An increasingly litigated area of international child custody involves returning a child to their habitual residence under the Hague Convention. However, there are also defenses to a return under the Convention. Recently, a Florida court answered the question whether a wrongfully retained child in Florida was now settled here and need not be returned.
Return to Machu Picchu?
In the Florida case, a Father and Mother married in Peru in 2012. One child was born during the marriage, and all three are Peruvian citizens. They divorced in 2015, had joint custody, but the child lived primarily with Mother.
In 2021, Mother wanted to visit Florida. The parents signed a travel authorization for the trip from September 2021, through October 2021. However, the Mother and Child never returned. More than a year later, Father filed a state court petition for return of the child to Peru.
The trial court found that Father had rights of custody, had been exercising his rights at the time of the wrongful retention and Peru was the child’s habitual residence.
However, the trial court found that the Father was aware that the Mother was not returning to Peru with the Child before the October return date and that the Mother established, by a preponderance of the evidence, the “well settled” or “now settled” recognized exception under the Hague Convention. The Father appealed.
Florida and the Hague Convention
I have written and spoken on international custody and child abduction under the Hague Convention. The Convention’s mission is basic: to return children to the State of their habitual residence to require any custody disputes to be resolved in that country, and to discourage parents from taking matters into their own hands by abducting or retaining a child.
The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
However, a child need not be returned if it is demonstrated that the child is now settled in the new environment. The U.S. State Department’s interpretation of what “settled” means includes factors such as the child’s age; the stability and duration of the child’s residence in the new environment; whether the child attends school or day care consistently or inconsistently; friends and relatives and participation in school activities, such as team sports, youth groups, or school clubs for example.
Unsettling
The appellate court found that the “well settled in her new environment” exception to the Hague Convention, is not specifically defined in either the Convention itself or in the federal implementing statute ICARA.
But, a child has been considered to be “settled ‘within the meaning of the Convention when a child has significant connections to their new home that indicate that the child has developed a stable, permanent, and non-transitory life in their new country to such a degree that return would be to child’s detriment.
The appellate court reviewed the extensive testimony and the record which adequately shows that the trial court received competent substantial evidence. Accordingly, the appellate court held that Father failed to establish that clear error was committed by the trial court in finding that Mother met her burden of proof on this exception and in thereafter exercising its discretion to not return Child to Peru. Accordingly, the final order denying Father’s petition for return of Child to Peru is affirmed.
The opinion is here.
