FAMILY LAW--MULTIFACTOR TEST APPLIES TO DETERMINE WELL-SETTLED DEFENSE UNDER HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION.

• Author: DiMauro, Michael
• Position: Case note

FAMILY LAW--Multifactor Test Applies to Determine Well-Settled Defense Under Hague Convention on International Child Abduction--Hernandez v. Pena, 820 F.3d 782 (5th Cir. 2016).

Pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (Convention), the highest priority is to protect the interests of those children who were taken by one of their parents from their habitual residence to another country. (1) If a parent abducts his or her child to another country, there are certain defenses under the Convention, like Article 12, that may allow the child to remain in the residing country. (2) In Hernandez v. Pena, (3) the Fifth Circuit Court of Appeals of the United States, in a case of first impression, dealt with the issue of whether a child who was abducted from his home and taken to the United States can use the "well-settled" defense claim under Article 12 of the Convention. (4) The Fifth Circuit vacated the district court's order due to the fact that the child was not "well-settled" in the United States under Article 12 of the Convention because he did not meet the multifactor test used for children who have been in the United States for more than a year. (5)

D.A.P.G. was born in Honduras to Reina Leticia Garcia Pena and Franklin Pleites Hernandez on September 17, 2009. (6) Hernandez and Garcia Pena got married in 2012, but stopped living together after two years due to their deteriorating relationship. (7) On May 20, 2014, D.A.P.G., who was four-and-a-half years-old at the time, left Honduras with Garcia Pena to enter the United States without informing Hernandez. (8) Immigration authorities arrested Garcia Pena and D.A.P.G. after Garcia Pena hired smugglers to get them illegally into the United States through Texas. (9)

Once the immigration authorities released Garcia Pena and D.A.P.G. into the United States, they lived with Garcia Pena's brother in Nashville, Tennessee for five months until they moved to New Orleans, Louisiana in October of 2014. (10) Garcia Pena and her boyfriend had a child together in May 2015. (11) D.A.P.G. was six-years-old in 2015 and was consistently attending kindergarten and accompanying his mother to church a couple times a week. (12) While D.A.P.G. was in school, Garcia Pena had a stable job working for the housekeeping department in a hotel. (13)

On August 4, 2015, Hernandez filed a petition in the United States District Court for the Eastern District of Louisiana arguing that his son was wrongfully removed under the Convention from Honduras and needed to be returned to him immediately. (14) Garcia Pena admitted that her son was "wrongfully removed under the Convention," but that he should not be sent back to Honduras because he was "well-settled" in the United States. (15) During the lower court proceeding, exhibits were entered regarding notices to appear for removal hearings in front of the New Orleans Immigration Court that were sent to Garcia Pena and D.A.P.G. (16) The Eastern District of Louisiana denied Hernandez's petition for the return of D.A.P.G. to Honduras under the Hague Convention because D.A.P.G. was "well-settled" in his new environment based on the multifactor test. (17)

Immediately following the lower court's decision, Hernandez filed an appeal in the Fifth Circuit Court of Appeals, who vacated the district court's order and rendered a decision in favor of Hernandez due to the fact that Garcia Pena and D.A.P.G.'s status in active removal proceedings was an important factor in the multifactor test to determine whether D.A.P.G. was "well-settled" in the United States. (18)

Under the Hague Convention on International Child Abduction, the drafters set out to protect children from wrongful removal and enacted rules to enable them to return to their home country. (19) The Convention was not implemented to settle legal custody battles, which were left for the courts in the country of habitual residence. (20) The Convention's drafters never defined the meaning of "well-settled" under Article 12, affording discretion to the courts to ultimately decide if a child is "well-settled." (21) Many courts use a multifactor test to determine whether the child is "well-settled" in his or her new environment if a petition was filed more than a year after the child was taken from his or her home country. (22) Moreover, studies have shown that mothers are more likely to remove their child from the home country. (23) In addition, the United States is the leading destination to receive the most petitions for the return of children out of any other member to the Convention. (24)

In order for a child to reside in the country that he or she was abducted to, the child has to be able to pass the multifactor test that courts use to determine whether children are "well-settled" under Article 12 of the Convention. (25) Most courts take into account the same six factors that include: (1) the child's age; (2) the stability and length of the child's new residence; (3) whether the child attends school on a daily basis; (4) whether the child has friends and relatives in the new environment; (5) the child's involvement in community or extracurricular activities; and (6) whether the respondent is employed and financially stable; however, courts give varying weight to the immigration status of the child. (26) An important case that analyzed how much weight immigration status should bear in Article 12 "well-settled" disputes was In re B. Del C.S.B., (27) in which the Ninth Circuit Court of Appeals had to decide whether a child was not "well-settled" simply because she was not a lawful resident (28) The Ninth Circuit, in looking at the text of the Convention, case law, and the reality of undocumented status, ultimately decided that the child was "well-settled." (29) If a child has met all the factors under the "well-settled" analysis, but is an undocumented immigrant who has not faced the threat of deportation, In re B. Del C.S.B. illustrates that immigration status should be given lit tie weight as long as the child is "well-settled" under the other factors of the Article 12 test. (30)

In Lozano v. Alvarez, (31) the Second Circuit Court of Appeals dealt with an issue of first impression where the Court was tasked with determining whether a child was "well-settled" under Article 12 of the Convention if she lacked legal immigration status. (32) The Second Circuit used a very fact-based approach to determine if the child was "well-settled" under the multifactor test and ultimately came to the conclusion that the child was "well-settled" in her new environment. (33) By using a very individualized, fact-specific approach to immigration status and the "well-settled" multifactor test, the Second Circuit was able to balance many factors to make a well-rounded determination as to the child's "well-settled" defense. (34)

In Hernandez v. Pena, (35) the Fifth Circuit Court of Appeals, in a case of first impression, determined whether D.A.P.G. was "well-settled" under the Convention based on a multifactor approach. (36) The Fifth Circuit Court of Appeals joined the Second and Ninth Circuits regarding the fact that immigration status "is one relevant factor in a multifactor test." (37) It also agreed with the Second Circuit that each case should be viewed in an individualized, fact-specific analysis. (38) However, the Court made it a priority to distinguish itself from the Ninth Circuit because Garcia Pena and D.A.P.G. were facing active removal proceedings. (39) Thus, the Court ruled that the district court's analysis and ruling that D.A.P.G. was "well-settled" was not correct because it failed to take into account Garcia Pena's and D.A.P.G.'s specific immigration situation, such as the undocumented nature of their immigration status and the fact that they failed to appear at their removal proceedings. (40)

Not only did the Fifth Circuit factor in D.A.P.G.'s immigration status to the multifactor test, but it also weighed the other factors in order to determine whether D.A.P.G. was "well-settled" in the United States. (41) The other factors that the Court weighed were: the child's age; the stability and duration of the child's new residence; the child's attendance at school and amount of relatives in the new environment; the child's participation in community activities; and the mother's employment stability. (42) After factoring in all of these factors, as well as the immigration status of D.A.P.G., the Fifth Circuit ultimately came to the conclusion that the child did not form a significant connection to his new environment in the United States and thus was not "well-settled" under the Convention. (43)

The Fifth Circuit Court of Appeals correctly vacated the district court's order and rendered a decision in Hernandez's favor because it accurately applied the immigration status precedent from the Second and Ninth Circuits to the unique facts of D.A.P.G.'s situation. (44) The Fifth Circuit correctly ruled that immigration status is just one factor in a multifactor test to determine whether a child is "well-settled" under the Hague Convention. (45) However, it is important to note that the Fifth Circuit had to distinguish itself properly from the Ninth Circuit because D.A.P.G. was facing active removal proceedings (46) Therefore, the Fifth Circuit accurately factored in Garcia Pena and D.A.P.G's failure...