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Monday, December 5, 2016

Custodio v Samillan, 2016 WL 7030356 (8th Cir., 2016)[Peru] [Age & Maturity Defense] [Petition denied]

         In Custodio v Samillan, 2016 WL 7030356 (8th Cir., 2016) Custodio and Torres, were Peruvian citizens, who had two children, 16-year-old M. and 15-year-old G. When they divorced the Peruvian court issued a custody order pursuant to which the children lived with their mother for the majority of the year. In November 2013, the Peruvian court authorized M. and G.’s travel to St. Louis with Torres, requiring that they return by March 24, 2014. Torres married an American citizen, and the couple had since had a son. After Torres failed to return the children to Peru by the deadline the Peruvian court issued four orders compelling Torres to return M. and G. to Peru. The district court held a three-day evidentiary hearing. The district court denied the petition. It refused to order return because Torres established the mature child affirmative defense. 

         The Eighth Circuit affirmed.  It agreed with Torres that the appeal was moot as to M. because he had reached 16 years old and the Hague Convention no longer applied to him. Hague Convention art. 4.  It noted that the State Department’s interpretation of the Convention’s age limitation provision was in accord with Torres view which was supported by the official Hague Conference Explanatory Report. Elisa PĂ©rez-Vera, Explanatory Report: Hague Convention on Private International Law ¶ 77 (1981),

         Torres raised the mature child defense under Article 13 of the Convention. The Eighth Circuit noted that in order to carry her burden on this defense, Torres had to must establish by a preponderance of the evidence (1) that the child has “attained an age and degree of maturity at which it is appropriate to take account of its views” and (2) “that the child objects to being returned.” Hague Convention art. 13. The child’s objections can be the sole reason that a court refuses to order return, but when they are, the “court must apply a stricter standard in considering a child’s wishes.” Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 278 (3d Cir. 2007). The sole issue on appeal was whether the district court properly considered G.’s objections. The Court concluded that the question of whether a child objected to return is subject to clear error review. Such deference was appropriate here where the district court observed G. testify twice: first, in chambers outside the presence of the parties and lawyers and later, in open court and subject to cross examination. The district court found that G. wished to remain in St. Louis because he did not want to separate from his mother, stepfather, and two brothers. He did not want to return to Peru because he “does not feel safe with his father.” In chambers, G. said he was afraid of his father, who was “very aggressive” and had previously struck him and his brother. The district court also observed that G. liked his school in the United States and had many friends, whereas he disliked his Peruvian school and had no real friends there. The court found G. to be a “very thoughtful and intelligent” young man whose testimony represented his “genuine thoughts and feelings.”

  The Eighth Circuit rejected Custodios argument  that the district court improperly considered objections relevant only to a custody determination. He contended that a wrongfully removed child may not object based on a wish to live with a particular parent or on circumstances that are the product of the wrongful retention, as decisions based on these objections would embroil the court in the underlying custody dispute. The Court pointed out that with regard to the mature child defense, the Explanatory Report makes clear that a mature child’s views on return can be “conclusive.” The Explanatory Report “does not suggest the child’s interpretation of [his] ‘own interests’ is invalid if it is based” on custody considerations. The drafters of the Convention simply deemed it inappropriate to return a mature child ‘against its will—whatever the reason for the child’s objection. It held that the district court did not err in considering objections that may also be relevant to a custody proceeding.  G.’s testimony included particularized objections to returning to Peru. Based on these facts, the Court held that district court did not clearly err in finding that G.’s statements constituted an objection within the meaning of the mature child defense.

  The Eighth Circuit rejected Custodio’s argument that the district court abused its discretion in refusing to order return. He argued that allowing G. to remain in the United States improperly ignored the Peruvian court’s custody orders, which were entitled to deference and comity in this court. The Eight Circuit observed that even though Torres met her burden of proving the mature child affirmative defense applies, the district court has the discretion to refuse to apply the defense and order the return of the child if it would further the aim of the Convention which is to provide for the return of a wrongfully removed child.  District courts may decline to apply a defense where doing so would reward a parent for wrongfully removing or retaining the children in violation of a Contracting State’s custody orders.  It held that while Torres’ actions were concerning, they did  not compel a finding that the district court abused its discretion in refusing to order return. The district court’s decision to respect 15-year-old G.’s opposition to returning to Peru and desire to remain in the United States was not an abuse of discretion. The court acted within its discretion in deferring to the objections of an undisputedly mature child. The district court’s consideration of a mature child’s views may but need not be affected by the wrongful actions of his or her parent.

Ochoa v Suarez, 2016 WL 6956609 (W.D. Mich, 2016)[Mexico] [Age & maturity defense][Petition denied]

        In Ochoa v Suarez, 2016 WL 6956609 (W.D. Mich, 2016) Petitioner, Rosario Ramos Ochoa, a citizen of Mexico, filed a Petition seeking return of her two minor children, MV and GV, to Mexico, their habitual residence. After the Court adopted the Magistrate Judge’s partial Report and Recommendation, which concluded that Petitioner met her burden of establishing a prima facie case for return of MV and GV under the Convention the issues remaining for decision were whether the grave risk and age and maturity exceptions or defenses under Article 13 of the Convention applied.

  On August 2, 2016, after a hearing, a Magistrate Judge issued a report in which she concluded that Respondent failed to establish the grave risk exception by clear and convincing evidence. However, the magistrate judge concluded that MV and GV were of sufficient age and maturity for their wishes to be taken into account. Petitioner  filed an Objection to the Report and recommendation, arguing that the Court should reject the magistrate judge’s recommendation that the Court deny the Petition on the basis that the age and maturity exception applies.  The Court observed that pursuant to 28 U.S.C. § 636(b), upon receiving an objection to a report and recommendation, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” After conducting a de novo review of the report and recommendation, Petitioner’s Objection, and the pertinent portions of the record, the Court concluded that it should be adopted and denied the petition for return.

Smedley v Smedley, 2014 WL 11996390 (E.D. North Carolina, 2014)[Germany] [Federal & State Judicial Remedies] [Comity][Petition granted]

          In  Smedley v Smedley, 2014 WL 11996390 (E.D. North Carolina, 2014) the District Court granted the petition  of the mother, Daniela Smedley (“Daniela”) for the return of her two children, who had been retained in the United States by their father, Mark Smedley.  On July 13, 2011, Daniela, A.H.S. and G.A.S. returned to Bamberg  Germany where the children were born and remained there with them. Mark filed a petition under the Hague Convention in Germany for the return of the children to the United States which was denied, ostensibly on the basis that returning them to the United States would expose them to a serious risk of physical or psychological harm. The District Court of Bamberg found that one of the exceptions in Article 13 precluded the children’s return to the United States. It also  appeared that the District Court of Bamberg found that neither child wanted to return to the United States.  Mark appealed the decision. The Bamberg Higher Regional Court rejected Mark’s appeal. This proceeding was commenced after Mark refused to return the children to Germany after visitation in the United States. The district court rejected Marks argument that it should disregard the Bamberg Higher Regional Court’s findings and conclusions, find that Daniela’s retention of the children in Germany in August 2011 was wrongful, and therefore conclude that the United States was the children’s habitual residence. The district court observed that the Fourth Circuit has recognized that in determining the amount of deference due to a foreign court’s decision, “ ‘judgments rendered in a foreign nation are not entitled to the protection of full faith and credit.’ ” Miller, 240 F.3d at 400 (quoting Diorinou, 237 F.3d at 142-43). Nevertheless, “ ‘American courts will normally accord considerable deference to foreign adjudications as a matter of comity,’ ” and “ ‘comity is at the heart of the Hague Convention.’ ” Despite American courts’ usual practice of according considerable deference to foreign adjudications, the Ninth Circuit Court of Appeals determined that a court may properly decline to extend comity to a foreign court’s Hague petition determination “if it clearly misinterprets the Hague Convention, contravenes the Convention’s fundamental premises or objectives, or fails to meet a minimum standard of reasonableness.” Asvestas, 580 F.3d at 1014. In Asvestas, the Ninth Circuit found that a Greek court’s analysis of a prior Hague petition “misapplie[d] the provisions of the Convention, relie[d] on unreasonable factual findings, and contradict[ed] the principles and objectives of the Hague Convention.” After reviewing the translation of the opinion of the Bamberg Higher Regional Court, the court did not find that “ it clearly misinterprets the Hague Convention, contravenes the Convention’s fundamental premises or objectives, or fails to meet a minimum standard of reasonableness.” Asvestas, 580 F.3d at 1014. The court, therefore, accorded comity to the opinion.