Argued: March 22, 2016
from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District
Matthew Adams Abee, Thomas William McGee, III, NELSON MULLINS
RILEY & SCARBOROUGH LLP, Columbia, South Carolina, for
Roger Eberle, EBERLE LAW FIRM, LLC, Charleston, South
Carolina, for Appellee/Cross-Appellant.
Brendan P. Barth, Nicholas W. Lewis, BARTH, BALLENGER &
LEWIS, LLP, Florence, South Carolina, for
KING, AGEE, and FLOYD, Circuit Judges.
2013, Appellee Claudia Garcia Hernandez (Mother) removed her
two minor children from their home in Mexico. Mother crossed
into the United States with the children and arrived in South
Carolina in August 2013. In October 2014, the children's
biological father, Appellant Fernando Contreras Alcala
(Father), petitioned for return of the children to Mexico
pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction (the "Hague
Convention" or "Convention"), Oct. 25, 1980,
T.I.A.S. No. 11670, 19 I.L.M. 1501. The district court found
that Mother's removal of the children was wrongful under
the Convention, which would ordinarily require the district
court to order the children returned to Mexico. The district
court further found, however, that the children were now
settled in their new environment and that the Convention did
not require a return order under the circumstances. The
district court declined to order the children returned, and
Father appealed. We conclude that the district court
correctly applied the Convention and therefore affirm.
underlying facts are drawn from the order of the district
court, which was entered subsequent to a bench trial.
Mother, and both minor children, F.C.G. and A.C.G., are
Mexican nationals. Although Father and Mother were never
married, in early 2013 they were living together with the
children in Cosolapa, Oaxaca. At that time, the children were
approximately eight- and two-years old, respectively.
began discussing with Father her desire to move with the
children to the United States. Father, however, did not want
to move to the United States. On June 17, 2013, Mother took
the children, without telling Father, and went to a
relative's home in a neighboring town. The next day,
Father complained to the local authorities. He informed the
authorities that Mother had expressed a desire to move to the
United States and that Mother had family already living
with the assistance of family and friends, made her way with
the children to the border. She and the children entered the
United States without authorization around July 2, 2013.
Mother and the children subsequently arrived in Florence,
South Carolina, on August 22, 2013. Mother's mother and
two sisters had previously settled in Florence after entering
the United States without authorization sometime in 2004 or
2005. The sisters completed schooling through high school in
Florence. Both sisters own and operate small businesses in
the area, as does their mother. The sisters participate in
the Department of Homeland Security's Deferred Action for
Childhood Arrivals (DACA) program.
and the children initially lived with her mother in Florence.
Within a short time, Mother enrolled the older child, F.C.G.
(Son), in the third grade at Greenwood Elementary. The
younger child, A.C.G., was not old enough to attend school.
Neither Mother nor Son spoke English when they arrived, and
one of Mother's sisters helped register Son for school.
During this time, Mother worked for her mother and sisters.
Sometime in 2013, Mother met her current boyfriend, Jose
January 2014, in order to have more space, Mother and the
children moved out of her mother's home and into a mobile
home owned by one of Mother's sisters. Their new home was
in neighboring Darlington County, South Carolina. Upon
moving, Mother withdrew Son from Greenwood Elementary and
enrolled him at Brockington Elementary in Darlington on
February 4, 2014. That same month, Vasquez moved in with
Mother and the children.
completed the 2013-2014 school year at Brockington
Elementary. He was absent from school eight days during the
spring term. Son made decent grades and worked with the
English for Speakers of Other Languages (ESOL) program.
November 2014, Mother, Vasquez, and the children moved to
their current home, a mobile home owned by Vasquez's
father in Darlington County. The location of their new home
required Mother to transfer Son to another Darlington school,
St. John's Elementary.
October 27, 2014, Father filed a petition in district court,
seeking the return of the children to Mexico under the Hague
Convention. Father argued that when children under the age of
16 have been wrongfully removed from their country of
habitual residence, the Convention requires the country to
which the children have been brought to promptly order their
January 5, 2015, Father and Mother filed a joint stipulation
of facts. The stipulated facts established that Mother had
wrongfully removed the children from Mexico, their state of
habitual residence. On February 4, 2015, Mother filed an
answer to Father's petition. Mother asserted that certain
exceptions to the Convention's general rule of return
were applicable here. Specifically, Mother argued that: (1)
Son was now settled in his new environment in South Carolina;
(2) Son was a mature child who objected to his return; and
(3) the children faced grave risk if returned.
district court held a bench trial on May 11 and 12, 2015. The
district court heard testimony from Father, Mother,
Mother's mother and two sisters, Vasquez and his father,
one of Mother's friends from church, and several of
Son's teachers and school officials. Son also underwent a
forensic interview, which was reviewed by the district
trial, the district court issued an order enumerating its
factual findings relevant to the issue of whether Son was now
settled in South Carolina. The district court noted that
Son's forensic interview indicated that Son can speak,
understand, and converse in English. The district court
characterized this fact as "significant evidence of his
acclimatization to his new environment given the fact that he
could not speak any English when he arrived in August of
2013." J.A. 442. With regard to Son's academic
performance, Son's most recent report card showed that he
received all As and Bs except for one C in his Science and
Math class in the first term of the year. Son's English
teacher testified that Son has a good grasp of the language
and was expected to receive an A at the end of the current
term in his English and Language Arts class. Son is enrolled
in the ESOL program, although Son's English teacher
testified that Son does not receive any of the special
accommodations generally afforded to ESOL participants. The
district court described Son as "perform[ing]
exceptionally well in school." J.A. 443.
district court found that Son has substantial family ties in
his new environment, with a number of family members living
nearby including his grandmother, two aunts, and several
cousins. The district court found that Son has extensive
contact with those family members and attends numerous family
gatherings. The district court also found that the family has
strong ties to the local community through successful
ownership and operation of various local businesses. The
district court credited testimony that Mother and Vasquez are
in a stable, loving relationship and that they eventually
plan to marry. Son regularly attends church, and the district
court credited testimony that he gets along well with the
other children and has friends at the church. The district
court also found that Son has friends elsewhere in his new
environment. One of Son's teachers testified that Son is
well-liked by his peers and has a number of friends in class.
Evidence also showed that Son plays with other children in
district court further found that despite Mother's
admitted unauthorized presence in the United States, and her
concomitant lack of legal authorization to work, Mother has
remained gainfully employed and consistently earned an income
since her arrival. The district court found that Mother
"is clearly able to provide for the minor children"
and that the children were always provided adequate clothing,
food, and shelter. J.A. 444. Mother's ...