Moreau v. White: No Extra‑Treaty Judicial Estoppel in Hague Returns; No Federal “Command” to Foreign Custody Courts

Court: United States Court of Appeals for the Fifth Circuit
Date: May 15, 2026
Case: Moreau v. White, Nos. 25-40031 & 25-40364 (consolidated)

I. Introduction

Moreau v. White arises from a protracted, cross-border custody conflict spanning Texas and Canada. Sarah S.C. Moreau (petitioner in the Hague proceeding; Plaintiff–Appellee) sought the return of the parties’ two children to Canada under the Hague Convention on the Civil Aspects of International Child Abduction. Andrew Christopher White (respondent; Defendant–Appellant) resisted return, contending that Texas—not Canada—was the children’s habitual residence and that Moreau’s conduct (including alleged consent to Texas adjudication and inconsistent litigation positions) barred Hague relief.

After a federal bench trial, the district court ordered the children’s return to Canada. When Texas custody litigation continued, the district court went further: it preliminarily enjoined White and two Texas judges from proceeding and purported to direct that “the Canadian Court shall decide[] the child custody dispute.” On appeal, the Fifth Circuit confronted two clusters of issues:

  • Hague merits: habitual residence; breach of custody rights; consent defense; and whether common-law judicial estoppel can bar a Convention return.
  • Remedial limits: whether a federal court may “command” a foreign court to decide custody and enjoin state proceedings to enforce that command.

II. Summary of the Opinion

The Fifth Circuit affirmed the return order, holding that the district court did not clearly err in finding Canada to be the children’s habitual residence at the time of White’s retention in Texas and that White’s conduct breached Moreau’s rights of custody. The court also rejected White’s Article 13(a) consent defense and declined to apply common-law judicial estoppel as an “extra-treaty” defense to the Convention’s mandatory return remedy.

Critically, the Fifth Circuit vacated the preliminary injunction and also vacated the portion of the return order that directed Canadian courts to adjudicate custody. The court held that “command language” directed at a foreign tribunal violates principles of international comity, and that the injunction halting Texas litigation—issued to enforce the improper command to Canada—could not stand.

III. Analysis

A. Precedents Cited

1. Habitual residence: totality, not categorical rules

  • Monasky v. Taglieri, 589 U.S. 68 (2020): The opinion treats Monasky as controlling on methodology—habitual residence is a totality-of-the-circumstances inquiry with “no categorical requirements.” The Fifth Circuit used Monasky to reject White’s proposed categorical limitation that a parent cannot change habitual residence when a state court authorized only a “temporary” move.
  • Smith v. Smith, 976 F.3d 558 (5th Cir. 2020): Cited for (i) the mixed fact-law nature of habitual-residence determinations and (ii) clear-error appellate review. The Fifth Circuit’s deference to the district court’s weighing of competing facts is anchored in Smith.
  • Harm v. Lake-Harm, 16 F.4th 450 (5th Cir. 2021): Supports the proposition that when evidence permits more than one view, clear error cannot be found.
  • Baz v. Patterson, 100 F.4th 854 (7th Cir. 2024): Used persuasively to show that, after Monasky, courts should resist categorical rules (there, rejecting a rule giving dispositive effect to a state-court habitual-residence determination).
  • Guevara v. Castro, 155 F.4th 353 (5th Cir. 2025): Framed the Convention’s aims—restore the pre-abduction status quo and deter forum shopping—providing the policy backdrop to the habitual residence and remedy discussions.

2. Wrongful retention elements and custody rights

  • Delgado v. Osuna, 837 F.3d 571 (5th Cir. 2016): Supplies the three-element wrongful retention/removal test (habitual residence; breach of custody rights under that law; exercise of rights).
  • Abbott v. Abbott, 560 U.S. 1 (2010): Cited for treaty-text primacy and the Convention’s anti-self-help logic (“should not be interpreted to permit a parent to select which country will adjudicate” by violating custody rights). The majority distinguishes White’s factual analogies and uses Abbott to reinforce the return remedy.
  • Kovac v. Wray, 109 F.4th 331 (5th Cir. 2024): Cited for the principle that the appellate court may affirm on any ground supported by the record; the Fifth Circuit used this to avoid unnecessary pronouncements on Canadian statutory law, instead grounding custody rights in the Canadian court’s recognition/supersession of the Texas order.

3. Article 13(a) consent defense

  • Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012), abrogated on other grounds by, Smith v. Smith, 976 F.3d 558 (5th Cir. 2020): Central consent-defense precedent. The court relied on Larbie for the subjective-intent focus and the proposition that consenting to a particular tribunal for final custody can satisfy Article 13(a), while distinguishing Larbie on the record (Moreau repeatedly challenged Texas’s jurisdiction post-move).
  • Gonzalez-Caballero v. Mena, 251 F.3d 789 (9th Cir. 2001): Not adopted, but discussed in relation to whether post-removal conduct can “revoke” consent; the Fifth Circuit notes a tension in authorities while treating Moreau’s repeated attempts to dismiss/transfer as undermining a finding of subjective consent.
  • Elkhaiat v. Mawashi, No. CV-24-02800, 2025 WL 711949 (D. Ariz. Mar. 5, 2025): Cited as an example of how some courts conceptualize “revocation” prior to the move in contrast to post-removal revocation doctrines.
  • England v. England, 234 F.3d 268 (5th Cir. 2000): Confirms district-court discretion to order return even when a defense applies, but insists the discretion must be exercised in light of Convention objectives.

4. Extra-treaty defenses: judicial estoppel and equitable doctrines

  • Lozano v. Montoya Alvarez, 572 U.S. 1 (2014): A key interpretive constraint. The Fifth Circuit invoked Lozano to caution against importing U.S. “background principles” (there, equitable tolling) into treaty interpretation, supporting its refusal to recognize judicial estoppel as an extra-treaty defense to a mandatory return.
  • Karpenko v. Leendertz, 619 F.3d 259 (3d Cir. 2010); Katona v. Kovacs, 148 F. App'x 158 (4th Cir. 2005) (per curiam); Stead v. Menduno, 77 F. Supp. 3d 1029 (D. Colo. 2014): Cited to show a substantial body of authority declining equitable defenses (e.g., unclean hands, equitable estoppel) not enumerated in the Convention.
  • In re Prevot, 59 F.3d 556 (6th Cir. 1995); Journe v. Journe, 911 F. Supp. 43 (D.P.R. 1995): Acknowledged as counterpoints suggesting some room for inherent powers/equitable doctrines in certain contexts, but not adopted here.
  • In re Superior Crewboats, Inc., 374 F.3d 330 (5th Cir. 2004): Supplies the abuse-of-discretion standard for judicial estoppel decisions.

5. Enjoining courts: international comity and restraint

  • Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357 (5th Cir. 2003): Framework for anti-suit/anti-proceeding injunctions affecting foreign litigation; requires balancing domestic interests against international comity and emphasizes restraint.
  • Can. Filters (Harwich) Ltd. v. Lear-Siegler, Inc., 412 F.2d 577 (1st Cir. 1969): Cited for the “a fortiori” notion that if federal law disfavors enjoining state courts (Anti-Injunction Act policy), even greater reluctance applies to foreign courts.
  • Danaipour v. McLarey, 286 F.3d 1 (1st Cir. 2002): Used to illustrate limits on directing courts in the habitual-residence country (e.g., ordering that country’s courts to conduct evaluations/adjudicate implications).
  • Sealed Appellant v. Sealed Appellee, 394 F.3d 338 (5th Cir. 2004); Rodriguez v. Yanez, 817 F.3d 466 (5th Cir. 2016): Cited to underscore that non-habitual-residence jurisdictions should not adjudicate custody merits—yet the Fifth Circuit still held federal courts should not “micromanage” foreign/state tribunals by command injunctions.
  • Levin v. Com. Energy, Inc., 560 U.S. 413 (2010): Invoked by analogy for comity/“proper respect for state functions,” reinforcing the Fifth Circuit’s expectation that state courts can assess their own jurisdiction in light of Hague obligations.

6. The dissent’s estoppel authorities (context for the split)

  • In re Coastal Plains, Inc., 179 F.3d 197 (5th Cir. 1999); Beall v. United States, 467 F.3d 864 (5th Cir. 2006); Ergo Sci., Inc. v. Martin, 73 F.3d 595 (5th Cir. 1996); United States v. McCaskey, 9 F.3d 368 (5th Cir. 1993); Occidental Petroleum Corp. v. Wells Fargo Bank, N.A., 117 F.4th 628 (5th Cir. 2024); Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391 (5th Cir. 2003); New Hampshire v. Maine, 532 U.S. 742 (2001): The dissent relied on these judicial-estoppel standards to argue estoppel should apply and is not displaced by the Convention.

B. Legal Reasoning

1. Habitual residence: rejecting a “temporary-move” categorical bar

White’s central legal pitch—“a parent cannot unilaterally change habitual residence when a court authorized only a temporary out-of-country move”—was treated as incompatible with Monasky’s instruction against categorical tests. The Fifth Circuit instead asked the practical question: were the children “at home” in Canada at the time of retention?

Applying clear-error review, the court emphasized acclimatization facts the district court found persuasive: more than five years living and schooling in Canada, established medical and social ties, and the children having spent most of their young lives there. Moreau’s statements that the move was “temporary” and evidence of Texas connections cut the other way, but that competing evidence did not permit reversal under Harm v. Lake-Harm.

2. Custody rights: affirming breach without a definitive Canadian-law treatise

While the district court relied on Canadian statutes, the Fifth Circuit avoided broad pronouncements about foreign law. It affirmed on a record-based alternative: the Canadian court’s partial recognition of the Texas August 2, 2023 custody order—paired with the Canadian court’s supersession of the geographic restriction—left Moreau with a non-geographically limited right to determine the children’s residence as recognized in Canada. Retaining the children in Texas “indefinitely” breached that right, satisfying the Convention’s “rights of custody” requirement.

3. Consent defense: subjective intent and the problem of “forced participation”

The court treated Article 13(a) consent as turning on the petitioner’s subjective intent (Larbie v. Larbie). It distinguished Larbie because Moreau repeatedly challenged Texas’s jurisdiction and sought transfer/dismissal, rather than silently accepting Texas authority until after an adverse final decree.

The Fifth Circuit also reasoned that requiring a parent to repeat jurisdictional objections “ad nauseum” to avoid a consent finding—especially after repeated state-court rejections—would be unrealistic and potentially contempt-inducing. On this record, White failed to carry his burden to prove consent by a preponderance.

4. Judicial estoppel: not an “extra-treaty” bar to return in this case

The most precedent-shaping move is the court’s refusal to use judicial estoppel to block a Convention return. Starting from the Convention’s text (“shall order the return”) and the implementing statute’s emphasis on “narrow exceptions,” the Fifth Circuit held that judicial estoppel was “unavailable as an extra-treaty defense to a mandatory return” here.

The court leaned heavily on Lozano v. Montoya Alvarez to justify interpretive caution: U.S. equitable doctrines are not automatically exported into treaty regimes, particularly when uniform international interpretation is a stated aim. Although the opinion acknowledges non-uniform lower-court approaches, it found no circuit authority recognizing judicial estoppel as an affirmative defense to the Hague return remedy.

5. Remedial limits: vacating “command” language to Canada and the derivative Texas injunction

The Fifth Circuit drew a sharp boundary between (i) ordering return under the Hague Convention and (ii) directing the future conduct of foreign tribunals. Under Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, injunctions touching foreign proceedings require a comity-sensitive balance and must issue “sparingly.”

Here, the district court’s explicit “COMMAND language” that “the Canadian Court shall decide[] the child custody dispute” was held to affront comity. The court therefore vacated both the Canada-directed portion of the return order and the preliminary injunction. Because the Texas litigation injunction was corollary—intended to enforce the now-vacated command to Canada—it too was vacated.

Notably, the Fifth Circuit did not deny that Hague principles effectively “fix” the custody forum in the habitual-residence country; it simply insisted that Texas courts are “more than capable” of applying the return order and Hague constraints without a federal command to Canada or a sweeping injunction against state adjudication.

C. Impact

  • Limits on Hague “cleanup” injunctions: The opinion signals that even when federal courts correctly order return, they should be highly reluctant to issue ancillary injunctions that (a) direct foreign courts to act or (b) enjoin state-court custody proceedings as a mechanism to enforce a foreign-command directive. Expect future litigants to cite Moreau to challenge expansive post-return injunctive relief.
  • Judicial estoppel as a return-blocker faces headwinds in the Fifth Circuit: While carefully framed “in this case,” the reasoning—treaty text, “narrow exceptions,” and Lozano—will likely be deployed to resist other extra-treaty defenses (unclean hands, equitable estoppel, waiver) when raised to defeat the return remedy.
  • Habitual residence remains highly fact-bound: The court rejected a proposed categorical bar tied to “temporary” moves authorized by a state court, reinforcing that acclimatization and the child’s real-world integration can outweigh earlier parental characterizations—subject to clear-error deference.
  • Cross-order recognition can matter to “rights of custody”: The court’s reliance on the Canadian court’s recognition/supersession of a Texas order shows how transnational recognition decisions may become evidence of custody rights without requiring the U.S. court to fully opine on foreign statutory custody regimes.
  • Dissent foreshadows future conflict: Judge Jones’s dissent argues that “revocation” of consent is doctrinally suspect and that judicial estoppel should remain available to deter “duplicitous conduct.” That split tees up continued litigation over how far treaty exclusivity goes in displacing domestic equitable doctrines.

IV. Complex Concepts Simplified

  • Habitual residence: The country where the child is “at home,” assessed by real-life facts (schooling, friends, stability), not by rigid legal labels or any single dispositive factor.
  • Wrongful retention (vs. removal): “Retention” means keeping the child in a place beyond the agreed/authorized time or contrary to the other parent’s custody rights, even if the child initially arrived lawfully.
  • Rights of custody (vs. access): “Custody” includes the right to determine the child’s place of residence (Hague Convention art. 5(a)); “access” is visitation/parenting time. Breaching residence-determination authority is a custody breach triggering return remedies.
  • Article 13(a) consent defense: If the left-behind parent actually consented to the removal/retention beforehand, a court may decline return. Courts look to what the parent subjectively intended and what was contemplated.
  • Judicial estoppel: A doctrine that can stop a party from taking inconsistent positions across cases to gain advantage. The Fifth Circuit here treated it as an impermissible “extra-treaty” defense to a Convention return.
  • International comity: Respect among sovereign legal systems. U.S. courts may not “command” foreign courts; any interference must be extraordinarily restrained.

V. Conclusion

Moreau v. White delivers two enduring lessons for Hague Convention practice in the Fifth Circuit. First, on the merits, habitual residence remains a flexible, fact-driven inquiry under Monasky v. Taglieri, and return turns on whether the child was wrongfully retained in breach of custody rights—here established without sweeping pronouncements on Canadian statutory law. Second, and most importantly, the opinion draws a bright remedial boundary: federal courts may order return, but they may not “command” foreign custody courts to adjudicate, nor may they sustain state-court litigation injunctions that exist to enforce such a command. Alongside that remedial restraint, the court’s refusal to recognize judicial estoppel as an extra-treaty bar to return underscores a treaty-text-first approach that will shape future battles over non-enumerated equitable defenses.