     Case: 13-50649      Document: 00512475697         Page: 1    Date Filed: 12/18/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                      No. 13-50649                        December 18, 2013
                                                                             Lyle W. Cayce
GRANT RAWSTON HEADIFEN,                                                           Clerk


                                                 Plaintiff-Appellant
v.

VANESSA HARKER,

                                                 Defendant-Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 1:13-CV-00340


Before REAVLEY, DAVIS, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge: *
       The judgment of the district court is affirmed. Appellant Grant Headifen
and Appellee Vanessa Harker moved with their child from Austin, Texas to
New Zealand; Harker subsequently removed the child back to Texas. Headifen
seeks the return of the child to New Zealand under the Hague Convention
(“Convention”) on the Civil Aspects of International Child Abduction, T.I.A.S.
No. 11670, 19 I.L.M. 1501, codified by the International Child Abduction
Remedies Act, 42 U.S.C. §§ 11601, et. seq. On appeal, Headifen argues that


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 13-50649
the district court erred in denying the child’s return. The only issue on appeal
relates to the “habitual residence” of the young child for purposes of the
Convention. 42 U.S.C. § 11603(f)(1); Convention art. 3. The district court
followed our decision in Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012), and
found that the shared intent of both parents was for Texas and not New
Zealand to be their habitual residence. This finding is supported by compelling
evidence. The district court also found that the child was not integrated into
the New Zealand setting or acclimated there, a finding also supported by the
evidence. Under the approach for determining habitual residence that we set
forth in Larbie, 690 F.3d at 310-11, the district court correctly found that the
habitual residence of the child was Texas and not New Zealand.
      Having acknowledged that Larbie governs the outcome in this case, we
take the opportunity to observe again that interpretative variability presently
exists among circuit courts trying to apply the Convention. See Larbie, 690
F.3d at 310 (describing “varying approaches” used by courts). This variability
comes about because neither the treaty nor its implementing statute defines
the threshold determination that must be made about whether, even assuming
a wrongful removal or retention, that act was from somewhere other than “the
state of the habitual residence of the child.”        42 U.S.C. § 11603(f)(1);
Convention art. 3. If the removal was not from the child’s habitual residence,
the Convention provides no succor, giving rise to the difficult reality, which the
district court in this case did not condone, namely that the adoptive mother
absconded to Texas as the residence both parents had intended to return to
after their temporary residence in New Zealand.              The fact-intensive
discernment by the district court of this shared parental intent to return will
generally be determinative, under Larbie, of a young child’s habitual




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                                       No. 13-50649
residence, 1 hence will foreclose treaty relief against what otherwise may be a
unilateral absconding with a child.
       The judgment of the district court is AFFIRMED.




       1  Our reference to parents’ intentions has value because it fixes a child’s habitual
residence for purposes of the Convention in the country where parents, prior to disunion,
share a common purpose to reside permanently. For circumstances like those in Larbie, this
primacy given to expressed intent about a permanent residence is compelling. Larbie, 690
F.3d at 298-99; see also Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). As we highlighted in
Larbie, the mother acquiesced and consented to Texas-court authority over the parents’
divorce and custody proceedings, and moved temporarily to the United Kingdom only while
the father was deployed by the United States Air Force to Afghanistan. Larbie, 690 F.3d at
299. In the present case, however, the parents moved their family to New Zealand for several
years, living together but later separating. In both cases, the child’s overseas residence was
intended to be temporary, not indefinite. That is the decisive point, more than that a change
of habitual residence can be established only if parents intend to “abandon” or “supplant”
their originating country altogether. See Mozes, 239 F.3d at 1075.
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