COA: Children’s habitual residence is South Bend, not Germany

The Court of Appeals of Indiana has reversed for a mother who moved from Germany to South Bend with her husband and children, finding she did not wrongfully retain her children in the United States after their father returned to Europe.

Maria Cole, an American citizen, and Peter Cole, a citizen of the United Kingdom, are the parents of J.M.C. and L.R.C., who are both U.S. citizens.

The family unit lived in Germany from 2017 to December 2020, before moving to South Bend to live with Maria’s mother. According to Peter, the move was an indefinite, “extended vacation” to America “to get a better idea about whether an actual move to the United States was something that might work.”

Beginning in the summer of 2019, Peter began the application process for a U.S. Permanent Resident Card, which he obtained by October 2020. One week later, Peter terminated the lease for the family’s apartment in Germany. The couple then liquidated numerous assets and arranged to have a significant portion of their remaining personal property shipped from Germany to South Bend.

Other preparations included transferring more than $94,000, the entirety of their financial savings, to an account in Maria’s name at a bank in South Bend. Once the family officially arrived in South Bend in December 2020, the couple deposited $20,000 in cash in the South Bend bank account.

Meanwhile, the couple registered with the German government a new apartment in Germany as their home address, and “[a]ll four members” of the family continued to have valid, and, later, renewed, health insurance when in Germany. At the same time, they held out Maria’s parent’s address in South Bend as their home address.

But upon moving to South Bend, the couple began to disagree about how long they agreed to stay in the U.S.

Following attempts to obtain a Social Security card and employment without success, Peter eventually returned to Germany in February 2020 for a pre-planned trip. He later purchased his own apartment upon returning to South Bend.

Peter continued to try securing Social Security and employment but eventually returned to Germany a second time. The children stayed with their mother in South Bend during that period, where Maria got a job and the children were enrolled in school.

In June 2021, Peter petitioned for divorce in a German court and Maria petitioned for dissolution of the marriage in an Indiana court. In July 2021, Peter filed a complaint and petition for the return of the children to Germany under the Hague Convention and the International Child Abduction Remedies Act in the St. Joseph Circuit Court.

The trial court concluded that the children’s place of “habitual residence” was Germany and that Maria had wrongfully retained the kids in the U.S.

The Court of Appeals of Indiana reversed in Maria L. Cole v. Peter G. Cole, 21A-MI-2415, concluding that the parties’ evidentiary submissions demonstrated that, by the time Peter brought the petition, the children’s place of habitual residence was South Bend.

“While Mother and Father may have not seen eye-to-eye with respect to the circumstances under which the family might return to Germany, the facts are clear that Mother and Father both saw the family’s move to the United States as indefinite and at least possibly permanent,” Judge Paul D. Mathias wrote.

Among other things, it concluded that the trial court minimized the intent of the parties in moving to the U.S. and unduly emphasized Peter’s wishes to return to Germany.

“The trial court failed to consider Father’s undisputed evidence that his return to Germany at that time had been longplanned; that Father returned to the United States in April 2021 and resumed his attempts to obtain a Social Security card and employment; and that the Children had been in the United States, as intended by both parties, for more than seven months at the time of Father’s filing and with no definite end-date in mind by the parties when they moved the Children here,” Mathias wrote.

“Accordingly, we conclude that Mother has demonstrated prima facie error in the trial court’s judgment,” Mathias continued. “We hold that the parties’ evidentiary submissions establish that the Children’s place of habitual residence is South Bend, Indiana, and not Germany.”