Across the Border and Back Again: Immigration Status and the Article 12 “Well-Settled” Defense

The Hague Convention on the Civil Aspects of International Child Abduction is a multilateral international treaty designed to effectively govern the return of children abducted (often by a parent) and taken to a foreign country. In most cases, if the “left-behind” parent applies for relief under the Convention within a year of the abduction, the child must be returned to the country of origin for a custody hearing. If, however, the application for return is made more than one year after abduction and the child is now “well-settled” in their new environment, the application may be denied under the well-settled affirmative defense provided by Article 12 of the Convention. The Convention does not, however, specify which factors are to be considered in a well-settled determination, and courts have frequently grappled with how immigration status (particularly, whether the abducting parent and child are living in the new country illegally) should impact the determination. U.S. and international courts have adopted one of three approaches to the issue: granting immigration status considerable weight in the determination, treating immigration status as one of a number of equally weighted factors in the determination, or granting immigration status considerably little weight in the determination. This Note addresses this conflict and concludes that courts should generally accord immigration status little weight, except where uncertain immigration status is likely to affect the child’s future prospects, irrespective of a deportation risk