In Kovacic v Harris, 2018 WL
3388333 (D. Maryland, 2018) the district court denied the application of
Plaintiff Ivica Kovačić for the Return of his Child to Croatia, The Court
concluded that while Mrs. Harris was wrongfully retaining N.K. in the United
States under the Hague Convention, N.K. had reached an age and degree of
maturity that the Court took into account her objections to returning to
Croatia and did not order her return.
Plaintiff Ivica Kovačić and
Defendant Danijela Harris were married on February 22, 2003 in Desna Martinska
Ves, Croatia. On May 31, 2003, their daughter, “N.K.”, was born. She was
currently fifteen-years-old. Two years after the couple separated, on February
9, 2009, the parties formally dissolved their marriage in the Municipal Court
in Sisak. The Municipal Court Judgment entered that day ordered that N.K. “will
live with the mother Danijela Kovačić in Sisak...[and] parental care remains
shared.” The Judgment further set a specified
schedule for Mr. Kovačić’s visitation with N.K., including every other weekend
while N.K. was in school, “the first half of all winter, spring and summer
school holidays, other holidays alternately, and according to the agreement of
parents.”
In 2015, Mrs. Harris and N.K.
decided to travel to the United States to visit Mrs. Harris’ family. Mrs.
Harris testified that she had relatives who have been living in the United
States for a long time. N.K. was twelve-years-old at the time and needed to
obtain a tourist visa. In order to do so, Mr. Kovačić notarized a statement
declaring that he gave Mrs. Harris permission to request a tourist visa for
their daughter. He further stated that “I also agree that once her visa is
issued, my daughter has my permission to spend her winter school vacation,
2015-2016, in the United States of America, in the company of Danijela
Kovačić.” On January 7, 2016, Mrs. Harris told Mr. Kovačić that she and N.K.
would not be returning to Croatia. Mrs. Harris and N.K. testified that they
decided to stay so that N.K. could enroll in school and take English classes.
Fourteen days later, on January 21, 2016, Mr. Kovačić filed a Request for
Return in Croatia under Article 3 of the Hague Convention.
During the
bench trial, N.K., testified that she did not want to return to Croatia with
her father. She lived with her mother and stepfather in Elkton, Maryland. She
objected to returning to Croatia because most of her family and friends were
here in the United States; the friends she had in Croatia have moved to a
different city. She also objected to living with her father in Croatia,
testifying that he had never been there for her when she needed him, and she was
afraid of what he might do after the court proceedings. She did testify that
although she was not open to having a relationship with her father right now,
she may in the future “if things changed, and he shows that he cares about me
and about my decisions.”
N.K. impressed
this Court as an extremely mature fifteen-year-old. She was able to testify in
great depth about her relationship with her father. N.K. seemed more mature and
measured in her testimony than did her father. She did not attempt to embellish
her testimony with respect to any physical reactions of her father. However,
she was quite clear in referencing that even in past years “he was never there
for me when I needed him.”
Prior to trial, the Court held a
hearing on Plaintiff’s motion for partial summary judgment on his affirmative
Hague Convention claim. Plaintiff Kovačić established a prima facie case of
wrongful retention. The Court also found Mr. Kovačić had joint custody rights
over N.K.
The Court observed, inter alia, that there
is the “age and maturity” exception. This exception provides that a court is
not required to order the return of a wrongfully removed or retained child if
the court 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. The party objecting to the child’s return
must prove that this exception applies by a preponderance of the evidence. 22
U.S.C. § 9003(e)(2)(B). A court must exercise discretion when evaluating this
exception “because of the potential for undue influence by the person who
allegedly wrongfully retained the child.” Trudrung v. Trudrung, 686 F. Supp. 2d
570, 576 (M.D.N.C. Feb. 10, 2010) (quoting Hazbun Escaf v. Rodriquez, 200 F.
Supp. 2d 603, 615 (E.D. Va. 2002)). The Hague Convention does not set an age at
which a child is mature enough for the court to take into account his or her
objection to being returned. Luis Ischiu v. Gomez Garcia, 274 F. Supp. 3d 339
(D. Md. 2017) Therefore, the inquiry is necessarily a factual determination to
be made on a case-by-case basis. See Rodriguez v. Yanez, 817 F.3d 466, 474 (5th
Cir. 2016)
Based on the testimony presented and the
Court’s observations of N.K., N.K. attained an age and degree of maturity at
which it is appropriate to take account of her objections to returning to
Croatia. N.K. was over fifteen-years-old, and less than a year away from the
age at which the Hague Convention would no longer apply to her. This Court
observed her testify. She displayed a maturity for her age and demonstrated an
understanding of the significance of the proceedings. She also spoke
articulately considering English was not her first language and presented
herself as well-mannered and intelligent. Mrs. Harris testified that since
being in the United States, N.K. has made honor roll every grading period. The
Court concluded that she had reached an age and degree of maturity for this
Court to take account of her views. See Trudrung v. Trudrung, 686 F. Supp. 2d
570 (M.D.N.C. 2010)
The court
next pointed out that the district court’s finding that a child has or has not
objected is a fact-intensive determination that is based in part on the court’s
personal observations of the child. Custodio v. Samillan, 842 F.3d 1084, 1089
(8th Cir. 2016). The Court began by evaluating whether N.K.’s objections to
returning to Croatia appeared to be the product of Mrs. Harris’ undue
influence. See de Silva, 481 F.3d at 1286 (explaining that a “child’s wishes”
should not be considered if the court finds that the child’s desires are the
“product of undue influence”). Mr. Kovačić testified that N.K. had been “brain
washed” by Mrs. Harris. N.K. testified that Mrs. Harris never spoke poorly or
otherwise criticized Mr. Kovačić’s role as her father. N.K. testified that she
would be open to having a relationship with her father in the future “if things
changed, and he showed that he cared about [her] and [her] decisions.” On the
other hand, N.K. testified that her father openly spoke poorly about her mother
and the United States. Mr. Kovačić acknowledged in September of 2017 that Mrs.
Harris encouraged N.K.’s relationship with her father.
The reasons behind N.K.’s objection
to returning to Croatia demonstrated that she was not objecting merely because
she had been in the United States with her mother since December of 2015.
N.K.’s reasons for not wanting to return were similar to those in Vasconcelos
v. Batista, 512 F. App’x 403, 408 (5th Cir. 2013), where the Fifth Circuit
affirmed the district court’s application of the age and maturity exception
when the child (1) expressed she did not want to visit her father when he was
in the United States, (2) had particularized ties to the United States
including that she had done well in school, was involved in extracurricular
activities, and had been receiving treatment for epilepsy, and (3) had
virtually no ties to Brazil and “barely any knowledge” of her father who had
not communicated with her since she left Brazil.
The Court found that N.K. was not
objecting to returning to Croatia merely because of the length of time she had
spent with her mother in the United States. She was objecting because she has
had a difficult relationship with her father and had very few connections left
in Croatia. The Court concluded that N.K. was of the “age and degree of
maturity at which it is appropriate to take account of [her] views” and she
“objects to being returned.” Hague Convention, Art. 13. Therefore, under the
Hague Convention, although Mrs. Harris was wrongfully retaining N.K. in the
United States, this Court was not bound to order her return to Croatia.
The Court acknowledged its discretion
to order the return of N.K. despite finding that the age and maturity exception
applies and declined to do so.
