Family Law-Multifactor Test Applies to Determine Well-Settled Defense under Hague Convention on International Child Abduction

By DiMauro, Michael | Suffolk Transnational Law Review, Winter 2018 | Go to article overview

Family Law-Multifactor Test Applies to Determine Well-Settled Defense under Hague Convention on International Child Abduction


DiMauro, Michael, Suffolk Transnational Law Review


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. …

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