A common international custody issue under the Hague Convention involves a wrongfully removed child when there is an exception to being returned home. One such exception is the mature child exception. How mature does a child have to be in order to avoid being returned to the child’s habitual residence? A recent Florida case analyzes that question.
Oh Mexico
The Father and Mother are the parents of a child born in Mexico in 2013. They lived together in Mexico until approximately one year after the child was born. After their separation, a Mexican court granted custodial rights and child support obligations. The custody order also contained a clause which prohibited Mother from removing minor child from Mexico without Father’s consent.
Then in December 2022, the Mother abducted the child to the United States. After learning his child was abducted, the Father filed a return petition under the Hague Convention in Florida.
The Mother opposed returning the child by arguing that the child was “sufficiently mature and intelligent to object to being repatriated to Mexico.” The trial court conducted an in-camera interview with the child who was then ten years old and had been exclusively with Mother in Florida for over a year. The child testified she lived in an apartment with Mother and her little brother and was attending school and taking English classes. She enjoyed playing at parks and wanted to join a football team.
She also admitted seeing Mother crying and being told by Mother that Father wanted minor child to go back to Mexico and that “I’m afraid that you might be sending me back to Mexico and that I won’t be able to see my mom.” The Mother testified she not only told minor child about the proceedings, but also told her she feared minor child “would be taken back to Mexico and no longer be with me.”
The trial judge denied the Hague return petition after applying the mature child exception. The father appealed.
Hague Convention
I have written and spoken on international custody and child abduction cases under the Hague Convention. The Convention’s mission is basic: to return children to their country of habitual residence.
In the recent Mexican case, the father had to prove by a preponderance of the evidence that the child was a habitual resident of Mexico immediately before her abduction, the removal was in breach of his custody rights under Mexican law, and he was actually exercising rights of custody, or would have been so exercised but for the removal. If so, the child must be promptly returned to Mexico unless there is an exception to return.
The key inquiry in this recent case was the mature child exception. A court 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. A court may find that the child’s objection in and of itself is conclusive—it does not have to be coupled with another defense to be sustained.
Talking ’bout Mexico
On appeal, the district court noted that the child was exceptionally bright and articulate, she calmly and clearly conveyed her reluctance to return to Mexico, and conveyed significant family ties, teachers, and friends in Florida.
But in determining whether the mature child exception applies, courts primarily consider whether the child is sufficiently mature, has a particularized objection to being returned and whether the objection is the product of undue influence.
Here, the ten-year-old child’s preference to remain with Mother in Florida was based primarily on: friends, a desire to attend high school, and an upcoming school trip to Orlando. The appellate court found these to be generic and near-sighted responses and demonstrated the child’s inability to maturely comprehend or appreciate the long-term impact of her decisions.
This was especially true considering the child provided no significant testimony as to her life in Mexico or how life in Mexico differed from life in the United States. Also, her fear of return was based solely on not wanting to be separated from her Mother and return to Mexico does not necessarily mean she will be separated from Mother as Mother is free to return with her to Mexico.
Importantly, only a child’s objection is sufficient to trump the Convention’s strong presumption in favor of return, not the child’s mere preference. Here, the child just didn’t want to be separated from her mom. The only fear of returning to Mexico was being separated from Mother and not an unwillingness to live in Mexico.
Finally, the child’s objection was clearly the product of Mother’s undue influence. For example the Mother admitted she told minor child about the legal proceedings and about her fears of minor child being returned to Mexico.
The court reversed and remanded for the trial court to grant return to Mexico.
The opinion is here.