Andrew Nisbet, a British citizen, and Spirit Bridger, a U.S. citizen, met in New York and lived together in Scotland and Jersey. Nisbet was later convicted of manslaughter for killing his mother and sentenced to indefinite psychiatric confinement in England. Bridger, the primary caregiver, moved with their two young children from Scotland to the United States in June 2022. Nisbet petitioned for the children's return to Scotland, alleging it was their habitual residence. The district court denied the petition, finding that the children did not habitually reside in Scotland. Nisbet appealed, arguing the children had established a habitual residence there.
The panel applied the Supreme Court's standard in Monasky v. Taglieri, which requires a fact-intensive, totality-of-the-circumstances inquiry to determine a child's habitual residence. The court emphasized that for very young children, the intentions and circumstances of the caregiving parent are relevant. The panel found no clear error in the district court's conclusion that Bridger never intended Scotland to be a permanent home, viewing it as a temporary location while she navigated visa issues and Nisbet's legal troubles. The court noted that the children lacked meaningful connections to Scotland; they had no family or friends there, and their relationship with their father was not meaningful given his incarceration and intermittent contact. The panel rejected the argument that mere physical presence or attendance at nursery school was dispositive, stating that without acclimatization or settled purpose, physical presence alone does not establish habitual residence. The court also affirmed that a finding of no habitual residence is not categorically barred, even if rare, when the specific facts warrant it.
The decision affirms that the Hague Convention does not apply when a child has no habitual residence, leaving the child without the Convention's automatic return mechanism. The children remain in the United States, and custody disputes must be resolved in U.S. courts or through other means, as the Scottish courts lack jurisdiction under the Convention. The ruling reinforces the deference appellate courts must give to district courts' factual findings on habitual residence under the clear-error standard.
Podcast (federal-narrative-summaries): Play in new window | Download