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Sunday, July 22, 2018

Castellanos Monzon v De La Roca, --- Fed.Appx. ----, 2018 WL 3471549 (3rd Cir., 2018) [Guatemala] [Petition denied][Remand]

          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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