Posted by Nydia Streets of Streets Law in Florida Child Custody

The Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), and the International Child Abduction Remedies Act (“ICARA”) provide remedies for parents whose children have been wrongfully removed from their custody and taken to another country. There is presumption in favor of returning a child wrongfully removed, but those presumptions can be overcome by certain defenses and evidence. This was an issue in the case De La Cruz v. Garcia, 4D2024-0823 (Fla. 4th DCA December 4, 2024).

The parties in this case resided in Mexico where a child custody order was entered granting the parties custody and prohibiting the mother from removing the child from Mexico without the father’s consent. The child lived in Mexico all of her life until the mother took her to the United States in 2022 without the father’s consent. The father eventually filed a petition under the Hague Convention 9 months later requesting return of the child. The mother responded with two defenses - (1) that the father had no custody rights to enforce and (2) that the child objected to return to Mexico.

The trial court conducted an in-camera interview of the child and asked questions about the child’s preferences and life in the United States versus Mexico. The child stated she loved both parents, that she liked living in the United States because she was going to take a trip to Orlando, and she had friends in school. She did not raise any specific objection to returning to Mexico other than her fear that she would be separated from her mother. She also stated she saw her mother crying and saying she was going to be separate from her. The mother testified in court that she told the child about the proceedings and that she shared her fear with the child that the child would be separated from her and sent to Mexico. Ultimately, the trial court entered an order denying the father’s petition and he appealed.

As to the mother’s defense that the child objected to being returned, the appellate court noted “One such defense is the ‘mature child’ exception, which provides that the trial court ‘may also 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.’ [. . .] In determining whether this exception applies, courts primarily consider whether: (1) the child is sufficiently mature; (2) the child has a particularized objection to being repatriated; and (3) the objection is the product of undue influence. [. . .] However, ‘[w]hile the Hague Convention provides that a court may take into account the views of the children, it is not required to accede to those views. The exception is discretionary.’ [. . .] The Hague Convention does not define the term ‘maturity,’ nor does it set a specific age at which the child is automatically considered to be sufficiently mature. Instead, ‘the determination is to be made on a case by- case basis.’”

The court held “Here, the then ten-year-old minor child’s preference to remain with Mother in Florida was based primarily on three factors: friends, a desire to attend high school, and an upcoming school trip to Orlando. Such generic and near-sighted responses demonstrate minor child’s inability to maturely comprehend or appreciate the long-term impact of her decisions. [. . .] Moreover, although minor child also testified that she was afraid to return to Mexico despite having a loving relationship with Father, this fear was based solely on minor child not wanting to be separated from Mother. Minor child’s return to Mexico, however, does not necessarily mean she will be separated from Mother as Mother is free to return with her to Mexico. [. . .] Finally, even if minor child was deemed sufficiently mature, her opinion on not wanting to return to Mexico would not be conclusive in this case because, at the time of the interview, she had been in the exclusive custody of Mother in Florida for over a year.”

Turning to the child’s alleged objection to returning to Mexico, the appellate court noted “‘In determining whether a child has particular objections to repatriation, courts consider whether the child is expressing merely a preference against return or is ‘affirmatively objecting to returning to one country—when living in that country would be unacceptable.’’ [. . .] Notably, ‘[o]nly an objection is sufficient to trump the Convention’s strong presumption in favor of return,’ not a mere preference.” The court held “Here, when asked by the trial court if she would feel “safer” returning to Mexico if she could still see Mother, minor child responded, ‘I just don’t want to be separated from my mom.’ Thus, minor child’s only fear of returning to Mexico was being separated from Mother. Contrary to the trial court’s findings, minor child did not testify she was unwilling to live in Mexico, that it was unsafe to live in Mexico, or that her opportunities for growth were limited in Mexico. Under these circumstances, minor child’s desire to not be separated from Mother was a custodial preference, not an affirmative objection to returning to Mexico.”

Finally examining undue influence, the court noted “Finally, to determine if the particularized objections are the product of undue influence, the court must assess: (1) ‘the nature of the child’s objection;’ and (2) ‘the behavior of the custodial parent.’” The court held “Here, even if minor child had raised a particularized objection, the objection clearly was the product of Mother’s undue influence. For example, in her sworn response to Father’s Hague Petition, Mother stated that after telling minor child about the petition, minor child began experiencing fear and anxiety about returning to Mexico and thereafter refused to speak to Father. Mother also testified at trial that she told minor child about the legal proceedings and about her fears of minor child being returned to Mexico. Minor child likewise testified at trial that she witnessed Mother crying, and that Mother told her Father wanted minor child to return to Mexico. Thus, Mother’s conduct clearly unduly influenced minor child’s opinion about returning to Mexico.”

The court concluded “Based on these facts, we hold minor child’s testimony was insufficient to invoke the mature child exception. Accordingly, we reverse and remand for the trial court to grant Father’s petition for the return of minor child to Mexico.” Schedule your meeting with a Miami family law attorney to understand how the law may apply to your case.