United States District Court, E.D. Louisiana
FINDINGS OF FACT AND CONCLUSIONS OF LAW
MORGAN UNITED STATES DISTRICT JUDGE.
the Court is Petitioner Ivan Eubanks' Verified Complaint
for Return of Children to Cayman Islands. Mr. Eubanks'
case arises pursuant to the Hague Convention on the Civil
Aspects of International Child Abduction (the
“Convention”). Mr. Eubanks claims that Respondent, Ms.
Eubanks, wrongfully removed E.E. and P.E. from the Cayman
Islands and is wrongfully retaining them in the United
States, in violation of the Convention. As relief, he seeks
the immediate return of E.E and P.E. to the Cayman Islands.
matter was tried before the Court, sitting without a jury, on
May 11th and May 12th of 2017, on the claims of Ivan Eubanks
against Saskia O. Eubanks. Having considered the evidence admitted
at trial and the arguments of counsel, the Court announces
its Findings of Fact and Conclusions of Law pursuant to Rule
52 of the Federal Rules of Civil Procedure. To the extent a
finding of fact constitutes a conclusion of law, the Court
adopts it as such. To the extent a conclusion of law
constitutes a finding of fact, the Court adopts it as such.
due consideration and for the reasons that follow, the Court
is of the opinion that Mr. Eubanks' request for the
return of the children should be DENIED.
Court has subject matter jurisdiction pursuant to 28 U.S.C.
§ 1331, as this matter arises under the Convention and
ICARA, the implementing legislation. Pursuant to ICARA, state
and federal district courts have concurrent original
jurisdiction over actions arising under the
Convention. A Hague petitioner, however, is
“free to choose between state or federal
court.” Venue is proper because the Court
“is authorized to exercise its jurisdiction in the
place where the child[ren] [are] located at the time the
petition is filed, ” which was the Parish of Orleans,
Louisiana, within the jurisdiction of the United States
District Court for the Eastern District of
Credibility of Witnesses
Hague Convention cases, such as the one before this Court, in
which the Court's determination of the children's
habitual residence turns on the intention of the parents, the
district court often “face[s] . . . a choice as to whom
it [finds] more believable.” During the bench trial of
this matter, the Court had the opportunity to observe the
demeanor of Mr. and Ms. Eubanks and to hear their testimony
and, on that basis, assess their credibility. As explained
below, the Court has found Ms. Eubanks to be the more
credible witness, and, therefore, gives more weight to her
testimony in its finding of fact.
to trial, Ms. Eubanks, in her Interrogatories and Requests
for Production of Documents dated March 3, 2017, asked Mr.
Eubanks to produce: “. . . each and every email or
other correspondence between you and any prospective employer
from January 1, 2015, to present, including the Curriculum
Vitae(s) sent” and for Mr. Eubanks to:
[I]dentify each and every individual or entity you have
contacted for purposes of obtaining employment since January
1, 2015. For each, please state the date(s) of contact, the
type of contact, outcomes of said contact, the name of any
entity contacted, including the name of any individual
contacted with that entity, and a description of any
representations made by you to that entity regarding your
qualifications and when you have been able to start such job
Eubanks' Interrogatories and Requests for Production were
clearly not limited to only applications submitted
during this time period but also covered any
correspondence between Mr. Eubanks and a prospective
employer. Mr. Eubanks' response to the requests for
production and his responses to the interrogatories do not
include the names of any individuals or entities he
corresponded with regarding employment during 2016 or 2017 or
copies of correspondence between himself and any prospective
employer during 2016 or 2017. Because of the expedited nature
of this type of proceeding, the discovery period before trial
was truncated, and Ms. Eubanks did not have a full
opportunity to conduct discovery.
first day of trial, Mr. Eubanks testified on direct that he
did not apply for any jobs during 2016. On cross-examination,
Mr. Eubanks admitted that he applied for a job with the
United States Department of State in March
2016. At the conclusion of the first day of
trial, the Court ordered Mr. Eubanks to perform another
search for any emails responsive to Ms. Eubanks' request,
specifically, for any correspondence between Mr. Eubanks and
any prospective employer from January 1, 2016 through that
date. The next morning Mr. Eubanks produced three documents:
(1) an email he received on January 5, 2016 from the
University of San Diego, setting up a follow-up Skype
interview; (2) an email he received from the University of
San Diego on January 18, 2016 mentioning that the follow-up
interview occurred the week before and notifying Mr. Eubanks
that he had not been chosen for the applied to position; and
(3) a letter, dated June 10, 2016, stating that the
University College of the Cayman Islands, Mr. Eubanks'
current employer, was offering him the position of Acting
Dean of Academic Affairs. Mr. Eubanks offered no explanation
for his earlier failure to produce these emails and
information in response to Ms. Eubanks' Interrogatories
and Requests for Production.
end of the second day of trial, after the Court questioned
Mr. Eubanks' counsel regarding the method used to
identify Mr. Eubanks' responsive correspondence, it
became clear that Mr. Eubanks had performed the search of his
emails himself and that neither his attorneys nor a
professional third-party vendor had supervised or assisted
Mr. Eubanks in his search. The Court ordered Mr. Eubanks to
retain a third-party vendor to perform a complete search of
his emails to identify any correspondence with potential
employers during 2016. The Court held the record open for
the introduction into evidence of these emails and filing of
13, 2017, pursuant to the Court's Order, the third-party
vendor hired by Mr. Eubanks to perform this search produced
over 1, 800 emails to the Court and Ms. Eubanks that were
responsive to the discovery requests. Included in
those 1, 800 emails are countless communications between Mr.
Eubanks and potential employers during 2016 that had not been
previously produced in response to discovery requests, or by
Mr. Eubanks at the direction of the Court at the end of the
first day of trial.
emails directly refute Mr. Eubanks' testimony that he did
not continue to seek employment in the United States after
moving to the Cayman Islands in early January 2016. They also
refute his testimony that he had no correspondence regarding
employment after January 1, 2016. Mr. Eubanks can blame only
himself for his loss of credibility. For example, on January
13, 2016, Mr. Eubanks received an email from Georgia Southern
University expressing an interest in conducting a telephone
interview with him regarding his application for the position
of Assistant Professor Writing and Linguistics with Specialty
in Assessment. On January 16, 2016, Mr. Eubanks sent his
response in which he stated, “I am most pleased and
excited to participate in a telephone interview.”
According to the emails, it appears a telephone interview was
held on January 21, 2016. On March 5, 2016, Mr. Eubanks
received an email from Northwestern State University, in
Natchitoches, Louisiana, stating that the search committee
for the department head in English, Foreign Languages and
Cultural Studies was ready to move forward with online
interviews with the remaining candidates and inquiring as to
whether Mr. Eubanks was still interested in the position. On
that same date, Mr. Eubanks responded, “I am still very
interested in the position as department head . . . and
I'm pleased to be invited for an interview.” An
online interview occurred on March 16, 2016. On April 8,
2017, Mr. Eubanks received another email from the search
committee at Northwestern State University stating that the
committee was interested in bringing him to campus for an
in-person interview. The next day, Mr. Eubanks responded
stating, “I'm thrilled that the search committee
would like to hold a second interview with me . . .”
Further, included in the emails are numerous rejection
letters in response to Mr. Eubanks' “recent
addition, the Court, at the end of the second day of trial,
also ordered that Mr. Eubanks produce emails regarding his
application for a position as a Regional English Language
Officer (RELO) with the State Department. To expedite
production, these emails were produced on June 5, 2017 under
an agreed protective order. The produced emails corroborate
Ms. Eubanks' testimony that Mr. Eubanks was very actively
pursuing a position with the State Department from January of
2016 to August of 2016. In fact, despite testifying at trial
that he was happy with his job in the Cayman Islands and was
not applying for other jobs, the emails show that Mr. Eubanks
was corresponding with employees at the State Department
regarding his pending application both shortly before and
after the trial in this matter.
Court makes its findings of fact below with this credibility
finding in mind.
Findings of Fact - Habitual Residence
and P.E. are the only children of Mr. and Ms. Eubanks. The
parties are both American Citizens.
parties were married on December 1, 2007, in the Parish of
2008, the parties moved to Boston, Massachusetts after Mr.
Eubanks accepted a teaching position at Boston
and P.E. were born on April 18, 2013 in Boston,
and P.E. are United States citizens.
Eubanks has a Ph.D. in Russian and Slavic
Shortly after the birth of E.E. and P.E., Mr. Eubanks secured
a job as a professor in Moscow, Russia. Mr. Eubanks moved to
Moscow in August of 2013. Ms. Eubanks and the two children
followed in October of 2013.
they moved to Russia, the parties decided not to bring all of
their personal belongings and instead stored personal items
in a storage unit in New Orleans, Louisiana.
parties lived in Moscow for almost three years.
While in Russia, Mr. Eubanks applied for over ninety
different jobs, almost all of which were teaching positions
in the United States. At some point prior to January 2016,
Mr. Eubanks, having not yet received an offer of employment
in the United States, accepted a position teaching freshman
English at the University College of the Cayman
Eubanks' teaching contract with the University College of
the Cayman Islands was for two-years but the only penalty for
leaving before the end of the term of the contract was that
the school would not pay for the family's move off the
Eubanks told Ms. Eubanks that the move to the Cayman Islands
would be a temporary move for the duration of one semester,
until he received a position in the United States. Ms.
Eubanks agreed to the move because the parties were desperate
to leave Russia and because Mr. Eubanks promised their stay
in the Cayman Islands was to be temporary and that it would
provide an opportunity for them to decompress after leaving
Russia. Mr. Eubanks specifically told Ms. Eubanks that he was
100 percent positive he would be offered a teaching position
at the University of San Diego by the end of the
parties moved from Moscow, Russia to the Cayman Islands on or
about January 1, 2016.
E.E. and P.E. lived in the Cayman Islands, with both Mr. and
Ms. Eubanks, from January 1, 2016 until August 26,
Neither Mr. Eubanks nor Ms. Eubanks has any relatives
residing in the Cayman Islands.
Eubanks did not change the mailing address on his credit
cards or bank statements to the Cayman Islands and, instead,
they are mailed to his father's address in South
Eubanks is registered to vote in Florida.
parties rented a furnished condominium in the Cayman Islands
and continued to store their personal belongings in their
storage facility in New Orleans, Louisiana. The lease
agreement for the condominium contained, at the parties'
request, an “escape clause” allowing the parties
to break to break the lease, without penalty, at any time
prior to May 31, 2016.
escape clause was included in the lease so that the parties
could break the lease if Mr. Eubanks received an offer to
work in the United States.
Shortly after moving to the Cayman Islands and participating
in a Skype interview, Mr. Eubanks learned on January 18 that
he was not chosen for the teaching position at the University
of San Diego.
After learning he did not get the job at the University of
San Diego, Mr. Eubanks assured Ms. Eubanks his chances of
getting hired by the State Department were
June 2016, Mr. Eubanks accepted a position as Acting Dean of
Academic Affairs with his current employer, the University
College of the Cayman Islands. Mr. Eubanks told Ms. Eubanks
that accepting this position would make him a more desirable
applicant in his job search.
After Mr. Eubanks accepted the position as Acting Dean of
Academic Affairs, the parties, in order to reduce their
monthly expenses, attempted to identify a waterfront home to
use as their residence, but which could be used as a rental
property or be easily sold when they left the Cayman Islands.
Ultimately, however, the parties did not find a property they
could agree fit their criteria for an
E.E. and P.E. were registered but had not started school in
the Cayman Islands as of August 26, 2016.
Both Mr. Eubanks and Ms. Eubanks wanted E.E. and P.E. to be
raised and educated in the United States.
From the time of arrival in the Cayman Islands to the date of
this trial, Mr. Eubanks actively sought employment in the
Eubanks did not intend for the children's habitual
residence to be in the Cayman Islands.
Eubanks removed E.E. and P.E. from the Cayman Islands to New
Orleans, Louisiana on August 26, 2016, without the consent of
and P.E. continue to reside in New Orleans, Louisiana with
February 10, 2017, Mr. Eubanks filed his Verified Complaint
for the Return of Children to the Cayman
Conclusions of Law
The Hague Convention: Background
Convention was adopted in 1980 in response to the emerging
problem of international child abductions perpetrated by
parents, guardians, and close family members. The
Convention specifically was adopted to address “the
problem of international child abductions during domestic
disputes.” “The Convention seeks ‘to
secure the prompt return of children wrongfully removed to or
retained in any Contracting State, ' and ‘to ensure
that rights of custody and of access under the laws of one
Contracting State are effectively respected in the other
Contracting States.'”Further, the drafters of
the Convention sought to “discourage forum shopping in
international child-custody disputes when it takes the form
of removing a child to the jurisdiction preferred by one of
Convention's stated purpose is “to protect children
internationally from the harmful effects of their wrongful
removal or retention and to establish procedures to ensure
their prompt return to the State of their habitual residence
. . .” “The Convention was designed to
‘restore the ...