24 Feb The Hague Convention: What is ‘settled’ is settled (at least for now)
What is “settled” is settled, at least for now, regarding the Hague Convention’s meaning of the term. In a June 2016 ruling, the Fourth Circuit upholds a district court decision that a child was “settled” in the United States.
Under the Hague Convention, a court is not required to order a child returned if the action under the Convention was not commenced within one year of the abduction and the child is now settled in his or her new environment.
So, what is “settled” under the Hague Convention? Well, the Hague Convention does not define what it means for a child to be “settled.” Fortunately, by upholding the district court’s decision, the Fourth Circuit’s ruling in Alcala v. Hernandez provides guidance to what “settled” means, for purposes of the Hague Convention. The court emphasized that determining whether a child is “settled” does not equate to a determination of the child’s best interests, which is the guiding light in child custody cases. Alcala v. Hernandez (Lawyers Weekly No. 001-108-16, 30 pp.) (Floyd, J.) No. 15-2741, June 15, 2016; USDC at Florence, S.C. (Harwell, J.) 4th Cir.
In Alcala, the child moved three times and changed school three times; however, each move showed a move to better accommodations and settings. The child had established friendships at school, church and in the community; and he was liked by his peers. Additionally, he attended school regularly, he learned the English language without additional assistance and he performed above-average in school. Regular contact with other family members in the area in which he lived and his mother’s steady rate of employment were also factors noted by the district court in establishing the child was “settled.”
Although the child’s father posed the issue of whether the child’s illegal immigration status was “destabilizing,” the court determined that neither the Hague Convention nor the International Child Abduction Remedies Act makes a lack of immigration status a bar to finding that a child is settled.
To learn more about the Hague Convention and the International Child Abduction Remedies Act, feel free to check out https://www.hcch.net/en/home. And, feel free to visit our earlier blogs addressing child custody issues.