The case of Bejarno v. Jimenez denied the Petitioner Father’s request to return his child to Honduras using the Hague Abduction Convention. The court’s analysis hinged on the “now settled” exception. The court concluded that the Respondent Mother removed the parties’ child to the United States on April 24, 2018. The Father submitted an application with the Honduran Central Authority on June 29, 2018, requesting the child’s return. He then secured pro bono legal counsel, and filed his return petition in the appropriate federal court in NJ on August 30, 2019, sixteen months after the child was wrongfully removed.
The court looked to the factors highlighted in Monzon v. De La Roca to determine if the child is now settled since the Father commenced the proceedings more than one year after the removal. These factors include:
- the age of the child
- the stability of the child’s new residence
- whether the child attends school or daycare consistently
- whether the child attends church regularly
- the stability of the parent’s employment or other means of support
- whether the child has friends and relatives in the area
- to what extent the child maintained ties to his/her habitual residence
- the level of the parent’s involvement in the child’s life
- active measures to conceal the child’s whereabouts
- the immigration status of the child and parent
The court found that an overwhelming number of the factors weigh in favor of the child being now settled in New Jersey. The only factors that weighed against were: the mother was only sporadically employed in a restaurant and the fact that neither the child nor the Mother are U.S. citizens. The Mother and Child entered the United States and were held in an ICE detention facility. They have since sought asylum, but not yet made a formal application. The Mother testified that she routinely checks with immigration services and has a proceeding scheduled for November 2021. Since there is no immediate threat of deportation, the factor is not given determinative weight.
The Father concluded by asking the Court to exercise its discretion to nonetheless return the child. The Court acknowledged it has this discretion, in spite of an exception being proven by the requisite burden. The Court, however, declined to exercise its discretion.