Sunday, June 19, 2016
In Alcala v Hernandez, 2016 WL 3343251 (4th Cir.,2016) in June 2013, Appellee Claudia Garcia Hernandez (Mother) removed her two minor children from their home in Mexico and arrived in South Carolina in August 2013. In October 2014, the children’s biological father, Appellant Fernando Contreras Alcala (Father), petitioned for return of the children to Mexico. The district court found that Mother’s removal of the children was wrongful, but that the children were now settled in their new environment and declined to order the children returned. The Fourth Circuit affirmed. It noted that Article 12 states that where appropriate proceedings are not commenced within one year of a child being wrongfully removed, a court shall nevertheless order return “unless it is demonstrated that the child is now settled in its new environment.” In a case of first impression in this Circuit the Court found that the reasoning of the Second Circuit in Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir. 2012), aff’d in part sub nom. Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014) was consisted with its reasoning and agreed 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 new environment. Insofar as relevant facts to be considered, it held that courts should consider any relevant circumstance that demonstrates security, stability, or permanence—or the lack thereof—in a child’s new environment. Such a totality-of-the-circumstances analysis . It observed that the district court here looked to the factors articulated by the Second Circuit in Lozano: (1) the age of the child; (2) the stability of the child’s residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent’s employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent. The district court correctly recognized that such factors are non-exhaustive, and in a particular case some of these considerations may not apply and additional considerations may be relevant. While it agreed that the use of such factors may be helpful in guiding factual development and analysis, their use should not obscure the ultimate purpose of the court’s inquiry, which is a holistic determination of whether a child has significant connections demonstrating a secure, stable, and permanent life in his or her new environment.
The Fifth Circuit also observed that under the Convention Courts have discretion to order the return of the child at any time. However, the Convention provides no explicit guidance as to when a court should exercise such discretion. It noted that the discretion to order return is grounded in principles of equity and it was not persuaded that equitable considerations warranted ordering the Son’s return.