A Review of the Court of Appeals decision in Jose Leonardo Brito Guevara v. Samantha Estefania Francisco Castro

Facts: The case involves a child abduction dispute under the Hague Convention on the Civil Aspects of International Child Abduction. The child, A.F., was born in Venezuela in 2018 to parents Jose Leonardo Brito Guevara (father, petitioner) and Samantha Estefania Francisco Castro (mother, respondent). In early 2021, Brito moved to Spain, leaving A.F. and Castro in Venezuela. In November 2021, when A.F. was three years old, Castro and A.F. fled Venezuela and entered the United States, where they sought asylum due to alleged persecution and unsafe conditions in Venezuela. Their asylum applications remain pending, but both have been granted Temporary Protected Status (TPS) and employment authorization. Since arriving, they have resided in the Dallas, Texas area for nearly four years. A.F., now seven years old, has no memory of Venezuela, attends George Herbert Walker Bush Elementary School (where she participates in the Gifted and Talented Program), is involved in church and community activities, and has developed social ties, including friends and extended family in the U.S. Brito, still living in Spain, has not resided in Venezuela since 2021 and has had limited contact with A.F. In April 2023, more than a year after A.F.'s removal, Brito (along with his mother) filed a petition in the U.S. District Court for the Northern District of Texas seeking A.F.'s immediate return to Venezuela.

The U.S. District Court for the Northern District of Texas (Case No. 3:23-cv-1726) denied Brito's petition on May 8, 2024, after a two-day bench trial, finding by a preponderance of the evidence that A.F. was well-settled in Texas under the Fifth Circuit's seven-factor test from Hernandez v. Pena. The court concluded it was not in A.F.'s best interests to return to Venezuela, where she has minimal connections and no memories.

 An appeal was filed with the U.S. Court of Appeals for the Fifth Circuit.

 Issues:

 1. Whether the district court's determination that A.F. is "well-settled" in her new environment in the United States (triggering an exception to mandatory return under Article 12 of the Hague Convention) should be reviewed de novo or for clear error on appeal.

2. Whether, under the applicable standard, A.F. is "well-settled" in the U.S., considering factors such as age, stability of residence, school attendance, social ties, participation in activities, parental employment stability, and immigration status.

3. Whether Brito's alleged delay in filing the petition (over 16 months after A.F.'s removal) should factor into the "well-settled" analysis or preclude the defense.

 Applicable Laws:

 Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction (1980) states as follows:

 Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. 

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.  

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

 Article 12 of the Hague Convention has been codified in the International Child Abduction Remedies Act (“ICARA”), which can be found in 42 U.S.C. § 9003(e)(2)(B), which says:

A respondent opposing return must establish that an exception (like "well-settled") applies by a preponderance of the evidence.

Decision: 

The U.S. Court of Appeals for the Fifth Circuit (Case No. 24-10520) reversed on September 5, 2025. The majority (in a 2-1 decision) held that "well-settled" determinations are mixed questions of law and fact subject to de novo review. Applying this standard and the seven-factor test, the court found A.F. was not well-settled and remanded with instructions to order her return to Venezuela. The court did not reach the delay issue, as it found the well-settled defense inapplicable. On September 26, 2025, the Fifth Circuit denied Castro's motion to stay its mandate pending certiorari.

The Fifth Circuit majority emphasized that the Hague Convention aims to deter child abductions by ensuring prompt return to the country of habitual residence (here, Venezuela) unless an exception applies. Since the petition was filed more than a year after removal, the "well-settled" defense was available if Castro proved by a preponderance that A.F. was settled in the U.S. The court adopted de novo review for this determination, citing its precedent in Hernandez v. Pena (820 F.3d 782, 5th Cir. 2016) and distinguishing it from the clear-error standard used in other circuits (e.g., 1st, 2nd, 4th, 9th, 11th). It argued that "well-settled" is a mixed question requiring application of a multi-factor legal framework to facts, akin to cases like U.S. Bank N.A. v. Village at Lakeridge (583 U.S. 387, 2018), and rejected Castro's reliance on Monasky v. Taglieri (589 U.S. 68, 2020), which applied clear-error review to "habitual residence" as a purely factual issue.

Applying de novo review, the majority weighed the seven Hernandez factors (age of child, stability of residence, school attendance, friends/family relationships, community/extracurricular participation, parental employment/financial stability, immigration status) holistically, without a rigid formula. It found most factors weighed against well-settled status: A.F.'s young age (favoring return due to adaptability); unstable residence (multiple moves in the U.S.); inconsistent school attendance initially; limited social ties (mostly family-based, no deep community involvement); Castro's unstable employment (frequent job changes, low income); and uncertain immigration status (pending asylum with low success rates for Venezuelans, potential deportation). While acknowledging some positive factors (e.g., recent school stability, TPS), the court concluded the overall circumstances showed insufficient settlement, prioritizing the Convention's goal of deterring abductions over A.F.'s current ties.

The dissent argued for clear-error review post-Monasky, as "well-settled" is fact-intensive and deferential to the trial court's weighing of evidence. It criticized the majority for reweighing facts (e.g., downplaying A.F.'s school progress and social integration) and ignoring the child's best interests, including the irrelevance of return to Venezuela where neither parent lives. The dissent also faulted Brito for delay in seeking relief, suggesting it should weigh against him under the Convention's equitable principles.

This decision creates a circuit split on the standard of review, contravenes Supreme Court guidance on deferential review for fact-bound inquiries, and raises recurrent issues in Hague Convention cases involving immigration and child welfare. 

Appeal to the Supreme Court: On October 1, 2025, Samantha Estefania Francisco Castro filed an emergency application for stay with the Supreme Court of the United States of America. As of the current date (October 26, 2025), the US Supreme Court has not ruled on this application.

Citation for the decision given by the U.S. Court of Appeals for the Fifth Circuit:

Brito Guevara v. Francisco Castro, 119 F.4th 397 (5th Cir. 2025).

Links to the decision given by the U.S. Court of Appeals for the Fifth Circuit:

https://www.ca5.uscourts.gov/opinions/pub/24/24-10520-CV0.pdf 

or

https://law.justia.com/cases/federal/appellate-courts/ca5/24-10520/24-10520-2025-09-05.html.

 Link to the application filed by Samantha Estefania Francisco Castro with the Supreme Court of the United States of America for an emergency stay: https://www.supremecourt.gov/DocketPDF/25/25A376/379837/20251001161703453_Brito%20-%20Emergency%20Application%20for%20Stay%20of%20Mandate.pdf

or

https://www.supremecourt.gov/docket/docketfiles/html/public/25A376.html