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Wednesday, March 21, 2018

Smith v Smith, 2018 WL 953338 (D. Idaho, 2018)[United Kingdom] [Age and Maturity defense] [Petition granted]

In Smith v Smith, 2018 WL 953338 (D. Idaho, 2018) the court granted the petition for the return of the minor child DMS to the United Kingdom.

The Smiths were married in 1997 and resided in England. Vickie was a citizen of the United States; David iwas a citizen of the United Kingdom. While residing in England, they had two children, DOS. (now age 16) and DMS (now age 15). Nearly twenty years later, the marriage broke down and David filed for divorce. The court in England granted primary custody of the children to Vickie while David received visitation rights. Vickie initially filed a motion with the English court to remove the boys permanently from the jurisdiction but withdrew that motion, and represented to the court, through her solicitor, that “she will not remove the children from the jurisdiction without the agreement of [David Smith].” On May 30, 2017, Vickie, a United States citizen, absconded with DMS to the United States without David’s permission, and without approval of the English court, leaving behind her other child DOS. Vickie and DMS lived briefly in Colville, Washington, where his mother’s siblings lived, and then moved in with various other family members, and for a short time, lived in a homeless shelter. Since August of 2017, Vickie and DMS have lived in Caldwell, Idaho, with a childhood friend of Vickie’s. Vickie works part-time at a convenience store in Nampa. DMS has completed the first semester of his sophomore year at Caldwell High School, and recently began his second semester.

David initiated proceedings in the English court to compel Vickie to return DMS to England. The court did not grant the requested relief because it was unclear whether Vickie had notice of the petition. David filed a complaint against Vickie in the district Court on November 30, 2017.
The district court found that David carried his burden of proving that (1) DMS was removed in May of 2017; (2) at that time, DMS was habitually residing in England; (2) the removal breached Vickie’s assurance to the court that she would not remove DMS without David’s consent; and (3) David was exercising his custodial rights at the time of the removal.

The court found that Vickie deliberately violated the child custody arrangement set forth in the United Kingdom court by bringing DMS to the United States without permission and without any notice to either the court or David. Vickie’s claim that an unnamed policeman told her she was excused from complying with the London court custody order by a domestic violence law is not credible.

The Court found that David was exercising his custodial rights at the time of removal. The English law does not use the word “custody” but instead speaks of “parental responsibility,” which is defined as “all the rights, duties, powers, responsibilities, and authority which by law a parent of a child has in relation to the child and his property.” See Haimdas v. Haimdas, 720 F.Supp.2d 183, 202 (E.D.N.Y. 2010) (quoting the United Kingdom Children Act of 1989). A finding that a parent exercised parental responsibility under this English law has been deemed to support a finding that he has exercised his custodial rights under the Hague Convention.  David was current in his child support payments, provided a home for DMS, and cooked meals during the times he had contact periods. He was exercising his parental responsibilities.

Vickie Smith raised the mature child defense. To prevail on this defense, she must establish by a preponderance of the evidence that (1) the child has “attained an age and degree of maturity at which it is appropriate to take account of its views” and (2) “the child objects to being returned.” See Hague Convention art. 13; Custodio v. Samillan, 842 F.3d 1084, 1089 (8th Cir. 2016). “[T]he courts must narrowly interpret the exceptions lest they swallow the rule of return.” Asvesta v Petroutsas, 580 F.3d 1000, 1003-04 (9th Cir. 2009).

The Court asked DMS a lengthy series of questions designed to determine his maturity level and his desires. The Court was impressed with his intelligent and articulate answers. On the basis of that colloquy, the Court found (1) that DMS was mature enough that the Court should take his desires into account, and (2) that DMS desires to remain in the United States. Given these findings, and the authority quoted above, it would be “very difficult” to return a child the age of DMS against his will. At the same time, DMS had not acquired close friendships here, and spent much of his free time doing solitary indoor activities, which is what he did in the United Kingdom. There was no evidence that he was having unique experiences here that he could not have in the United Kingdom. He had no strong pre-removal desire to come to the United States, but testified that he made up his mind to leave with his mother just prior to coming here. Importantly, he testified that if he was returned to the United Kingdom, he was not sure whether he would return to the United States when he turned sixteen. DMS’s desire to remain here had been powerfully influenced by Vickie’s very strong desire to remain here.  While the Court could not find that Vickie has unduly influenced DMS, the Court found that his desire to remain here was largely tied to Vickie’s desire and is not a strongly held independent desire. These findings meant either that (1) the mature child defense has not been proven; or (2) the bare minimum elements of the mature child defense have been proven, but DMS’s tepid and dependent desire cannot override the transcendent aim of the Hague Convention to return a minor child wrongfully removed. Either way, the Court found that the mature child defense did not prevent removal.

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