Court was informed that the parties had reached an agreement with respect to a TRO. Accordingly, Lunday appeared through counsel at the hearing and agreed to entry of a TRO requiring that the newborns remain in the Western District of Oklahoma pending the Court's resolution of Pope's petition.

Pope's petition claims that the International Child Abduction Remedies Act applies to this matter because "the Children resided in utero with the parties in the family home [in Brazil] prior to the Respondent traveling by way of her deception to the United States," that "Brazil was the habitual residence of the children at birth," and that by keeping the children in Oklahoma, Lunday is thus "wrongfully retaining" the children away from their place of "habitual residence" in Brazil.4

The petition acknowledges, however, that (1) Lunday left Brazil long before the children were born (at 19-20 weeks in the pregnancy),5 (2) the children were born in the United States and have not spent a moment of their lives in Brazil,6 and (3) are currently with Lunday in the United States where Lunday presumably intends to stay (hence this litigation).7

These acknowledged facts raise the specter of whether this is, as a matter of law, a case of children being "wrongfully removed or retained within the meaning of the [Hague] Convention,"8 given that the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act, is aimed at children being retained away from their "habitual residence."9 The Court thus directed the parties to promptly file briefs addressing this issue, and they have now done so.

In his brief, Pope argues that "this is not a case about wrongful removal of the children in utero," but rather a case about "wrongful retention" of the children after birth.10 In Pope's view, at the moment the children were born, they became "habitual residents" of Brazil because his and Lunday's "last shared intent" was to reside in Brazil and raise the children there11—a position that he believes renders irrelevant the fact that he and Lunday have been estranged since the children were 19 to 20 weeks in utero. Pope's position also assumes that day— (or hour— or minute—) old newborns must have a place of "habitual residence," that this place of habitual residence can be a country in which the newborns have never been physically present, and that his and Lunday's actual respective intents at the time of the children's birth must be overridden by any past agreement he and Lunday had regarding where they would raise their hypothetical, future children. Pope argues that an evidentiary hearing is necessary to establish the existence of this in utero agreement between he and Lunday that they would reside in Brazil and raise the children there.12

In response, Lunday argues that the children cannot be habitual residents of a country in which they have never been physically present,13 that she and Pope have no agreement regarding where the children will reside,14 and that even if any agreement was reached when the children were in utero, such an agreement is not sufficient to establish the habitual residency of the subsequently-born children.15 Lunday argues that this case can be resolved without an evidentiary hearing.16

After considering the arguments made in the briefs, the Court is convinced that this is not a case of children being "wrongfully removed or retained within the meaning of the [Hague] Convention," but rather a custody dispute that ought to be decided by a court with jurisdiction over such matters.17 An evidentiary hearing is not necessary because the Court reaches this conclusion based solely on the facts alleged in the petition, and taking as true Pope's contention that he and Lunday had an in utero, pre-estrangement agreement that they would reside in Brazil with their future children. For the reasons set forth below, Pope's petition is accordingly denied.

Analysis

The International Child Abduction Remedies Act implements the Hague Convention on the Civil Aspects of International Child Abduction,18 to which both the United States and Brazil are signatories.19 The Hague Convention requires that any child "wrongfully removed or retained" from his or her country of "habitual residence" be returned to that country for a custody determination.20 Consequently, determining a child's "habitual residence" is the fundamental issue in a case like this. The answer controls whether the Convention applies and whether it requires the children to be sent to Brazil for a custody determination.

"Habitual residence" is not defined by the Hague Convention,21 but the Convention does explain that removal or retention of a child is only "wrongful" when it breaches rights of custody "under the law of the State in which the child was habitually resident immediately before the removal or retention."22 Thus, at the outset, the Convention's text establishes that it provides relief only to a petitioning parent whose child has some place of habitual residence, and moreover, a place of habitual residence that was established prior to the removal or retention of the child. The very object of the Convention, after all, is "to secure the prompt return of children wrongfully removed to or retained in" a country other than their country of habitual residence,23 and a child can hardly be "returned" to a place the child has never been. Thus, while the term "habitual residence" is not defined by the Convention, the Convention's text does provide valuable context as to the intended application of the term.

Turning to the meaning of "habitual residence," because the term is undefined,24 the Court looks to the words' plain meaning,25 because "treaties are contracts between independent nations, [thus] their words are to be taken in their ordinary meaning."26 "Habitual" means customary or usual; and "residence" means presence at a place of abode.27 The Convention therefore requires identification of the place that the child customarily or usually lived prior to his or her abduction. Because Pope claims that the children were wrongfully retained at the moment of birth, the question is thus: Where did the children regularly or usually live just prior to their birth? The answer, in the ordinary sense, is . . . in their mother's womb, which illustrates the first of many problems with Pope's position.28

Seemingly recognizing the problem, Pope does not claim that the children were habitual residents of Brazil prior to their moment of birth; he in fact specifically disavows that position.29 Pope instead argues that the establishment of habitual residency in Brazil and the wrongful retention away from Brazil occurred simultaneously, at the moment of birth.30 Pope offers no on-point authority for this position, and it appears none exists. And as explained above, this position cannot be squared with the text of the Convention, which explains that a child cannot be wrongfully "retained" away from a place unless they were first a habitual resident of that place.

In fact, by limiting its application to cases involving retention of a child away from the child's place of habitual residence, and by framing the relevant question as what was the child's place of habitual residence immediately before the wrongful retention, the Convention's text indicates that it does not apply to all child-custody disputes with an international element. Rather, it applies to cases where a child is being retained away from the country in which they have assimilated and developed ties that have been broken by the removal.31 Thus, not every crossing of a border with a child is "wrongful" under the Convention. Only removals or retentions of a child away from the place of habitual residence are "wrongful,"—i.e., it is the unilateral severing of established ties to the country that makes the removal or retention "wrongful." For these reasons, the Court is not convinced that a newborn is capable, at the moment of birth, of having a place of "habitual residence," as that term is used in the Convention.32 To conclude otherwise would be to render "habitual" meaningless.

But even if a newborn can—or must—be assigned a place of habitual residence, there is no sense in which these children could be considered habitual residents of Brazil. It is undisputed that they were born in the United States to parents who are United States citizens, that they are themselves United States citizens, and that they haven't spent a moment of their lives in Brazil, much less enough time that Brazil could be considered the place they usually reside.33

In arguing otherwise, Pope relies on cases that—recognizing the plain meaning problem—have attempted to nonetheless assign a place of habitual residence to infants based on the parents' actions. Specifically, these cases look to whether there was "shared parental intent" with respect to where the child will reside. But the problem with attempting to apply the "shared parental intent" construct to the facts of this case is that here—even granting Pope's factual allegations every benefit of the doubt—there was never shared parental intent with respect to the children because the children did not yet exist at the time of the alleged agreement; they were 19 to 20 weeks in utero. Pope, in fact, does not allege he and Lunday have ever during the lifetime of the children agreed on place of residency for the children—a reality underscored by the very fact of this litigation. Thus, even taking Pope's claim of an in utero agreement at face value, such an agreement differs from the agreement relied on in the cases he cites. Those cases involved agreements with regard to actual, existing children, not agreements regarding children that may or may not be born in the future.3435

Pope's attempt to extend the concept of "last shared parental intent" to a case like this is problematic for several reasons. First, it renders an agreement as to where to raise a child irrevocable unless superseded by a new agreement. That is, in Pope's view, Lunday can never withdraw from the pre-birth agreement she allegedly had with Pope; she is bound to that agreement forever unless she comes to a new agreement with Pope. Taken to its logical end, this position would mean, for example, that an American man and a woman living in France could date and agree that they would raise their future children in France. That man and woman could break up and go their separate ways, with the woman returning to the United States. But if at any time in the future—even a decade later—that man visits the United States and rekindles the romance and that woman becomes pregnant by him, she would be bound to her long-ago agreement to raise any children in France. That can't be right.

Second, Pope's position ignores everything that has happened since the alleged in utero agreement. It is undisputed that after leaving Brazil for the United States, Lunday ended her relationship with Pope,36 remained in the United States,37 and intends to remain in the United States.38 Pope acknowledges that for the entire lives of the children, he and Lunday have been in conflict with respect to the children and have never during the children's short lifetimes agreed on a place of residency. Again, this disagreement is why Pope filed this federal case. Plainly, no agreement with respect to where to raise these children exists. As such, "shared parental intent" that existed at 19 to 20 weeks in utero is not sufficient to override every other undisputed fact in this case, all of which point in one direction: away from Brazil as the place of habitual residence.

Lastly, while Pope describes this case as "an invitation for forum shopping at its worst,"39 let us be clear what denial of this petition will mean for him and Lunday. They, two United States citizens, will litigate custody of their United States citizen children— children who never spent a moment of their lives anywhere but the United States—in a court in the United States that may well ultimately decide that jurisdiction lies in Brazil.40

The petition is accordingly DENIED. The Agreed Temporary Restraining Order (Dkt. 12) is vacated, and judgment is entered against the Petitioner and in favor of the Respondent.