SAUCEDA BEJARNO v. MONTOYA JIMENEZ

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

KEVIN DANIEL SAUCEDA BEJARNO,

Civil Action No. 19-17524

Petitioner,

v.

OPINION

ANDREA DAYANA MONTOYA JIMENEZ,

Respondent.

John Michael Vazquez, U.S.D.J.

This matter comes before the Court by way of Petitioner’s application to return his seven-

year-old son, L.S., from New Jersey to his native country of Honduras pursuant to the Hague

Convention on the Civil Aspects of International Child Abduction (the “Convention”) and the

International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001 et seq. Petitioner

contends that Respondent – L.S.’s mother – wrongfully removed L.S. from Honduras to the United

States. Respondent posits that Petitioner has not met his burden of demonstrating wrongful

removal, or, alternatively, that she satisfies the Convention’s affirmative defenses. For the

following reasons, Petitioner’s application is DENIED.1

1 The Court thanks all counsel involved, who provided excellent and vigorous representation on a

pro bono basis.

I. FACTUAL BACKGROUND2

L.S. was born in Honduras on May 30, 2013. D.E. 43, Stipulated Facts ¶¶ 3, 6. Petitioner

Kevin Daniel Sauceda Bejarno (“Petitioner”) and Andrea Dayana Montoya Jimenez

(“Respondent”) are the biological parents of L.S. Id. Petitioner and Respondent have never been

legally married, but they have lived together. D.E. 1, Compl. ¶ 12; Evid. Tr. Vol. 2 at 159:1-5.3

According to Petitioner, at the time L.S. was born, Petitioner and Respondent lived together in Las

Lajas, Honduras with Respondent’s parents for approximately three months. Evid. Tr. Vol. 1 at

19:6-14.4 Respondent testified, however, that Petitioner did not live with her but would rather

“come and go.” Evid. Tr. Vol. 2 at 159:12-17.

Thereafter, Petitioner testified that he, Respondent, and L.S. moved to Tegucigalpa to live

with Petitioner’s then-boss, Lombardo Fausto Jarrin Chavez (“Mr. Giurelli”).5 Evid. Tr. Vol. 1 at

19:21-20:2. Petitioner testified that he worked as Mr. Giurelli’s driver, and that he, Respondent,

and L.S. lived together with Mr. Giurelli for approximately four years. Id. at 20:8-9. Respondent

testified that Mr. Giurelli abused her during this time. Evid. Tr. Vol. 2 at 128:13-16. In 2017,

Petitioner, Respondent, and L.S. moved back to Las Lajas. Evid. Tr. Vol. 1 at 22:21-25. Petitioner

worked as a heavy machine operator, typically having to travel for approximately four weeks at a

time; he would thereafter return home for several days until he was required to travel again. Id. at

2 The facts are derived from the parties’ joint stipulation of facts, the exhibits attached to the

parties’ submissions, and the parties’ testimony presented during the evidentiary hearings on

March 10, 2020 and June 30, 2020.

3 “Evid. Tr. Vol. 2” refers to the proceedings held before the Court on June 30, 2020.

4 “Evid. Tr. Vol. 1” refers to the proceedings held before the Court on March 10, 2020.

5 The Court notes that Petitioner’s counsel refers to Petitioner’s then-boss as “Mr. Giurelli.” See

Evid. Tr. Vol. 1 at 20:3-4. Respondent likewise refers to Petitioner’s then-boss as “Fausto

Giurelli.” See Evid. Tr. Vol. 2 at 128:13-14. The Court therefore does the same.

47:8-25. Petitioner testified that of the 10,000 lempiras6 he made a month, he gave Respondent

8,000 as financial support for her and L.S. Id. at 51:12-13; 63:19-24. Respondent, however,

testified that Petitioner provided her with only 2,000 lempiras once every three months. Evid. Tr.

Vol. 2 at 200:1-3. Over the course of their relationship, Respondent alleged that Petitioner abused

her on multiple occasions. Respondent also claimed that Petitioner is affiliated with a gang.

Petitioner denied these allegations.

L.S. began school in Honduras in February 20187 and attended school for approximately

two months. Stipulated Facts ¶ 13. Thereafter, on April 24, 2018, Respondent left Honduras with

L.S. and began traveling to the United States. Id. ¶ 15. L.S. was four years old at the time. Id. ¶

16. Once Respondent and L.S. arrived in the United States, they were taken into custody by U.S.

Immigration and Customs Enforcement (ICE). Id. ¶ 19. Respondent and L.S. were processed and

detained in an ICE holding facility, and were then transferred to a temporary detention facility in

Texas for ten days. Id. ¶¶ 20-21. Upon their release, Respondent and L.S. traveled to Newark,

New Jersey. Id. ¶ 24. Respondent testified that after arriving in New Jersey, she and L.S. stayed

with one of her friends for three days. Evid. Tr. Vol. 2 at 136:4-13. Thereafter, she and L.S. stayed

with her uncle in Morristown, New Jersey. Id. at 143:9-13. Respondent further testified that

many of her relatives on her father’s side also reside in Morristown. Id. at 143:14-16.

While in Morristown, Respondent began a romantic relationship with Alexander Cardona,

whom she later married. Id. at 144:6-9; 186:17-20. Respondent thereafter moved to Parlin, New

Jersey in January 2019, where she has resided with L.S. for the past year and a half. Id. at 123:5-

6 The lempira is the official currency of Honduras.

7 Both Petitioner and Respondent testified that the Honduran school year begins in February. See,

e.g., Evid. Tr. Vol. 2 at 131:23-24.

6; 144:10-14. Respondent currently lives with her husband, L.S., L.S’s younger half-brother

A.C.,8 and her seventeen-year-old sister. Id. at 123:9-1; 150:10-14.

Since arriving in the United States, Respondent has permitted L.S. to communicate with

Petitioner. Stipulated Facts ¶ 28. Respondent has never denied Petitioner access to speak with

L.S. Id. ¶ 29. Respondent testified that Petitioner used to speak with L.S. relatively frequently

after Respondent and L.S. arrived in the United States, but that Petitioner has since reduced his

communication with L.S. Evid. Tr. Vol. 2 at 144:15-145:7. Petitioner testified that he has not

spoken as much with L.S. because, according to Petitioner, “[L.S.] seem[ed] to be feeling more

withdrawn from [Petitioner].” Evid. Tr. Vol. 1 at 36:2-6. Respondent further testified that

Petitioner has spoken with L.S. only three times in the year 2020, the last instance of which

occurred on June 27, 2020. Id. at 145:3-10.

L.S. has been enrolled in school in the United States since September 2018. Stipulated

Facts ¶ 14. L.S. attended the first half of kindergarten in Morristown. Id. Since moving to Parlin

in January 2019, L.S. has attended the Sayreville Public School System for kindergarten and first

grade. Id. Respondent testified that L.S. did not speak English when they first arrived in the

United States, but that he has progressed substantially since attending school. Evid. Tr. Vol. 2 at

146:16-25. Respondent further testified that L.S.’s current hobbies include spending time with his

half-brother, riding his bicycle, going to the park and beach, and taking karate classes. Id. at 148:9-

15. Prior to the current COVID-19 pandemic, L.S. also attended church three times a week with

Respondent. Id. at 149:1-10. Respondent also testified that L.S. and her husband have grown very

close. Id. at 150:4-9.

8 Respondent testified that she and Mr. Cardona met in June 2018 and married eight months later.

She and Mr. Cardona then had A.C., who was born on August 1, 2019. See Evid. Tr. Vol. 2 at

186:17-23. Respondent testified that L.S. is “very close” with A.C. Id. at 150:4-9.

II. PROCEDURAL HISTORY

On June 29, 2018, Petitioner filed an International Restitution Request with the Central

Authority of the Republic of Honduras, which was forwarded through the Central Authority of the

United States under the Convention. D.E. 1, Compl. ¶ 7; see also D.E. 1-2, Ex. B. On August 30,

2019, Petitioner filed the instant petition seeking the return of L.S to Honduras pursuant to the

Convention.9 D.E. 1. On October 25, 2019, the Court ordered that pro bono counsel be appointed

to represent Respondent. D.E. 13, 14.

On December 23, 2019, the Court issued an order requiring Respondent to show cause in

writing demonstrating why L.S. had been removed from his habitual place of residence, Honduras.

D.E. 16. The Court thereafter held a telephone conference with the parties, D.E. 20, and scheduled

an evidentiary hearing for February 24, 2020. D.E. 21. Pursuant to the parties’ consent, the Court

first permitted expedited discovery. D.E. 26. Respondent filed her verified answer with

affirmative defenses on January 21, 2020. D.E. 25. On February 11, 2020, the Court granted

Respondent’s request to adjourn the evidentiary hearing and rescheduled the hearing for March

10, 2020. D.E. 34. On March 10, 2020, the Court held the first day of hearings. D.E. 46. Due to

the COVID-19 pandemic, however, the second day of hearings was adjourned. D.E. 54. The

Court thereafter held several telephone conferences with the parties to determine a suitable date

9 The Court notes that the Convention requires courts to act “expeditiously in proceedings for the

return of children” and encourages resolution within six weeks. The Hague Convention on the

Civil Aspects of International Child Abduction Art. 11, October 25, 1980, 19 I.L.M. 1501, 1502.

While the Court is aware of the need to conduct such hearings expeditiously, this matter was

delayed so that the Court could appoint counsel to represent Respondent and provide time for the

parties to take discovery. Moreover, the Court was forced to adjourn the second day of hearings

due to the COVID-19 pandemic, and then wait until the parties acquired adequate technology to

conduct the remainder of proceedings by way of video conference.

for continuation of the hearings. D.E. 55, 58. The Court then held the second day of hearings by

way of video conference on June 30, 2020. D.E. 62.

III. LEGAL STANDARD

The Hague Convention “reflects a universal concern about the harm done to children by

parental kidnapping and a strong desire among the Contracting States to implement an effective

deterrent to such behavior.” Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir. 1995). To that end,

it has two primary purposes: “to secure the prompt return of children wrongfully removed to or

retained in any Contracting State,” and “to ensure that rights of custody and of access under the

law of one Contracting State are effectively respected in the other Contracting States.” The Hague

Convention on the Civil Aspects of International Child Abduction Art. 1, October 25, 1980, 19

I.L.M. 1501, 1501. Importantly, “[t]he Convention is not designed to settle international custody

disputes, but rather to ensure that cases are heard in the proper court.” Baxter v. Baxter, 423 F.3d

363, 367 (3d Cir. 2005) (citing Hague Convention, art. 19). “[T]he Convention’s procedures are

designed to restore the status quo prior to any wrongful removal or retention, and to deter parents

from engaging in international forum shopping in custody cases.” Id. In other words, “the

cornerstone of the Convention is the mandated return of the child to his or her circumstances prior

to the abduction if one parent’s removal of the child from or retention in a Contracting State has

violated the custody rights of the other, and is, therefore, ‘wrongful.’” Feder, 63 F.3d at 221 (citing

Hague Convention, art. 12).

“The Hague Convention has been ratified by the United States and is implemented by the

International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001 et seq. (formerly at 42

U.S.C. § 11601 et seq.).” Didon v. Castillo, 838 F.3d 313, 316 n.1 (3d Cir. 2016). Honduras is

also a signatory. Nunez Bardales v. Lamothe, 423 F. Supp. 3d 459, 464 (M.D. Tenn. 2019). The

Convention requires all signatories to “designate a Central Authority to discharge the duties which

are imposed by the Convention upon such authorities.” Hague Convention, art. 6. Central

Authorities must “co-operate with each other and promote co-operation amongst the competent

authorities in their respective States to secure the prompt return of children and to achieve the other

objects of the Convention.” Id., art. 7. In the United States, the Department of State is designated

as the Central Authority. Lutman v. Lutman, No. 10-1504, 2010 WL 3398985, at *2 (M.D. Pa.

Aug. 26, 2010).

To obtain a court order for a child’s return, “the petitioner bears the burden of proving by

a preponderance of the evidence that the removal or retention was wrongful under article 3” of the

Convention. Baxter, 423 F.3d at 367. “A petitioner cannot claim that the removal or retention of

a child is ‘wrongful’ under the Hague Convention unless ‘the child to whom the petition relates is

“habitually resident” in a State signatory to the Convention and has been removed to or retained

in a different State.’” Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3d Cir. 2006) (quoting Gitter

v. Gitter, 396 F.3d 124, 130 (2d Cir. 2005)). That analysis typically raises the following four

questions:

(1) When did the removal or retention at issue take place? (2)

Immediately prior to the removal or retention, in which state was the

child habitually resident? (3) Did the removal or retention breach

the rights of custody attributed to the petitioner under the law of the

habitual residence? (4) Was the petitioner exercising those rights at

the time of the removal or retention?

Id. The Convention does not apply to children who are sixteen or older. Hague Convention, art.

4. Here, L.S. is currently seven years old.

If “a petitioner demonstrates wrongful removal or retention, the burden shifts to the

respondent to prove an affirmative defense against the return of the child to the country of habitual

residence.” Karkkainen, 445 F.3d at 288. All defenses against removal are construed narrowly.

Feder, 63 F.3d at 226. The affirmative defenses under the Hague Convention are as follows: (1)

returning the child to his or her habitual residence would place the child in grave risk of physical

or psychological harm, (2) the child’s human rights and fundamental freedoms would be

threatened if returned, (3) the petitioning parent consented or acquiesced to the removal or

retention, (4) the petitioner was not actually exercising custody rights at the time of the alleged

wrongful removal or retention, (5) the child is well-settled in his or her new environment and the

petition to return the child was filed one year or more after the alleged wrongful removal or

retention, and (6) a child who “has attained an age and degree of maturity” expresses a desire to

remain in the new country. Hague Convention, arts. 12-13, 20; see also James L. Buchwalter,

Causes of Action for Return of Child Under International Child Abduction Remedies Act, §§ 8-14

(2016).

In Feder, the Third Circuit set forth the steps that a court must take in analyzing a Hague

Convention case. The threshold question is which country was the child’s habitual residence

immediately before the alleged wrongful removal or retention. Feder, 63 F.3d at 222-23 (citing

Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993) and In re Bates, No. CA 122-89, High Court

of Justice, Family Div’l Ct. Royal Courts of Justice, United Kingdom (1989)). The Hague

Convention “does not provide a definition for habitual residence,” but the term has been defined

through case law. Id. “[A] child’s habitual residence is the place where he or she has been

physically present for an amount of time sufficient for acclimatization and which has a ‘degree of

settled purpose’ from the child’s perspective.” Id. at 224. Additionally, “a determination of

whether any particular place satisfies this standard must focus on the child and consists of an

analysis of the child’s circumstances in that place and the parents’ present, shared intentions

regarding their child’s presence there.” Id. A change in habitual residence may only take place

“by a change in geography . . . and the passage of time.” Id. at 222 (quoting Friedrich, 983 F.2d

at 1401-02). “The inquiry into a child’s habitual residence is not formulaic; rather, it is a fact-

intensive determination that necessarily varies with the circumstances of each case.” Whiting v.

Krassner, 391 F.3d 540, 546 (3d Cir. 2004).

In Baxter, the Third Circuit analyzed the elements required to establish a prima facie case

of whether a parent was exercising custodial rights and also reviewed several of the affirmative

defenses available under the Hague Convention. There, a father, mother, and their five-year-old

son lived an unsettled lifestyle moving from location to location in Australia, and for a one-year

period, in Ireland. Baxter, 423 F.3d at 365. The family’s last home together was on an Australian

island “beset with problems,” where both parents decided that the environment was unsuitable for

their son and that the mother and son should move to the United States to live with his aunt and

grandmother. Id. at 365-66. The father remained in Australia. Id. at 366. The parents were unsure

where they would live next, but the father believed that the family would probably return to

Australia. Id. Shortly after arriving in the United States, the mother fell in love with another man

and told the father that she wanted a divorce. Id. at 365. The father then filed a petition to return

his son to Australia. One of the mother’s arguments against removal to Australia was that the

father was not exercising his custodial rights. Id. at 369.

In rejecting the mother’s argument, the Third Circuit stated that “the test for finding the

non-exercise of custody rights under the Hague Convention is stringent.” Id. at 370 (citing

Friedrich, 78 F.3d at 1065-66). The court in Baxter explained that absent a ruling from the child’s

country of habitual residence (which the court determined was Australia), the court will liberally

find “exercise” of rights in favor of the petitioning parent. Id. The Baxter court noted this finding

could be overcome only when a parent’s actions constitute clear and unequivocal abandonment of

the child. Id.

Another issue arising in Hague Convention cases is the weight, if any, a court should give

to a respondent and/or child’s illegal immigration status. The Third Circuit has not squarely

addressed this issue. According to the Ninth Circuit, illegal immigration status is “relevant only

if there is an immediate, concrete threat of deportation” and can be a substantial factor in such

scenarios. In re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir. 2009). If there is not an imminent

threat of deportation, it appears that immigration status may be considered a factor in regard to

whether the child is “well-settled.” In re Koc, 181 F. Supp. 2d 136, 154-55 (E.D.N.Y. 2001); see

also Castellanos Monzon v. De La Roca, No. 16-0058, 2016 WL 1337261, at *14 (D.N.J. Apr. 5,

2016), aff’d sub nom. Monzon v. De La Roca, 910 F.3d 92 (3d Cir. 2018). However, in such cases,

immigration status is not given substantial or determinative weight. See Castellanos Monzon,

2016 WL 1337261, at *14.

IV. ANALYSIS

A. Petitioner’s Prima Facie Case of Wrongful Removal

As a threshold matter, the Court must first determine whether Petitioner has met his burden

of proving a prima facie case of wrongful removal. Baxter, 423 F.3d at 367-68. “Under the Hague

Convention, the petitioner bears the initial burden of proving by preponderance of the evidence

that the child was habitually resident in a State signatory to the Convention and was wrongfully

removed to a different State as defined by Article 3.” Karpenko v. Leendertz, 619 F.3d 259, 263

(3d Cir. 2010) (citing Karkkainen, 445 F.3d at 287). “[A] child’s habitual residence is the place

where he or she has been physically present for an amount of time sufficient for acclimatization

and which has a degree of settled purpose from the child’s perspective.” Id. The Third Circuit has

“divided the analysis of the petitioner’s burden into four parts,” requiring a court to determine the

following:

(1) when the removal or retention took place; (2) the child’s habitual

residence immediately prior to such removal or retention; (3)

whether the removal or retention breached the petitioner’s custody

rights under the law of the child’s habitual residence; and (4)

whether the petitioner was exercising his or her custody rights at the

time of removal or retention.

Karpenko, 619 F.3d at 263 (quoting Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 270-71 (3d

Cir. 2007)).

Here, Petitioner has established a prima facie case of wrongful removal. First, the parties

stipulated that the removal of L.S. from Honduras occurred on April 24, 2018. Stipulated Facts ¶

15. Second, the Court finds that Honduras was L.S.’s habitual residence immediately prior to his

removal. L.S. was born in Honduras, had been physically present in Honduras from birth until he

was removed at the age of nearly five,10 and had never left Honduras prior to his removal. Id. ¶ 8.

Put simply, Honduras “is the place where [L.S.] ha[d] been physically present for an amount of

time sufficient for acclimatization and which ha[d] a degree of settled purpose from [L.S.’s]

perspective.” Karpenko, 619 F.3d at 263; see also Monasky v. Taglieri, 140 S. Ct. 719, 727 (2020)

(“Common sense suggests that some cases will be straightforward: Where a child has lived in one

place with [his] family indefinitely, that place is likely to be [his] habitual residence.”).

Third, the Court finds that Respondent’s removal of L.S. was in violation of Petitioner’s

custody rights under Honduran law. “To make a custody determination, it is necessary to carefully

examine ‘the country of origin’s custody laws to determine whether the party seeking the child’s

10 As noted, L.S. was born in Honduras on May 30, 2013. Stipulated Facts ¶ 3. Respondent

removed L.S. from Honduras on April 24, 2018. Id. ¶ 15.

return had custody rights in that country . . . at the time the child was removed.” Tsai-Yi Yang,

499 F.3d at 275 (quoting In re Application of Adan, 437 F.3d 381, 391 (3d Cir. 2006)). Pursuant

to Honduran law, the exercise of parental authority belongs to both parents jointly. See Hond.

Family Code, Tittle V of Custody, Article 185 et seq.; see also D.E. 41, Ex. H. Absent a parental

agreement on custody, a disagreement between spouses regarding the exercise of parental authority

must be decided by a court of competent jurisdiction. Id. Here, Respondent testified that she

added Petitioner to L.S.’s birth certificate as L.S.’s biological father. Evid. Tr. Vol. 2 at 126:4-6.

Respondent also conceded that she never petitioned a Honduran court to divest Petitioner of his

custody rights. Id. at 197:17-19. Accordingly, the Court finds that Respondent’s removal of L.S.

breached Petitioner’s custody rights under Honduran law.

Fourth, the Court finds that Petitioner was exercising his custody rights at the time of the

wrongful removal. With respect to this final prong, a petitioner’s “burden is easy because ‘the test

for finding the non-exercise of custody rights under the Hague Convention is stringent.’” Tsai-Yi

Yang, 499 F.3d at 277 (quoting Baxter, 423 F.3d at 370); see also In re Application of Adan, 437

F.3d at 391 (“Once it is determined that a [petitioner] had valid custody rights under the country

of origin’s laws, [v]ery little is required of the [petitioner] in support of the allegation that custody

rights have actually been or would have been exercised. The [petitioner] need only provide some

preliminary evidence that he or she actually exercised custody of the child[.]”) (internal quotations

omitted)). In short, “nothing short of clear and unequivocal abandonment will prove that the

petitioner failed to exercise his or her custodial rights.” Tsai-Yi Yang, 499 F.3d at 277 (citing

Baxter, 423 F.3d at 370). While the parties dispute the extent to which Petitioner was exercising

his custody rights, the critical facts demonstrate that Petitioner was exercising his custody rights

at the time of the removal. Petitioner supported L.S. both emotionally and financially, and lived

with L.S. when he returned from traveling for work. It is undisputed that Petitioner was a part of

L.S.’s life, at least to some degree, from the time that L.S. was born (or shortly thereafter – as the

parties dispute whether Petitioner was present for the birth and on the original birth certificate)

until the time that L.S. was removed from Honduras. Accordingly, the Court finds that Petitioner

was exercising his custody rights at the time of L.S.’s removal.

In sum, the Court finds that Petitioner has satisfied his initial burden of proving a prima

facie case of wrongful removal.

B. Respondent’s “Well-Settled” Defense

“Once the petitioner meets its initial burden, the respondent may oppose the child’s return

by proving one of [the] affirmative defenses[.]”11 See Castellanos Monzon, 2016 WL 1337261, at

*9 (quoting Karpenko, 619 F.3d at 263); see also Monzon v. De La Roca, 910 F.3d 92, 100 (3d

Cir. 2018) (“The petitioner has the initial burden of proving by a preponderance of the evidence

that the child was wrongfully removed, whereupon ‘the respondent may oppose the child’s return’

by establishing the ‘affirmative defenses’ or ‘exceptions’ as listed under ICARA provision 22

11 While Respondent contends that the affirmative defenses of “grave risk” and “consent” are also

applicable in this case, the Court does not analyze those defenses because, as discussed more fully

below, the Court finds that Respondent has carried her burden as to the “well-settled” defense. See

Monzon, 910 F.3d at 104 (“We have consistently allowed prevailing parties to demonstrate only

one affirmative defense to petitions under the Convention.”). The Court does note, however, that

these issues were hotly contested by the parties. As to the “consent” defense, Respondent claimed

that Petitioner consented to Respondent and L.S. coming to the United States after having

discussed it extensively, Evid. Tr. Vol. 2 at 133:1-3, and that Petitioner gave her a cellphone and

money so that they would be able to communicate after Respondent and L.S. arrived in the United

States, id. at 134:2-5. Petitioner denied these claims, testifying that Respondent raised the

possibility of traveling to the United States only one time – Petitioner being strongly against it –

and that he never provided Respondent with a cellphone or money to travel. Evid. Tr. Vol. 1 at

29:10-30:15. As to the “grave risk” defense, Respondent claimed that Petitioner was a gang

member whose affiliations endangered Respondent and L.S. Evid. Tr. Vol. 2 at 155:1-9. Again,

Petitioner emphatically denied these claims. The Court also heard from Dr. Donald Franklin, a

licensed psychologist, whose testimony was focused on the risk of psychological harm to L.S.

should he be returned to Honduras. Evid. Tr. Vol. 1 at 84:15-17.

U.S.C. § 9003(e)(2)(A) and (B).”). Relevant here, the Court “may refrain from ordering the return

of a wrongfully-removed child if the Respondent establishes, by a preponderance of the evidence

. . . that the proceeding was commenced more than one year after the removal of the [child] and

the [child] ha[s] become ‘well-settled’ in [his] new environment.” Castellanos Monzon, 2016 WL

1337261, at *9 (quoting Delgado v. Osuna, No. 15-00360, 2015 WL 5095231, at *5 (E.D. Tex.

Aug. 28, 2015), aff’d, 837 F.3d 571 (5th Cir. 2016)).

Importantly, “[w]here a court determines a child has been wrongfully removed, Article 12

of the Convention provides that the child is to be returned ‘forthwith,’ as long as the proceedings

have been ‘commenced’ in the ‘judicial or administrative authority of the Contracting State where

the child is’ less than one year before the date of wrongful removal.” Monzon, 910 F.3d at 96

(second emphasis added). To this point, “ICARA defines ‘commencement of proceedings’ as used

in Article 12 of the Convention as ‘the filing of a petition in accordance with [22 U.S.C.

§ 9003(b)].” Id. at 98. In turn, § 9003(b) states as follows:

Any person seeking to initiate judicial proceedings under the

Convention for the return of a child . . . may do so by commencing

a civil action by filing a petition for the relief sought in any court

which has jurisdiction of such action and which is authorized to

exercise its jurisdiction in the place where the child is located at the

time the petition is filed.

22 U.S.C. § 9003(b) (emphases added); see also Monzon, 910 F.3d at 99 (quoting same). The

proceedings in this case were “commenced” on August 30, 2019 – the date when Petitioner filed

his petition in the District of New Jersey. See Castellanos Monzon, 2016 WL 1337261, at *12

(“[T]he date on which the judicial proceedings in this matter were ‘commenced’ under [ICARA]

is when the [p]etition was filed in the jurisdiction where the child was located, which, in this case,

is the State of New Jersey.”); see also Monzon, 910 F.3d at 99 (“If a parent pursues the remedies

available for the return of his/her child under ICARA, Congress has clearly required that the parent

do so by filing a petition . . . in [a] court . . . where the child is located.”) (internal quotations

omitted)).

Here, L.S. was wrongfully removed on April 24, 2018. Because Petitioner did not file his

petition until August 30, 2019 – sixteen months after the removal – the proceedings in this matter

were not “commenced” under the Convention within one year of the child’s wrongful removal.12

As such, where “the proceedings are commenced after the expiration of the period of one year, the

court must order the return of the child unless it is demonstrated that the child is now settled in its

new environment.” Castellanos Monzon, 2016 WL 1337261, at *11 (internal quotations omitted);

see also Monzon, 910 F.3d at 99 (“[I]f one year has elapsed since a child was wrongfully removed

or retained when a petition is filed, a court must also determine whether the child is settled in its

new environment. . . . [T]he now settled exception only applies where the child has been in the

destination state for more than one year from the date of the wrongful removal or retention.”)

(internal quotations omitted)). Accordingly, because Petitioner filed his petition in this matter

12 The Court is mindful of the fact that, in Petitioner’s words, “it took time to retain counsel and

file suit in the United States . . . for someone of limited means who speaks no English and resides

thousands of miles away from the District of New Jersey.” D.E. 64, Def.’s Summation Br. at 18.

The Court is certainly sympathetic to that difficulty. Nonetheless, the Third Circuit has made clear:

[While] [w]e realize that [petitioner] tried to act diligently, and we

are not unsympathetic to his efforts[,] our inquiry into what

constitutes a proper filing for these purposes is circumscribed by the

language of ICARA and the Convention. We cannot ignore that

language by extending it to include a document filed with either the

[Honduran] Central Authority or the U.S. Department of State. If a

parent pursues the remedies available for the return of his/her child

under ICARA, Congress has clearly required that the parent do so

by “filing a petition . . . in [a] court . . . where the child is located.”

Monzon, 910 F.3d at 99.

more than one year from the date of the wrongful removal, the Court must determine whether L.S.

is now well settled in the United States.13

To meet this affirmative defense, Respondent must demonstrate by a preponderance of the

evidence that L.S. is now settled in the United States. See Castellanos Monzon, 2016 WL 1337261,

at *12 (“Under ICARA, Respondent bears the burden of establishing the settled defense by a

preponderance of the evidence.”); see also Monzon, 910 F.3d at 101 (“ICARA requires that a

respondent only establish by a preponderance of the evidence that [] the child is now settled in

[his] new environment[.]”). The court in Castellanos Monzon highlighted the following non-

exhaustive factors that a court should typically consider in determining whether the well-settled

defense is applicable:

(1) the age of the child; (2) the stability of the child’s new residence;

(3) whether the child attends school or daycare consistently; (4)

whether the child attends church regularly14; (5) the stability of the

parent’s employment or other means of support; (6) whether the

child has friends and relatives in the area; (7) to what extent the child

has maintained ties to the country of habitual residence; (8) the level

of parental involvement in the child’s life; (9) active measures to

conceal the child’s whereabouts (and the possibility of criminal

prosecution related thereto); and, (10) the immigration status of the

child and parent.15

13 As the Supreme Court has noted, “[r]ather than establishing any certainty about the respective

rights of the parties, the expiration of the 1-year period opens the door to consideration of a third

party’s interests, i.e., the child’s interest in settlement.” Lozano v. Montoya Alvarez, 572 U.S. 1,

15 (2014).

14 While courts have considered as a factor whether the child attends “church” regularly, the Court

construes this inquiry more broadly to also include whether the child “participates in other

community or extracurricular school activities.” See Lozano v. Alvarez, 697 F.3d at 57. In other

words, the critical inquiry is whether the child participates in activities that evidence community

ties, be it religious or not.

15 In ultimately affirming the District Court’s decision in Castellanos Monzon, the Third Circuit

approvingly quoted the factors used by the District Court and noted that the District Court had

“undert[aken] an exceedingly thorough, careful, and thoughtful analysis of the evidence and

2016 WL 1337261, at *12; see also Lozano v. Alvarez, 697 F.3d 41, 57 (2d Cir. 2012) (explaining

that the factors courts should consider include “(1) the age of the child; (2) the stability of the

child’s residence in the new environment; (3) whether the child attends school or day care

consistently; (4) whether the child attends church [or participates in other community or

extracurricular school activities] regularly; (5) the respondent’s employment and financial

stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration

status of the child and the respondent”) (brackets in original), aff’d sub nom. Lozano v. Montoya

Alvarez, 572 U.S. 1 (2014). The Court addresses each factor in turn.

As to the first factor, L.S. was a little over six years old at the time Petitioner commenced

the instant proceeding. “[C]ourts generally conclude that repatriation of an infant is less

burdensome on the child than repatriating an older child, who is more likely to have memories of

the United States and more ties to the country.” Castellanos Monzon, 2016 WL 1337261, at *13

(quoting Taveras v. Morales, 22 F. Supp. 3d 219, 236 (S.D.N.Y. 2014), aff’d, 604 F. App’x 55 (2d

Cir. 2015)). Here, L.S. is old enough to form memories and ties to the United States. Moreover,

at the time the petition was filed, L.S. had been in the United States for over fifteen months – more

than sufficient time to form such memories and ties. Accordingly, the Court finds that the first

factor weighs in favor of finding that L.S. is settled in the United States. See id. (finding that

child’s age of five weighed in favor of settlement); see also In re Lozano, 809 F. Supp. 2d 197,

232 (S.D.N.Y. 2011) (finding that five-year-old child who had been in United States for sixteen

months weighed in favor of settlement), aff’d, Lozano v. Alvarez, 697 F.3d 41.

various factors that pertain to how well a child is settled in a community and home.” Monzon, 910

F.3d at 105. As such, the Court likewise uses those factors in this matter.

As to the second factor, while L.S. has resided in a few homes since arriving in New Jersey,

L.S. has resided at his current home in Parlin, New Jersey since January 2019.16 Evid. Tr. Vol. 2

at 123:5-6; 144:10-14. Respondent’s testimony, which the Court finds credible on this issue,

demonstrated that L.S.’s move to Parlin, New Jersey evidenced a transition to a stable residence.

Respondent lives with her husband and A.C. – L.S.’s stepfather and half-brother, respectively –

both of whom L.S. has apparently grown very close with. Id. at 150:4-9. A.C. was born before

the petition in this case was filed. Accordingly, the Court finds that the second factor supports a

finding of a stable residence and, at the very least, is neutral in the Court’s analysis.

As to the third factor, Respondent testified that L.S. regularly attended school while in New

Jersey. L.S. has been enrolled in school in New Jersey since September 2018, attending the first

half of kindergarten in Morristown. Stipulated Facts ¶ 14. Since moving to Parlin in January

2019, L.S. has been enrolled in the Sayreville Public School System for kindergarten and first

grade. Id. Respondent further testified that L.S. has progressed in learning English since attending

school.17 Evid. Tr. Vol. 2 at 146:16-25. Before the current petition was filed, L.S. had already

finished his first year of school and was just about to start his second. Accordingly, the Court finds

that the third factor weighs in favor of finding that L.S. is settled. As to the fourth factor, the Court

16 Prior to moving to Parlin, L.S. had lived in Morristown – save for a handful of days in Newark

upon first arriving in New Jersey. It also appears that L.S.’s time in Morristown was stable – he

lived with his mother’s uncle, Respondent had additional relatives in the area, and L.S. started

kindergarten.

17 To be clear, the Court is not considering evidence occurring after the first day of the hearing as

to L.S. being settled. The second day of testimony was adjourned due to the pandemic and through

no fault of Petitioner. For example, Respondent testified that L.S. is very close with his stepfather.

Respondent also explained that L.S.’s stepfather helped L.S. communicate with Petitioner well

before the petition in this matter was filed. The Court considers this testimony. However,

Respondent added that on Father’s Day this year – June 21, 2020 – L.S. made very kind and

sentimental remarks to his stepfather. The Court does not consider this evidence.

heard credible testimony that, prior to quarantine, L.S. attended church three times a week, id. at

149:3-4, attended classes at his church, id. at 149:5-8, and has friends at his church, id. at 149:9-

10. Moreover, Respondent also testified that L.S. takes karate classes. Id. at 148:9-15. As such,

the Court finds that the fourth factor weighs in favor of finding that L.S. is settled.

As to the fifth factor, Respondent testified that she has not applied for a work permit in the

United States, but has worked sporadically in a restaurant.18 Id. at 187:3-10. As such, the Court

finds that the fifth factor weighs against finding that L.S. is settled in the United States. With

respect to the sixth factor, the Court heard ample testimony concerning L.S.’s friends and relatives

in the area. Respondent testified that L.S. has made friends at his school, id. at 148:16-17, friends

in his neighborhood, id. at 148:18-19, and friends at his church, id. at 149:9-10. Furthermore, L.S.

lives with his maternal aunt and new half-brother, and has other extended family members who

also reside nearby in New Jersey. Respondent introduced several photographs of L.S. with his

family, including family pictures from L.S.’s fifth birthday party, as well as pictures from another

family dinner. See, e.g., Ex. R-3e, nos. 37, 45, 49; see also Evid. Tr. Vol. 2 at 151:18-152:15.

Accordingly, the Court finds that the sixth factor weighs in favor of finding that L.S. is settled.

As to the seventh factor, L.S. was removed from Honduras when he was four years old, at

the time having been in school for only two months. Id. at 131:19-24. While Respondent testified

during cross-examination that L.S. did not have friends in Honduras, she was contradicted by her

deposition testimony during which she conceded that L.S. did have friends there. Id. at 165:2-8.

The Court credits Respondent’s deposition testimony and finds that L.S. did have friends in

Honduras. Nonetheless, this finding does not change the Court’s analysis. Respondent further

18 The Court recognizes that Respondent has a child who is under a year old. While it is unclear

whether Respondent’s husband has a work permit, presumably Respondent’s husband does work

and financially supports the family. However, the record was not developed in this regard.

testified that L.S. was not involved in any extra-curricular activities while in Honduras, id. at

131:25-132:2, did not play in parks or playgrounds in Honduras for alleged safety reasons, id. at

132:3-7, and since moving to the United States has had at best sporadic communication with

Petitioner,19 who still lives in Honduras. Id. at 145:3-7; see also Evid. Tr. Vol. 1 at 36:2-3.

Critically, however, the Court heard very little testimony concerning what other ties L.S. still

maintains with Honduras. While L.S. does have family in Honduras on both his father and

mother’s side, the record does not reflect what, if any, contacts L.S. maintains with those family

members. As such, the Court finds that the seventh factor weighs in favor of finding that L.S. is

settled in the United States.

With respect to the eighth factor, both Respondent and L.S.’s stepfather appear to have a

close relationship with L.S. Respondent credibly testified that L.S.’s stepfather, with whom L.S.

has grown close, enjoys spending time and playing with L.S. Evid. Tr. Vol. 2 at 150:1-9.

Respondent also testified that their family enjoys going to the park and beach. Id. at 148:10-13.

Additionally, Respondent obtained a pediatrician for L.S. when they first arrived in the United

States and made sure that L.S. received all of his immunizations. Id. at 143:19-22. See Castellanos

Monzon, 2016 WL 1337261, at *14 (finding eighth factor in favor of settlement where respondent

and new partner enjoyed close relationship with child, and where respondent obtained regular

pediatrician for child in United States); see also Ramirez v. Buyauskas, No. 11-6411, 2012 WL

606746, at *18 (E.D. Pa. Feb. 24, 2012), amended, 2012 WL 699458 (E.D. Pa. Mar. 2, 2012)

(finding eighth factor in favor of settlement where “[r]espondent enjoy[ed] a very close

19 Importantly, the Court notes – and the parties stipulated – that since arriving in the United States,

Respondent has not only permitted L.S. to communicate with Petitioner, but has “never denied

Petitioner access to speaking with L.S.” Stipulated Facts ¶¶ 28-29.

relationship with her children, for whom she is the primary caretaker,” and that “[t]he success

with which [respondent’s] children adapted to the United States reflects well on respondent’s

ability to parent her children, including . . . getting her children vaccinated once they arrived in

this country.”). Accordingly, the Court finds that the eighth factor weighs in favor of finding that

L.S. is settled.

As to the ninth factor, the parties dispute the extent to which Respondent allegedly

concealed the removal of L.S. from Honduras until she and L.S. were already in the United States.

Nonetheless, the parties have stipulated that “[s]ince arriving in the United States, Respondent has

permitted L.S. to communicate with his father” and that Respondent “has never denied Petitioner

access to speaking with L.S.” Stipulated Facts ¶¶ 28-29. Accordingly, the Court finds that the

ninth factor – whether Respondent took measures to conceal L.S.’s whereabouts – weighs in favor

of Respondent.

As to the tenth factor, neither Respondent nor L.S. is a citizen of the United States.

Stipulated Facts ¶ 7. Despite Respondent’s contention that she and L.S. have sought asylum in the

United States, their immigration status remains uncertain. Respondent testified that she routinely

checks in with immigration services, Evid. Tr. Vol. 2 at 141:14-15, and has been compliant with

all of immigration service’s requests since being detained in May 2018. Id. at 141:22-24.

Respondent also testified that she currently has an immigration proceeding scheduled for

November 2021. Id. at 141:25-142:2. However, Respondent also testified that she had not yet

filed a formal application for asylum. Id. at 180:8-11. At the very least, Respondent and L.S’s

immigration status remains uncertain. Accordingly, the Court finds that the tenth factor weighs

against finding that L.S. is settled in the United States.

After careful consideration of the foregoing factors, the Court finds that factors one, two,

three, four, six, seven, eight, and nine weigh in favor of finding that L.S. is settled. Conversely,

the Court finds that factors five and ten weigh against finding that L.S. is settled.20 Importantly,

however, “while [a] more comfortable material existence does not mean that the child is well

settled, by the same token, the child’s life does not have to [be] perfect for [him] to be settled.”

Castellanos Monzon, 2016 WL 1337261, at *12 (internal quotations and citations omitted). In

light of the substantial majority of factors weighing in favor of settlement, the Court finds that

Respondent has met her burden of establishing by a preponderance of the evidence that L.S. has

subsequently become settled in his new environment. See Monzon, 910 F.3d at 101 (“ICARA

requires that a respondent only establish by a preponderance of the evidence that [] the child is

now settled in [his] new environment[.]”). In sum, the factors considered by the Court – and,

importantly, the quality of evidence supporting them – leads to such a finding. In other words, the

Court weighed the factors not merely by comparing the total number that favors one finding as

opposed to another, but the Court also considered the quality of the evidence supporting each

factor. Accordingly, Petitioner’s application is denied.21

Of final note, Petitioner requests that the Court exercise its discretion to order the return of

L.S. to Honduras notwithstanding the applicability of any affirmative defense. Def.’s Summation

Br. at 17. It is true that “even if the respondent meets his or her burden of proving [an] affirmative

20 As noted, factor two is, at the very least, neutral in the Court’s analysis.

21 The Court emphasizes that its decision is not a custody determination. See, e.g., Castellanos

Monzon, 2016 WL 1337261, at *15 (“[T]he Court stresses that its decision today is neither a

custody determination, nor is it a determination that Petitioner cannot have any contact, whether

in person or otherwise, with [the child], or where [the child] should ultimately reside. . . . Instead,

the Court’s ruling today is merely a determination that, under the principles set forth in the

Convention and ICARA, [the child] shall not be ordered returned to Guatemala while any custody

determination may be litigated.”).

defense, the court retains the discretion to order the return of the child if it would further the aim

of the Convention which is to provide for the return of a wrongfully removed child.” Tsai-Yi Yang,

499 F.3d at 278. The Court, however, declines to exercise its discretion in this matter.

V. CONCLUSION

For the reasons set forth above, Petitioner’s application to return L.S. to Honduras is

DENIED. An appropriate Order accompanies this Opinion.

Dated: July 21°, 2020

Age VOR Vn

J ohn Michael Vazquez, us) (

23