United States Court of Appeals For the First Circuit

No. 23-1548

HEITOR FERREIRA DA COSTA,

Petitioner, Appellant,

v.

JESSICA CAMILA ALBEFARO DE LIMA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Howard, Circuit Judges.

Charles R. Hunsinger, with whom Elizabeth G. Crowley, Emily A. Weber, and Burns & Levinson LLP were on brief, for appellant. Ruben J. Rodrigues, with whom Beth I.Z. Boland, John W. Custer, John F. Nagle, and Foley & Lardner LLP were on brief, for appellee.

February 28, 2024 SELYA, Circuit Judge. Some problems are endemic in

modern life, and this appeal — like so many before it — requires

us to encounter the repercussions of divorce in a global society.

After their marriage ended in Brazil, petitioner-appellant Heitor

Ferreira da Costa (da Costa) accused respondent-appellee Jessica

Camila Albefaro de Lima (de Lima) of absconding with their minor

child to the United States where, unbeknownst to da Costa for about

a year, the mother and child settled into a new life on Martha's

Vineyard. Although both parents are Brazilian nationals, they

have turned to the American courts to determine the appropriate

forum for their competing custodial claims under the international

law of the Hague Convention on the Civil Aspects of International

Child Abduction (the Convention). In this phase of their battle,

da Costa now complains that the district court failed to credit

his allegations of a hasty flight that resulted in a turbulent

landing for the child. Concluding, as we do, that the district

court's resolution of the pertinent factual and legal questions is

amply supported by the record, we affirm.

I

We briefly rehearse the relevant facts and travel of the

case.

A

Da Costa and de Lima — both of whom are Brazilian

nationals — married, had a child, and subsequently made their home

- 2 - in São Sebastião do Anta, Brazil. The marriage ended in December

of 2019 after a Brazilian court entered a divorce judgment, which

incorporated an agreement that explained how each parent could

spend time with the child. De Lima was granted "definitive

custody" of the child, while da Costa retained general visitation

rights — subject to de Lima's approval — and was allotted parenting

responsibilities for one weekend each month (an interval later

expanded to two weekends each month).

Da Costa twice availed himself of this expanded

parenting window before de Lima and the child surreptitiously

decamped for São Paulo, Brazil — a journey that eventually took

them to Martha's Vineyard, Massachusetts. After first being

removed by immigration officials, de Lima and the child

successfully reentered the United States even though they lacked

proper documentation. The mother and child made their home in

Martha's Vineyard, where they lived near several family members.

The child enrolled in elementary school, participated in

extracurricular activities (like swim lessons), and attended mass

and bible study at a local church. De Lima has pending before

United States Citizenship and Immigration Services an asylum

application (which includes the child).

Da Costa remained in Brazil. For some time, he believed

that de Lima and the child had traveled only as far as São Paulo.

He was thus unaware — until about a year later — that his ex-wife

- 3 - and their child were residing in the United States. Unable to

locate his child in Brazil, he lodged a report with the Brazilian

civil police in São Sebastião do Anta. When he learned the true

state of affairs, he filed an application for return of the child

with the Brazilian Ministry of Justice. Both of these initiatives

proved fruitless, and da Costa then turned his attention to the

American courts: he filed a petition under the Convention — as

implemented in the United States by the International Child

Abduction Remedies Act (ICARA), see

— in the

United States District Court for the District of Massachusetts.

See Ferreira da Costa v. Albefaro de Lima, No. 22-10543,

, at *1 (D. Mass. June 6, 2023).

B

The district court conducted a bench trial over three

days, hearing testimony from the parties, family members, and

teachers. See

The court denied da Costa's petition. See

Even assuming that da Costa had proven his prima facie case, he

still would not prevail: de Lima had shown that the "now settled"

defense applied.1 See

. Finally, the court declined to

1 In the court below, de Lima argued, in the alternative, that returning the child to Brazil would place the child at a grave risk of harm. See da Costa,

, at *1. The district court saw no need to reach this affirmative defense, see

at *9 n.8, and we, too, eschew it.

- 4 - exercise its discretion to order the return of the child. See

.

Based on the totality of the circumstances, the court

determined "that the child [was] now settled in [his] new

environment" of Martha's Vineyard.

(second alteration

in original) (citing Hague Convention, art. 12; Lozano v. Montoya

Alvarez,

(2014)). After all, the child had spent

over half his life in Martha's Vineyard; his age (six years old)

permitted him to form meaningful connections with his new

environment; he had developed strong relationships with family in

the United States; he had bonded with teachers and classmates; he

was making substantial progress in learning English; and he

regularly attended mass and a bible study course with other

children in the community. See id. at *8-9.

Of course, the court recognized that de Lima and the

child, along with other family members, remained uncertain about

their immigration status. See id. at *9. The court also

recognized that de Lima and the child had moved several times and

that the child's nascent English ability hindered communication.

See id. Even so, the court did not think that any of these facts,

individually or collectively, were weighty enough to tip the scales

against de Lima. See id. De Lima was authorized to work, worked

full time, and had applied for asylum. See id. The family's moves

- 5 - were within Martha's Vineyard,2 kept them close to family members,

occurred before the child had commenced school, and were carried

out in conjunction with family. See id. And the child could speak

Portuguese to family members and some classmates, while his English

skills continued to improve. See id.

The court then declined to exercise its discretion to

order the child's return even though he was firmly settled because

"the considerations related to [his] well-being outweigh[ed] the

policy considerations related to deterring misconduct" by the

removing parent. Id. Although de Lima had engaged in misconduct

by concealing the child's location from da Costa, the court held

that the interests of the child were paramount and "that requiring

[the child] to return to Brazil would be disruptive, particularly

given how much of his life he ha[d] spent in the United States,

his strong family connections here, and his limited connections to

his family in Brazil, other than to [da Costa]." Id.

This timely appeal followed.

II

We turn to the legal standards that obtain under the

Convention for establishing the now settled defense and the

2 The child spent several days in Everett, Massachusetts in between moves, but there is no indication that the court considered his stay there a move outside of Martha's Vineyard. See id. at *4. Whatever the case, we think this detail inconsequential in the grand scheme of the analysis.

- 6 - standard of appellate review that attaches to bench trials. Next,

we consider the combined operation of these two sets of standards.

A

Under the Convention, "[c]ourts look to the totality of

the circumstances in determining whether a child is now settled."

da Silva v. de Aredes,

, 75 (1st Cir. 2020). For this

purpose, "[a] court may consider any relevant fact, including

immigration status."

In the last analysis, though,

immigration status remains just one relevant data point, and its

weight will vary based on the idiosyncratic circumstances of each

particular case. See

Other relevant 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 school activities, such as team sports, youth groups, or school clubs; and (6) the respondent's employment and financial stability.

In re B. Del C.S.B.,

(9th Cir. 2009); see Alcala

v. Hernandez,

(4th Cir. 2016) (listing these

factors along with immigration status); Hernandez v. Garcia Peña,

(5th Cir. 2016) (similar); Lozano v. Alvarez,

(2d Cir. 2012) (similar).

Even if the removing parent succeeds in showing that the

child is now settled, the district court retains discretion to

- 7 - order the return of the child. See Yaman v. Yaman,

(1st Cir. 2013). At this point in the proceedings, "[t]here is

very little law providing guidance as to how a district court is

to weight the different factors as to return."

. We

previously have termed this decision "a matter of equitable

discretion."

Given the elasticity of that term, a court may

"consider the abducting parent's misconduct, together with any

other relevant circumstances, such as whether return would not be

harmful or disruptive even though the child has become settled, in

deciding whether to order [his] return."

B

Following a bench trial, we review the district court's

legal conclusions de novo. See ST Eng'g Marine, Ltd. v. Thompson,

MacColl & Bass, LLC,

, 32 (1st Cir. 2023). "This review

encompasses 'determinations about the sufficiency of the

evidence.'"

(quoting Aadland v. Boat Santa Rita II, Inc.,

, 41 (1st Cir. 2022)). Conversely, we review decisions

left to the district court's sound judgment for abuse of

discretion. See Yaman,

. As an English court aptly

phrased it, "the exercise of a discretion under the Convention

requires the court to have due regard to the overriding objectives

of the Convention whilst acknowledging the importance of the

child's welfare." Cannon v. Cannon, [2004] EWCA (Civ) 1330, [2005]

1 W.L.R. 32 (Eng.) ¶ 38.

- 8 - "Findings of fact, whether based on oral or other

evidence, must not be set aside unless clearly erroneous." Fed.

R. Civ. P. 52(a)(6); see Aadland, 42 F.4th at 41. The appellate

"court must give due regard to the trial court's opportunity to

judge the witnesses' credibility." Fed. R. Civ. P. 52(a)(6). "The

clear error standard is deferential and, where it applies, we will

not overturn a factual finding unless — on the whole of the record

— we are 'left with the definite and firm conviction that a mistake

has been committed.'" ST Eng'g Marine, 88 F.4th at 32 (quoting

United States v. U.S. Gypsum Co.,

(1948)).

"[T]he appropriate standard of appellate review for a mixed

question [of law and fact] 'depends . . . on whether answering it

entails primarily legal or factual work.'" Monasky v. Taglieri,

(2020) (third alteration in original) (quoting

U.S. Bank N.A. v. Vill. at Lakeridge, LLC,

, 396

(2018)).

C

In Convention cases, the "'now settled' defense[]

require[s] the court to identify a broad standard and then answer

the factual question[] of . . . whether the abducted child is 'now

settled.'" da Silva, 953 F.3d at 72. As the Supreme Court has

explained in the analogous context of determining a child's country

of habitual residence, "[t]he inquiry begins with a legal question:

What is the appropriate standard" to ascertain whether a child is

- 9 - now settled? Monasky,

; see da Silva, 953 F.3d

at 72 (applying reasoning in Monasky to now settled defense in

Convention case). The standard for the now settled defense mirrors

that of the country-of-habitual-residence determination — that is,

a totality-of-the-circumstances approach. See da Silva, 953 F.3d

at 72.

"Once the [district] court correctly identifies the

governing totality-of-the-circumstances standard, . . . what

remains for the court to do in applying that standard . . . is to

answer a factual question: [Has] the child" become settled in his

new environment? Monasky,

; see da Silva, 953

F.3d at 72. Thus, our review of that question is for clear error.

See da Silva, 953 F.3d at 72.

III

Da Costa identifies several reasons why the district

court committed clear error by finding that the child had become

settled. First, he contends that the court clearly erred because

it relied entirely on evidence of events that occurred after he

filed the petition. Second, he contends that the court clearly

erred because it did not appropriately weigh the relevant factors

(given that the now settled defense must be interpreted narrowly).

Third, he contends that the court clearly erred because it

inappropriately considered the child's best interests. None of

these entreaties carries the day.

- 10 - A

At the outset, da Costa asserts that relying solely on

evidence that postdates the petition's filing — as the district

court purportedly did here — does not align with the reasoning

behind the now settled defense. The now settled defense's

requirement that one year must pass after the petition's filing,

he maintains, "is a recognition that one year gives a child the

opportunity to form ties to a new community and is intended to

ensure rapid attempts to recover a wrongfully removed child."3 De

Lima rejoins that this argument is waived and that, in all events,

it defies the text of the Convention. We start with the waiver

question before turning to the textual question. Because the

parties' arguments are of a legal nature, our review is de novo.

See ST Eng'g Marine, 88 F.4th at 32.

1

De Lima exhorts us to find that da Costa waived this

argument by failing to object to her introduction of post-petition

3 As a threshold condition, the Convention requires that one year must have passed between the date of wrongful removal and the commencement of proceedings to seek return of the child before the removing parent can invoke the now settled defense. See Hague Convention, art. 12. The district court determined that — under ICARA — "only the filing of a civil action in a court where the child is located is sufficient to commence . . . proceedings" and that da Costa had filed his petition one year after any of the possible dates of wrongful removal for which the parties argued below. da Costa,

, at *7-8. This determination is not disputed on appeal.

- 11 - evidence and remaining silent on the matter throughout briefing

and closing argument. See Allied Int'l, Inc. v. Int'l

Longshoremen's Ass'n,

, 39 (1st Cir. 1987) ("It is

axiomatic that the failure to object at trial, absent exceptional

circumstances . . ., forecloses any opportunity to challenge the

admissibility of the evidence on appeal."). Thus, de Lima insists,

da Costa waived any challenge to the court's consideration of post-

petition evidence.

This objection misconstrues da Costa's position. He

does not urge a categorical exclusion of post-petition evidence.

Instead, he deems it clearly erroneous to rely only on post-

petition evidence or, at least, to weigh the post-petition evidence

as heavily as did the court below. Even though de Lima's alleged

paucity of pre-petition evidence certainly could have been fodder

for da Costa's closing argument, it was not until the court

rendered its decision that the alleged error was committed,

affording da Costa something concrete to challenge. We, therefore,

reject the suggestion of waiver and proceed to the meat of da

Costa's objection.

2

With respect to the merits, da Costa offers no case law

in support of his theory. What is more, the Convention itself

gives a strong indication that post-petition evidence remains

important. In describing the now settled defense, the Convention's

- 12 - text reads in relevant part: "The judicial or administrative

authority, even where the proceedings have been commenced after

the expiration of the period of one year [following the child's

wrongful removal], shall also order the return of the child,

unless . . . the child is now settled in [his] new environment."

Hague Convention, art. 12 (emphases supplied).

Refined to bare essence, the text of the Convention

explicitly contemplates a court considering the child's

circumstances after the petition has been filed without reference

to his prior situation. The phrase "now settled" — the wording of

which itself suggests an emphasis on the present — is introduced

in the context of post-petition circumstances without reference to

pre-petition circumstances. If the drafters of the Convention had

intended to require that the removing parent include pre-petition

evidence, one would expect them to have expressed that intent more

explicitly in the text.

Yet, da Costa has presented no probative evidence of

such an intent. Rather, he tells a different tale — a tale of how

"becoming settled in a new environment is a process that extends

from the time the child enters the new environment through the

present." Without pre-petition evidence, he continues, "there can

be no analysis of when the child became well-settled, how the child

adjusted between the date of removal and the date of filing of the

- 13 - petition, and the steps [the removing parent] took to ensure that

a child was well-settled."

Although we see a glimmer of truth in these statements,

they do not resolve the issue before us. Showing that a child is

settled does not necessarily require showing the adjustment

process through which the child became settled — though adducing

such evidence sometimes may be helpful. Da Costa may be right in

suggesting that this "evidence would have been not only more

credible but also more powerful," but that insight does little to

advance his cause. Evaluating the strength of post-petition

evidence — and whether it proves sufficient in the absence of pre-

petition evidence — turns on assessing credibility and weighing

facts. These tasks are grist for the district court's mill, and

the results are not for us to reevaluate unless they can be shown

to be clearly erroneous.

Nevertheless, the district court did describe earlier

chapters of the child's journey, which began years before the

petition was filed. See da Costa,

, at *4. It

recalled that the child had lived on Martha's Vineyard since

December of 2019 and, at times, shared a home with his grandparents

and half-brother. See

To the extent that da Costa thinks

this part of the story incomplete, we reiterate that we are in no

position to rewrite such fact-intensive judgments without a

showing of clear error.

- 14 - Da Costa tries to buttress this argument in yet another

way: he strives to persuade us that rejecting his position would

allow a removing parent to manufacture evidence in response to a

petition, which would thwart the Convention's underlying goals and

strong presumption in favor of returning a child to the country of

habitual residence. We are unconvinced.

Whether the removing parent constructed a facade that

the child is settled reduces to a question of credibility. If the

removing parent took actions designed to secure a stronger

litigation position rather than to settle the child, a reviewing

court may discredit that evidence. On the other hand, if those

actions nonetheless contributed to the child's being settled, we

see no reason to exclude them entirely. And if the removing parent

attempted such bad-faith gamesmanship, the court retains equitable

discretion to order the child's return whether or not it finds him

to be settled. See Yaman,

.

B

Da Costa has a fallback position: he posits that the

district court "erred in weighing the applicable considerations

and facts" under the now settled analysis by using the wrong

geographic scope in defining the child's "new environment,"

mischaracterizing the stability of the child's living situation,

and ignoring de Lima's misconduct in removing the child from

Brazil. De Lima responds that this "kitchen-sink approach"

- 15 - attempts to jumble together "a variety of disparate arguments,

none of which demonstrate[s] clear error." We agree. Separating

da Costa's fusillade into its component parts, we find no basis to

second-guess the district court's judgment.

Because these arguments effectively challenge the

court's finding that the child was settled, our review is for clear

error. See da Silva, 953 F.3d at 72. Da Costa first complains

that the court employed the wrong definition of "new environment"

by considering only Martha's Vineyard, instead of the entire United

States. The record, however, flatly contradicts da Costa's plaint:

the district court explicitly found "that [the child] is settled

in the United States." da Costa,

, at *9.

We note, moreover, that da Costa's complaint is

puzzling. In a country as expansive as ours, one need not have

connections to wide swaths of its lands in order to be settled

therein. By being settled in one region of a country — here,

Martha's Vineyard — one is by definition settled in that country.

Many natural-born citizens of the United States have yet to venture

beyond their home states, but it would be chimerical to suggest

that these persons are not settled in their native land.

Proceeding past the question of regionalization,

da Costa reprises his own narrative questioning the district

court's findings. The key facts include that the child's living

situation is less than stable due to his repeated moves (one of

- 16 - which was outside of Martha's Vineyard); that the immigration

statuses of the affected parties remain uncertain; that the child

is too young to have his opinion considered, especially given that

younger children are less likely to form attachments to their

environment; and that the child had only minimal adjustment to his

environment, particularly at school, in part because of the

language barrier.

These facts, cherry-picked from the record, do not move

the needle. The district court considered every fact that da Costa

now brings to our attention but found each of them outweighed by

other evidence. See da Costa,

, at *9.

Specifically, the court noted that de Lima was authorized to work,

worked full time, and had applied for asylum; that the family's

moves (mostly) remained within Martha's Vineyard, were with or

near other family members, and occurred before the child had

started school; that the child still could speak Portuguese to

family members and some classmates, while his English skills

improved rapidly; and that the child appeared to be connecting

with teachers and classmates inside and outside of the classroom.

See

Nowhere does da Costa identify a factual finding that is

unsupported by the record. Nor does he highlight an instance in

which the court improperly credited or discredited evidence in

evaluating the totality of the circumstances. And we have no

- 17 - warrant to displace fact-based conclusions at which the court

reasonably arrived. See Foster v. Dalton,

(1st

Cir. 1995) ("Following a bench trial, an appellate tribunal is not

warranted in substituting its judgment for that of the trial

court."). What remains is that the district court did not weigh

the evidence as da Costa would have preferred — but that hardly

amounts to clear error.

Da Costa has yet another shot in his sling. He suggests

that the district court ignored de Lima's misconduct in secretly

fleeing with the child to the United States. But this suggestion

is of little consequence: we fail to see how concealing the

child's location or allegedly forging a signature on the child's

passport has anything to do with whether the child is settled in

a new environment.

To be sure, the Supreme Court has acknowledged that

"steps taken to promote concealment can also prevent the stable

attachments that make a child 'settled.'" Lozano,

.

But the cases to which the Court cites connect the misconduct to

the child's being settled. See, e.g., Mendez Lynch v. Mendez

Lynch,

(M.D. Fla. 2002) (finding

children not settled when mother "took active and consistent steps

to prevent contact between the children and their father"); Wigley

v. Hares,

(Fla. Dist. Ct. App. 2011) ("The mother

purposely kept [the child] out of all community activities, sports,

- 18 - and even church to avoid detection by the father."). Here,

however, the steps allegedly taken to conceal the child have no

bearing on whether he was settled.

C

Da Costa's final claim is that the district court's

analysis was "tainted" by inappropriate consideration of the

child's best interests — a concern not contemplated by the

Convention.4 See Whallon v. Lynn,

(1st Cir.

2000) (explaining that it is inappropriate to "risk substituting

a best interest of the child analysis for the analysis the

Convention requires"). This claim is wide of the mark.

To a large extent, "[t]he Convention is based on the

principle that the best interests of the child are well served

when decisions regarding custody rights are made in the country of

habitual residence." Abbott v. Abbott,

(2010).

Even so, "[t]he Convention also has as its

'purpose . . . deterring child abductions,' thereby 'prevent[ing]

harms resulting' therefrom." Yaman,

(second and

Da Costa also criticizes the court's concluding commentary 4

"that [the child] appears to be a happy and well-adjusted child who is lucky enough to have two parents who love him and want him to be with them" and that the court hopes "[de Lima] and [da Costa], as parents and not litigants, can find a way to do what is best for [the child]." Da Costa may think that such commentary has no place in a judicial decision, but regardless of whether this belief is merited, what is conspicuously clear is that the court's closing remarks played no role in its legal analysis.

- 19 - third alterations in original) (quoting Abbott,

-

21). In other words, once beyond the prima facie case, the

Convention adopts "an additional 'purpose': the protection of a

child's 'interest in remaining in a country in which [he] has lived

for a substantial amount of time.'"

(quoting Lozano,

).

Recognizing this other purpose of the Convention, the

district court had the discretion to consider — in its analysis of

whether equitable factors supported the child's return to Brazil

even though he had become settled — the effect that the return

would have on the child's wellbeing. See da Costa,

, at *9. What is more, da Costa does not point to anything

in any other portion of the court's opinion tending to indicate an

improper consideration of the child's best interests. And contrary

to da Costa's earlier importunings, de Lima's misconduct was

considered and weighed against the child's interests. See

The court found that the child appeared to be doing well in the

United States, while the extent of de Lima's misconduct remained

disputed (particularly the veracity of the allegation that she

forged da Costa's signature on the child's passport). See

Thus, it concluded that returning the child to Brazil —

where he has limited connections other than to da Costa — would be

disruptive because he has spent most of his life in the United

States and has developed many meaningful connections here. See

- 20 -

Put another way, equity could not be served by ordering the

child's departure from a supportive environment and the return to

a less supportive one simply as punishment for the removing

parent's alleged malfeasance.

To say more would be to paint the lily. We can discern

no clear error based on these factual findings. The court

recognized that de Lima admitted to hiding the child's location,

and with respect to the child's passport, all that the record

reflects is conflicting testimony about whether da Costa signed

it. See

Nor can we detect an abuse of discretion in connection

with the court's decision. Da Costa primarily takes issue with

the court lending credence to the child's interests in remaining

on Martha's Vineyard while discounting his interests in returning

to Brazil, but "[s]uch relative weighting of interests by the

district court . . . is not for this court to second-guess, and

especially not on an abuse of discretion analysis." Yaman,

.

IV

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

- 21 -