Posted by Nydia Streets of Streets Law in Florida Child Custody
The Convention on the Civil Aspects of International Child Abduction at the Hague (known as the “Hague Convention”), provides remedies for parents whose children have been wrongfully removed from a country. In order to initiate proceedings under this Convention, certain conditions must be met, including that the parent seeking return of a child has custody rights, and that those rights were actually being exercised at the time of the alleged abduction. The Hague Convention provides certain defenses that the other parent can assert. This was an issue in the case De La Melena v. Panez, 6D2023-3946 (Fla. 6th DCA November 22, 2024).
The mother and father were divorced in Peru and were granted joint custody of their child, with the mother having primary residential care of the child. The mother requested that the father execute a travel authorization allowing her to take the child to the United States for approximately one month. The child was not returned, and more than one year after the child left Peru, the father filed a petition under the Hague Convention in Florida for the return of the child. The mother defended on the grounds that the child was settled in the United States, and that the child objected to returning to Peru. The trial court denied the father’s petition and he appealed.
The appellate court noted the standard of review: “‘[F]or all issues arising under the [Hague] Convention, a [lower court’s] determination of facts is reviewed for clear error and its application of those facts to the law, as well as its interpretation of the Convention, are reviewed de novo.’ Wigley v. Hares, 82 So. 3d 940, 940 (Fla. 4th DCA 2011) (first quoting In re Application of Adan, 437 F.3d 381, 390 (3d Cir. 2006).”
As to the mother’s “well-settled child” defense, the appellate court noted “This recognized exception comes into play only if ‘the proceeding was commenced more than one year after removal of the child and the child has become settled in his or her new environment.’ Wigley, 82 So. 3d at 936 (citing Hague Convention, art. 12).” The father argued this was inapplicable because he first became aware the child was not returning on December 8, 2021, and his petition was filed December 7, 2022. However, the trial court found the father’s testimony was not credible, and there was competent, substantial evidence that the father was aware in October 2021 that the child was not being returned.
The court continued, regarding the well-settled defense, “Turning to whether Child came within the ‘well settled in her new environment’ exception, this term is not specifically defined in the Hague Convention, nor does 22 U.S.C. § 9002 define ‘well settled’ for purposes of these proceedings. A child has nevertheless been considered to be ‘settled ‘within the meaning of ICARA and the [Hague] Convention when a preponderance of the evidence shows that the child has significant connections to their new home that indicate that the child has developed a stable, permanent, and nontransitory life in their new country to such a degree that return would be to child’s detriment.’ De Carvalho, 308 So. 3d at 1085 (quoting Fernandez v. Bailey, 909 F.3d 353, 361 (11th Cir. 2018)).”
The court noted that the trial court examined the required factors for determining a “well-settled” defense: “(1) Child’s age, (2) the stability of Child’s residence, (3) whether Child consistently attended school, (4) Child’s participation in extracurricular or community activities, (5) Mother’s employment and financial stability, (6) Child’s relationship with family and friends, and (7) the immigration status of both Mother and Child. See Wigley, 82 So. 3d at 941 (listing these as factors for a trial court to consider when making the ‘well settled’ child exception analysis and noting that though these factors, when applicable, may be considered in the analysis, “ordinarily the most important is the length and stability of the child’s residence in the new environment.” (quoting In re B. Del. C.S.B., 559 F.3d 999, 1009 (9th Cir. 2008))).” Finding there was competent substantial evidence to support the defense, the appellate court found there was no error.
Turning to the mother’s other defense of the “mature child”, the court noted “Under article 13 of the Hague Convention, a court has the discretion to decline to return a child to their country of habitual residence if the wrongfully detained child objects to being returned. However, under this ‘mature child objection’ exception, the child must have attained an age and degree of maturity at which it is appropriate for the court to take the child’s views into consideration. Abbott, 560 U.S. at 22; Lopez v. Alcala, 547 F. Supp. 2d 1255, 1258 (M.D. Fla. 2008). With the understanding that the Hague Convention does not set forth a specific age a child must be to consider this defense, the appellate court noted “The court also heard testimony that Child was intelligent, even-handed, self-motivated, able to express her feelings clearly, performed well in school, had strong bonds with friends and classmates, showed no signs of depression, and did not vilify or disparage Father, and that Mother had not alienated her from Father. The trial court found Child to be of sufficient maturity to express her opinion.:
The appellate court found the mature child objection was appropriately raised by the mother and that the trial court did not commit error in recognizing it. The appellate court held “We affirm the trial court’s order to not return Child to Peru under the ‘mature child objection’ exception for two reasons. First, it does not appear that Father raises sufficient argument in his initial brief that the trial court erred in finding that Child was of an age and maturity level to voice her objection to being returned to Peru [. . .] Second, to the extent that Father did not waive this argument, Father has not shown that the trial court committed clear error in finding that Mother had met her evidentiary burden of proof establishing the mature child exception under the Hague Convention.”
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