Fernando Alcala v. Claudia Hernandez
826 F.3d 161
4th Cir.2016Background
- Mother (Claudia Garcia Hernandez) removed two minor children from Mexico to South Carolina in 2013 without Father’s consent; Father (Fernando Contreras Alcala) filed a Hague Convention petition for return in October 2014.
- The district court found the removal wrongful and that the one-year statutory period had expired, triggering the Article 12 “now settled” inquiry under the Convention/ICARA.
- The court held a bench trial, received testimony from parents, relatives, teachers, and reviewed a forensic interview of the older child (Son), who had rapidly acquired English and performed well in school.
- Fact findings: Son has strong school performance, friends, church involvement, multiple nearby family members providing support, and stable housing within the same community despite three moves; Mother provides for the children though both lack lawful immigration status.
- The district court concluded Son was “settled” in the United States (so return was not required) and declined to exercise its residual equitable discretion to order return; Father appealed and the Fourth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (Mother) | Held |
|---|---|---|---|
| Whether Son is "settled" under Article 12 so return is not required | Son is not settled: moves, school changes, absences, and lack of stability mean Article 12 requires return | Son has significant connections (school, friends, church, family, stable home life) showing security, stability, permanence | Son is "settled": preponderance of evidence supports significant connections demonstrating security, stability, permanence |
| Weight of immigration status in "settled" analysis | Lack of lawful status for Mother/Son is inherently destabilizing and should preclude "settled" finding | Immigration status is relevant but not dispositive; must be considered in totality and practical effect on stability | Immigration status is neither dispositive nor categorical; consider practical impact. Here it did not outweigh stabilizing factors |
| Whether court may nonetheless exercise discretion to order return despite "settled" finding | Wrongful removal and deterrence justify using district court’s discretion to order return | Even if discretion exists, equitable considerations counsel against return here | Court has discretion under Article 18; equitable discretion was properly declined given facts and lack of inequitable conduct by Mother |
| Whether Son’s maturity or grave risk exceptions applied (alternative defenses) | — | Mother argued Son maturely objected and grave risk existed | District court found Son not sufficiently mature to object and grave risk not shown; cross-appeal on maturity dismissed as moot |
Key Cases Cited
- Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014) (discusses Hague Convention return remedy and exceptions)
- Abbott v. Abbott, 560 U.S. 1 (2010) (explains Convention’s return remedy and venue rationale)
- Miller v. Miller, 240 F.3d 392 (4th Cir. 2001) (interpreting Convention exceptions and district court review)
- Maxwell v. Maxwell, 588 F.3d 245 (4th Cir. 2009) (standards of review for Hague/ICARA matters)
- In re B. Del C.S.B., 559 F.3d 999 (9th Cir. 2009) (uses totality of circumstances for "settled" analysis)
- Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) (limits U.S. courts to Convention rights, not custody merits)
- Yaman v. Yaman, 730 F.3d 1 (1st Cir. 2013) (discusses equitable discretion to order return despite exceptions)