In Swett v. Bowe, --- F.Supp.3d ----, 2024 WL 2034713 (S.D. NY., 2024) Petitioner María Elena Swett Urquieta (“Swett”) petitioned for the return of her son, S.B.S., age 11, to Chile. Swett, a Chilean actress, and respondent John Francis Bowe (“Bowe”), an American writer, met in Brazil in 2010 and began a long-distance, romantic relationship. On June 27, 2012, their child, S.B.S., was born in Minnesota. Shortly after, the couple split up. In a family court order entered in Minnesota and adopted by a Chilean court, Swett and Bowe agreed that Swett would have sole physical custody of S.B.S. in Chile; that Swett and Bowe would share legal custody; that Bowe would be permitted to visit S.B.S.; and that S.B.S. could visit Bowe in New York City, for about 90 days every year, pursuant to travel authorizations granted by Swett. That custody arrangement was honored until 2022. In mid-2022, Bowe noticed a dramatic shift in S.B.S.’s mood and affect. S.B.S. was persistently depressed, referenced suicide, and on one occasion purposefully dug his nails so deep into his arm as to draw blood. Swett alerted to these circumstances, had not engaged professional help or otherwise meaningfully responded. Bowe concluded that S.B.S.’s living situation in Chile was the source of his anguish and depression. On December 23, 2022, S.B.S., accompanied by Bowe, left Chile for an authorized Christmas holiday visit to the United States. Fearful that S.B.S.’s despair would continue if not deepen in Chile, Bowe decided not to return S.B.S. on January 8, 2023, the expiration date of S.B.S.’s authorized travel to the United States.
On
February 23, 2024, Swett filed the petition seeking S.B.S.’s return. On March
13, Bowe responded to the Petition, conceding that Swett had established a prima
facie case that he had wrongfully retained S.B.S. in the United States, but
asserting three affirmative defenses: that S.B.S. (1) is well-settled in the
United States; (2) objects to being returned, and is of a sufficient age and
maturity for his views to be taken into account; and (3) faces a grave risk of
harm if returned to Chile. Between April 8 and 19, 2024, the Court held a bench
trial on Swett’s petition. The Court denied Swett’s petition for return of
S.B.S. to Chile finding compellingly established two defenses. Each defense
ultimately respects S.B.S.’s latitude to author his destiny.
The Court explained that this was a case in which the removed child forcefully objects to being returned and is of sufficient age and maturity for his views to be taken into account and given weight. For nearly the past two years, starting a half-year before he departed from Chile and extending to his in-camera interview by the Court three weeks earlier, S.B.S. told every adult who would listen—and some who would not—of his earnest and factually based desire to live in the United States, not in Chile. In a case with voluminous evidence and ample complexities and ambiguities, the consistency and strength of S.B.S.’s views on this point—expressed with the precocity and articulateness of which the admiring adults in S.B.S.’s life have often taken note—was a vivid through-line. It justly decided this case. Second, this was a case in which, with the Petition for Return having been filed more than a year after the wrongful removal, the child has become settled in his new environment. Over the past 16 months, S.B.S., through his and Bowe’s efforts and those of a large and widening support circle, built a stable, happy, purposeful, and together life in New York City, anchored in family, friends, community, activities, and education. His trajectory is upward. By the governing standards, S.B.S. is well-settled in his new environment.
In its lengthy opinion, the Court explained why Swett has made out a prima facie case of wrongful removal. It then evaluated Bowe’s defenses. It then considered whether, notwithstanding that two defenses had been established, equitable considerations arising from Bowe’s problematic conduct required S.B.S.’s return. Finding not, the Court denied the petition.
Age and Maturity Affirmative Defense
The Court found that in his in camera testimony, S.B.S. unequivocally objected to being returned to Chile. As he explained in detail, his objections were based on his lived experiences in Chile, where he felt “depressed,” “sad,” and “frustrated,”, and in the United States, where he has felt “happy,” “support[ed],” “understood,” and “safe,” S.B.S.’s firm objections in his testimony did not come as any surprise. To the contrary, in communications to a range of persons dating to June 2022, S.B.S. forcefully and consistently expressed his deep discontent with his life in Chile, his yearning to leave, and, later, his relief to be in the United States. Since arriving in this country, he repeatedly told the adults in his life, with emphasis and sometimes a measure of desperation, that he did not want to return to Chile and to lose the happier and more stable life he built here with his father. S.B.S. expressed these views despite the greater material comforts he enjoyed in Chile, where he lived with Swett in a spacious luxury apartment and had access to a large beach home, in contrast to the walk-up studio apartment he today shares with Bowe. And he never wavered in these views, despite the turbulence of his intercontinental move—which has entailed a change of residence, school, and lingua franca—and the legal uncertainty of his situation. The durability, consistency, and clarity of S.B.S.’s objections to returning to Chile underscored that these are sincere, firmly held, and anchored in reason. S.B.S.’s situation was thus the antithesis of a situation in which a child expresses a “simple preference for the luxuries of living in New York.” In re Skrodzki, 642 F. Supp. 2d 108, 118 (E.D.N.Y. 2007). Quite the contrary: for S.B.S., the more lavish lifestyle would be in Chile. His mother is a successful actress with a large high-rise apartment in Santiago, a spacious vacation home in a nearby beach town, and the established earning capacity to hire live-in nannies and to fund regular weekend Uber Eats breakfast deliveries. That S.B.S. preferred to live with his father in a walk-up studio apartment, in which the two work side-by-side at a common desk, underscored that his draw to this country is anchored in substance, not extravagances or superficialities.
The Court carefully considered Swett’s argument that S.B.S.’s objections to return to Chile were the “product of undue influence” by Bowe. Swett’s expert, Dr. Favaro, so opined, terming S.B.S.’s objections the product of “manipulation” and “intense influence by the father.” The Court rejected that conclusion. The Court found, that S.B.S, developed a strong conviction that his life in Chile was destined to remain sad and that he belonged in the United States; that S.B.S.’s unhappiness in Chile was rooted in genuine perceptions about the downsides of his life there: loneliness, sparse friends, an emotionally distant maternal relationship, a physically distant father, long stretches in the care of nannies, and uninspired schooling. S.B.S.’s objections to Chile, the Court found, are genuine and “the product of independent reasoning.” Matovski, 2007 WL 2600862, at *14. In sum, the Court found that S.B.S.’s desire not to be returned to Chile, and to remain in the United States, was the product of his own mind and grounded in experience; that S.B.S. “objects to being returned” to Chile; and S.B.S., who is two months shy of age 12, to be of sufficient age and easily to be of sufficient maturity for his views about return to be given weight. The Court’s lengthy conversation with S.B.S. covered a wide range of subjects. These primarily related to his experience living in Chile with Swett, his experience living in New York with Bowe, and his goals and aspirations. S.B.S. presented as thoughtful, intelligent, poised, and direct. Based on his answers and demeanor, S.B.S. conveyed that he appreciated the solemnity of the occasion, the need for care, and the imperative of telling the truth. S.B.S. coherently articulated his objections to returning to Chile and his reasons to want to remain in the United States. The Court found S.B.S.’s reasoning, in the main, sensible, well-analyzed, and grounded in experience. And the views to which he testified tracked those he had told others. Explaining his unhappiness in Chile, S.B.S. noted his challenging relationship with Swett, his physical distance from his father, his crimped social life, and his unsatisfying school experience; explaining his desire to remain in New York, he noted his larger friend group and social life, his contentment living with Bowe, and the stimulating and challenging education he is receiving and stands to receive. The constancy and coherence of S.B.S.’s views underscore that these were not passing fancies. The Court was left with a firm conviction that S.B.S. knows his own feelings and is at peace with them. He presented as an astute and observant child who has come to his views based on reflection. The Court found S.B.S. of sufficient age and maturity for his views to be taken into account and given substantial weight. Based on S.B.S.’s strong and durable objections to repatriation, the Court found that Bowe has successfully made out the Article 13 affirmative defense by a preponderance of the evidence.
Well-settled defense
The Court found January 8, 2023, the date of wrongful retention. At no point thereafter did Bowe’s retention of S.B.S. cease being wrongful. Because Swett filed her Petition on February 23, 2024—some 411 days later—the well-settled defense, premised on the life S.B.S. has built in New York since January 8, 2023, was available for Bowe to pursue. The Courts factor-by-factor evaluation overwhelmingly showed that S.B.S. today lived a predictable, comfortable, and fulfilling life in New York, where he has forged meaningful connections with family, friends, and a community. As S.B.S. stated, the centerpiece of his life is his father, with whom he shares a deep connection. Bowe’s presence in S.B.S.’s life, as the primary caretaker, has given S.B.S. a baseline level of security and predictability that he was missing in Chile. In New York, S.B.S. states, he “feels comfortable, understood, safe, loved, and ‘normal.’ ”. S.B.S. feels that he can openly share his feelings with Bowe; that Bowe listens to him and “protect[s]” him; and that Bowe has S.B.S.’s best interests at heart. Beyond this, S.B.S., with Bowe’s help, has built a happy and interesting life in New York over the past 16 months. S.B.S. is flourishing—socially, academically, and emotionally. He has taken advantage of opportunities to grow intellectually in school. He is motivated to learn and actively challenges himself. In a relatively short time period, he has made meaningful academic progress—rapidly improving his grades, perfecting his English, and discovering interests in art, drawing, and sports. Id. He is coming into his own socially, within a “large and interesting friend group.”. He no longer feels lonely, isolated, and bored, as he reported feeling in Chile, but is engaged by his friends, extra-curricular activities, academic interests, and school. (S.B.S.) (“I feel like I’m part of a community.”). The evidence also reflects that, since arriving, S.B.S. has steadily assimilated to life here. All this has occurred at an important stage: he is on the verge of adolescence and is formulating views on who he is, where he wants to live, and with whom he wants to spend time. The evidence reflects that S.B.S. is enthusiastic about living in New York, wants to continue building a life here, and is desperate not to be ousted and risk losing all he has gained. The “well-settled” factors all pointed in the same direction. Considering these together, Bowe easily established this defense by a preponderance of the evidence.
Grave Risk of Harm Affirmative Defense
Bowe argued that S.B.S. if returned to Chile, would be at grave risk of psychological harm occasioned by Swett’s purported neglect, lack of attention to his needs, and habit of leaving him in the care of generally short-tenured nannies and with limited out-of-school access to peers. Bowe raised the specter that S.B.S. if returned, would be suicidal. Swett disputes the claim that harm on any such scale would ensue. She downplayed S.B.S.’s unhappiness in Chile in late 2022. The Court did not find this defense established. Swett understated S.B.S.’s distress in Chile, and blamed Bowe for it, when in fact that distress was real and rooted in aspects of S.B.S.’s life in Chile for which Bowe was not responsible. But, critically, Bowe, in pursuing this defense, overstates S.B.S.’s trauma and the prospects of its resumption on return. He has not established by clear and convincing evidence that, back in Chile, S.B.S. would be exposed to a grave risk of harm. In light of this record, the Court could not find that S.B.S, was at grave risk of harm as of December 2022, when he left Chile for the last time. Simply put, he was depressed and lonely. Bowe was justified in his worry about this, and warranted in pressing Swett to agree to therapy for a 10-year-old he saw as “very, very sad.” But S.B.S.’s circumstances fall far short of establishing, in severity or likelihood, the “grave risk” of psychological harm required by the Convention, See Dongguk Univ. v. Yale Univ., 734 F.3d 113, 123 (2d Cir. 2013) (to find clear and convincing evidence, a court must be left with “no substantial doubt”). The Court found that Bowe had not established by clear and convincing evidence that S.B.S. would be at a grave risk of harm if returned to Chile.
Discretionary Return
A final issue was whether, notwithstanding that two affirmative defenses to return have been established, the Court should exercise equitable discretion to order S.B.S.’s return to Chile. The Court declined to do so. It noted that the case law on this point is sparse, see da Costa v. de Lima, 94 F.4th 174, 180 (1st Cir. 2024), but it underscores that discretion to order a child’s return in the face of an affirmative defense is limited to exceptional cases. The Court found that the equities overwhelmingly favored S.B.S.’s retention in New York, and declined to exercise its discretion to order his return to Chile. See Fernandez, 909 F.3d at 363 (“[A] district court ordering the return of a settled child should be an infrequent occurrence, so as not to swallow the text of Article 12’s stated exception.”). The Court denied the Petition.
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