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Thursday, August 15, 2013

Hirst v. Tiberghien, 2013 WL 1867343 (D.S.C.) United Kingdom] [Age & Maturity] [Guardian] [Visitation] [Petition Granted]

 In Hirst v. Tiberghien, 2013 WL 1867343 (D.S.C.) Petitioner Amor Paulina Hirst filed a Petition for Return the parties' two minor children to the United Kingdom. The court sua sponte issued an Order Appointing a Guardian Ad Litem to conduct an independent, balanced and impartial investigation for the court into the facts relevant to the Return petition and the defenses raised by Respondent. The lay Guardian Ad Litem conducted in-person interviews with the children individually, Respondent and his wife, as well as Skype interviews with Petitioner and her husband. The GAL also contacted friends of the parties and several of the children's teachers in Manchester, England. Upon the completion of her investigation, the GAL issued a report containing a summary of her investigation, which essentially provided the court with a timeline of the relevant events and previewed the arguments that the parties eventually made at trial. The GAL acknowledged that she could provide no expert opinion as to the maturity of the children, but asserted that the children's desire to remain with their father was strong. The GAL provided a copy of the report to the court and the parties on April 22, 2013. The court entered the report into evidence at trial as its own exhibit. The court also interviewed the children on the record in camera outside the presence of the parties and their counsel.

Petitioner and Respondent were married on May 17, 1996, in South Africa. They had two male children-M.S.T., born in 2002, and A.D.T., born in 2003-both born in Johannesburg, South Africa. At the time of the trial, M.S.T. was ten (10) years old and A.D.T. was nine (9) years old. The children were citizens of South Africa by virtue of their birth in South Africa and held South African passports. The children also held Belgian passports by virtue of their father's Belgian citizenship. Their Belgian passports afforded the children European Union citizenship, which thereby allowed them to live in the United Kingdom with no additional visa or immigration requirements.

The parties and the children lived together as a family in South Africa until the parties separated in May 2007. The parties were divorced on July 25, 2008. At the time of the divorce, the parties entered into a Parenting Plan and Settlement Agreement which was adopted by a South African High Court. The South African Order resolved all issues of custody of M.S.T. and A.D.T., giving the parties joint parental responsibility for the children. It further provided that the children should reside with their mother and should have extensive contact with their father. Following the separation, Respondent left Johannesburg and took a job in Ballito, South Africa, roughly 380 miles from Johannesburg. Several months following the divorce, the parties mutually agreed that the children would live with their father in Ballito. The children lived with their father from on or around September 2008 to on or around February 2011. When Respondent decided to relocate to Greer, South Carolina, in or around February of 2011, he and Petitioner agreed that she would resume custody of the children until Respondent was established and could arrange for the children to join him in the United States. These plans changed on or around June 2011 due to Respondent's inability to raise the funds necessary to arrange for the children's visas and their travel to the United States. Petitioner retained physical custody of the children since March 2011.

On or around October 15, 2011, Petitioner married Jamie Hirst , a citizen of the United Kingdom. On November 5, 2011, the children relocated from South Africa to Manchester, England in the United Kingdom and moved into Jamie's two-bedroom flat. Respondent arranged for the children to receive their Belgian passports, which enabled the children to enter and live in the United Kingdom. Respondent also provided Petitioner with his written consent for the children to travel from South Africa to the United Kingdom. Upon arrival, Petitioner enrolled the children in Norden Community Primary School. The children attended the Norden School since their arrival in November 2011 and up until December 2012 when they left for their Christmas vacation with Respondent in the United States. Both Petitioner and the children registered for medical care through the United Kingdom's National Health Service. On December 23, 2012, the children travelled from the United Kingdom to the United States to visit Respondent at his new home in Greer, South Carolina. This was the children's first visit to the United States. The parties and the children all agreed that the trip was intended to be a three-week visit, not a permanent relocation. The parties agreed that the children would return on January 7, 2013, which was the first day school resumed after the Christmas holiday. On January 2, 2013, Respondent informed Petitioner by Skype that he would not be returning the children to the United Kingdom as previously agreed and would instead have the children live permanently with him in Greer, South Carolina.

In or around March 2013, Petitioner filed a Verified Petition for Return with the court. Petitioner and Jamie came to the United States for the Show Cause hearing on March 29, 2013. At the end of the hearing, Petitioner requested visitation with the children while in the United States which the court granted. The children initially refused to leave the courthouse with Petitioner and Jamie. The Court interviewed A.D.T. and M.S.T. separately in camera in the presence of the court reporter, a law clerk, and a courtroom deputy.

Respondent conceded that Plaintiff met her prima facie case for a wrongful return. As to habitual residence, Respondent did not establish that there was a shared intent by both parents for the children to abandon the United Kingdom and move to the United States in December 2012. Notwithstanding evidence of a prior shared intent in 2011 for the children to come live with Respondent in the United States, all of the parties understood the December 2012 trip to be a temporary visit with a definitive return date. Additionally, the court found that the children's fourmonth stay in the United States was not sufficient to establish that they were acclimatized to their new environment such that returning them at this point "would now be tantamount to taking the child out of the family and social environment in which its life has developed. Therefore, the court found that the children were habitually resident in the United Kingdom. Respondent further stipulated at trial that Petitioner had rights of custody of the children under the Hague Convention and under the relevant law of the United Kingdom, and that Petitioner was exercising that custody at the time of the children's wrongful retention. Petitioner was also exercising her custody rights at the time Respondent retained the children in the United States. Petitioner met her burden of proving by a preponderance of evidence that Respondent's retention of the children in the United States was wrongful within the meaning of the Hague Convention.

The district court found no proof that the children had been exposed to any sexual abuse. Respondent's claim that Petitioner repeatedly forced the children to watch video footage in an effort to frighten them or psychologically torture them was not credible. Respondent's allegations that Petitioner regularly told lies about the father clearly would not rise to the level of psychological torture such that the grave risk exception would be applicable. Many of the Respondent and the children's claims were, at most, allegations of poor parenting, including Petitioner's alleged drinking and smoking, her alleged use of foul language toward the children, and her alleged tendency to sleep late, which left the children to prepare their breakfast and ready themselves for school on their own. Other allegations were those that could be made by many ten and eleven year old boys in similar situations, such as the allegations that Petitioner's imposed punishment for small offenses was excessive, that they had no privacy, that their parents fight too much, and that one parent speaks ill of an ex-spouse. Respondent's complaints that Petitioner lets the children walk to school on a busy road and let them go out at night by themselves did not establish that the children were or will be in actual danger in Manchester. Finally, even if these allegations of mistreatment, either individually or collectively, caused the court to be as concerned as Respondent apparently was, the alleged mistreatment would still not meet the standard as outlined in the Fourth's Circuit decision in Miller, since a court in the United Kingdom can be trusted to adequately respond to these issues and provide protection for the children. See Miller, 240 F.3d at 402.

Respondent did not prove by a preponderance of the evidence that the children were of an age and maturity such that their wishes should be taken into account in determining the issue of return. Both M.S.T. and A.D.T. were polite, smart boys. Notwithstanding the impact on the children of the instant custody matter, neither boy seemed to be especially sophisticated or to have reached a maturity beyond their years. The burden of demonstrating maturity lies with the party asserting the defense. Respondent provided no expert evidence or expert testimony regarding the children's maturity level. Even if the court were to find the children sufficiently mature, other factors would weigh against declining to issue a return. First, the children expressed a preference to remain in Greenville rather than a strong objection to returning to Manchester. The children's objections to Manchester mostly involved an aversion

to the rainy climate and a lack of places to play. However, both children mentioned that they enjoyed playing sports at their school and the overwhelming evidence suggested that the children were involved in at least three sports teams or clubs. Surely, then, the children had adequate places to play and were not completely deterred from doing so by the climate in Manchester. Additionally, both children stated that they had friends in Manchester and both stated that they liked their teachers at school. Both children also commented on the fact that the people of Greenville were on the whole very friendly as compared to the people of Manchester. The children's preference for the temperate climate and southern hospitality of Greenville, as well as their affinity for their father's yard, was not sufficient to invoke Article 13's narrow exception. Furthermore, the children's preference for Greenville over Manchester could not be "born of rational comparison" between life in the United States and life in the United Kingdom. See Castillo, 597 F.Supp.2d at 441. While the children had been in the United States, the children had not been in school and from their in camera testimony, they had clearly been having fun playing with their father, watching crime dramas on television, and exploring the city's attractions and restaurants. Even if the children were mature enough to make a decision about where they wished to grow up, neither child offered well-considered reasons why staying in Greenville would be preferable or beneficial that were not related to their leisure and pleasure. In addition to their stated desire to remain in Greenville, the children also expressed a desire to stay with their father. It was clear to thecourt that the children had been influenced by their parents' bitter and contentious relationship. At present, the children sided with their father and believed that their mother lied when she told them that Respondent left the family and South Africa for another woman. Both children mentioned this alleged lie during their in camera testimony, leaving little doubt that this perceived breach of trust was at the heart of the children's animosity toward their mother. The fact that they had been physically separated from their mother for the last four months while the instant custody battle ensued, during which time Petitioner sought to insulate the children from the stress of the proceedings by not discussing the issue with them, surely exacerbated the children's confusion about the situation and negative feelings toward their mother. Statements from those involved with the children's life in Manchester stood in stark contrast to the picture painted by Respondent and reported by the children about the children's home life in the United Kingdom. Such contradictions provided further circumstantial evidence that the children's objections to the return had been influenced by either their parents or the events surrounding the instant custody dispute, which therefore counseled against giving the children's objections determinative weight.

The court found that the instant dispute was a custody matter involving the children's preferences with regard to which parent they wanted to live with, not well reasoned particularized objections to their return to their place of habitual residence.

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