Case Update (30 June 2025): Rodrigues da Silva v. Silveira da Silva; district court did not look at all facts holistically in reaching its conclusion that child was not settled
The U.S. Court of Appeals for the First Circuit revisited the various facts in a family’s case to reach the opposite conclusion: that a child wrongfully brought into the United States from Brazil was now settled in Massachusetts. In this case, the child’s mother brought the child into the United States at the southern border in April 2022. They then made their way to Lowell, Massachusetts, where they took up residence with the Mother’s new significant other and his family. While the father in Brazil did not delay in seeking some type of assistance in trying to repatriate his child, contacting law enforcement promptly in 2022, he did not file his lawsuit in Massachusetts to seek the child’s return under the Hague Abduction Convention until just over 2 years later. That allowed the Mother to argue the child was now settled in the United States. Upon weighing the evidence, the district court concluded that the Mother did not meet her burden (preponderance of the evidence), and that the child was not settled in the USA. The Mother appealed on the grounds that the district court improperly compared the child’s integration in Brazil versus in Massachusetts and that the district court erred in weighing the evidence to conclude the child was settled. The First Circuit only addressed the second of these two arguments, and concluded the child was, in fact, settled, causing it to vacate the return order and remand to the district court for further proceedings.
While there are 7 factors traditionally examined when determining whether a child is now settled, the First Circuit noted that the district court must consider the totality of the circumstances, and that the factors should not be construed as a rigid balancing test of binary factors. The factors are neither mandatory nor exhaustive. Instead, the district court must “make a holistic determination about whether the ‘child has significant connections demonstrating a secure, stable, and permanent life in his or her new environment.’”. In this case, when conducting such a holistic analysis, the First Circuit concluded the child was settled. The child had stability at home, consistent integration into the community, consistent progression in grade levels with improvement over a short period of time, a solid foundation in his home environment, and gradual expansion of his horizons. The First Circuit noted that the certain facts that the district court emphasized were not properly viewed in the context of the entire record.
Therefore, the First Circuit vacated the return order, but remanded for the district court to determine if it might still exercise its equitable discretion to return the child despite the finding of the child being now settled.
On remand, the Petitioner asked the court to exercise its equitable discretion, and referenced the Taking Parent’s misconduct in concealing her purpose in obtaining the child’s passport, but the court declined to do so, finding that returning the child after 3.5 years would be disruptive.
Compare this opinion to that of the U.S. Court of Appeals for the Fifth Circuit only a few weeks ago, where it reversed a finding that a child was settled, and couched all the factors through the lens of the child’s immigration status.
