Hernandez v Hernandez, 2023 WL 3765061 ( E.D. New York, 2023) - [Honduras][Motion to preclude in camera interview denied]

In Hernandez v Hernandez, 2023 WL 3765061 ( E.D. New York, 2023) Petitioner sought the return of two minor children, RFHA and GLHA, currently residing in the United States with their biological mother and paternal aunt. The children were removed from Honduras and brought to the United States in January 2022. Petitioner filed his petition for their return before this Court on October 27, 2022. After the Court scheduled an interview with the children Petitioner filed this motion seeking to preclude the Court from conducting an in camera interview of the minor children. Petitioner asserted that the children have not yet reached an age of maturity under the Hague Convention such that the Court should not conduct the interview or consider their testimony. The Court held that the argument was circular: without conducting some inquiry, the Court would be unable to assess the children’s maturity level and determine whether their views might be germane. “ ‘Whether a child is mature enough to have its views considered is a factual finding’ that a district court must make in light of the specific circumstances of each case.” Haimdas v. Haimdas, 720 F. Supp. 2d 183, 205 (E.D.N.Y.), aff’d, 401 F. App’x 567 (2d Cir. 2010) (quoting Simcox v. Simcox, 511 F.3d 594, 603 (6th Cir.2007)). There is no bright line rule for an age at which the Court should consider a child sufficiently mature. The Court observed that Courts in this Circuit routinely conduct in camera interviews of children to assess the issue of maturity. See, e.g., Tann, 648 F. App’x at 149; Cruvinel v. Cruvinel, 2022 WL 757955, at *5 (E.D.N.Y. Jan. 10, 2022); Diaz Arboleda v. Arenas, 311 F. Supp. 2d 336, 343 (E.D.N.Y. 2004); Johnson v. Johnson, 2011 WL 569876, at *6 (S.D.N.Y. Feb. 10, 2011); In re D.T.J., 956 F. Supp. 2d 523, 527 (S.D.N.Y. 2013); Taveras v. Morales, 22 F. Supp. 3d 219, 221 (S.D.N.Y. 2014), aff’d sub nom. Taveras ex rel. L.A.H. v. Morales, 604 F. App’x 55 (2d Cir. 2015); Royal Borough of Kensington & Chelsea v. Bafna-Louis, 2023 WL 2387385, at *1 (S.D.N.Y. Mar. 7, 2023). The petitioner’s motion constituted a preemptive effort to preclude consideration of this important issue and well-established practice. Suggesting, as the petitioner had, that the children had been subject to “undue influence” did not advance the argument. The district court denied the petitioner’s motion.

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