In Dubikovskyy v Goun, --- F.4th ----, 2022 WL 17421509 (Eighth Circuit, 2022) Elena Goun violated her joint custody agreement with Vladyslav Dubikovskyy by traveling from Switzerland to the United States with their then-12-year-old daughter, M.D., in July 2020. Dubikovskyy filed a petition seeking M.D.’s return to Switzerland, pursuant to the Hague Convention. After an evidentiary hearing on the merits, the district court denied the petition based on the mature child defense, finding that M.D. was of sufficient age and maturity such that the court should take account of her views and that she objected to returning to Switzerland. The Eight Circuit reversed the judgment of the district court and remanded the case with directions to grant the petition for the return of M.D. under the Hague Convention on the Civil Aspects of International Child Abduction.
Dubikovskyy, a citizen of Ukraine, and Goun, a citizen of Russia, married in December 2007 while living in California. They have one child together, M.D., who was born in June 2008 in California and is a United States citizen. In 2011, the family moved to Lausanne, Switzerland, where Goun had taken a job as a chemistry professor at a university, and became permanent Swiss residents. On July 28, 2020, Dubikovskyy learned Goun and M.D. had traveled to the United States. Two days later, he petitioned a Swiss court to order their return to Switzerland, and on August 4, the court ordered Goun to return M.D. to Switzerland in time for her to start the school year. On August 13, 2020, Goun petitioned a Swiss court to transfer M.D.’s residence to the United States on the grounds that M.D. had decided she wanted to stay in Missouri. The Swiss court denied the petition and characterized Goun’s actions as an illegal abduction. The court found that Goun violated the custody arrangement and granted Dubikovskyy the sole right to determine M.D.’s residence. The ruling was upheld on appeal on September 11, 2020. Dubikovskyy also initiated criminal proceedings against Goun in Switzerland, and there is a warrant for Goun’s arrest if she returns to Switzerland or any other country in the Schengen Area. Despite the Swiss court’s ruling, Goun and M.D. remained in Columbia, Missouri, with M.D.’s half-sister and Goun’s partner, and M.D. started attending middle school in Missouri when the 2020–21 school year began. On October 23, 2020, Dubikovskyy filed a petition with the United States District Court for the Western District of Missouri seeking return of M.D. to Switzerland pursuant to the Hague Convention, implemented through the International Child Abduction Remedies Act, 22 U.S.C. §§ 9001–11. Dubikovskyy alleged that M.D.’s country of habitual residence is Switzerland and that Goun’s actions constitute an unlawful retention. He asked that the court order M.D. be returned to Switzerland. In response, Goun asserted two affirmative defenses—that there is a grave risk that M.D. would be exposed to physical or psychological harm or otherwise be in an intolerable situation if she returned to Switzerland (the grave risk of harm defense), and that M.D. objects to being returned and has attained an age and degree of maturity such that the court should take account of her views (the mature child defense).
On December 2, 2020, the
district court held an evidentiary hearing on the merits of the petition. Two
days after the evidentiary hearing, the district court, pursuant to Federal Rule of Evidence 706,3 appointed
psychologist Dr. James Straub to “provide information about the maturity and
independence of [M.D.]” because the court was concerned that M.D. may have been
unduly influenced by her mother when she was removed from Switzerland.
Dubikovskyy objected to Dr. Straub’s appointment. Notwithstanding that
objection, Dr. Straub examined M.D. and submitted a written report to the court
on December 14, 2020. After receiving the report, the district court again
interviewed M.D. in camera, this time outside the presence of counsel. On January 7, 2021, the district court denied
Dubikovskyy’s petition, relying on the mature child defense. The district court
found that M.D. was “sufficiently mature and independent [such that the court
could] account for her views” and that M.D. had “stated an objection to
returning to Switzerland,” with reasons similar to those “an adult might
consider when deciding where to live, i.e.[,] family responsibilities, comfort,
and opportunities to pursue goals that are meaningful and inspiring to them.”
The district court noted M.D. “was reluctant to use the word objection because
she did not want to make her father sad,” but nonetheless concluded that “there
is no doubt based on her words and expressions that she does not want to return
to Switzerland.” The court further explained it was “confident M.D.’s decision
[was] made independently of either parent’s influence.” On February 5, 2021,
Dubikovskyy appealed.4
The Eighth Circuit found
that there was no dispute that Dubikovskyy has established a prima facie case;
the sole issue on appeal is whether the district court erred by applying one of
the narrow exceptions—the mature child defense—to deny his petition. The mature
child defense comes from Article 13 of the Hague Convention, which provides that
a judicial or administrative authority may “refuse to order the return of the
child if it 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.” For the mature child defense to apply, the respondent 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 her views, and
(2) the child objects to being returned. Custodio, 842 F.3d at 1089 (citing
Hague Convention art. 13); see also 22 U.S.C. § 9003(e)(2)(B). If a
child is found to be mature, the reasons the child objects to being returned
are immaterial. See Custodio, 842 F.3d at 1091 (adopting
the rule from Rodriguez, 817 F.3d at 475–76, that the
mature child defense may apply “whatever the reason for the child’s
objection”). The Court construes the mature child defense narrowly. Id., 842 F.3d at 1089. A
stricter standard also applies when a child’s views are the sole reason for
denying repatriation. See Tsai-Yi
Yang v. Fu-Chiang Tsui, 499 F.3d 259, 278 (3d
Cir. 2007).
On
appeal, Dubikovskyy did not contest the district court’s finding that M.D. had
attained an age and degree of maturity at which it is appropriate to take
account of her views. Rather, Dubikovskyy argued that the district court erred
at the second step by accepting M.D.’s preference for staying in Missouri,
rather than requiring an objection to returning to Switzerland. Indeed, “[a]
preference is not an objection,” and there is a “substantive difference between
preferring to live in one of two countries ... and affirmatively objecting to
returning to one country.” Rodriguez, 817 F.3d at 476–77. Under the
Hague Convention, a child’s preference or “generalized desire” to remain in the
United States is insufficient to invoke the narrow mature child exception. See
Tsai-Yi
Yang, 499 F.3d at 279. Instead,
the child’s testimony must include “particularized objections” to returning to
the former country of residence. Id. The
district court recognized the important distinction between a preference and an
objection, citing a dictionary definition for objection, “a reason, ground, or
cause for expressing opposition,” and noting that an objection “connotes more
than a preference for the alternative.” M.D. testified that she “would love to
live [in Missouri] because [she has a] lot of things here, and it would be
really great for [her] dad to come [to Missouri] for vacation.” When asked
about returning to Switzerland, however, she said that she thought she would be
“okay,” and that she was not afraid to go back there. But she added that she
would be “unhappy” if she had to move to Switzerland, and she gave several
reasons: she would not be able to attend the same school as her close friend
who lived in a different Swiss town; she could not bring her dog with her; she
would miss her mother, her half-sister, and her friends in Missouri; and it was
more difficult to ride horses in Switzerland.
In an effort
to determine whether M.D. truly “objected” to returning to Switzerland, the
district court asked her if she knew the meaning of the words “objection” and
“preference.” M.D., speaking in a second language,5 said she did not
understand “object.” The court tried to explain the difference between the two
words by offering M.D. some examples: “I object to cleaning the bathroom.” “I
object to my little sister yelling in my ears.” “Do you object to getting up early
in the morning to go to school?” The court continued by saying that “[a]n
objection is something you don’t want. You’re displeased. One is stronger than
the other.” When the court then asked M.D. whether she “objected” to returning
to Switzerland or whether she simply “preferred” one location over the other,
M.D. was equivocal. Her most complete answer was: “I would say it’s, like,
middle, but, yeah. Maybe I object — I don’t know. ... I mean, I — I’m kind of
in the middle, but I think I — I’m more on the object — object side. I don’t
know. Objection. Yeah.” The court asked M.D. why she hesitated in her answer,
and M.D. responded, “I don’t know. It’s, like, hard ....”
The Eighth
Circuit recognized the challenges that come with deciphering the difference between
an objection and a preference in a child’s testimony. If given two choices,
country A and country B, an objection to living in A will almost always
(although not invariably) indicate a preference for living in B. But a
preference to live in B does not necessarily indicate an objection to living in
A. In this case, M.D.’s testimony failed to show by a preponderance of the
evidence that she “objected” to returning to Switzerland. Rather, when asked
why she would be “unhappy,” or “dissatisfied” if she had to go back to
Switzerland, M.D. consistently responded with reasons why she preferred to stay
in Missouri.6 As to the district
court’s discussion of M.D.’s above-average intelligence, strong personality,
and well-developed sense of responsibility for her younger sibling and the
feelings of others, such findings are relevant to whether the child has reached
the age and maturity at which it is appropriate to consider her views on
repatriation. But these observations do not speak to whether M.D. has in fact
lodged an objection to being returned to Switzerland. Here, M.D.’s desire to
remain in the United States was not coupled with a particularized objection to
returning to Switzerland. As a result, it was insufficient to meet the strict
standard that applies when the mature child defense is the sole grounds for
denying an abducted child’s return. See Tsai-Yi
Yang, 499 F.3d at 278. Because M.D. did not express a particularized
objection to returning to Switzerland, instead describing a preference—for a
variety of understandable reasons—to remain in the United States, the district
court’s finding that M.D.’s statements constituted an objection within the
meaning of the mature child defense was clearly erroneous. Custodio, 842 F.3d at 1089 (whether a
mature child has objected to the return to her country of habitual residence is
reviewed for clear error).
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