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.