Case Update (6 June 2023): Ferreira Da Costa v. Albefaro De Lima; child was settled in his new environment after the return petition was filed 20 months after the child arrived in the U.S.

The parties are parents to one child, born in Brazil in October 2016. The parties separated in 2018, and reached a divorce agreement in October 2018 that would place the child in the primary custody of Respondent Mother. A Brazilian court approved of the parties' agreement in December 2019. During this time, Respondent Mother and the child were residing with her family in Brazil because any child support she received was insufficient to live on, and she was unable to find a job in Brazil. Respondent and Child attempted to enter the U.S. in November 2019, but were detained and removed to Brazil. They tried again in December 2019, and were released into the U.S. Around this time, Respondent's older son and that child's father traveled to the United States. In early 2020, despite living in Martha's Vineyard, Massachusetts, Respondent apparently told Petitioner that she and the child were living elsewhere in Brazil. By August 2020, Petitioner knew that Respondent and the child were in the United States as she was using a U.S. cell phone provider. It was around this time that she told Petitioner that she would not return to Brazil until November 2020. In August 2021, Petitioner filed an application for the return of the child with the Brazilian Central Authority. He filed the instant petition in the courts in MA on April 11, 2022. He indicated that delays in filing were, in part, due to COVID.

The court made note that Brazilian law may give the Petitioner a right of custody, but that the Petitioner did not provide sufficient evidence on Brazilian law to meet his burden. The court, however, assumed, arguendo that the Petitioner could prove that he had a right of custody, and then explained that it would still refuse to return the child based on the child now being settled in MA.

The court concluded that Petitioner filed his lawsuit more than one year from the wrongful removal. Even if the court pinpointed the date on which the child's presence in the United States became wrongful as late 2020, when it was clear that the Petitioner was fully aware that the child would not be returning, he delayed in filing his lawsuit until April 2022. The child first entered and remained in the United States in December 2019. By at least August 2020, the Petitioner was aware that the child was in the United States. Given that the petition was late filed, the court examined the totality of the circumstances, and, specifically, several factors, to determine that the child was now settled. The child had been in the United States for over half of his life, he has meaningful connections to the United States, family, school, consistent attendance, friends, English classes, bible study, and church. Even though the child has moved several times, it was always on the island of Martha's Vineyard. Even though the Mother and child have applied for asylum, and their immigration status is uncertain, it appears that she is permitted to work, and that they are stable, with an interview scheduled in that process in early 2024.

The court then examined its own discretion to nonetheless return the child. Courts “may [] consider the abducting parent's misconduct, together with any other relevant circumstances, such as whether return would not be harmful or disruptive even though the child has become settled, in deciding whether to order her return.” The court here, however, found that the child's well-being and the disruption to his life if returned outweigh the policy consideration of deterring abductions.