Conditional Intent, Short Stays, and Tourist Visas: Eleventh Circuit Clarifies Habitual Residence and Harmless-Error Review in ICARA Cases

Introduction

In Forest Lee v. Tiffany Curcio, No. 25-11835 (11th Cir. Oct. 3, 2025) (per curiam) (unpublished), the Eleventh Circuit affirmed the Southern District of Florida’s denial of a petition under the International Child Abduction Remedies Act (ICARA) seeking the return of a child to Brazil under the Hague Convention on the Civil Aspects of International Child Abduction. The dispute arose after both parents—unmarried U.S. citizens—relocated with their child to São Paulo, Brazil, but the mother returned to the United States with the child roughly sixty days later.

The central legal issue was whether Brazil had become the child’s “habitual residence” immediately prior to the removal—a threshold question for any return remedy under the Convention. Applying the Supreme Court’s totality-of-the-circumstances framework from Monasky v. Taglieri and Eleventh Circuit precedent emphasizing objective indicators of settled parental intent and the child’s acclimatization, the court held that Brazil was not the child’s habitual residence. The panel also addressed two procedural points practitioners frequently encounter in Hague litigation: (1) whether a court may rely on extra-record, government website materials, and (2) how to treat post-judgment factual developments offered through a Rule 28(j) letter. The court treated any reliance on such materials as harmless error on these facts and rejected efforts to expand the appellate record outside the confines of Federal Rule of Appellate Procedure 10.

Summary of the Opinion

The Eleventh Circuit affirmed the district court’s denial of the ICARA petition, holding that the child’s habitual residence had not shifted to Brazil during the roughly sixty-day sojourn.
Applying Monasky’s totality-of-the-circumstances approach, and Eleventh Circuit guidance from Calixto and Pfeiffer, the panel agreed that:
- Any shared parental intent was conditional and not “settled,”
- The family entered on 90-day tourist visas (extendable to 180 days), weakening the inference of an intention to establish residence,
- Enrollment in school and an extracurricular activity did not outweigh the short stay and enduring ties to the United States,
- Safety concerns and practical barriers (employment, medication access) reflected the conditional nature of the move.
Even assuming the district court erred by referencing extra-record materials (a Brazilian government website on tourist visas and a U.S. State Department travel advisory) and by according any weight to the U.S. consulate’s emergency-passport facilitation, any such errors were harmless in light of the remaining record evidence.
On procedural issues:
- The court granted in part and denied in part a motion to supplement the record under FRAP 10(e)(2)(C).
- A Rule 28(j) letter offering post-judgment documents (approval of a Brazilian family-reunification visa in August 2025) was construed as an improper attempt to supplement the record; the court declined to consider it and emphasized that habitual residence is judged as of the time immediately before removal.
- Any challenge to the denial of reconsideration was abandoned for insufficient briefing (Sapuppo v. Allstate Floridian Ins. Co.).
Standard of review drove the result: the panel found no clear error in the district court’s factual determinations and applied de novo review only to legal questions.

Analysis

Precedents Cited and Their Influence

The panel’s analysis sits squarely within the Supreme Court’s and Eleventh Circuit’s established approach to habitual residence and appellate review in ICARA cases:

Monasky v. Taglieri, 140 S. Ct. 719 (2020): The Supreme Court rejected rigid categorical tests and directed courts to determine habitual residence based on the totality of the circumstances. The Eleventh Circuit faithfully applied Monasky by considering a wide range of facts—immigration status, parental intent, duration of stay, acclimatization, and familial ties—without treating any single factor as dispositive.
Calixto v. Lesmes, 909 F.3d 1079 (11th Cir. 2018): Calixto emphasized “objective facts,” focusing on whether the parents had a settled intention to abandon the prior residence in favor of a new one, coupled with the child’s acclimatization. The panel cited Calixto to underscore that shared intent, even if present, “cannot alone transform the habitual residence.” This tempered the probative value of the parents’ leases and school enrollment in light of other indicators of conditional intent.
Pfeiffer v. Bachotet, 913 F.3d 1018 (11th Cir. 2019): Pfeiffer reiterated that parents must share a settled intention to leave the old habitual residence behind. The panel invoked Pfeiffer to evaluate whether the parents’ plan reflected a firm, mutual commitment versus a provisional, evaluative stay.
Seaman v. Peterson, 766 F.3d 1252 (11th Cir. 2014): The standard for clear error—reversal only if the appellate court is left with the definite and firm conviction that a mistake has been made—anchored the panel’s deference to the district court’s factfinding on intent, acclimatization, and the significance of the consulate’s involvement.
EEOC v. STME, LLC, 938 F.3d 1305 (11th Cir. 2019), and Fed. R. Civ. P. 61: These authorities guided the harmless-error analysis. Even if the district court’s references to extra-record governmental websites or consular conduct were missteps, they did not substantially influence the outcome given the robust, independent evidence supporting the result.
Fed. R. App. P. 10(e)(2)(C), 10(a), and 28(j); Clements v. Florida, 59 F.4th 1204 (11th Cir. 2023); Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014): These authorities framed the appellate record and briefing rules. The panel’s partial denial of supplementation, refusal to consider post-judgment developments via a Rule 28(j) letter, and abandonment ruling reinforce disciplined appellate practice in Hague cases.

Legal Reasoning

The court’s analytic path reflects the two pillars of habitual residence analysis after Monasky as applied in the Eleventh Circuit: (1) parental intent as revealed by objective facts and (2) the child’s acclimatization, both evaluated under the totality of circumstances at the time immediately preceding the alleged wrongful removal.

First, the panel agreed that significant objective steps were taken toward a Brazilian move: both parents and the child obtained passports, traveled to São Paulo, toured schools and apartments, signed separate 30-month leases, and began a student-visa process. The child was enrolled in school and extracurricular skateboard lessons. However, these indicators were counterbalanced by key facts undermining “settled” intent:

Conditionality: Both parents acknowledged an understanding that the move might be temporary (the mother testified she intended to stay only one year; the father corroborated he told her they would stay “for only a year”). The mother’s intent was expressly conditioned on securing employment, necessary medication, and assurances about safety—conditions she ultimately struggled to meet. Conditional intent is a poor proxy for a fixed plan to abandon the prior habitual residence.
Immigration Status: The family entered on 90-day tourist visas (extendable to 180 days). Tourist status, while not dispositive, is probative of temporariness. Against that backdrop, even long leases could not, standing alone, establish a durable intention to reside. The district court viewed the tourist status as “casting further doubt” on settled intent to establish residency.
Duration and Ties: The stay lasted approximately sixty days. The short duration—especially in contrast to the child’s longer life and extended family in the United States—limited any meaningful acclimatization. Enrollment in school and an activity for a brief period did not suffice to show that the child had become rooted in Brazil.
Safety and Practical Concerns: The mother expressed safety concerns about life in São Paulo and difficulties accessing medication and employment. The district court credited these concerns, finding they reflected ongoing reservations rather than a committed relocation. The appellate panel deferred to that credibility assessment.

Second, the court addressed two evidentiary/procedural critiques:

Consular Involvement: The district court noted, as a “unique and compelling fact,” that the U.S. consulate issued the child an emergency passport facilitating departure, particularly as the mother’s tourist visa neared expiration and the father declined to return the child’s passport. On appeal, the father argued the court “deferred to” consular actions that have no role in determining habitual residence. The Eleventh Circuit avoided resolving whether reference to consular conduct was improper; instead, it held any such reliance was harmless due to the weight of other evidence supporting the conclusion that Brazil was not the habitual residence.
Extra-Record Government Websites: The district court referenced a Brazilian government webpage explaining that tourist visas are not for establishing residency and a U.S. State Department travel advisory corroborating safety concerns. The panel again assumed arguendo that reliance on those sources was error, but deemed it harmless, as the same bottom-line conclusion followed from record evidence about visas, duration, intent, and acclimatization.

Finally, the court cabined the record on appeal and the issues preserved:

Record Supplementation: A motion to supplement was granted only as to one exhibit and otherwise denied under FRAP 10(e)(2)(C). A Rule 28(j) letter was treated as an improper vehicle to introduce new factual material—specifically, the subsequent approval (August 2025) of a Brazilian family-reunification visa. The court declined to consider it, noting that appellate courts do not sit as triers of fact and that such developments would not alter the analysis of the mother’s intent at the time of removal.
Abandonment: Because the appellant did not clearly brief any challenge to the denial of his reconsideration motion, that issue was deemed abandoned under Sapuppo.

Impact and Implications

Although unpublished, the decision offers consequential guidance for litigants and district courts within the Eleventh Circuit (and persuasive value elsewhere) on three fronts.

Habitual Residence in Short-Stay Cases: When a family’s relocation is measured in weeks or a few months, petitioners face a “particularly difficult” burden to prove a change in habitual residence. Objective indicators of settled parental intent must be strong and unambiguous, and the child’s acclimatization must be more than nascent. Steps like leases and school enrollment help but may not overcome conditionality and temporary immigration status.
Immigration Status as a Factor: Entry on tourist visas is probative of non-residential purpose. While not dispositive, tourist status—especially unconverted to residency—can undercut claims of a settled intent to establish a new habitual residence, even if other relocation steps occurred.
Harmless-Error Cushion for Extra-Record References: District courts should avoid relying on materials outside the evidentiary record; appellate courts may treat such reliance as harmless where the record independently supports the outcome. Practitioners should build a robust evidentiary record and, if necessary, lay the foundation to request judicial notice, rather than rely on courts to consult websites sua sponte.
Consular Actions Are Not Determinative: The facilitation of travel by a U.S. consulate (e.g., issuing an emergency passport) neither establishes nor defeats habitual residence. The analysis remains focused on parental intent and the child’s acclimatization immediately prior to removal.
Appellate Practice Discipline: Attempts to inject post-judgment facts via Rule 28(j) will fail; FRAP 10 governs the record. Arguments not distinctly briefed—such as challenges to denial of reconsideration—are abandoned.

For family-law practitioners and cross-border counsel, the case underscores the importance of immigration planning aligned with the claimed intent to relocate. Where possible, securing residency status, documenting unequivocal joint commitment to relocation, and allowing sufficient time for the child to become socially and educationally embedded will materially strengthen an ICARA petition predicated on a new habitual residence.

Complex Concepts Simplified

ICARA: A U.S. statute implementing the Hague Convention. It provides a process to return children wrongfully removed or retained across international borders to the country of their habitual residence so custody disputes can be resolved there.
Habitual Residence: The country where a child is at home in a meaningful way immediately before the alleged wrongful removal or retention. It is not a formal legal status but a factual determination based on the totality of the circumstances, including parental intent and the child’s acclimatization.
Settled Parental Intent: An objective, mutual commitment by the caregiving parents to abandon the prior home and establish a new one. Conditional or tentative plans usually do not qualify as “settled.”
Acclimatization: The child’s integration into a community—schooling, friendships, activities, language, and daily routines. The longer and deeper the integration, the stronger the case for habitual residence.
Wrongful Removal: A removal or retention in breach of custody rights under the law of the child’s habitual residence, provided those rights were actually exercised or would have been exercised but for the removal.
Clear Error (Appellate Standard): Appellate courts defer to trial courts on factual findings and reverse only if left with a firm conviction that a mistake was made.
Harmless Error: Even if the trial court made a legal or procedural error, the appellate court will not reverse if the error did not affect the outcome in a substantial way.
Judicial Notice/Extra-Record Materials: Courts can sometimes rely on facts from sources whose accuracy cannot reasonably be questioned. But introducing such materials without giving parties a chance to contest them risks error; best practice is to build the record or formally request judicial notice.
Central Authority vs. Consulate: Under the Hague Convention, each country designates a “central authority” (in the U.S., the State Department’s Office of Children’s Issues) to assist with applications. Consulates provide consular services but do not determine habitual residence or custody rights.
FRAP 10 and 28(j): The Federal Rules of Appellate Procedure generally confine appeals to the district court record (Rule 10). Rule 28(j) allows parties to submit supplemental legal authorities, not new evidence. Post-judgment factual developments typically cannot be injected on appeal.

Conclusion

Lee v. Curcio reinforces core principles of Hague/ICARA practice in the Eleventh Circuit: habitual residence turns on a holistic, fact-intensive inquiry into parental intent and the child’s acclimatization, assessed immediately before removal and reviewed on appeal for clear error. Short stays under tourist visas, coupled with conditional parental intent and limited acclimatization, are unlikely to establish a new habitual residence, even when families sign leases and begin school enrollment.

Procedurally, the decision cautions trial courts against relying on extra-record sources and reminds litigants that any such missteps may be harmless where the independent record is decisive. It also underscores strict adherence to appellate record rules—post-judgment developments cannot be smuggled in via Rule 28(j), and issues not distinctly briefed are deemed abandoned.

The practical takeaway is clear: in cross-border relocation scenarios, parents seeking to establish a new habitual residence should align immigration status, documentary evidence of joint, settled intent, and time for the child’s meaningful acclimatization. Absent these, a return petition premised on a recent move will face an uphill climb.