In J.C.C. v. L.C., 2022 WL 985873, (3rd Circuit, 2022) (NOT PRECEDENTIAL) the district court granted the petition of J.C.C. to return his minor children to El Salvador. The Third Circuit affirmed.
J.C.C. was a citizen and resident of El Salvador, and L.C. was a citizen of El Salvador and resident of the United States. J.C.C. and L.C. had wo children together: I.M.C. and V.I.C. I.M.C. was fifteen years old at the time of the District Court proceedings. V.I.C. was nine years old. In December 2016, J.C.C. and L.C. obtained a mutual divorce. At the time, both lived in El Salvador. L.C. testified that J.C.C. had been violent toward her during their marriage. Pursuant to the divorce, the parties agreed that J.C.C. would maintain physical custody of the children and L.C. would pay child support and have open visitation rights. In 2017, L.C. moved to the United States. On October 22, 2018, J.C.C. signed a notarized travel authorization allowing the children to visit L.C. in the United States over their school break. The children arrived in the United States on October 31, 2018 and were scheduled to return to El Salvador on January 21, 2019. L.C. alleges that the children informed her that J.C.C. had physically abused them. In January 2019, L.C. called J.C.C. to inform him that she would not return the children. J.C.C. travelled to the United States to convince L.C. to return the children. After L.C. refused, J.C.C. filed a petition under the Hague Convention with the Central Authority in El Salvador on March 5, 2019. Between the time J.C.C. filed his petition in El Salvador and this lawsuit, J.C.C. continued to visit the children in the United States, and the children often stayed with him on these visits.
The District Court held an evidentiary hearing and heard testimony from six witnesses: four called by L.C. (L.C., L.C.’s boyfriend, L.C.’s attorney, and I.M.C.’s counselor), and two called by J.C.C. (J.C.C. and his attorney). The court declined to hear testimony from the children on the ground that “it would have been redundant, needlessly harmful to the [c]hildren, and potentially influenced by [L.C.].” Following the hearing, the District Court granted J.C.C.’s petition to return the children to El Salvador. The District Court held that J.C.C. had established a prima facie case under the Hague Convention and that L.C. had not sufficiently established an affirmative defense or exception. L.C. appealed.
The Court observed that District courts have discretion, inter alia, to consider the wishes of the child in determining whether to return a child to her country of residence. Hague Convention, art. 13. L.C. presented a narrow issue on appeal: whether the District Court erred by refusing to interview the children and precluding their testimony at the hearing. The Court pointed out that it has not held, nor had L.C. pointed to any cases holding that a district court is required to conduct an interview with the child when adjudicating a claim brought under the Hague Convention. It reviewed this case pursuant to an abuse of discretion standard. The Court held that a arty arguing that a district court abused its discretion in connection with an evidentiary ruling must demonstrate that the District Court’s decision was “arbitrary, fanciful or clearly unreasonable” and that “no reasonable person would adopt the district court’s view.” United States v. Bailey, 840 F.3d 99, 125 n.118 (3d Cir. 2016). The District Court heard from four witnesses called by L.C. It then determined that allowing the children to testify at the evidentiary hearing would be “redundant, needlessly harmful to the [c]hildren, and potentially influenced by [L.C.].” App. 8a. See Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 279 (3d Cir. 2007) (noting that where “a child’s desire to remain or return to a place is ‘the product of undue influence,’ ... the ‘child’s wishes’ should not be considered.”). Applying the abuse of discretion standard to this determination and considering that the District Court heard testimony from several other witnesses in making this determination, it held that the decision not to interview the children or permit their testimony did not meet the standard to establish an abuse of discretion.
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