ALCALA v. HERNANDEZ, No. 15-2507

Decided: June 15, 2016

The Fourth Circuit determined that although the district court found that Defendant’s removal of her children from their home in Mexico to the United States was wrongful under the Hague Convention, its decision to decline to order the children returned was proper under the law.  Therefore the Court affirmed

On July 2, 2013, Defendant—Claudia Garcia Hernandez (“Mother”)—and her minor children entered the United States without authorization.  She had fled Mexico without telling Plaintiff (“Father”), the father of her children.  Mother and her children eventually arrived in Florence, South Carolina, where they initially moved in with family.  Mother enrolled her older son in third grade, and the younger child was not old enough to attend school.  She also maintained a job.  In January 2014, Mother and her children moved to Darlington County, South Carolina.  Because of the move, Mother had to withdraw her older son from his initial school and enroll him into his designated county school.  He was able to complete the 2013-2014 at that school, where he made decent grades and was enrolled in the English for Speakers of Other Languages (“ESOL”) program.  In November 2014, Mother, her boyfriend, and the children moved for a third time, but this move did not require her son to have to transfer schools.  On October 27, 2014, Father filed a petition in district court seeking the return of his children to Mexico under the Hague Convention.  Although Father argued that because the children were under 16 and had been wrongfully removed from their country of habitual residence—which  under the Convention would require the children to be returned—Mother asserted that there were certain exception to the general rule of return.  Specifically, Mother asserted, among other things, that her son was settled in the new environment.  The district court agreed, declining to order the children retuned to Mexico.  Father appealed, arguing that the district court erroneously concluded that the totality of the circumstances established that the son was “settled.”

While the Hague Convention does not define wat it means for a child to be “settled,” the Fourth Circuit found the Second Circuit’s analysis to be persuasive and therefore agreed that that for a child to be “settled” within the meaning of the Convention, the child must have significant connections demonstrating a secure, stable, and permanent life in his or her environment.  Despite Father’s attempt to show that the son’s living arrangements—moving three times—and his son immigration status were indicators that her was not “settled,” the Court was not persuaded.  The Court instead looked to the son’s good school record, family ties, and Mother’s ability to care for the son and determined that the son was “settled” within the meaning of the Convention.

Therefore the Court affirmed the decision of the district court.

Full Opinion

Aleia M. Hornsby

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