Case Update (2020): De Carvalho v. Carvalho Pereira; Return of a child to a habitual residence where that child has never lived

The recent 1980 Hague Abduction case of De Carvalho v. Carvalho Pereira focused on two key issues: the children's habitual residence and whether the children were now settled in the United States.  The District Court of Appeal of Florida affirmed the trial court's order to return both children to Brazil.  

The family, in this case, moved to Florida in January 2016 for the Father's short-term medical fellowship in a U.S. hospital, and for the Mother to give birth to the parties' second child on U.S. soil.  A few months later, and after the 2nd child's birth, the Father's fellowship fell through, so he returned to Brazil to prepare the family home for everyone's return.  He sent return plane tickets to his family, but the Mother decided (on or about April 5, 2016) she was remaining in the United States, with the children, and wished to divorce.   The trial court concluded that neither parent intended to permanently relocate the family to the United States, until April 2016 when the Mother unilaterally decided to remain.  The Father promptly sought assistance from the Brazilian authorities to have his children returned.  Unfortunately, for the Father, it appears he filed his request to have the children returned in Brazil and not in Florida, and therefore there were significant delays.  He ultimately filed the instant action in Florida on November 4, 2019, almost four full years after the family first moved to the United States.  

The trial court concluded Brazil was the children's habitual residence, even though the oldest had not lived there for 4 years, and the youngest had never lived there.  The appellate court refused to overturn that decision, citing to the deference given to the trial court by the Monasky clear error standard of review.  Furthermore, the Mother had moved around with the children several times while they lived in the United States, and the children were still relatively young and not settled, so the Father's delay in filing beyond one year after the retention was not fatal to securing the children's return.

Compare this case to the Pope v. Lunday matter.