[Germany][Petition denied] [Age and Maturity Exception]
In Carlson v Carlson, 2023 WL 315518 ( D. Rhode Island, 2023) E.C. was a thirteen-year-old boy, embroiled in a custody dispute between his German mother and American father. The court denied the Petition for Return of E.C. to Germany.
E.C.’s
parents were married in the United States in 2007 and E.C. was born two years
later. When E.C. was just shy of eight years old, they divorced in Rhode
Island, agreeing to joint legal custody and physical placement in Germany with
his mother. The Final Judgment specified both E.C. and Anke would live in
Germany, and they moved there in March 2015. Since that time, and pursuant to agreement,
E.C. visited Kurt frequently during the summer and school vacations. Kurt has
generally accompanied him to and from Germany for these visits. E.C. visited
his father extensively in the United States, sometimes accompanied by his
mother, and Kurt visited E.C. in Germany. At one point in 2021, E.C. expressed
a desire to live with his father. The parties agreed that he would move to the
United States in the summer of 2022 to live with Kurt. In March 2022, Anke
testified, E.C. had a change of heart and decided to spend the summer of 2022
with Kurt in Burrillville, but not move there permanently until 2023. E.C. did
then journey to the U.S. for the summer of 2022. On August 11, 2022, the day of
his scheduled return to Germany, E.C. declined to go home and, according to his
father, broke down in the airport, refusing to board the plane. That day, when
she discovered E.C. was not on the plane, Anke filed this petition pursuant to
the Hague Convention, demanding his return. She also petitioned for physical
placement of her son in Germany and filed a Motion to Modify the Final Judgment
in the divorce proceedings. Those latter matters are pending disposition in the
Rhode Island Family Court.
The Court
found that the provisions of the Hague Convention apply here. E.C. was a child
under the age of sixteen. Both his parents enjoy custodial rights by virtue of
the Final Decree, Kufner v. Kufner, 519 F.3d 33, 39 (1st Cir. 2008), aff’g
480 F. Supp. 2d 491 (D.R.I. 2007), and they
agreed Anke was exercising her custody rights at the time E.C. failed to
return. They also agreed the country of his habitual residence was Germany.
Finally, the parties agree that since August 11, 2022, E.C. has been wrongfully
retained in the United States.
The “mature
child exception” empowers a judicial authority to “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, Article 13. [T]he Convention also
provides that the child’s views concerning the essential question of its return
or retention may be conclusive, provided it has, according to the competent
authorities, attained an age and degree of maturity sufficient for its views to
be taken into account. In this way, the Convention gives children the
possibility of interpreting their own interests.Rodriguez v. Yanez, 817 F.3d 466, 475 (5th Cir. 2016), There are
two parts to this standard: that the child is of sufficient maturity to express
an opinion and that the child objects to return. The Court found that E.C.
at 13 was of a sufficient age to have his wishes considered. See Falk v. Sinclair, 692 F. Supp. 2d 147, 165 (D.Me.
2010) (close question whether a “very bright” eight-year-old was
sufficiently mature to invoke exception); Rodriguez, 817 F.3d at 478 (11-year-old); Garcia v. Pinelo, 808 F.3d 1158, 1167 (7th Cir. 2015)
(11-year-old) Dubikovskyy v. Goun, 54 F.4th 1042 (8th Cir. 2022)
(12-year-old). It was significant that, despite her protestation to the
contrary now, in March 2022 Anke herself believed that E.C.’s then-desire to
stay in Germany stemmed from a mature decision. The Court had a substantial
opportunity to talk with E.C. in a comfortable and reassuring setting and found
him sufficiently mature. E.C. demonstrated in the in-camera interview
that he was an inciteful, articulate child who understood the nature of the
proceedings and the significance of his role in them. He had both high
comprehension and the ability to articulate his views and his reasons for them.
He understands the consequences of the Court’s decision. He also had the
maturity to appreciate the impact of the Court’s action on his parents.
Further, neither parent exercised an undue influence over him.
“A child’s objection is different from a
child’s wishes, as would be considered in a custody hearing.” Colon v. Montufar, 470 F. Supp. 3d at 1296. The text
of the Convention restricts the age and maturity exception to cases in which
the child “objects” to being returned. A mere preference is not an objection, Rodriguez, 817 F.3d at 476-77, and is
not sufficient. Tann v. Bennett, 648 F. Appx. 146, 149 (2d Cir. 2016); Romero v. Bahamonde, 857 Fed. Appx. 576, 583 (11th Cir.
2001). Only an objection is sufficient to trump the Convention’s strong
presumption in favor of return.” The difference has been expressed as the
difference between a generalized desire and a particularized objection. Custodio v. Samillan, 842 F.3d 1084, 1091 (8th Cir. 2016)
(“particularized objection”); Vasconcelos v. Batista, 512 Fed. Appx. 403, 408 (5th Cir.
2013) (unpub) (reasons constituting objection were specific); Dubikovskyy, 54 F.4th at 1048
(“particularized objection”). The Court found that E.C.’s reasons for
protesting returning to Germany were both strong and specific and that they
constituted an objection within the meaning of the Convention. He articulated
that objection consistently to his mother, his father, the GAL, the DCYF worker,
and the Court. His objections were specific and amounted to more than a
generalized notion that life is “better” in the United States. His primary
objection concerned his schooling in Germany. Tha is a serious matter to a
13-year-old and constitutes a specific reason why he feels return to Germany
would not be in his best interests. It appeared to the Court that he objected
to the living arrangements in Germany and at no time did Anke indicate those
arrangements would change upon his return. In Germany, even though there are
two bedrooms, he sleeps in the same bedroom as his mother, in a twin bed pushed
up against hers. In Burrillville, he had his own room and, after some effort,
had become accustomed to sleeping in it. Finally, he expressed that a return to
Germany would show his views are not listened to and not respected. The
Petition for Return was denied.
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