Clarification of Review and Application of the Well-Settled Exception under the Hague Convention

Introduction

This commentary examines the Fifth Circuit’s June 2, 2025 decision in Brito Guevara v. Francisco Castro. The dispute arose when Samantha Castro removed her daughter, A.F., from her father’s custody in Venezuela and brought her to Texas without his consent. Jose Brito Guevara, the father, invoked the Hague Convention on the Civil Aspects of International Child Abduction and its implementing statute, the International Child Abduction Remedies Act (ICARA), to secure A.F.’s return. The district court found a prima facie case of wrongful removal but held that A.F. was “well-settled” in Dallas and denied the return. The Fifth Circuit reversed, clarifying both the substantive application of the “well-settled” exception in Article 12 of the Convention and the appropriate standard of review for mixed factual-legal questions in such cases.

Summary of the Judgment

The panel held that:

Brito established a prima facie case under the Hague Convention: A.F. was wrongfully removed from her habitual residence (Venezuela) and the father was exercising custody rights at the time.
The district court misapplied the “well-settled” exception in Article 12 by over-weighing certain factors and under-weighing A.F.’s young age and the parents’ unsettled immigration status.
The proper standard divides mixed questions of fact and law: factual findings are reviewed for clear error; legal conclusions (including application of the multi-factor test) are reviewed de novo.
Balancing the seven non-dispositive factors anew, the panel concluded A.F. is not sufficiently “well-settled” in Texas to bar her return, and ordered remand with instructions to return A.F. to Venezuela.

Analysis

Precedents Cited

England v. England, 234 F.3d 268 (5th Cir. 2000) – Hague Convention’s objectives: prompt return and avoiding jurisdictional shopping.
Abbott v. Abbott, 560 U.S. 1 (2010) – custody decisions best made in the child’s habitual residence.
Hernandez v. Pena, 820 F.3d 782 (5th Cir. 2016) – seven-factor “well-settled” test; mixed question standard.
Lozano v. Montoya Alvarez, 572 U.S. 1 (2014) – Article 12’s one-year bar and “well-settled” exception; refuse to rewrite the treaty by equitable tolling but permit concealment as a factor.
Bufkin v. Collins, 145 S. Ct. 728 (2025) – standard of review for mixed questions in administrative adjudication; clear-error for factual work, de novo for legal.
Galaviz v. Reyes, 95 F.4th 246 (5th Cir. 2024) – ICARA implementation of the Hague Convention.

Legal Reasoning

The decision turns on Article 12 of the Hague Convention, which requires return of a child wrongfully removed unless (1) more than one year has elapsed and (2) the child is now “well-settled” in the new environment. The Convention’s default is return “forthwith.” ICARA places the burden of proof on the respondent to establish an affirmative defense by a preponderance.

The Fifth Circuit reaffirmed the seven-factor framework from Hernandez:

Child’s age
Stability and duration of residence
School or day-care attendance
Friends and relatives
Community or extracurricular activities
Respondent’s employment and financial stability
Immigration status

Crucially, none of these factors is dispositive. The court must conduct a holistic inquiry into whether “return is no longer in the child’s best interests.”

On standard of review, the panel embraced a Bufkin-style analysis: factual findings (e.g., how many schools attended) are reviewed for clear error, while the ultimate legal determination (does the evidence, as applied to the seven factors, support “well-settled”) is reviewed de novo. The panel rejected the dissent’s contention that the entire multi-factor weighing should be clear-error review.

Impact

The decision clarifies two points of substantial practical importance:

Review standard: Appellate courts should clear-error review district courts’ factual findings and de novo review their legal application of the “well-settled” test. This approach preserves both deference to trial courts on credibility and factual disputes, and uniform legal interpretation of the Convention’s defenses.
Application of factors: Younger children, lacking durable attachments, and parents’ unsettled immigration status can weigh heavily against “well-settled.” Residency changes, precarious housing or employment arrangements, and uncertain asylum prospects undermine a claim of settlement.

Future Hague Convention petitions in the Fifth Circuit will be guided by this decision when district courts assess return exceptions under Article 12.

Complex Concepts Simplified

“Prima Facie” Case: The petitioner must prove (a) the child was habitually resident in another country, (b) removal violated custody rights there, and (c) those rights were being exercised.
Article 12 “Well-Settled” Exception: If more than one year has passed since removal, the respondent may avoid return only by showing the child is so integrated in the new environment that return would be contrary to her best interests.
Seven-Factor Framework: A non-exclusive checklist to guide courts in evaluating a child’s ties to the new environment.
Clear-Error vs. De Novo: Courts defer to trial courts on factual disputes (clear error) but independently interpret and apply legal standards (de novo).

Conclusion

The Fifth Circuit’s decision in Brito Guevara v. Castro reaffirms the Hague Convention’s commitment to prompt return of internationally abducted children while preserving a narrowly tailored, holistic exception for instances of genuine settlement. By clarifying both the seven-factor balancing test and the proper standard of review, the court provides judges and practitioners a clear roadmap for future ICARA petitions. Ultimately, the ruling underscores that the Convention’s primary goal remains the restoration of custody decisions to the child’s country of habitual residence, except in the rare case where a child’s new ties outweigh the Convention’s return mandate.