Rodrigues da Silva v. Silveira da Silva – First Circuit Adopts a Holistic Totality-of-the-Circumstances Test for the “Now Settled” Defense under the Hague Convention

1. Introduction

In Rodrigues da Silva v. Silveira da Silva, No. 25-1360 (1st Cir. 2025), the United States Court of Appeals for the First Circuit confronted one of the most difficult recurring questions under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”): When, if ever, may a child who was wrongfully removed remain in the United States because he has become “now settled” in his new environment?

The dispute arose after respondent-appellant Jessica Silveira da Silva left Brazil with her then-eight-year-old son, A.R., and started a new life in Lowell, Massachusetts. More than two years later, petitioner-appellee Edervaldo Rodrigues da Silva—the child’s father—invoked the Hague Convention to obtain A.R.’s return to Brazil. The district court found the child’s removal wrongful but rejected the mother’s “now settled” defense. On appeal, the First Circuit vacated that determination, holding that A.R. is now settled and clarifying how trial courts in the circuit must evaluate the defense going forward.

2. Summary of the Judgment

Prima facie case: The panel affirmed that the father proved wrongful removal under the Hague Convention and ICARA.
Key holding: The district court clearly erred in concluding that A.R. was not “now settled.” A holistic evaluation of the evidence established that the child had significant, stable connections in Massachusetts.
Legal standard clarified: Courts must apply a flexible, totality-of-the-circumstances test, treating commonly listed factors as “data points,” not a rigid checklist.
Disposition: Judgment vacated and case remanded so the district court can exercise its equitable discretion whether to return the child despite settlement—an inquiry that may consider parental misconduct and other equitable concerns.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

The opinion weaves together several Supreme Court and First Circuit precedents to define the analytical framework:

Monasky v. Taglieri, 589 U.S. (2020) – Confirmed that “habitual residence” is determined by the totality-of-the-circumstances; the First Circuit borrows Monasky’s holistic lens for the settlement inquiry.
Yaman v. Yaman, 730 F.3d 1 (1st Cir. 2013) – Recognised broad equitable discretion once an affirmative defense is established.
da Costa v. de Lima, 94 F.4th 174 (1st Cir. 2024) – Set out the six traditional “settlement factors” and underlined that the district court retains discretion even when settlement is proved.
da Silva v. de Aredes, 953 F.3d 67 (1st Cir. 2020); Alcala v. Hernandez, 826 F.3d 161 (4th Cir. 2016) – Provided guidance on narrow construction of Hague defenses and on how unstable housing or immigration status may cut against settlement.
The panel also engaged Díaz-Alarcón v. Flández-Marcel, 944 F.3d 303 (1st Cir. 2019); Avendano v. Balza, 985 F.3d 8 (1st Cir. 2021); and other circuit authority to reinforce ICARA’s burden-shifting structure.

By synthesising this case law, the court emphasised that factor-listing is permissible to “guide factual development,” but must not “obscure the ultimate purpose” of deciding whether the child has forged “significant connections demonstrating a secure, stable, and permanent life” in the new country.

3.2 The Court’s Legal Reasoning

Standard of Review. The panel reviewed the legal test for settlement de novo, but assessed the fact-finding for clear error. However, once the trial court misapplied or over-weighted certain facts, the findings collectively became “firmly” erroneous.
Totality-of-the-Circumstances Test Reaffirmed. The court explicitly rejected any “rigid balancing test” of seven factors. Instead, those factors are illustrative. A court’s mission is to paint an overall picture of the child’s life.
Application to A.R. Critical anchoring facts drove the outcome:
- Three continuous years in the same city and same elementary school;
- Stable household with mother and step-father, both steadily employed;
- Tangible academic progress (advancement to 4th grade, improving English, serving as peer interpreter);
- Active participation in church youth group and local soccer team;
- Robust support network from step-father’s extended family.
The panel deemed these facts “compelling,” especially because no appellate decision had ever found a child not settled given such extensive ties.
Missteps By the District Court. Although the district judge catalogued the correct factors, she fragmented the inquiry—scrutinising attendance issues, relatively recent extracurricular activities, and the novelty of U.S. family ties—without integrating them holistically. The appellate court ruled that such compartmentalised analysis obscured the larger stable picture.
Remand for Equitable Discretion. Even with settlement established, the Convention gives the trial court equitable authority to order return. On remand the court may evaluate misconduct, potential harm, or other policy considerations.

3.3 Potential Impact of the Decision

Guidance for Trial Courts. The First Circuit supplies a road-map that discourages mechanical tallying of “pros” and “cons.” Judges must instead ask: does the child appear to have arrived—socially, educationally, emotionally—in the United States?
Higher Bar for Petitioners Filing After One Year. Parents who delay more than a year now face a clarified, child-friendly standard that privileges real-world stability over technical imperfections.
Expanded Consideration of Step-Family and Community Ties. The opinion validates step-relatives and community organisations (church, sports) as weighty connectors, not peripheral ones.
Valuation of Improvement, Not Perfection. Academic or behavioural challenges will not defeat settlement if the trajectory shows integration and growth.
Post-petition Evidence. Citing da Costa, the court underscores that events occurring after the Hague petition (e.g., joining a soccer team) remain relevant because the Convention looks at the child’s present situation.

4. Complex Concepts Simplified

Hague Convention (1980): An international treaty aiming to deter cross-border parental child abduction by promptly returning wrongfully removed children to their habitual residence so custody can be decided there.
ICARA: The U.S. implementing legislation (22 U.S.C. §§ 9001-9011) that allocates jurisdiction to federal/state courts and sets burdens of proof.
“Now Settled” Defense: Article 12’s exception that permits (but does not require) a court to refuse return if (1) the petition was filed one year or more after removal and (2) the child is “now settled” in the new environment.
Totality-of-the-Circumstances: A holistic inquiry weighing all relevant facts rather than adhering to a formulaic checklist.
Standard of Review: Legal conclusions: reviewed de novo (fresh look).
Fact-finding: reviewed for “clear error”—appellate judges will not disturb findings unless firmly convinced a mistake was made.
Equitable Discretion: Even when a defense is proven, courts may still order return if fairness, deterrence, or child welfare factors favor it.

5. Conclusion

The First Circuit’s opinion in Rodrigues da Silva v. Silveira da Silva is a significant refinement of the “now settled” doctrine in Hague Convention jurisprudence. By elevating a holistic, child-centred perspective over factor-counting formalism, the court strengthens protections for children who have truly established new roots in the United States. Going forward, litigants and trial judges in the First Circuit—and likely beyond—must focus less on isolated shortcomings (missed school days, recent extracurricular participation) and more on the cumulative portrait of the child’s everyday life, growth, and stability.

Although the panel’s ruling does not automatically guarantee A.R. will remain in Massachusetts—equitable considerations on remand could alter the ultimate outcome—the clarified standard lowers the odds of displacing children who have developed genuine, multifaceted attachments to their new communities. The decision thus stands as a leading precedent on how to balance the Hague Convention’s deterrent objectives with the real-world interests of children caught between borders.