[Canada][Petition granted][ Mature Child Objection Defense][Undue
influence]
In Preston v Preston, 2023 WL 300130 (E.D. Texas, 2023) the
district court granted the petition of Adam Lester Preston for Return of his
nine-year-old daughter, G.I.P to Canada.
Petitioner was
the biological father of the minor child, G.I.P. Respondent qA the minor
child’s biological mother. Petitioner and Respondent were currently legally
married and were married at the time of the minor child’s birth The Parties
resided together with the minor child in their marital home in Brandon,
Manitoba, Canada, from around the time she was born through the date that Respondent
and the minor child traveled to the United States. On July 19, 2022, Respondent
and the minor child traveled from Canada to the United States, specifically
Frisco, Texas, in the Eastern District of Texas, to visit extended family, with
the expectation that both the minor child and Respondent would return to Canada
on September 7, 2022. Respondent and the minor child did not return to Canada
on that date or any date thereafter. The
parties stipulated that Canada was the habitual residence of the child under
the Hague Convention on International Child Abduction; that Adam Lester Preston
had rights of custody of the child under Canadian law and that Adam Lester
Preston was exercising those rights of custody at the time G.I.P. was
“wrongfully removed or retained,” The only defense being pursued is the Mature
Child Objection Defense under Article 13.
Under the
Hague Convention, a court may “refuse to order the return of the child if it
finds that the child objects to being returned and has attained an age and
degree of maturity at which it is appropriate to take account of its views.”
Hague Convention, art. 13. Analysis of the mature child defense is therefore a
two-step process: first, the Court must determine whether G.I.P. is of
sufficient age and maturity for her views to be considered, and second, the
Court must evaluate the nature of the objection and determine whether it is a
particularized objection or merely a general preference. Respondent must prove each
element of the mature child defense by a preponderance of the evidence—that
the child is mature enough for her views to be taken into account and
that the child objects to return. See 22 U.S.C. § 9003(e)(2)(B);. As with
each affirmative defense under the Hague Convention, the “exception is to be
applied narrowly.” England v. England, 234 F.3d 268, 272 (5th Cir. 2000). Moreover,
when the mature child defense is the only affirmative defense raised, as is the
case here, the Court “must apply a stricter standard in considering a child’s wishes
when those wishes are the sole reason underlying a repatriation decision and
not part of some broader analysis,’ such as whether the child would suffer a
grave risk of harm if returned to his or her habitual residence.” San Martin v. Moquillaza, No. 4:14-CV-446, 2014 WL 3924646,
at *7 (E.D. Tex. Aug. 8, 2014) (quoting Tsai–Yi Yang v. Fu–Chiang Tsui, 499 F.3d 259, 278 (3d Cir. 2007)).
“ ‘[W]hether a child is of
sufficient age and maturity is a fact-intensive process,’ and the Fifth Circuit
has ‘declined to hold, as a matter of law, that any particular age is
sufficient of insufficient to meet the defense.’ ” Esparza, 2022 WL 17724414, at *3 (quoting Dietz v. Dietz, 349 F. App’x 930, 934 (5th Cir.
2009)). The Fifth Circuit has explained that an in camera
interview with the child provides a proper basis for the Court’s consideration
of the age and maturity defense. Vasconcelos v. Batista, 512 F. App’x 403, 406 & n.6
(5th Cir. 2013) (citing TEX. FAM. CODE § 153.009) (“Such
interviews are otherwise entirely proper under Texas law.”).
In keeping
with the Fifth Circuit’s guidance, the Court considered the in camera
interview with the minor child], as well as the Petitioner’s and Respondent’s
testimony at trial related to the minor child’s maturity. The Court did also consider the
report of the ad litem and her
testimony, and the documentary evidence in the record. The Court found
Respondent had not carried her burden of proof regarding the first element of
the mature child defense. Following the interview of the minor child, the Court
concluded that it would not be appropriate to consider G.I.P.’s views in
determining whether she should be returned to Canada, as G.I.P. had not yet
attained a sufficient age and degree of maturity. G.I.P. was nine years old and
homeschooled. She stated her grade level varies, somewhere between third,
fourth, and fifth, depending on the subject During the interview, the minor
child was talkative but understandably nervous and confused by the
circumstances producing this litigation. On several occasions, she lost her
train of thought and asked the Court to repeat its question. While she voiced a
clear opinion on certain topics, and both parents and the ad litem agree
she was bright and intelligent, her demeanor, mannerisms, and interests suggest
she was of average maturity for a 9-year-old. That her testimony reflected the
interests and concerns of a perfectly normal child of her age was intended as
no discredit to her; the mature child exception is reserved for extraordinary
cases. See Friedrich v. Friedrich, 983 F.2d 1396, 1403 (6th Cir. 1993) (noting
that affirmative defenses are reserved for “extraordinary cases,” since “it is
the clear import of the Convention that in most cases the duty of that court,
when the niceties of the convention are met, is to return the child to the
country of habitual residence for resolution of the custody dispute under the
laws of that country.”); Guzzo v. Hansen, No. 4:22-CV-15 PLC, 2022 WL
3081159, at *9 (E.D. Mo. Aug. 3, 2022) (“Child is intelligent and
personable, but the record does not suggest that his opinions are those of an
especially mature person. To the contrary, Child generally exhibits the traits
of a typical ten-year-old.”); Bhattacharjee v. Craig, No. 4:21-CV-00826-SEP, 2021 WL
4504376, at *5 (E.D. Mo. Oct. 1, 2021) (“Based on the evidence presented,
this is not an extraordinary case, and Respondent has not satisfied that
stricter standard.”).
Based on
the totality of evidence, the Court found Respondent had not carried her burden
to show by a preponderance of the evidence that G.I.P. attained the age and maturity such that her
views should be taken into account. Even
if the Court had found the child displayed sufficient age and maturity, the
Court further found that any objection by the minor child to returning to
Canada should not be considered and is the result of undue influence. See Vazquez v. Vasquez, No. 3:13-CV-1445-B, 2013 WL
7045041, at *29 (N.D. Tex. Aug. 27, 2013)
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