United States Court of Appeals For the First Circuit
No. 23-1548
HEITOR FERREIRA DA COSTA,
Petitioner, Appellant,
v.
JESSICA CAMILA ALBEFARO DE LIMA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Barron, Chief Judge, Selya and Howard, Circuit Judges.
Charles R. Hunsinger, with whom Elizabeth G. Crowley, Emily A. Weber, and Burns & Levinson LLP were on brief, for appellant. Ruben J. Rodrigues, with whom Beth I.Z. Boland, John W. Custer, John F. Nagle, and Foley & Lardner LLP were on brief, for appellee.
February 28, 2024 SELYA, Circuit Judge. Some problems are endemic in
modern life, and this appeal — like so many before it — requires
us to encounter the repercussions of divorce in a global society.
After their marriage ended in Brazil, petitioner-appellant Heitor
Ferreira da Costa (da Costa) accused respondent-appellee Jessica
Camila Albefaro de Lima (de Lima) of absconding with their minor
child to the United States where, unbeknownst to da Costa for about
a year, the mother and child settled into a new life on Martha's
Vineyard. Although both parents are Brazilian nationals, they
have turned to the American courts to determine the appropriate
forum for their competing custodial claims under the international
law of the Hague Convention on the Civil Aspects of International
Child Abduction (the Convention). In this phase of their battle,
da Costa now complains that the district court failed to credit
his allegations of a hasty flight that resulted in a turbulent
landing for the child. Concluding, as we do, that the district
court's resolution of the pertinent factual and legal questions is
amply supported by the record, we affirm.
I
We briefly rehearse the relevant facts and travel of the
case.
A
Da Costa and de Lima — both of whom are Brazilian
nationals — married, had a child, and subsequently made their home
- 2 - in São Sebastião do Anta, Brazil. The marriage ended in December
of 2019 after a Brazilian court entered a divorce judgment, which
incorporated an agreement that explained how each parent could
spend time with the child. De Lima was granted "definitive
custody" of the child, while da Costa retained general visitation
rights — subject to de Lima's approval — and was allotted parenting
responsibilities for one weekend each month (an interval later
expanded to two weekends each month).
Da Costa twice availed himself of this expanded
parenting window before de Lima and the child surreptitiously
decamped for São Paulo, Brazil — a journey that eventually took
them to Martha's Vineyard, Massachusetts. After first being
removed by immigration officials, de Lima and the child
successfully reentered the United States even though they lacked
proper documentation. The mother and child made their home in
Martha's Vineyard, where they lived near several family members.
The child enrolled in elementary school, participated in
extracurricular activities (like swim lessons), and attended mass
and bible study at a local church. De Lima has pending before
United States Citizenship and Immigration Services an asylum
application (which includes the child).
Da Costa remained in Brazil. For some time, he believed
that de Lima and the child had traveled only as far as São Paulo.
He was thus unaware — until about a year later — that his ex-wife
- 3 - and their child were residing in the United States. Unable to
locate his child in Brazil, he lodged a report with the Brazilian
civil police in São Sebastião do Anta. When he learned the true
state of affairs, he filed an application for return of the child
with the Brazilian Ministry of Justice. Both of these initiatives
proved fruitless, and da Costa then turned his attention to the
American courts: he filed a petition under the Convention — as
implemented in the United States by the International Child
Abduction Remedies Act (ICARA), see 22 U.S.C. §§ 9001-11 — in the
United States District Court for the District of Massachusetts.
See Ferreira da Costa v. Albefaro de Lima, No. 22-10543, 2023 WL
4049378, at *1 (D. Mass. June 6, 2023).
B
The district court conducted a bench trial over three
days, hearing testimony from the parties, family members, and
teachers. See id. The court denied da Costa's petition. See id.
Even assuming that da Costa had proven his prima facie case, he
still would not prevail: de Lima had shown that the "now settled"
defense applied.1 See id. at *7. Finally, the court declined to
1 In the court below, de Lima argued, in the alternative, that returning the child to Brazil would place the child at a grave risk of harm. See da Costa, 2023 WL 4049378, at *1. The district court saw no need to reach this affirmative defense, see id. at *9 n.8, and we, too, eschew it.
- 4 - exercise its discretion to order the return of the child. See id.
at *9.
Based on the totality of the circumstances, the court
determined "that the child [was] now settled in [his] new
environment" of Martha's Vineyard. Id. at *7 (second alteration
in original) (citing Hague Convention, art. 12; Lozano v. Montoya
Alvarez, 572 U.S. 1, 5 (2014)). After all, the child had spent
over half his life in Martha's Vineyard; his age (six years old)
permitted him to form meaningful connections with his new
environment; he had developed strong relationships with family in
the United States; he had bonded with teachers and classmates; he
was making substantial progress in learning English; and he
regularly attended mass and a bible study course with other
children in the community. See id. at *8-9.
Of course, the court recognized that de Lima and the
child, along with other family members, remained uncertain about
their immigration status. See id. at *9. The court also
recognized that de Lima and the child had moved several times and
that the child's nascent English ability hindered communication.
See id. Even so, the court did not think that any of these facts,
individually or collectively, were weighty enough to tip the scales
against de Lima. See id. De Lima was authorized to work, worked
full time, and had applied for asylum. See id. The family's moves
- 5 - were within Martha's Vineyard,2 kept them close to family members,
occurred before the child had commenced school, and were carried
out in conjunction with family. See id. And the child could speak
Portuguese to family members and some classmates, while his English
skills continued to improve. See id.
The court then declined to exercise its discretion to
order the child's return even though he was firmly settled because
"the considerations related to [his] well-being outweigh[ed] the
policy considerations related to deterring misconduct" by the
removing parent. Id. Although de Lima had engaged in misconduct
by concealing the child's location from da Costa, the court held
that the interests of the child were paramount and "that requiring
[the child] to return to Brazil would be disruptive, particularly
given how much of his life he ha[d] spent in the United States,
his strong family connections here, and his limited connections to
his family in Brazil, other than to [da Costa]." Id.
This timely appeal followed.
II
We turn to the legal standards that obtain under the
Convention for establishing the now settled defense and the
2 The child spent several days in Everett, Massachusetts in between moves, but there is no indication that the court considered his stay there a move outside of Martha's Vineyard. See id. at *4. Whatever the case, we think this detail inconsequential in the grand scheme of the analysis.
- 6 - standard of appellate review that attaches to bench trials. Next,
we consider the combined operation of these two sets of standards.
Under the Convention, "[c]ourts look to the totality of
the circumstances in determining whether a child is now settled."
da Silva v. de Aredes, 953 F.3d 67, 75 (1st Cir. 2020). For this
purpose, "[a] court may consider any relevant fact, including
immigration status." Id. In the last analysis, though,
immigration status remains just one relevant data point, and its
weight will vary based on the idiosyncratic circumstances of each
particular case. See id. Other relevant factors include:
(1) the child's age; (2) the stability and duration of the child's residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child has friends and relatives in the new area; (5) the child's participation in community or extracurricular school activities, such as team sports, youth groups, or school clubs; and (6) the respondent's employment and financial stability.
In re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir. 2009); see Alcala
v. Hernandez, 826 F.3d 161, 171 (4th Cir. 2016) (listing these
factors along with immigration status); Hernandez v. Garcia Peña,
820 F.3d 782, 787-88 (5th Cir. 2016) (similar); Lozano v. Alvarez,
697 F.3d 41, 57 (2d Cir. 2012) (similar).
Even if the removing parent succeeds in showing that the
child is now settled, the district court retains discretion to
- 7 - order the return of the child. See Yaman v. Yaman, 730 F.3d 1, 16
(1st Cir. 2013). At this point in the proceedings, "[t]here is
very little law providing guidance as to how a district court is
to weight the different factors as to return." Id. at 21. We
previously have termed this decision "a matter of equitable
discretion." Id. Given the elasticity of that term, a court may
"consider the abducting parent's misconduct, together with any
other relevant circumstances, such as whether return would not be
harmful or disruptive even though the child has become settled, in
deciding whether to order [his] return." Id.
Following a bench trial, we review the district court's
legal conclusions de novo. See ST Eng'g Marine, Ltd. v. Thompson,
MacColl & Bass, LLC, 88 F.4th 27, 32 (1st Cir. 2023). "This review
encompasses 'determinations about the sufficiency of the
evidence.'" Id. (quoting Aadland v. Boat Santa Rita II, Inc., 42
F.4th 34, 41 (1st Cir. 2022)). Conversely, we review decisions
left to the district court's sound judgment for abuse of
discretion. See Yaman, 730 F.3d at 10. As an English court aptly
phrased it, "the exercise of a discretion under the Convention
requires the court to have due regard to the overriding objectives
of the Convention whilst acknowledging the importance of the
child's welfare." Cannon v. Cannon, [2004] EWCA (Civ) 1330, [2005]
1 W.L.R. 32 (Eng.) ¶ 38.
- 8 - "Findings of fact, whether based on oral or other
evidence, must not be set aside unless clearly erroneous." Fed.
R. Civ. P. 52(a)(6); see Aadland, 42 F.4th at 41. The appellate
"court must give due regard to the trial court's opportunity to
judge the witnesses' credibility." Fed. R. Civ. P. 52(a)(6). "The
clear error standard is deferential and, where it applies, we will
not overturn a factual finding unless — on the whole of the record
— we are 'left with the definite and firm conviction that a mistake
has been committed.'" ST Eng'g Marine, 88 F.4th at 32 (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
"[T]he appropriate standard of appellate review for a mixed
question [of law and fact] 'depends . . . on whether answering it
entails primarily legal or factual work.'" Monasky v. Taglieri,
140 S. Ct. 719, 730 (2020) (third alteration in original) (quoting
U.S. Bank N.A. v. Vill. at Lakeridge, LLC, 583 U.S. 387, 396
(2018)).
C
In Convention cases, the "'now settled' defense[]
require[s] the court to identify a broad standard and then answer
the factual question[] of . . . whether the abducted child is 'now
settled.'" da Silva, 953 F.3d at 72. As the Supreme Court has
explained in the analogous context of determining a child's country
of habitual residence, "[t]he inquiry begins with a legal question:
What is the appropriate standard" to ascertain whether a child is
- 9 - now settled? Monasky, 140 S. Ct. at 730; see da Silva, 953 F.3d
at 72 (applying reasoning in Monasky to now settled defense in
Convention case). The standard for the now settled defense mirrors
that of the country-of-habitual-residence determination — that is,
a totality-of-the-circumstances approach. See da Silva, 953 F.3d
at 72.
"Once the [district] court correctly identifies the
governing totality-of-the-circumstances standard, . . . what
remains for the court to do in applying that standard . . . is to
answer a factual question: [Has] the child" become settled in his
new environment? Monasky, 140 S. Ct. at 730; see da Silva, 953
F.3d at 72. Thus, our review of that question is for clear error.
See da Silva, 953 F.3d at 72.
III
Da Costa identifies several reasons why the district
court committed clear error by finding that the child had become
settled. First, he contends that the court clearly erred because
it relied entirely on evidence of events that occurred after he
filed the petition. Second, he contends that the court clearly
erred because it did not appropriately weigh the relevant factors
(given that the now settled defense must be interpreted narrowly).
Third, he contends that the court clearly erred because it
inappropriately considered the child's best interests. None of
these entreaties carries the day.
- 10 - A
At the outset, da Costa asserts that relying solely on
evidence that postdates the petition's filing — as the district
court purportedly did here — does not align with the reasoning
behind the now settled defense. The now settled defense's
requirement that one year must pass after the petition's filing,
he maintains, "is a recognition that one year gives a child the
opportunity to form ties to a new community and is intended to
ensure rapid attempts to recover a wrongfully removed child."3 De
Lima rejoins that this argument is waived and that, in all events,
it defies the text of the Convention. We start with the waiver
question before turning to the textual question. Because the
parties' arguments are of a legal nature, our review is de novo.
See ST Eng'g Marine, 88 F.4th at 32.
De Lima exhorts us to find that da Costa waived this
argument by failing to object to her introduction of post-petition
3 As a threshold condition, the Convention requires that one year must have passed between the date of wrongful removal and the commencement of proceedings to seek return of the child before the removing parent can invoke the now settled defense. See Hague Convention, art. 12. The district court determined that — under ICARA — "only the filing of a civil action in a court where the child is located is sufficient to commence . . . proceedings" and that da Costa had filed his petition one year after any of the possible dates of wrongful removal for which the parties argued below. da Costa, 2023 WL 4049378, at *7-8. This determination is not disputed on appeal.
- 11 - evidence and remaining silent on the matter throughout briefing
and closing argument. See Allied Int'l, Inc. v. Int'l
Longshoremen's Ass'n, 814 F.2d 32, 39 (1st Cir. 1987) ("It is
axiomatic that the failure to object at trial, absent exceptional
circumstances . . ., forecloses any opportunity to challenge the
admissibility of the evidence on appeal."). Thus, de Lima insists,
da Costa waived any challenge to the court's consideration of post-
petition evidence.
This objection misconstrues da Costa's position. He
does not urge a categorical exclusion of post-petition evidence.
Instead, he deems it clearly erroneous to rely only on post-
petition evidence or, at least, to weigh the post-petition evidence
as heavily as did the court below. Even though de Lima's alleged
paucity of pre-petition evidence certainly could have been fodder
for da Costa's closing argument, it was not until the court
rendered its decision that the alleged error was committed,
affording da Costa something concrete to challenge. We, therefore,
reject the suggestion of waiver and proceed to the meat of da
Costa's objection.
With respect to the merits, da Costa offers no case law
in support of his theory. What is more, the Convention itself
gives a strong indication that post-petition evidence remains
important. In describing the now settled defense, the Convention's
- 12 - text reads in relevant part: "The judicial or administrative
authority, even where the proceedings have been commenced after
the expiration of the period of one year [following the child's
wrongful removal], shall also order the return of the child,
unless . . . the child is now settled in [his] new environment."
Hague Convention, art. 12 (emphases supplied).
Refined to bare essence, 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. The phrase "now settled" — the wording of
which itself suggests an emphasis on the present — is introduced
in the context of post-petition circumstances without reference to
pre-petition circumstances. If the drafters of the Convention had
intended to require that the removing parent include pre-petition
evidence, one would expect them to have expressed that intent more
explicitly in the text.
Yet, da Costa has presented no probative evidence of
such an intent. Rather, he tells a different tale — a tale of how
"becoming settled in a new environment is a process that extends
from the time the child enters the new environment through the
present." Without pre-petition evidence, he continues, "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
- 13 - petition, and the steps [the removing parent] took to ensure that
a child was well-settled."
Although we see a glimmer of truth in these statements,
they do not resolve the issue before us. Showing that a child is
settled does not necessarily require showing the adjustment
process through which the child became settled — though adducing
such evidence sometimes may be helpful. Da Costa may be right in
suggesting that this "evidence would have been not only more
credible but also more powerful," but that insight does little to
advance his cause. Evaluating the strength of post-petition
evidence — and whether it proves sufficient in the absence of pre-
petition evidence — turns on assessing credibility and weighing
facts. These tasks are grist for the district court's mill, and
the results are not for us to reevaluate unless they can be shown
to be clearly erroneous.
Nevertheless, the district court did describe earlier
chapters of the child's journey, which began years before the
petition was filed. See da Costa, 2023 WL 4049378, at *4. It
recalled that the child had lived on Martha's Vineyard since
December of 2019 and, at times, shared a home with his grandparents
and half-brother. See id. To the extent that da Costa thinks
this part of the story incomplete, we reiterate that we are in no
position to rewrite such fact-intensive judgments without a
showing of clear error.
- 14 - Da Costa tries to buttress this argument in yet another
way: he strives to persuade us that rejecting his position would
allow a removing parent to manufacture evidence in response to a
petition, which would thwart the Convention's underlying goals and
strong presumption in favor of returning a child to the country of
habitual residence. We are unconvinced.
Whether the removing parent constructed a facade that
the child is settled reduces to a question of credibility. If the
removing parent took actions designed to secure a stronger
litigation position rather than to settle the child, a reviewing
court may discredit that evidence. On the other hand, if those
actions nonetheless contributed to the child's being settled, we
see no reason to exclude them entirely. And if the removing parent
attempted such bad-faith gamesmanship, the court retains equitable
discretion to order the child's return whether or not it finds him
to be settled. See Yaman, 730 F.3d at 19.
Da Costa has a fallback position: he posits that the
district court "erred in weighing the applicable considerations
and facts" under the now settled analysis by using the wrong
geographic scope in defining the child's "new environment,"
mischaracterizing the stability of the child's living situation,
and ignoring de Lima's misconduct in removing the child from
Brazil. De Lima responds that this "kitchen-sink approach"
- 15 - attempts to jumble together "a variety of disparate arguments,
none of which demonstrate[s] clear error." We agree. Separating
da Costa's fusillade into its component parts, we find no basis to
second-guess the district court's judgment.
Because these arguments effectively challenge the
court's finding that the child was settled, our review is for clear
error. See da Silva, 953 F.3d at 72. Da Costa first complains
that the court employed the wrong definition of "new environment"
by considering only Martha's Vineyard, instead of the entire United
States. The record, however, flatly contradicts da Costa's plaint:
the district court explicitly found "that [the child] is settled
in the United States." da Costa, 2023 WL 4049378, at *9.
We note, moreover, that da Costa's complaint is
puzzling. In a country as expansive as ours, one need not have
connections to wide swaths of its lands in order to be settled
therein. By being settled in one region of a country — here,
Martha's Vineyard — one is by definition settled in that country.
Many natural-born citizens of the United States have yet to venture
beyond their home states, but it would be chimerical to suggest
that these persons are not settled in their native land.
Proceeding past the question of regionalization,
da Costa reprises his own narrative questioning the district
court's findings. The key facts include that the child's living
situation is less than stable due to his repeated moves (one of
- 16 - which was outside of Martha's Vineyard); that the immigration
statuses of the affected parties remain uncertain; that the child
is too young to have his opinion considered, especially given that
younger children are less likely to form attachments to their
environment; and that the child had only minimal adjustment to his
environment, particularly at school, in part because of the
language barrier.
These facts, cherry-picked from the record, do not move
the needle. The district court considered every fact that da Costa
now brings to our attention but found each of them outweighed by
other evidence. See da Costa, 2023 WL 4049378, at *9.
Specifically, the court noted that de Lima was authorized to work,
worked full time, and had applied for asylum; that the family's
moves (mostly) remained within Martha's Vineyard, were with or
near other family members, and occurred before the child had
started school; that the child still could speak Portuguese to
family members and some classmates, while his English skills
improved rapidly; and that the child appeared to be connecting
with teachers and classmates inside and outside of the classroom.
See id.
Nowhere does da Costa identify a factual finding that is
unsupported by the record. Nor does he highlight an instance in
which the court improperly credited or discredited evidence in
evaluating the totality of the circumstances. And we have no
- 17 - warrant to displace fact-based conclusions at which the court
reasonably arrived. See Foster v. Dalton, 71 F.3d 52, 55 (1st
Cir. 1995) ("Following a bench trial, an appellate tribunal is not
warranted in substituting its judgment for that of the trial
court."). What remains is that the district court did not weigh
the evidence as da Costa would have preferred — but that hardly
amounts to clear error.
Da Costa has yet another shot in his sling. He suggests
that the district court ignored de Lima's misconduct in secretly
fleeing with the child to the United States. But this suggestion
is of little consequence: we fail to see how concealing the
child's location or allegedly forging a signature on the child's
passport has anything to do with whether the child is settled in
a new environment.
To be sure, the Supreme Court has acknowledged that
"steps taken to promote concealment can also prevent the stable
attachments that make a child 'settled.'" Lozano, 572 U.S. at 17.
But the cases to which the Court cites connect the misconduct to
the child's being settled. See, e.g., Mendez Lynch v. Mendez
Lynch, 220 F. Supp. 2d 1347, 1363 (M.D. Fla. 2002) (finding
children not settled when mother "took active and consistent steps
to prevent contact between the children and their father"); Wigley
v. Hares, 82 So.3d 932, 942 (Fla. Dist. Ct. App. 2011) ("The mother
purposely kept [the child] out of all community activities, sports,
- 18 - and even church to avoid detection by the father."). Here,
however, the steps allegedly taken to conceal the child have no
bearing on whether he was settled.
Da Costa's final claim is that the district court's
analysis was "tainted" by inappropriate consideration of the
child's best interests — a concern not contemplated by the
Convention.4 See Whallon v. Lynn, 230 F.3d 450, 460 (1st Cir.
2000) (explaining that it is inappropriate to "risk substituting
a best interest of the child analysis for the analysis the
Convention requires"). This claim is wide of the mark.
To a large extent, "[t]he Convention is based on the
principle that the best interests of the child are well served
when decisions regarding custody rights are made in the country of
habitual residence." Abbott v. Abbott, 560 U.S. 1, 20 (2010).
Even so, "[t]he Convention also has as its
'purpose . . . deterring child abductions,' thereby 'prevent[ing]
harms resulting' therefrom." Yaman, 730 F.3d at 22 (second and
Da Costa also criticizes the court's concluding commentary 4
"that [the child] appears to be a happy and well-adjusted child who is lucky enough to have two parents who love him and want him to be with them" and that the court hopes "[de Lima] and [da Costa], as parents and not litigants, can find a way to do what is best for [the child]." Da Costa may think that such commentary has no place in a judicial decision, but regardless of whether this belief is merited, what is conspicuously clear is that the court's closing remarks played no role in its legal analysis.
- 19 - third alterations in original) (quoting Abbott, 560 U.S. at 20-
21). In other words, 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.'" Id. (quoting Lozano, 697 F.3d
at 54).
Recognizing this other purpose of the Convention, the
district court had the discretion to consider — in its analysis of
whether equitable factors supported the child's return to Brazil
even though he had become settled — the effect that the return
would have on the child's wellbeing. See da Costa, 2023 WL
4049378, at *9. What is more, da Costa does not point to anything
in any other portion of the court's opinion tending to indicate an
improper consideration of the child's best interests. And contrary
to da Costa's earlier importunings, de Lima's misconduct was
considered and weighed against the child's interests. See id.
The court found that the child appeared to be doing well in the
United States, while the extent of de Lima's misconduct remained
disputed (particularly the veracity of the allegation that she
forged da Costa's signature on the child's passport). See id.
Thus, it concluded that returning the child to Brazil —
where he has limited connections other than to da Costa — would be
disruptive because he has spent most of his life in the United
States and has developed many meaningful connections here. See
- 20 - id. Put another way, equity could not be served by ordering the
child's departure from a supportive environment and the return to
a less supportive one simply as punishment for the removing
parent's alleged malfeasance.
To say more would be to paint the lily. We can discern
no clear error based on these factual findings. The court
recognized that de Lima admitted to hiding the child's location,
and with respect to the child's passport, all that the record
reflects is conflicting testimony about whether da Costa signed
it. See id. Nor can we detect an abuse of discretion in connection
with the court's decision. Da Costa primarily takes issue with
the court lending credence to the child's interests in remaining
on Martha's Vineyard while discounting his interests in returning
to Brazil, but "[s]uch relative weighting of interests by the
district court . . . is not for this court to second-guess, and
especially not on an abuse of discretion analysis." Yaman, 730
F.3d at 22.
IV
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
- 21 -