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Defenses | General Denial

In this case, a father presented a prima facie case for the return of his child, but the mother waited until her opening statement at trial to present her affirmative defenses.

Holding

The district court held that the mother’s general denial to the father’s petition for return waived her right to present affirmative defenses when she attempted to raise them for the first time in her opening statement. The father was prejudiced by her failure to raise the defenses earlier.

Facts

A mother and father, an unmarried couple, lived in Cancún, Mexico. Their only child, E.A.O., was born there in 2014. The parents’ relationship began to deteriorate when their daughter was a toddler, and the couple separated in January 2018. The father moved to a nearby apartment after the separation, and he continued to see his daughter frequently and be involved in her life, paying for piano lessons, private school tuition, and sometimes rent for the mother’s apartment. In July 2019, the mother took their child to Texas, where she took up residence with a boyfriend in Odessa. The child had been a resident of Mexico her entire life up to the time her mother took her to Texas.

In response to the father’s timely petition for return of the child, the mother filed a general denial and did not raise any affirmative defenses. At trial, however, she raised the following affirmative defenses for the first time as part of her opening statement: (1) the child was settled in her new environment; (2) the father had consented to the child’s removal from Mexico; and (3) a return would subject the child to grave risk due to the father’s violence toward the mother.

Discussion

The trial court ruled that pursuant to Federal Rule of Civil Procedure 8(c)(1),[1] the mother’s failure to assert her affirmative defenses prior to trial constituted a waiver, and this delay resulted in the father not having “pragmatically sufficient time”[2] to respond. The court noted that

failure to timely plead an affirmative defense may result in waiver and the exclusion of the defense from the case. However, “a technical failure to comply with Rule 8(c) is not fatal.” A defendant does not waive a defense if it is raised with “pragmatically sufficient time” and does not prejudice the plaintiff in its ability to respond. A district court has discretion to determine whether the party against whom the defense was raised suffered prejudice or unfair surprise as a result of the delay in asserting the defense.[3]

The court found that the mother failed to present any defenses to the prima facie case established by the father. Although this constituted a waiver, as a matter of caution, the district court allowed the mother to present evidence of her untimely affirmative defenses. After the evidence was heard, the court found that her defenses lacked merit and ordered the child returned.


[1]. “In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense.”
[2]. Leon v. Ruiz, No. MO:19-CV-00293-RCG, 2020 U.S. Dist. LEXIS 43758, at *17 (W.D. Tex. Mar. 13, 2020) (quoting Rogers v. McDorman, 521 F.3d 381, 386 (5th Cir. 2008).
[3]. Id. (citations omitted).

This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.

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Defenses | Settlement and Immigration Status | Grave Risk | Motions for New Trial

In this case, the First Circuit determined whether a district court committed clear error[1] in denying a mother’s defenses of grave risk and settlement of the child, and whether the district court’s denial of her motion for a new trial was an abuse of discretion.

Holdings

The First Circuit affirmed the district court order for the return of a child to Brazil, denying the defenses of grave risk and settlement of the child for lack of sufficient evidence, and denying the motion for a new trial based on the continuance of an immigration hearing for three years.

Facts

A couple, both Brazilian citizens, lived together from 2007 to 2016. In 2010, the mother gave birth to A.C.A., their child. She had another child, M.A., from a previous relationship. The couple separated in February 2016. That December, the mother removed both children to the United States without the father’s knowledge. When she and the children entered the United States, immigration authorities released them on their own recognizance and ordered an immigration hearing in Boston, Massachusetts.

In November 2018, the father filed a petition for the return of A.C.A. to Brazil. The mother’s response alleged the defenses of grave risk under Article 13(b) and settlement of the child under Article 12. At the trial in July 2019, the district court tentatively ruled that the father’s petition for return would be granted. A formal order was entered on October 29, 2019, ordering the child to be returned on January 2, 2020. Two days later, on October 30, 2019, the mother and her two children attended an immigration hearing. At that hearing, she formally filed an application for asylum for herself and the two children, alleging that if they all returned to Brazil, the father would kill her and sexually abuse her other child. Immigration proceedings were continued to February 16, 2023.

On November 6, 2019, the mother moved for a new trial in district court, alleging that the three years before her next immigration hearing would provide her and the children with interim legal immigration status, eliminate the risk of imminent deportation, and provide new evidence of her defense that A.C.A. was well settled. The district court denied her motion for new trial. The First Circuit issued a stay of the removal order and expedited the appeal.

Discussion

The First Circuit found that the district court did not err in denying the mother’s defenses of grave risk or settlement of the child.[2]

Grave Risk. The mother alleged that returning A.C.A. to Brazil would expose her to grave risk because the child witnessed conflict between her parents, and if returned, was at risk of physical abuse herself. The district court had found that although there was “some degree” of physical abuse by the father, the facts presented were insufficient to establish grave risk to the child. The First Circuit ruled that the abuse alleged was not as severe as that found in Walsh v. Walsh,[3] noting that the incidents did not result in hospital visits, complaints to law enforcement, or arrest of the father. The court also observed that there was no evidence that the father ever sexually abused the child.[4]

The mother also alleged that both her children were at risk of being sexually abused by the father, based on her first child revealing in therapy that she used to sit on the father’s lap and move her hips around to massage him. The therapist, however, would not testify that her suspicion of sexual abuse was made with a “reasonable degree of medical certainty.”[5]

The First Circuit found that the district court did not abuse its discretion in finding that the mother did not establish a sufficient defense of grave risk of domestic violence or sexual abuse.[6]

Settlement of the Child. Since the father’s petition was filed more than one year after the wrongful removal of the child, the mother attempted to prove that the child was settled within the meaning of Article 12.[7] The district court had considered facts relevant to the child’s degree of settlement and found that A.C.A. had developed “meaningful relationships and lasting emotional bonds with a community in East Boston.”[8] But the district court had also found that the child’s resilience and ability to form bonds would not “wrench her out of a well-settled position if returned.”[9] As part of its analysis, the district court had considered the child’s unsettled immigration status. The First Circuit also noted that the evidence before the district court showed a pattern of absences from school and many tardies (40 days out of 167 in 2017–2018, and 41 during the first half of 2018–2019), facts against a finding of settlement.[10]

Motion for New Trial. The mother asserted that the three-year delay of her immigration hearing stabilized the child’s immigration status by removing the possibility of immediate removal. The district court had disagreed, finding that the evidence of a continuation of the mother’s immigration hearing was cumulative in nature and not new evidence of settlement. The district court had also found that she could have filed an application for asylum before her first immigration hearing instead of waiting until after, but she did not. The First Circuit affirmed the denial of the mother’s motion for a new trial.

A motion for new trial on the basis of newly discovered evidence requires the movant to show that:

(1) The evidence has been discovered since the trial; (2) The evidence could not by due diligence have been discovered earlier by the movant; (3) The evidence is not merely cumulative or impeaching; and (4) The evidence is of such nature that it would probably change the result if a new trial is granted.[11]


[1]. Da Silva v. De Aredes, 953 F.3d 67, 72–73 (1st Cir. 2020) (citing Monasky v. Taglieri, 140 S. Ct. 719, 730 (2020)).
[2]. Id. at 73.
[3]. 221 F.3d 204, 220 (1st Cir. 2000).
[4]. Da Silva, 953 F.3d at 74–75.
[5]. Id. at 74.
[6]. Id. at 74–75.
[7]. Hague Convention on the Civil Aspects of International Child Abduction art. 12, Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501.[8]. Da Silva, 953 F.3d at 75.
[9]. Id.
[10]. Id. at 76 (citing Lozano v. Alvarez, 697 F.3d 41, 54 (2d Cir. 2012) (noting that courts generally should consider as a now-settled factor “whether the child attends school or day care consistently”)).
[11]. Id. at 76 (quoting Duffy v. Clippinger, 857 F.2d 877, 879 (1st Cir. 1988)).

This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.

In Print: Available for Distribution

Science tutorials have developed as a tool to assist judges in managing cases that involve complex science and technology. Such tutorials provide an early opportunity for the court to learn and ask questions about relevant science and technology outside the context of motion practice. Courts should consider holding science tutorials in cases that involve recent scientific findings or newer technologies, where scientific assertions are central to claims or defenses, or when scientific or technological information is likely to play a large role in later dispositive motions. This guide provides an overview of practical considerations to help judges plan and conduct science tutorials effectively.

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This pocket guide is designed for transferee judges managing MDL proceedings that involve multiple, related class actions.

The guide assists transferee judges from the very beginning of MDL proceedings, before the judges determine whether the main focus of the litigation will be on class-related issues. Even if no class is ultimately certified, this guide can help transferee judges organize the litigation and set it on a smooth course. Topics addressed include categorization of claims and defenses, organization of counsel, the sequencing of motions practice, and settlement.

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Defenses | Consent – Facts Supporting Consent

This case involves whether mother consented to the removal of the child from Mexico to the United States. The opinion focuses upon the sufficiency of the facts supporting the defense of consent and the district court’s credibility findings.

Facts

The child in question was born in Oaxaca, Mexico, in 2011.[1] He was primarily raised by his maternal grandmother. Although father provided financial support for the child, he had little to no physical contact with the child until age two. In December 2014, mother and father went to the passport office in Oaxaca, where the parents signed for the child’s passport, and mother indicated that she agreed to sign over custody of the child to father because she believed that father would be able to get the child “on the right track.” After that, the child went to live with father at his home in Acapulco. In February 2015, the child was detained by Border Patrol agents after having entered the United States illegally with other undocumented individuals. Father admitted that he had paid to have the child smuggled into the United States. The child was ultimately released to father.

After this, mother and father corresponded by text messages. Mother initially indicated that the child was better off with father in the United States and agreed to the child’s presence there, if she was permitted to see the child. The child’s maternal grandmother, however, was attempting to arrange the child’s return to Mexico. As late as a year after the child entered the United States, mother conceded to father that the best place for the child was the United States and that she was opposed to the maternal grandmother’s efforts to have the child returned to Mexico. At one point, mother indicated that she would support father’s continued custody of the child in the United States as long as father continued to provide mother with money. One message read “you forward 3,000 please and I will give the guardian and custody, . . . I will do everything for [Child] to be with you but I really need the money.” Mother changed her position in February 2016 and requested the return of the child. Mother filed her petition for return in May 2016.

The district court denied mother’s petition for return, finding that the child had been wrongfully removed by father but sustaining father’s Article 13[2] defense of consent to removal. The Fifth Circuit affirmed.

Discussion

The court distinguished between the defenses of consent (permission given before the child is removed) and acquiescence (more formalized conduct occurring after the removal). Finding that father’s defense was properly characterized as consent, the court focused upon the subjective intent of the party allegedly giving consent, in this case, the mother. The Fourth Circuit upheld the district court’s finding of consent based upon the district court’s factual determinations, including mother’s lack of credibility. The facts supporting father’s defense were as follows:

  • Mother willingly accompanying father to obtain the child’s passport
  • Mother agreeing to assign custody of the child over to father
  • Mother agreeing to grant custody of the child to father to enable child to have a better life
  • Text messages from mother supporting father’s continued custody of the child in Virginia
  • Mother’s repeated statements that the child was better off with father
  • Lack of mother’s objection to the child remaining in the United States for over six months after his removal from Mexico
  • Corroborating testimony of father’s fiancée and mother’s half-sister

[1]. Respondent was designated as the child’s legal father by stipulation, although respondent was not the child’s biological father.
[2]. Hague Convention on the Civil Aspects of International Child Abduction art. 13, Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501 (“[T]he judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that—a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention. . . .”).

This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.

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Delay Defense | Settlement | Immigration Status

This is a case of first impression in the Fifth Circuit, addressing the meaning of the term settled in the context of a delay defense.

Facts

Mother and father are married citizens of Honduras. Their child, D.A.P.G., was born in 2009. The parties separated but did not obtain a divorce or custody order regarding the child. Mother was the child’s primary custodian and father maintained regular contact with the child. In May 2014 mother secretly removed the child and illegally entered the United States. Mother and the child were apprehended by U.S. authorities and placed in removal proceedings, but in the meantime, they were released from custody and settled in New Orleans. D.A.P.G. lives with mother, mother’s boyfriend, and their four-and-a-half-month-old baby.

Father located his child through the U.S. State Department in May 2015. Father filed a petition for return in August 2015, fourteen months after the child’s removal from Honduras. At trial, mother agreed that the child had been wrongfully removed from Honduras, but she relied upon the defense that the child was now settled in his new environment and that the child would suffer a grave risk of harm should he be returned to Honduras. Mother presented testimony that D.A.P.G. was happy and well-adjusted and had formed new friendships at church, school, and at home. Mother failed to appear for her immigration proceedings, however, and her failure to attend potentially triggered an order for removal. The district court found that the child was well-settled and denied father’s petition.

Discussion

The Fifth Circuit reversed. Since this was a matter of first impression in the Fifth Circuit, the court looked to the Second and Ninth Circuits’ analyses of what factors to consider when assessing whether a child has become settled.[1] These 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 activities, (6) the respondent’s employment and financial stability, and (7) the immigration status of the respondent and the child. The Fifth Circuit noted that although other circuits agree on some aspects of these analyses, there is no consensus on the relevance of immigration status when determining a child’s being settled.

The Second Circuit has taken the position that immigration status is not dispositive, but is one of many factors to be taken into account in a fact-specific inquiry that may include (1) the likelihood of deportation or the ability to obtain legal status, (2) the age of the child, and (3) the extent of harm to the child due to the inability to obtain government benefits.[2] On the other hand, the Ninth Circuit has declined to announce a formula for weighing the issue of immigration and has found that immigration status is relevant only if an “immediate threat of deportation” exists.[3] The Fifth Circuit chose to follow the Second Circuit:

We join the Second and Ninth Circuits in concluding that immigration status is neither dispositive nor subject to categorical rules, but instead is one relevant factor in a multifactor test. This approach recognizes that immigration status alone does not necessarily prevent a child from developing significant connections in a new environment, and is consistent with the text of the treaty, the State Department’s guidance, and the purpose of the well-settled defense. Like the other factors, however, immigration status should not be considered in the abstract. In other words, proper application of the framework does not assign automatic treatment to any particular type of immigration status. Instead, we agree with the Second Circuit that an individualized, fact-specific inquiry is necessary in every case.[4]

The Fifth Circuit rejected the district court’s consideration of immigration status as an abstract concept rather than looking to the actual facts surrounding the status of the abducting parent. The court undertook a de novo review of the facts relating to the claim of settlement and considered the implications of the actual removal proceedings facing mother. After balancing all of the factors put forth by the Second and Ninth Circuits, the Fifth Circuit was not persuaded that the child had become settled in the new environment, and it vacated the order of the district court, ordering instead that the child be returned to Honduras.


[1]. Lozano v. Alvarez, 697 F.3d 41 (2d Cir. 2012), aff’d sub nom. Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014); In re B. Del C.S.B., 559 F.3d 999, 1008 (9th Cir. 2009).
[2]. Lozano, 697 F.3d at 42–43.
[3]. In re B. Del C.S.B., 559 F.3d at 1012–14.
[4]. Hernandez v. Pena, 820 F.3d 782, 788–89 (5th Cir. 2016).

This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.

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Settlement | Immigration Status | Return Despite Existing Defense

This case deals with what factors may establish the Article 12 defense of delay plus settlement. Here the parties conceded that father’s petition for return of his two children was filed more than one year after the children were removed. The Fourth Circuit affirmed the district court’s finding that the children were settled. The court also examined immigration status and whether return should be granted despite proof of a valid defense.

Facts

Mother, father, and their two children were all Mexican nationals living in Cosolapa, Oaxaca. In June 2013, mother surreptitiously left Mexico with the children, then eight and two years of age, and illegally entered the United States two weeks later.

She and the children settled in South Carolina close to her family members, including her mother and two sisters. Her sisters had also entered the United States illegally eight to nine years before, and they now owned and operated two small businesses in Florence, South Carolina; they also participated in the Deferred Action for Childhood Arrivals (DACA) program. Neither mother nor the children spoke English when they arrived in the United States. Mother enrolled her eight-year-old son in elementary school upon arrival in Florence, and over the next fourteen months she changed his school twice to accommodate short-distance moves she made to improve their living conditions.

Sixteen months after the children’s removal from Mexico, father filed a petition for their return. By May 2015, at the time of trial, the parties’ older son spoke English in school, was getting mostly As and Bs on his report card, and was performing “exceptionally well” in school according to school officials. The mother and children had family ties nearby. The son had made friends at school, church, and within the family. Mother was gainfully employed and able to provide for the children’s needs. After a two-day bench trial, the district court found that although mother and the children were present illegally in the United States, the children had become well settled in their new environment, and the court denied father’s petition for return to Mexico. The Fourth Circuit affirmed.

Discussion

Settlement Generally. The issue of settlement of a child under Article 12 presented a case of first impression for the Fourth Circuit. The court adopted a definition of settlement consistent with Lozano v. Montoya Alvarez[1] and the Second and Fifth Circuits' standards.[2] Citing these, the court reasoned that “for a child to be settled within the meaning of the Convention, the child must have significant connections demonstrating a secure, stable, and permanent life in his or her new environment.”[3]

Although approving the district court’s consideration of the factors set forth by the Second Circuit,[4] the Fourth Circuit found that the ultimate purpose of the settlement inquiry is to determine, from a “holistic” standpoint, whether a child has significant connections demonstrating a secure, stable, and permanent life; it is not an inquiry into the child’s “best interests,” which is relevant when determining custody. The circuit court found sufficient evidence to sustain the district court’s determination that the older child was well settled, rejecting father’s objections to mother’s financial security and son’s degree of settlement.

Immigration Status. The court also agreed with three other circuits[5] in adopting a rule that immigration status should be considered along with the totality of circumstances and “is neither dispositive nor subject to categorical rules.”[6] Here, the district court had found nothing to suggest that the child was likely to be deported in the near future and had found no indications that ineligibility for government benefits would upset his stability. Taken as a whole, the degree of the settlement of the child compensated for any impact caused by his immigration status.

The Fourth Circuit confirmed these findings, holding that

[n]either the Hague Convention nor ICARA makes a lack of immigration status a bar to finding that a child is settled. Indeed, it runs counter to the purpose of the exception to read such a categorical bar into the treaty. If a child is functionally settled, such that ordering his or her return would be harmfully disruptive, it would be odd to nevertheless order that disruption based on a formal categorization.[7]

Return Request Despite Establishment of Defense. Father urged the circuit court to return the children regardless, citing Article 18, a provision that gives courts discretion to order a child’s return despite the demonstration of a valid defense to return.[8] The Fourth Circuit acknowledged that it retained the power to order the children’s return despite the establishment of an Article 12 defense;[9] however, the exercise of discretion to return a child in the face of an established defense is grounded in equitable principles,[10] and by itself, a mere wrongful removal would not suffice to justify such a return, since wrongful removal is prerequisite to the establishment of the defense itself.[11]


[1]. 134 S. Ct. 1224 (2014).
[2]. Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir. 2012); Hernandez v. Pena, 820 F.3d 782, 787–88 (5th Cir. 2016).
[3]. Alcala v. Hernandez, 826 F.3d 161, 170 (4th Cir. 2016).
[4]. Id. at 171 (“The district court here looked to . . . ‘(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.’”) (quoting Lozano, 697 F.3d at 57).
[5]. The Second, Fifth, and Ninth Circuits. See In re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir. 2009); Lozano, 697 F.3d at 56; and Hernandez, 820 F.3d at 787–88.
[6]. Alcala, 826 F.3d at 174 (citing Lozano, 697 F.3d at 56–57).
[7]. Id. at 173.
[8]. “The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.” Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980, Article 18.
[9]. Alcala, 826 F.3d at 175.
[10]. Id. at 175 (citing Yaman v. Yaman, 730 F.3d 1, 4, 21 (1st Cir. 2013).
[11]. Id. at 175.

This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.

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A two-page checklist covering procedural issues, cases for return, defenses, return orders, and attorneys' fees.

This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.​

Archival Copy on File

A monograph that provides an overview of this specialized area of the law. The author describes the steps followed in a patent application and discusses defenses to and remedies for patent infringement, providing examples from case law. He includes an annotated bibliography.

Superseded by Patent Law and Practice, Second Edition (1995).

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