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Child Objects to Being Returned to Chile

Posted By Azemika   |   Comments (0)
Child Custody & Visitation,

 

 

A California Court of Appeals has ruled that Trial Court did not err by basing its denial of Mother’s Hague Convention petition on an eight year-old child’s objections to being returned to habitual residence in Chile. In the case of Escobar v. Flores, unmarried Mother and Father were living in Mammoth Lakes (ML) when their Child was born on August 5, 2000, in Reno, Nevada. In March of 2004, Mother and Father agreed that Mother could take Child to visit family in Chile. According to Father, that trip was supposed to be an extended visit with Child returning to California in seven months. Mother maintained that Father knew she and Child were relocating to Chile. Six months later, Mother told Father that she would not be coming back to California. In 2005, Chilean Trial Court issued an order granting Mother custody of Child, ostensibly without notice to Father. Sometime after that, Father married Wife and moved to North Carolina.

In August of 2008, Mother, who was unable to obtain a visa for herself, sent Child to visit her sister in Mammoth Lakes. When Father found out, he went to Mammoth Lakes to visit Child. On August 12, 2008, Father filed a petition to establish his paternity of Child in Mono County Trial Court, which awarded him temporary custody of Child and permitted him to take Child to North Carolina pending the next hearing.

On August 22, 2008, Mother filed a Hague Convention [as implemented by I.C.A.R.A.; 42 U.S.C. 11601 et seq.] petition in Mono County Trial Court seeking an order for the Child’s return to Chile. In opposition, Father contended that Mono County Trial Court should deny Mother’s petition on basis of provision in Article 13 permitting Trial Court to refuse to order the return if a child of appropriate age and maturity objects to the return. On October 17, 2008, Mono County Trial Court held a hearing on Father’s paternity action and Mother’s petition, ordered cases separated, stayed Father’s action, and continued the hearing on Mother’s petition to December.

At the hearing on December 24, 2008, the parties conceded and Mono County Trial Court found that Chile was Child’s habitual residence. After ascertaining that Mother and Father agreed to its jurisdiction and venue, Mono County Trial Court decided not to interview Child by telephone regarding his objections and continued the hearing to January to give Father and Child time to get to California from North Carolina.

At the January 9, 2009 hearing, Mother unsuccessfully argued that as matter of law, a nine year-old was not sufficiently mature to object to the return. After hearing Mother’s evidence regarding Father’s coaching of Child to object, Mono County Trial Court found it insufficient. In chambers conference, Child told judge that Father and Wife had told him to say what was in his heart, and that staying in North Carolina was in his heart; Child stated that he liked his school, friends, and activities in North Carolina more than those in Chile, and that he did not miss his mother. Child said that he wanted to learn English and he would be happy if he stayed in North Carolina. Mono County Trial Court then took more evidence from Mother, heard argument from counsel, and ruled that Child was of sufficient age and maturity to have his wishes taken into account. Noting Child’s objection to return, Mono County Trial Court refused to make a return order and denied Mother’s petition.

Mother appealed, but now a California Court of Appeals has affirmed the Trial Court’s ruling. The Appellate Court has ruled that (1) the determination regarding child’s maturity is reviewed under clearly-erroneous standard; (2) a de novo standard is not appropriate because Trial Court is in better position to determine the child’s maturity; (3) Father did not lack standing to oppose Mother’s petition simply because his paternity had not been adjudicated; (4) Trial Court properly stayed ruling on Father’s petition until Mother’s petition was heard and ruled on; and (5) evidence of Child’s maturity was sufficient to permit Trial Court to consider Child’s wishes in ruling on Mother’s petition.

 

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