Case Update (2020): Pope v. Lunday; habitual residence of infants; place of birth vs. parents' intent; no evidentiary hearing required
The 10th Circuit affirmed the Pope v. Lunday decision on November 20, 2020. Ms. Lunday, pregnant with twins, returned to her home of Oklahoma from Brazil. The twins were born in Oklahoma, and shortly after, Mr. Pope filed suit under the 1980 Hague Abduction Convention, seeking the twins' return to Brazil. The children had never been to Brazil, except in utero . The trial court's focus was on pinpointing the twins' habitual residence. It concluded it was the United States, and therefore denied Mr. Pope's return request on the papers. The 10th Circuit had the benefit of the Monasky opinion when it reached its decision in November, which not only discussed the habitual residence of newborns, but established the standard of review as "clear error." Mr. Pope argued that the parents shared an intent to make Brazil the home of their twins, with Ms. Lunday taking steps towards licensure for her profession in Brazil, and the couple registering their partners...