Case Update (28 February 2024): da Costa v. de Lima; First Circuit affirms that child is now settled and evidence was properly considered
The U.S. Court of Appeals for the First Circuit affirmed a district court order denying a father’s request to return his child from Massachusetts to Brazil. The trial judge had found that the child was now settled in its new environment and refused to exercise any equitable discretion to nonetheless return the child. The appellant father raised some interesting arguments, although the First Circuit rejected each.
At the trial level, the district court weighed the traditional factors in determining whether the child was now settled (after concluding that the father had filed his petition to return the child more than one year after the wrongful removal of the child from Brazil). The father argued, on appeal, that: (1) the district court relied entirely on evidence of events that occurred after he filed his petition, (2) that the district court did not appropriately weigh the relevant factors, and (3) that the district court inappropriately considered the child’s best interests.
The father argued that it is clearly erroneous for a district court to rely only on post-petition evidence, or, at least, to weigh the post-petition evidence as heavily as the district court did here. The First Circuit, however, stated that “the text of the Convention explicitly contemplates a court considering the child’s circumstances after the petition has been filed without reference to his prior situation” and stressed that the Convention “suggests an emphasis on the present.” The father further attempted to argue that “[w]ithout pre-petition evidence … ‘there can be no analysis of when the child became well-settled, how the child adjusted between the date of removal and the date of filing of the petition, and the steps [the removing parent] took the ensure that a child was well-settled.’” The First Circuit was not persuaded that a showing of the child’s adjustment into the new environment was helpful. The father was disturbed that failing to take his position would allow an abducting parent to “manufacture evidence in response to a petition”, but the First Circuit found this to be more an issue of credibility and noted that the district court still retained discretion to order a child’s return nonetheless (including based on bad behavior). The father also argued that the district court used the wrong geographic scope in defining the child’s “new environment” and should have considered the child’s connections to the entire country, not a region of it. The First Circuit did not find this persuasive.
In terms of the father’s argument that the district court inappropriately considered the child’s best interests, the First Circuit was also unconvinced. Citing to Lozano v. Montoya Alvarez, the First Circuit said that “once beyond the prima facie case, the Convention adopts ‘an additional ‘purpose’: the protection of a child’s ‘interest in remaining in a country in which [he] has lived for a substantial amount of time’.” This is the equitable discretion argument (see the concurring opinion in Lozano). The district court weighed the mother’s conduct against the child’s interests in whether to exercise its equitable discretion and nonetheless return the child.
