This article examines the “well-settled” affirmative defense to efforts to compel the return of children to their “country of habitual residence” under the Hague Convention. The treaty typically requires the immediate return of children. However, if the action is brought more than one year after the wrongful removal or retention of the child away from the country of habitual residence, the petition for return can be defeated if it is shown that the child has become well settled in their new environment.
A deep circuit split has emerged among the federal appellate courts on whether the trial court’s determination that a child is well settled is primarily a factual finding (and given deferential clear-error review) or a legal determination (subject to a de novo analysis).
The U.S. Supreme Court recently denied certiorari in a case that sought an answer to the appropriate review standard to resolve this split and provide certainty for affected children.
The Hague Convention and Policy Reasons for the Well-settled Defense to the Return of Children to Their Country of Habitual Residence
The U.S. implementation of the Hague Convention in the International Child Abduction Remedies Act (1) provides a mechanism for the prompt return of children to the country of habitual residence and (2) ensures parents’ custodial rights are respected by all signatory countries — or as the U.S. Supreme Court put it in Lozano v. Montoya Alvarez, the promotion of international comity. The Supreme Court’s 2020 decision in Monasky v. Taglieri, emphasized that the Hague Convention is not a mechanism to determine underlying custody or visitation disputes.
In this context, the well-settled doctrine allows a child to remain in a country of alleged wrongful retention if the petitioning parent has waited one year to petition U.S. courts to order return of the child and she has become sufficiently established in her new home. Unfortunately, circuit courts across the nation review the question of whether a child is well settled under inconsistent standards.
Castro v. Guevara — A Case Revolving Around the Fact that the Standard of Review for the Well-Settled Affirmative Defense Is Not Well Settled
Pro bono attorneys at Duane Morris recently litigated Castro v. Guevara, a case involving a judicial application by a father to force the return of a minor child from the United States to Venezuela. The child, identified as “AF,” was brought to the U.S. by her mother, Castro, to seek asylum after the father, Guevara, moved from Venezuela to Spain. AF was 3 years old when her mother brought her to the U.S. to seek a better life. Guevara delayed filing suit to seek to compel AF’s return to Venezuela until AF had been in the U.S. for more than one year, thereby allowing Castro to assert the well-settled defense to oppose AF’s return.
After a bench trial (Brito v. Castro) where Judge Ada Brown heard testimony from AF and several family members, the trial court found that AF was well settled in her new home in Texas and therefore denied Guevara’s petition to return AF to Venezuela. The district court noted that Guevara was not living in Venezuela and found that Castro had complied with U.S. immigration law by presenting herself and AF to immigration officials to seek asylum. After hearing the evidence and weighing the credibility of the witness, the district court determined that it was not in AF’s best interest to return to Venezuela, a place of which she did not have any memories in light of her strong attachments to her life in the U.S., including her gifted and talented school program, her wide circle of family and friends, and her connection to her community.
Proceedings at the U.S. Court of Appeals for the Fifth Circuit
Guevara appealed. The Fifth Circuit held oral argument and, after applying a de novo standard of review, reweighed the evidence to determine that AF was not well settled in the U.S. and therefore ordered her return to Venezuela. The ruling drew a sharp dissent from Judge Dana Douglas.
Castro sought en banc rehearing on the basis that the Fifth Circuit had not considered the proper standard of review under U.S. Bank N.A. v. Village at Lakeridge, LLC, and Monasky v. Taglieri. The Court granted rehearing, but the case was reconsidered by the original panel and not the entire Fifth Circuit. The panel returned a revised opinion, with the same 2-1 split. The majority determined that the well-settled analysis was a legal and not a factual inquiry and applied de novo review. Unsurprisingly, its reweighing of the evidence resulted in the same outcome for AF. The dissent strongly objected to the application of the de novo review standard and the lack of deference to the trial court’s fact findings.
In arguing that the Fifth Circuit’s decision effectively punishes AF, Douglas’s dissent noted that “[w]hen considering the well-settled defense, the district court makes credibility judgments and considers evidence produced by each side, and, ultimately, ‘compares the relative strength and persuasiveness of’ that evidence in determining whether a child’s best interests would be served by remaining in their current environment.” Considering a child’s best interests through record evidence “is ‘about as factual sounding’ as any question gets.” The Hague Convention states that the judicial authorities “shall act expeditiously in proceedings for the return of children.” The only standard of review that properly accounts for the factual nature of the well-settled inquiry and protects the best interests of the affected children is a clear-error review.
Relying primarily on Monasky, Castro argued that whether a child is well settled is primarily a fact-intense question subject to review for clear error. In Monasky, the U.S. Supreme Court held that the “habitual residence” determination is primarily a factual determination, reviewed for clear error: “The Hague Convention’s text alone does not definitively tell us what makes a child’s residence sufficiently enduring to be deemed ‘habitual.’ It surely does not say that habitual residence depends on an actual agreement between a child’s parents. But the term ‘habitual’ does suggest a fact-sensitive inquiry, not a categorical one.”
In so holding, the Court relied on the Hague Convention’s official explanatory report: “[T]he ‘explanatory report is recognized by the [Hague] Conference as the official history and commentary on the Convention and is a source of background on the meaning of the provisions of the Convention.’” “The report refers to a child’s habitual residence in fact-focused terms: ‘the family and social environment in which [the child’s] life has developed.’ What makes a child’s residence ‘habitual’ is therefore ‘some degree of integration by the child in a social and family environment.’” “The Convention’s explanatory report states that the Hague Conference regarded habitual residence as ‘a question of pure fact, differing in that respect from domicile.’ The Conference deliberately chose ‘habitual residence’ for its factual character, making it the foundation for the Convention’s return remedy in lieu of formal legal concepts like domicile and nationality.”
The Fifth Circuit, however, squarely rejected that Monasky, by extension, requires clear-error review of a well-settled determination. While acknowledging the Supreme Court’s holding that “habitual residence is a ‘fact-driven inquiry’” subject to clear-error review, the Fifth Circuit summarily dismissed Castro’s argument by asserting that Monasky “says nothing about whether the well-settled defense is primarily legal or factual” and “our well-settled inquiry is primarily legal.”
But the Fifth Circuit’s simultaneous (1) acknowledgement that “habitual residence” is a “fact-driven inquiry” and (2) summary dismissal of Monasky’s application to the well-settled defense are contradicted by a comparison of the factors considered for the two tests:
| Factors considered in determining if a country is a child’s “habitual residence” | Factors considered in determining if a child is “well settled” in a country |
| Age of the child | Age of the child |
| A change in geography combined with the passage of an appreciable period of time, language proficiency, location of personal belongings | The stability and duration of the child’s residence in the new environment |
| Academic activities | Whether the child attends school or day care consistently |
| Social engagements | Whether the child has friends and relatives in the new area |
| Participation in sports programs and excursions | The child’s participation in community or extracurricular activities |
| Meaningful connections with the people and places in the child’s new country | The respondent’s employment and financial stability |
| Immigration status of child and parent | The immigration status of the respondent and child |
The overlap between the factors courts considers determining whether a country is a child’s habitual residence and whether a child is well settled in a new country is substantial. The only readily apparent difference is whether the determination is made pre- or post-removal. The timing should not affect the nature of the inquiry — or the resulting standard of review.
The official commentary to the Hague Convention, which the Supreme Court relied on in determining that “habitual residence” is primarily a factual inquiry, further undermines the Fifth Circuit’s conclusion. The term “well settled” is not defined in the Hague Convention or its implementing legislation. The Hague Convention’s explanatory report, however, states that whether a child is well settled is a question of fact: “In any event, it cannot be denied that [the obligation to return the child] disappears whenever it can be shown that the child is now settled in its new environment. The provision does not state how this fact is to be proved[.]”
Despite the clear overlap with the habitual residence factual determination and the explanatory report’s guidance, the Fifth Circuit concluded that whether a child is well settled is a legal questions and reviewed the district court’s well settled finding de novo, reweighed the evidence to order that AF, at the time 7 years old and having spent almost four years in Texas, return to Venezuela. Despite expressly inviting “clearer direction from the Supreme Court,” the majority also denied a request for a stay of the order for AF to immediately return to Venezuela while her cert application was pending. That order would have catastrophic effects on AF and Castro.
Proceedings at the U.S. Supreme Court
Castro sought and received an administrative stay at the Supreme Court, but the Court later denied Castro’s request for a formal stay on the Court’s “shadow docket” during the pendency of her and AF’s case. As a result, AF had to return to Venezuela while the Court considered Castro’s cert petition. After living in the U.S. since she was 3 years old with her mother and stepfather, and surrounded by her extended family, in January 2026, AF was forced to return to Venezuela — a place she did not remember.
After full certiorari briefing, the Court denied the application on April 20, 2026. When the Supreme Court declined to hear Castro v. Guevara, it did more than deny one mother’s plea to keep her young daughter in the United States — it left a critical and acknowledged circuit split unresolved on the proper standard of review for the well-settled defense under the Hague Convention.
In dissenting to the cert denial, Justice Sonia Sotomayor argued that the clear circuit split warrants Supreme Court attention. Discussing how the Fifth Circuit’s decision, which “deepened an entrenched split among the Federal Courts of Appeals,” “may be erroneous,” Justice Sotomayor emphasized important policy considerations of consistency and expediency underpinning the Hague Convention.
First, she noted that “[w]hen Congress codified the Hague Convention, it expressly ‘recognize[d] … the need for uniform international interpretation of the Convention,’” quoting 22 U. S. C. §9001(b)(3)(B). For that reason, the Court regularly reviews Hague cases. Because the Fifth Circuit expressly acknowledged that it deepened the circuit split, the need for the Court to step in and provide the contractually mandated consistency is readily apparent.
Second, Justice Sotomayor emphasized that clear-error review “has a particular virtue in Hague Convention cases” because it “speeds up appeals and thus serves the Convention’s premium on expedition,” quoting the Court’s opinion in Monasky.
Against this backdrop, Justice Sotomayor strongly suggested that the Court’s 2020 decision on the correct standard of review for “habitual residence” in Monasky would require the Court to reverse the Fifth Circuit’s decision in Guevara that the finding that a child is well settled is primarily legal in nature and thus should be reviewed de novo. In so suggesting, she noted that “whether a child is ‘at home’ in one country is the converse of whether the child has become ‘well settled’ in another country,” noting that the well-settled multifactor test “is similar to the totality-of-the-circumstances test for habitual residence that this Court adopted in Monasky.”
Despite these reservations, Justice Sotomayor concurred in the denial of certiorari in Guevera because the Court had already denied Castro’s emergency stay application, thereby requiring AF to return to Venezuela pending resolution, and a reversal would potentially uproot her life yet again. Justice Sotomayor insisted that the Court should have granted the stay “to enable later review by this Court of an issue worthy of certiorari.” Justice Sotomayor’s policy arguments and observations echo Justice Douglas’s vigorous Fifth Circuit dissent, which emphasized that the deference upon which the clear-error review is premised is necessary to honor the policies upon which the Hague Convention rests.
The Court’s refusal to act leaves an acknowledged circuit split unresolved on the proper standard of review for the Hague Convention’s well-settled defense. The Court has already provided the answer to the problem in Monasky, but until it accepts the Fifth Circuit’s challenge to expressly resolve the split, vulnerable young children will continue to suffer inconsistent and life-altering implications in unnecessarily prolonged proceedings in direct contradiction of the Hague Convention’s expressed goal to look after their best interest, which places “paramount importance” on “the interests of children.” For the sake of the children, it is time to settle the well-settled defense.
Roger C. Diseker has extensive experience representing clients in a variety of matters, including complex commercial litigation; copyright, trademark and other intellectual property litigation; coverage disputes against insurers; commercial real estate disputes; premises liability; natural gas lease disputes; and legal malpractice defense. He tries cases in both state and federal courts and argues appeals at the U.S. Fifth Circuit Court of Appeals and various Texas state appellate courts.
Joakim Soederbaum practices in the area of litigation with a focus on the representation of both local and global clients in complex commercial, business, and real estate-related litigation in state and federal court. A native of Sweden, he leverages his international background in representing and advising domestic and international clients in both transactional and litigation matters in the United States and abroad. His experience includes international arbitrations under the rules of the London Court of International Arbitration and the Singapore International Arbitration Centre, as well as litigation under the Hague Convention.
Summer associate Natalie Segota assisted with research.