Third Circuit Judge Theodore McKee/courtesy photo

The U.S. Court of Appeals for the Third Circuit has rejected a Guatemalan man’s petition to return his son after the child was taken by the mother to live in New Jersey.

The appeals court affirmed a U.S. district court judge’s ruling denying the child’s return to Guatemala because he was in the U.S. for more than a year, and was well-settled in his new environment.

After hearing arguments in March, Third Circuit Judges Theodore McKee, Thomas Ambro and Felipe Restrepo issued a July 18 order reversing Judge Freda Wolfson’s ruling. The child’s mother then petitioned for a rehearing, and the appeals court granted the petition and vacated its July ruling.

The child’s father, Hugo Castellanos Monzon, sought his son’s return under the Hague Convention on the Civil Aspects of International Child Abduction and a U.S. statute, the International Child Abduction Remedies Act. The Hague Convention calls for the return of a wrongly removed child as long as proceedings have been commenced within one year of the child’s removal.

Castellanos filed a petition for return of the child under the Hague Convention with the Central Authority in Guatemala, which forwarded the application to the U.S. State Department. He filed the petition in August 2014, shortly after the child’s mother, Ingrid De La Roca, notified him by text message that she was in New Jersey with the boy, H.C. The boy is now 8 years old.

But 16 months later, Castellanos learned that the Hague Convention required him to file where H.C. lived, so he filed suit in federal court in Trenton.

Wolfson dismissed the suit after finding De La Roca met one of the defenses to wrongful removal of a child listed in ICARA, which is that the child is now settled in his new environment.

On appeal, Castellanos asserted that his petition to Guatemalan authorities should constitute a proceeding under the Hague Convention, which would dictate that the child be returned pending outcome of the custody dispute. But the appeals court rejected that claim, saying “we are not unsympathetic to his efforts” but the inquiry into what constitutes a proper filing “is circumscribed by the language of ICARA and the Convention.”

Castellano also asserted on appeal that the district court inquiry should not have ended after finding that the boy was well-settled. He claimed the Hague Convention requires a respondent claiming that defense to establish, in addition, that the child is at great risk if he is returned or the petitioner was not exercising his custody rights at the time of separation.

McKee, writing for the court, said Castellanos’ conjunctive reading of the statute “appears, at first glance, to be correct.” But that literal reading of the statute contradicts the underlying principles of the Hague Convention and ICARA and “produces a patently absurd result,” McKee wrote.

The broader context suggests the statute’s use of the word “and” is misleading insofar as it says Congress intended that both prongs be satisfied, the court said.

“Our conclusion that the inclusion of ‘and’  was not intended to suggest the conjunctive is not a cavalier attempt to reconcile inconsistencies between ICARA and the Convention,” McKee wrote. “Courts repeatedly resolve conflicts between treaties and acts of Congress by the doctrine of implied repeal, with the latter in time prevailing; here, that is ICARA,” the court said. “Thus, although federal statutes and treaties are accorded the same weight, when a treaty conflicts with provisions of subsequently enacted legislation, the offending provisions of the treaty are deemed null and void.”

Castellanos’ lawyer was John Boehler, who took the case while affiliated with Rutgers Law Associates, a public interest law firm affiliated with Rutgers Law School-Newark. Boehler, who is now with Beattie Padovano in Montvale, declined to comment about the ruling.

Mark Taticchi of Drinker Biddle in Philadelphia, who represented De La Roca, said the question over the meaning of “and” was something that was never raised before in ICARA’s 30-year history. “We’re thrilled for our client that the court upheld the District Court decision,” he said.

The Third Circuit ruling comes on the heels of a decision from the Eleventh Circuit in another Hague Convention international child custody dispute. In that case, Fernandez v. Bailey, the appeals court ordered twin boys returned to their father in Panama after their mother brought then to the U.S. The Eleventh Circuit rejected a district court judge’s finding that the children should be allowed to stay because they were well-settled in their new environment in Tampa after living there for two years.

In the Eleventh Circuit case, the appeals court ruled that the judge below erred by failing to exercise her discretion to order the children’s return because their mother abducted them on two occasions.