In
Castellanos Monzon v De La Roca, --- Fed.Appx. ----, 2018 WL 3471549 (Mem) (3rd
Cir., 2018) Hugo Castellanos Monzón appealed from the denial of his petition
for the return of his child, H.C., to Guatemala.
Castellanos
filed his petition with the District Court in 2016, eighteen months after his
ex-wife, appellee Ingrid De La Roca, was alleged to have wrongfully removed
H.C. to the U.S. without Castellanos’s consent. Castellanos took immediate
steps to have H.C. returned by seeking redress from the Guatemalan Central
Authority and the U.S. State Department. However, Castellanos failed to
commence proceedings within one year of the date of H.C.’s wrongful removal,
and, as the Third Circuit held, the District Court correctly applied the
relevant statutory provisions for when proceedings are initiated more than a
year after a child is removed from the requesting parent.
The Court pointed out that the
unambiguous text of ICARA required Castellanos to initiate a “proceeding” in
“any court which has jurisdiction of such action,” and it is powerless to
stretch that text to include either the Guatemalan Central Authority or the
U.S. State Department.
When proceedings for a petition for the return
of a child begin more than one year from the child’s removal, the Convention
states that the court “shall order the return of the child,” subject to
specific affirmative defenses set forth in § 9003(e). De La Roca, as respondent
to Castellanos’s petition, had to establish those defenses according to the
burdens of proof specified in subsection (e)(2) of that statute. In order
to defeat Castellanos’s petition for the return of H.C., the statute clearly
states that De La Roca had to establish “one of the exceptions set forth in
article 13b or 20 of the Convention” “by clear and convincing evidence ... and”
that she must establish “any other exception set forth in article 12 or 13 of
the Convention” “by a preponderance of the evidence.”
ICARA requires that a petitioner in an action
for return of the child establish by a preponderance of the evidence that “the
child has been wrongfully removed or retained within the meaning of the
Convention.” 22 U.S.C. § 9003(e)(1)(A). In particular, a court must determine
“(1) when the removal or retention took place; (2) the child’s habitual
residence immediately prior to such removal or retention; (3) whether the
removal or retention breached the petitioner’s custody rights under the law of
the child’s habitual residence; and (4) whether the petitioner was exercising
his or her custody rights at the time of removal or retention.” Karpenko, 619
F.3d at 263. Here, the District Court found that Castellanos had established a
prima facie case of wrongful removal and/or retention.
The District
Court concluded that De La Roca had established by a preponderance of the
evidence that H.C. was “now settled in the United States,” one of the
exceptions set forth in Article 12 of the Convention, and that H.C. therefore
should not be returned to his father in Guatemala. However, the District
Court’s inquiry ended there. The court did not address whether De La Roca had
established, by clear and convincing evidence, “one of the exceptions set forth
in article 13b or 20 of the Convention,” as required by § 9003(e)(2)(A).
The Third Circuit rejected De La Roca’s argument that Congress intended
that the requirements contained in subsections (e)(2)(A) and (e)(2)(B) be
interpreted in the disjunctive. It held that until instructed to the contrary
by Congress or the Supreme Court, we must assume that “and” in the statute
means “and,” not “or.”
It remanded the matter to the District
Court with instructions to conduct both parts of the inquiry set forth in §
9003(e)(2) and that De La Roca be required to establish the exceptions provided
in that statute pursuant to the respective levels of proof.
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