94 F.4th 174
1st Cir.2024Background
- Both parents, Da Costa and De Lima, are Brazilian nationals formerly married with a child; De Lima was granted custody in Brazil, and Da Costa had visitation rights.
- After the divorce, De Lima secretly took the child from Brazil to Martha’s Vineyard, Massachusetts, USA, settling there for over a year before Da Costa discovered their location.
- Da Costa, upon learning his child was in the US, sought their return via the Hague Convention on the Civil Aspects of International Child Abduction, filing a petition in US federal court.
- The district court held a bench trial, considered evidence from all parties, and denied Da Costa’s petition, concluding the child was “now settled” in the US.
- On appeal, Da Costa challenged the sufficiency and weight of the evidence supporting that the child was "now settled," and argued improper use of post-petition evidence and consideration of the child’s best interests.
Issues
| Issue | Plaintiff's Argument (Da Costa) | Defendant's Argument (De Lima) | Held |
|---|---|---|---|
| Whether district court erred in focusing on post-petition evidence to find the child "now settled" | Reliance solely on post-petition evidence is erroneous; process should consider period pre-dating the petition | Argument waived and Convention's text allows emphasis on current circumstances | No error; Convention supports consideration of current (post-petition) settlement |
| Whether district court applied and weighed the “now settled” defense factors correctly | Court used wrong geographic scope (only Martha’s Vineyard), overstated stability, ignored De Lima’s misconduct | Factors and geographic scope were proper; court considered all facts and misconduct is not central to settlement | No clear error; factors properly considered and findings supported by record |
| Whether court improperly considered best interests of child under Hague Convention | Best interests standard is not part of Convention returning analysis; analysis was “tainted” by those considerations | District court exercised appropriate equitable discretion; facts and policy interests intertwined | Court properly used discretion; no improper substitution of best interests |
| Whether De Lima’s misconduct in concealing the child affected “now settled” status | Concealment and alleged forgery should undermine finding of settlement | Concealment has no bearing unless it prevents attachments; not shown here | Misconduct did not affect the "now settled" analysis in these facts |
Key Cases Cited
- Lozano v. Montoya Alvarez, 572 U.S. 1 (2014) (articulates “now settled” defense under the Hague Convention and relevance of current circumstances)
- Monasky v. Taglieri, 140 S. Ct. 719 (2020) (totality-of-the-circumstances inquiry for habitual residence; applied to "now settled" determinations)
- Abbott v. Abbott, 560 U.S. 1 (2010) (Hague Convention rests on principle that custody decisions are best made in country of habitual residence)
- Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000) (discusses limited role of “best interests” analysis under the Convention)
- Yaman v. Yaman, 730 F.3d 1 (1st Cir. 2013) (district court’s equitable discretion in return orders and weighing of misconduct)