On January 8, 2021, the U.S. District Court for the Western District of Virginia denied a return petition brought under the Hague Abduction Convention in the case of Alfonso VH v. Christina AZ on the basis that the minor child is now settled in the United States.

The court found that the Petitioner Father established a prima facie case of wrongful retention after the child’s Respondent Mother refused to return their child to Honduras as scheduled on April 23, 2019 (at the end of a planned 2-week trip).  The Respondent argued three exceptions to the child’s return: (1) the child was now “well” settled, (2) the child’s “wishes,” and (3) a grave risk.  The minor child was appointed a Guardian Ad Litem, who filed a report with the court, which included statements made by the child, and which both parents agreed the court could accept in lieu of the child’s testimony.  The Petitioner did not file his return petition with the court in Virginia until approximately 14-15 months after the child’s alleged wrongful retention.  Therefore, the Petitioner commenced his action more than one year past the wrongful retention, and the court examined all factors and concluded the child was now settled.

When analyzing the now settled defense, the court looked at a variety of facts in determining whether the child “had significant connections” to the United States.  The court concluded that the child was in school, had friends, was near to family members of both her mother and father, became fluent in English, and was doing well in Virginia. In addition, her half-sister was in Virginia, her mother and step-father had jobs in Virginia, and the child, at age 10, had more enduring and meaningful connections to her new home than if she were younger.  Furthermore, the court found that her parents’ arguments had decreased since her relocation to Virginia, which caused more stability for her.  While the father has had some difficulty contacting his daughter in Virginia, he has had telephone conversations with her. Overall, the factors weighed in favor of the child’s settlement in Virginia. 

This author needs to mention a few things.  First, the court implies that a parent might be able to argue that the one year passage of time between the retention and the filing of a return petition could be equitably tolled if the Taking Parent hid the child.  The U.S. Supreme Court in the case of Lozano v. Alvarez, however, resolved this issue, saying that the one year is not a statute of limitations, so there can be no such thing as tolling.  The Supreme Court acknowledged, in Lozano, that the Hague Abduction Convention permits a judge to exercise his or her equitable discretion, however, to not return a child even if an exception is otherwise made out.  Second, the court also never reached conclusions on the grave risk or mature child exceptions in its opinion.  It elaborated on a lot of facts that the Mother argued when asking the court to find a grave risk, and made some findings that the events she argued occurred prior to a 2017 Honduran custody order, but the Court did not take the next step in the analysis.  It also stated that the child was mature, and stated her “wishes” to remain in Virginia (although never stated that she objected to returning to Honduras), but never ultimately concluded whether the Mother met her burden for that exception.