Samantha Estefenia Francisco Castro v. Jose Leonardo Brito Guevara

The Hague Convention on the Civil Aspects of International Child Abduction generally requires the return of a child to his or her country of habitual residence. But when a Hague Convention petition is brought more than a year after the child’s removal, a court need not return the child if “it is demonstrated that the child is now settled in its new environment” (the “well settled” defense). Hague Convention, art. 12. In determining whether a child is sufficiently settled for the purposes of the “well settled” defense, a trial court considers the totality of the circumstances, including factors like the child’s age, the stability and duration of the child’s residence in the new environment, the child’s school attendance, and the extent of the child’s participation in his or her new community. After considering and weighing all the facts, the trial court must then decide whether the child has become sufficiently settled in the new environment. The question presented is: Is a trial court’s determination that a child is “well settled” subject to de novo review, or is it reviewed for clear error? (i)