In Monzon v De La Roca, 2018 WL 6424956 (3d Cir, 2018) the third Circuit the District Court’s denial of the Petition seeking the return of his minor child, H.C.
Castellanos married De La Roca in 2004. Their son, H.C., was born in 2010. The couple separated in November 2011, and divorced by mutual consent in January 2014. De La Roca claimed that violence was a factor, although she did not raise that issue in the divorce proceedings. Castellanos categorically denied all of De La Roca’s allegations of abuse. In the summer of 2013, after her separation from Castellanos, but before they divorced, De La Roca began a long-distance relationship with her childhood acquaintance, “Deleon,” who resided in New Jersey. De La Roca obtained a visa for H.C. to travel to the United States with Castellanos’s consent, though she did not immediately bring H.C. to the U.S. She married him in March of 2014. She did not tell Castellanos about the marriage. Shortly after marrying Deleon, De La Roca told Castellanos that she intended to bring H.C. to the United States to live; Castellanos refused to consent. In or around March of 2014, De La Roca filed a domestic violence complaint against Castellanos in Guatemala and obtained a temporary restraining order. However, she failed to appear at the hearing to make the TRO permanent because she had already moved to New Jersey before the final hearing. In July of 2014, De La Roca took H.C. to the United States. A month after taking H.C. to New Jersey, she sent Castellanos a text message informing him she was there with H.C. She did not disclose their exact address “[o]ut of fear that he would come [to New Jersey] to do the same thing as in Guatemala.” On August 23, 2014, Castellanos filed an Application for Return of the Child under the Convention with the Central Authority in Guatemala.
On January 5, 2016, having discovered that the Convention required him to file where H.C. lived, Castellanos filed the Petition for Return of the Child (the “Petition”) in the District Court of New Jersey. The District Court entered judgment in favor of De La Roca, thereby refusing to return H.C. to Castellanos. However, the Court expressly declined to address De La Roca’s affirmative defense under Article 13b (H.C.’s return to Guatemala constitutes a “grave risk”). Instead, the Court concluded that De La Roca had successfully demonstrated by a preponderance of the evidence, that H.C. was well settled in the United States pursuant to ICARA, and therefore decided not to exercise its independent authority to order H.C.’s return to Guatemala.
Castellanos argued that the District Court erred in not finding that the notice he filed with the Guatemalan Central Authority and the U.S. Department of State constituted a “proceeding” for purposes of Article 12 of the Convention, thereby entitling him to have H.C. returned pending resolution of the custody dispute. The Third Circuit pointed out that ICARA defines “commencement of proceedings” as used in Article 12 of the Convention as “the filing of a petition in accordance with [§ 9003(b) ].”Section 9003(b) provides, in turn, that “[a]ny person seeking to initiate judicial proceedings under the Convention for the return of a child ... may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.” Therefore, it could not conclude that mere notice of one’s intent to have a child returned to the parent in a signatory state constitutes “commencement of proceedings” under Article 12. In recognizing that the ‘now settled’ exception applies where the child has been in the destination state for more than one year from the date of the wrongful removal or retention it noted that the delay in filing the Petition for H.C.’s return did not eliminate Castellanos’s remedies under the Convention,42 nor did it ensure De La Roca’s success in resisting the Petition for H.C.’s return. Here, the District Court correctly recognized its continuing independent authority to order H.C.’s return; however, it declined to exercise this authority.
De La Roca did not dispute the District Court’s conclusion that Castellanos established each of the conditions for H.C.’s return under the Convention. Accordingly, De La Roca had to produce sufficient evidence to establish an affirmative defense to Castellanos’s Petition pursuant to subsection (e)(2) of ICARA. § 9003(e)(2) of ICARA provides as follows: (e) Burdens of proof ... (2) In ... an action for the return of a child, a respondent who opposes the return of the child has the burden of establishing--(A) by clear and convincing evidence that one of the exceptions set forth in article 13b or 20 of the Convention applies; and (B) by a preponderance of the evidence that any other exception set forth in article 12 or 13 of the Convention applies.
The Court rejected Castellanos argument that the use of the conjunctive “and” means that De La Roca must establish both prongs of § 9003(e)(2) by the specified burden of proof before his Petition for H.C. could be denied. De La Roca asserted two affirmative defenses to the Petition—that H.C. is well settled in the United States, and that returning him to Guatemala would present a grave risk. Under (e)(2)(A), a respondent must prove by clear and convincing evidence that (1) there is a grave risk that the child’s return would expose the child to physical or psychological harm; or (2) the return should not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. ICARA requires that a respondent only establish by a preponderance of the evidence that (1) the child is now settled in its new environment; or (2) the petitioner was not exercising custody rights at the time of removal. (citing as precedent Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995) (noting that a respondent who opposes a child’s return “may advance any of the affirmative defenses to return listed in Articles 12, 13, or 20 of the Hague Convention.”); Miller v. Miller, 240 F.3d 392, 402 (4th Cir. 2001) (“In fact, the courts retain the discretion to order return even if one of the exceptions is proven.”); Ohlander v. Larson, 114 F.3d 1531, 1534 (10th Cir. 1997) (the Hague Convention “provides for several exceptions to return if the person opposing return can show any” of the listed exceptions); Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996) (“Once a plaintiff establishes that removal was wrongful, the child must be returned unless the defendant can establish one of four defenses.”);Blondin v. Dubois, 189 F.3d 240, 245 (2d Cir. 1999); In re Lozano, 809 F.Supp.2d 197, 235 (S.D.N.Y. 2011); Lozano v. Alvarez, 697 F.3d 41, 59 (2d Cir. 2012); Lozano, 572 U.S. at 8, 18; see also id. at 19 (Alito, J., concurring) (“This is why Article 12 requires return ‘forthwith’ if the petition for return is brought within a year of abduction, unless one of the narrow exceptions set forth in Article 13 or 20 applies.”)
Castellanos also complained that De La Roca did not actually offer sufficient evidence to prove that H.C. was well settled in the United States. Reviewing the district court’s factual findings for clear error it found that the record supported the District Court’s finding that H.C. was well settled in his new environment. There was no error in reaching that conclusion, let alone any clear error in doing so.