Supreme Court Halts Removal of Child Involved in International Custody Dispute

A federal appeals court reversed a lower court ruling that found the child qualified under the Hague Convention.

U.S. Supreme Court Associate Justice Samuel Alito in Washington on Oct. 7, 2022. Alex Wong/Getty Images

The U.S. Supreme Court temporarily halted a federal appeals court ruling requiring that a young girl in Texas, who is the subject of an international parental custody dispute, be sent back to her native country, Venezuela.

Justice Samuel Alito issued an order on Oct. 2 staying a ruling by the U.S. Court of Appeals for the Fifth Circuit until further notice.

The case concerns A.F., a 7-year-old girl who lives in Dallas, Texas, with her mother. A.F. was born in Venezuela in 2018, but has not lived there since she was 3 years old.

The applicant, A.F.’s mother, Samantha Estefania Francisco Castro, filed an emergency application with the nation’s highest court on Oct. 1. The respondent, A.F.’s father, is Jose Leonardo Brito Guevara.

When A.F. was 3, Brito relocated to Spain, leaving A.F. and Castro behind in Venezuela. Some months later, A.F. and Castro came to the United States and sought asylum. Both were granted Temporary Protected Status (TPS). Their asylum applications are still pending.

TPS is a designation that allows individuals from countries affected by armed conflict, natural disasters, or other extraordinary events to remain in the United States. The designation allows the federal government to develop a path to citizenship for qualifying immigrants who cannot return home safely.

Brito continues to reside in Spain. In April 2023, he asked a federal district court under the Hague Convention on the Civil Aspects of International Child Abduction to require that A.F. be returned to Venezuela, the application said.

Because Brito’s petition under the treaty was filed more than one year after Castro and A.F. departed from Venezuela, the treaty allowed the district court to deny the petition if Castro could demonstrate that “the child is now settled in its new environment.” The district court made such a finding after a two-day trial.

The district court determined that under the Fifth Circuit’s seven-factor test, A.F. was “well settled in her new environment in Texas” and that “it is no longer in the best interests of A.F. to return to Venezuela, where she has minimal connections and no memories of living there,” the application said.

However, a divided Fifth Circuit reversed that ruling and found that A.F. was “not well-settled in her new environment.” The circuit court directed the district court to enter an order requiring A.F. to return to Venezuela.

The Fifth Circuit’s ruling should be reviewed by the Supreme Court because there is a split among the federal circuit courts on what the standard of review should be when determining whether a child is “well settled” under the Hague Convention, the application said.

Alito directed Brito to file a response to the application by 4 p.m. on Oct. 16.