Case Update (17 Aug 2026): Ovalles Guerra v. Aparcedo; District Court Fails to Refer to Monasky in Deciding a Child’s Habitual Residence
The parties are parents to a minor child, now age 12, who was born in 2014 in Panama. During the child’s youth, the child moved back and forth between Panama and Venezuela. In or around November 2018, the Petitioner Father moved to Spain, and has resided there since that date, up until about May 2026, when he said he returned to Panama and is now residing there. In January 2021, the Mother and child had relocated to the United States, and obtained Temporary Protected Status as citizens of Venezuela. The Father alleges he did not consent, but ultimately extended his authorization, for the child to continue her presence in the United States. The parties had been subject to legal proceedings related to their child in Panama, but, believing that the Panamanian custody order would not permit the Father to enforce his custody rights, he filed a custody suit in Pennsylvania in or around January 2025. The parties litigated custody of their child in Pennsylvania, with the Father seeking time with the child in Spain, where he was residing with his Wife. The court denied this request, providing only for time between Father and child in the USA. In November 2025, the child’s TPS status was terminated, and the Father again sought relief from the Pennsylvania courts, arguing for sole custody of the child due to the immigration issues. The court denied the Father’s request, but ordered the Mother to provide him with proof of her application for new legal status, which she did. A Pennsylvania custody order was entered in February 2026, providing for Father to have visitation with the child in the United States. Shortly after the Father says he resumed residence in Panama, he filed a request to return the child to Panama on June 3, 2026 in the district court in Pennsylvania. He stressed his concern that the child would face serious risk of deportation. He argued that the date that the child was wrongfully retained in the United States was in November 2025, when her TPS status was lost, at which time he says he revoked his consent for the child’s continued residence in the USA.
The critical question, and the only one addressed by the court in its opinion, was the child’s habitual residence as of November 2025 (four years after she moved to Pennsylvania). The court concluded it was not Panama. However, in doing so, the court did not cite to the U.S. Supreme Court case of Monasky v. Taglieri, the prevailing guidance on habitual residence in the United States. Instead it relied on a 2017 case from the Third Circuit (a case handed down several years before Monasky) which continued to apply to a shared parental intent analysis, with an exception that where a child’s move carries a degree of settled purpose, that child’s acclimatization can be weighed. “The relative weight assigned to the parents’ shared intent and the child’s acclimatization depends on the child’s age.” It is unclear as to whether the outcome would have been different had the court applied the totality-of-the-circumstances analysis from Monasky, with no one fact being dispositive. Monasky also held that a district court’s finding of habitual residence is only reversed upon a finding of clear error, so on appeal, it remains to be seen how the court’s weighing of the child’s acclimation to Pennsylvania (including the child’s immigration status), and the Father’s statements of consent over the years, may have caused a different result (or not). [Note, the docket entries indicate that the case was appealed to the Third Circuit as of August 17, 2026.]
