HEARING CHILDREN IN ABDUCTION CASES By Linda D. Elrod Richard S. Righter Distinguished Professor of Law Washburn Law S

1. HEARING CHILDREN IN ABDUCTION CASES By Linda D. Elrod Richard S. Righter Distinguished Professor of Law Washburn Law School Children and Family Law Center 6th World Congress, Sydney

2. Hear the children • “Being heard and having one’s views taken into account. . . is one of the main determinants of the perception that the decision making process is fair, even if the outcome is not the one that is wanted.” Parkinson & Cashmore

3. UN Convention on Rights of Child • Art. 12: child has right to be heard on all matters relating to child’s custody.” • “The right of all children to be heard and taken seriously constitutes one of the fundamental values of the Convention.”

4. Parental child abduction: 205,000- 354,000 abducted annually - often by mothers

5. Child’s wishes exception • The court may refuse to order the return of the child “if it finds that the child objects * * *and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Hague Convention, art. 13. 42 U.S.C. § 11603(e)(2)(A).

6. Perez-Vera Report - rationale • [The Convention] provides that the child's views concerning the essential question of its return or retention may be conclusive, provided it has, . . . attained an age and degree of maturity sufficient for its views to be taken into account. . . . the Convention gives children the possibility of interpreting their own interests.

7. Caveat • Of course this provision could prove dangerous if it were applied by means of the direct questioning of young people who may admittedly have a clear grasp of the situation but who may also suffer serious psychological harm if they think they are being forced to choose between two parents.

8. Caveat . . . • Provision is absolutely necessary given the fact that the Convention applies to all children under age 16; the fact must be acknowledged that it would be very difficult to accept that a child of, for example, fifteen years of age, should be returned against its will.

9. Burden – P/E • Respondent must prove by a preponderance of the evidence through testimony or otherwise that the minor child is of an age and maturity level for their views to be taken into account. See England v. England, 234 F.3d 268, 272 n. 5 (5th Cir. 2000).

10. Discretionary Application • Application of the defense is within the court's discretion if the court believes that the child's preference is the product of undue influence over the child. See Hazbun Escaf v. Rodriguez, 200 F. Supp. 2d 603, 615 (E.D. Va. 2002).

11. Questions • Capacity • Age and maturity • How to get voice heard • Interview with judge • Lawyer for child • Social worker or other representative for child • Weight to be given

12. Standard for review • The determination of whether a particular child “has attained an age and degree of maturity” is a factual issue for which deferential appellate review is appropriate. Escobar v. Flores, 107 Cal. Rptr. 3d 596 (Ct. App. 2010) (following Blondin).

13. Minimum age? • “. . . all efforts to agree on a minimum age at which the views of the child could be taken into account failed, since all the ages suggested seemed artificial, even arbitrary. It seemed best to leave the application of this clause to the discretion of the competent authorities.” Pérez-Vera Report at 433, para. 30.

14. Should He Have a Say?

15. Children age 10 • 10 year old boy was of an age and maturity level. The court was “particularly impressed by his behavior in learning of the upcoming legal proceedings and his desire to express his views in a letter and have them considered. Silverman v. Silverman, 2002 WL 971808 at *10 (D. Minn. 2002), aff'd, 312 F.3d 914 (8th Cir. 2002).

16. Undue influence? • Court felt ten year old’s wishes were the product of undue influence of parent and counselor where child wrote letter using language that he was “settled in.” In re Robinson, 983 F. Supp. 1339 (D. Colo. 1997).

17. Under age 10 • Tahan v. Duquette, 613 A.2d 486, 490 (N.J. Super. Ct. App. Div. 1992)(indicating court did not have to interview 9 year old – assumed not mature enough). • Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347, 1361 (M.D. Fla. 2002) (finding 9 year old mature enough but ordering return because child remembered Argentina as a 6 year old, had lived with mother who was not going to return – unduly influenced).

18. Too young? • Court would not hold as a matter of law that 8 year old girl was too young for her views to be taken into account. Court did not err in finding 8 year old was mature enough. Blondin v. Dubois, 238 F.3d 153, 166-67 (2nd Cir. 2001)

19. Eight year olds • Raijmakers-Eghaghe v. Haro, 131 F. Supp. 2d 953 (E.D. Mich. 2001) (genuine issues of material fact precluded SJ – court could consider eight-year old son's objection to returning to the Netherlands).

20. Maturity • Anderson v. Acree, 250 F. Supp. 2d 876 (S.D. Ohio 2002)(8 year old girl “of sufficient age and maturity” to permit court to consider whether she wanted to be returned to New Zealand).

21. Chile • Eight‑year‑old child was of sufficient age and degree of maturity. Court listened to his views to not be returned to Chile. He felt safe here, had friends, and wanted to learn English. “Heart” was here. Escobar v. Flores, 107 Cal. Rptr. 3d 596 (Ct. App. 2010).

22. Siblings • Trial court had the discretion to decline to interview three children, ages 13, 11, and 7 on their wishes as to the return to Spain. Caro v. Sher, 687 A.2d 354 (N.J. Super. Ct. 1996)

23. Siblings – All or none? • Two of the three children were of sufficient age and maturity and did not have to return to Switzerland against their wishes. To avoid separating siblings, the youngest child should also not be returned. Smyth v. Blatt, 2009 WL 3786244 (E.D. N.Y. 2009)(unpublished).

24. Two children – both returned • The preference of the older child to stay in the United States was based on his desire not to be separated from his younger brother. Younger child was not of sufficient age to express an opinion and should be returned to England. Court could follow the older child’s preference by returning him to England too. Haimdas v. Haimdas, 720 F. Supp. 2d 183 (E.D. N.Y. 2010).

25. Pre Teens – 11 years old • Castillo v. Castillo, 597 F. Supp. 2d 432 (D. Del. 2009) – 11 year old did not want to return to mother in Columbia – court appointed attorney interviewed – sufficient age and maturity.

26. Teenagers • Convention does not apply to children over age 16 • 16 year old can determine where he or she lives. • Mohamud v. Guuleed, 2009 WL 1229986 (E.D. Wis. May 4, 2009)

27. Influence and teenagers • 15 ½ year old ordered returned to Germany even though he wanted to remain in United States – court found he was “likely unduly influenced” by his mother. Trudrung v. Trudrung, 686 F. Supp. 2d 570 (M.D. N.C. 2010).

28. 13 – 14 year olds • Most get to stay if well reasoned objections to return • Ago v. Odu,2009 WL 2169857 (M.D. Fla. July 20, 2009) (14 year old did ot want to return to Italy).

29. Teenagers • 13 year old boy’s “considered decision” to stay with father in Oklahoma was appropriate basis to deny mother’s return request to Canada. The judge interviewed child in camera, without the parents or counsel present. • de Silva v. Pitts, 481 F.3d 1279 (10th Cir. 2007)

30. Weight—parental influence? • The court must consider the extent to which the “child[ren]'s views have been influenced by an abductor, or if the objection is simply that the child wishes to remain with the abductor.” In Re Nicholson, 1997 WL 446432 (D. Kan. 1997) (unpublished).

31. Weight – Good Reasons • 14 year old strongly objected to return to Greece • Often truant in Greece, attended school regularly in U.S. States • Therapist testified that he had demonstrated age-appropriate maturity and morality levels • Child testified twice during the proceedings and the judge spoke with him once in chambers – consistent in wishes • No evidence of coaching or undue influence Andreopoulos v. Koutroulos, 2009 WL 1850928 (D. Colo. June 29, 2009)(unpublished) (allowed to stay).

32. Safety issue - Mexico • 14 year-old child - sufficient age and maturity • His reasons were not influenced by the retaining parent • He enjoys the freedom of living in a safe neighborhood where he is allowed to visit friends on his own without fear for his safety • Had a close relationship with his step‑mother and his new nine‑month‑old half‑sister. Haro v. Woltz, 2010 WL 3279381 (E.D. Wis. 2010).

33. US Obstacles • No adoption of UN Convention on Rights of Child • Most Hague cases in federal courts – judges do not hear family cases usually • No consensus on how to hear the child’s voice

34. Other countries • Canada • Australia • United Kingdom • Ireland • New Zealand

35. Remember • It is the child, more than anyone else, who will have to live with what the court decides. . . In re D [2007]