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The mother and father, both Brazilian nationals, married in 2011. Three years later they had a child. They separated in 2016, though they did not legally divorce. The mother became the primary carer of the child, who visited the father around two weekends per month. 

The mother began a relationship with a man (‘the stepfather’) who then moved to the USA. The parents divorced in 2021 and the terms of the divorce dictated that the couple would have shared custody of the child who would continue to live with the mother. 

The father signed a passport application permitting the child to travel out of Brazil but later became suspicious that the mother leave with the child permanently and attempted to cancel the passport. 

The mother and child left Brazil in March 2022 and began living with the stepfather. The mother has since applied for asylum in the USA. The father filed a report with the Brazilian police in March 2022. He learned in April 2022 that the mother and child had left Brazil. The father then initiated return proceedings in Brazil under the 1980 Convention.

The mother argued that the child was now settled in their new environment and the Article 12 exception to return applied. The district court found that the child was not settled in the US within the meaning of the Article 12 exception and ordered the return of the child to Brazil. The mother appealed the decision.

The case was remanded to the district court to determine whether, in the exercise of its equitable discretion, a return to Brazil is still appropriate despite the child’s "settled" status.

Settlement of the Child - Art. 12(2)

The court considered the relevant factors set out in da Costa (94 F.4th at 180) including the child’s age, the stability of their resident, their schooling, whether they have friends and relatives, they participation in the community and extracurricular activities and the family’s financial stability. The court stressed that the weight attributed to each factor would depend on the individual case.

In this case the child was found to be "settled" in the United States within the meaning of Article 12.