Case Update (20 April 2026): Castro v. Brito Guevara; Fifth Circuit may have applied wrong standard on review, but petition for cert is denied by Supreme Court for practical reasons

On April 20, 2026, the U.S. Supreme Court denied certiorari in a Hague Abduction Convention case, but with a four page opinion, authored by Justice Sotomayor, elaborating on the issue.

This case involved a minor child born in Venezuela to the parties.  When the child was age 3, in 2021, the child’s Mother took the child to the United States. The child’s Father lodged an application for the child’s return with the Central Authorities promptly, but did not file his lawsuit in the district court until 2023, more than one year after the child’s removal. The district court found the child settled in the United States, but the Fifth Circuit reversed, and ordered the child returned to Venezuela. The U.S. Supreme Court declined to stay the return order pending review of a petition for a writ of certiorari (which Justice Sotomayor disagreed with at the time). 

The question presented to the Supreme Court now is “what standard of review should a court of appeals apply when reviewing a district court’s finding of whether a child is well settled in a new environment?” The Fifth Circuit concluded that the findings as to a child’s settlement are primarily legal, and it applied a de novo review. At least 3 Circuits agree that this issue should be reviewed de novo. Two other circuits find these decisions primarily fact-based, and review for clear error. Circuit splits traditionally warrant the Supreme Court’s attention. Further, Justice Sotomayor noted that Monasky concluded that habitual residence findings were factual, warranting a clear error review, and whether a child is settled may necessarily be the same. Circuits have long reviewed a multitude of factors when analyzing a child’s settlement, akin to the Monasky totality-of-the-circumstances test. Despite all this, Justice Sotomayor concurred in denying cert here. The child is already back in Venezuela, because of the denial of the request for a stay of the return order. A review of this case, even if it reversed the Fifth Circuit, would still find the child in Venezuela for over another year, or longer given proceedings on remand. In other words, Justice Sotomayor’s opinion chastised the court for not granting the stay in the first instance.