| In Laguna v Avila, 2008
WL 1986253 (E.D.N.Y.) Alvaro Enrique Blanco Laguna ("Blanco") brought a
petition seeking the return of his child who was brought from Colombia
to the United States in November 2006 by his mother, respondent Luz Mila
Avila, and had been retained here without Blanco's consent. That trial
was held in February 2008. As authorized by Rule 43(a) of the Federal
Rules of Civil Procedure, Blanco testified via a live video link from
Colombia. The Court interviewed the child in camera on the record but
outside the presence of the parties and their respective counsel. This
procedure was consistent with those adopted by other district courts in
Hague Convention cases. (See, e.g., Koc v. Koc, 181 F.Supp.2d 136, 144 &
n. 10 (E.D.N.Y.2001).) The petition was dismissed after the hearing and
judgment ordered to be entered for respondent. Between 1995 and 1997,
Blanco and Laguna lived together with ABA in Bogota, Colombia. In 1997,
they separated. Blanco and Avila were legally divorced in April 2004.
Avila later married Thomas Eckmier, with whom she and ABA resided in
Brooklyn, New York. Avila's decision to move to the United States was
made some time before January 2006. On July 19, 2006, the parties
appeared before a family court and entered into a new custody agreement,
which was endorsed by the Colombian court, thus, giving it binding
effect . Soon thereafter, Avila left for the United States. With Avila's
departure, ABA remained in Blanco's custody in Colombia. As agreed by
his parents, ABA came to the United States in November 2006 to stay with
Avila. Blanco's expectation, in accordance with the Custody Agreement,
was that ABA would return to Colombia in February 2007. ABA's visa was
set to expire in December 2006. Avila grew concerned that her son would
not be permitted to re-enter to the United States if he returned to
Colombia as planned. Avila visited the Colombian consulate in New York
in January 2007 to seek relief from the provisions in the Custody
Agreement requiring ABA's return to Colombia. She was told that the
consulate could not offer her any help. Avila then wrote to the ICBF in
Colombia, asking the agency to "change and/or deny several conditions of
the agreement signed on July 16, 2006."
ABA did not return to Colombia in February
2007. He has remained in the United States with Avila ever since. On
March 2, 2007, through a legal representative, Avila filed a demand for
custody in the family court in Colombia. That demand was dismissed. On
October 22, 2007, Avila filed a second demand for custody in Colombia.
Blanco advised the Colombian court that he was seeking the return of ABA
to Colombia through judicial proceedings that would be brought in the
United States and asked the court to postpone resolution on the custody
matter until the child returned to Colombia. The petition was filed on
December 10, 2007. After the hearing the court determined that the
habitual residence of the child was Columbia. It applied the analysis
established by the Second Circuit in Gitter v Gitter, 396 F.3d at 132
and found that ABA's habitual residence was Colombia. The court found
that, prior to Avila's decision to move to the United States, the
parties' mutual intent was for ABA to live in Colombia indefinitely.
There also was no dispute that ABA lived exclusively in Colombia and had
never been to the United States before November 2006. Avila contendeds
that the parties' mutual intent changed some time in 2006, and that
their mutual intent, as evidenced by the Custody Agreement, was for
ABA's habitual residence to shift to the United States. The Court
disagreed. At most, the Custody Agreement contemplated that the United
States might someday become ABA's habitual residence. Evidence of the
parties' intent to change a child's habitual residence sometime in the
future is insufficient to demonstrate that the habitual residence has,
in fact, changed. See Choi v. Kim (In re Kim), 404 F.Supp.2d 495, 514
(S.D.N.Y.2005) (evidence of shared intent that a child would become a
New Yorker is insufficient to demonstrate that a child was a New Yorker
as of the date of the alleged removal), By equal strength, the evidence
did not demonstrate that ABA had become wholly acclimatized to his new
environment such that his habitual residence had shifted to the United
States. See Paz v. Mejia De Paz, 169 F.Supp.2d 254, 258 (S.D.N.Y.2001)
(finding no acclimatization to New Zealand, despite child's visit to New
Zealand lasting nine or ten months prior to wrongful retention). The
court found that Blanco's custody rights existed both by operation of
Colombian law and under the private agreement between him and Avila.
Given Blanco's right under the Custody Agreement to have ABA returned to
Colombia in February 2007, there was no dispute that Avila breached
Blanco's custody rights by her unilateral decision to retain ABA in the
United States following the date it was previously agreed he would
return to Colombia. Also Title XII, Article 253 of the Colombian Civil
Code provides that both parents shall jointly exercise parental
authority over their legitimate children.
The Court noted that under the unnumbered
provision of Article 13, a court may refuse repatriation if a respondent
demonstrates, by a preponderance of the evidence, that there is
"considered objection to returning by a sufficiently mature child."
(Hague Convention, Art. 13 (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"); 42 U.S.C. s 11603(e)(2)(B). The child's
maturity is a question for the district court, to be determined upon the
specific facts of each case. This defense only requires the Court to
take account of a child's views. The fact that he objects to return is
not alone determinative. This defense is meant to be narrow. "As with
the other Article 13 exceptions to the return obligation, the
application of [the age and maturity] exception is not mandatory.... A
child's objection to being returned may be accorded little if any weight
if [for example] the court believes that the child's preference is the
product of the abductor parent's undue influence over the child."
Department of State, Hague International Child Abduction Convention;
Text and Legal Analysis, Pub. Notice 957, 51 Fed.Reg. 10,494,
10,509(1986). The child is the single most important witness where a
court is considering the age and maturity exception to the Hague
Convention's rule of return. The Court interviewed ABA in chambers
outside the presence of the parties and their counsel. ABA revealed
himself to be bright, articulate and mature well-beyond what would
reasonably be expected of a 13 year-old boy. He particularly impressed
the Court with his mastery of the English language, which he had learned
only in the short time that he has been in the United States. He
exhibited, moreover, a perceptive understanding of the key issues
presented for trial. The Court asked ABA if anyone had told him what to
say during his interview and ABA said no; he had only been told to
answer the Court's questions truthfully. The court pointed out that that
the risk of undue influence in a child's testimony is no excuse for
judicial paralysis. Such testimony should be taken, considered, and,
where appropriate, can support an age and maturity defense. See, e.g.,
Matovski v. Matovski, 06 Civ. 4259 (PKC), 2007 WL 2600862, at 14 (S.D.N.Y.
Aug. 31, 2007) (holding that 12 and 11 year old children sufficiently
objected to return where they testified that they had more family and
friends in the United States, enjoy a more stable life, and are
concerned about uncertainties that they would face in home country);
Diaz Arboleda v. Arenas, 311 F.Supp.2d 336, 343-44 (E.D.N.Y.2004)
(holding that 12 and 14 year old children sufficiently objected to
return where they expressed preference of staying with their mother and
believed that they would have better opportunities in this country), de
Silva v. Pitts, 481 F.3d 1279, 1287 (10th Cir.2007) (affirming district
court decision that 13 year old had satisfied the objection defense when
child stated that he had made friends in the United States, described
his house as "really big" and "a great place" where he has a computer
and everything he needs for school and indicated that he thought the
school was better here); Leites v. Mendiburu, No.
6:07-cv-2004-Orl-19DAB, 2008 WL 114954, at 6 (M.D.Fl. Jan.9, 2008)
(refusing repatriation where the court found that 13 year old was
extremely bright, mature, and articulate and objected to return because
she had been affected by the arguing in her home in Argentina and felt
that her home in the United States provided a calmer environment and
afforded her better opportunities); but see Locicero v. Lurashi, 321
F.Supp.2d 295, 298 (D.P.R.2004) ("The fact that the [13 year-old] child
prefers to remain in Puerto Rico, because he has good grades, has
friends and enjoys sports activities and outings, is not enough for this
Court to disregard the narrowness of the age and maturity exception to
the Convention's rule of mandatory return."). Here, ABA had been told
that there might be damaging consequences for his mother should the
Court order his return to Colombia. The information was given to ABA by
Blanco, who told ABA that Avila would lose a great deal of money if she
lost this case and even warned him that Avila could be put in prison in
Colombia. ABA testified: "Always bad things that are going to happen to
my mom, he tells me." Avila's husband also told ABA that Avila stands to
lose a lot of money if she loses this case. The Court was convinced from
ABA's in camera testimony that he honestly was free from any undue
family pressure and did not want to return to Colombia. The Court found
that ABA's objection to returning to Colombia was the product of
independent reasoning and thoughtful consideration. His testimony did
not appear forced or coached in any way. He expressed clearly that he
was not worried about these proceedings or their impact on him or his
parents, and that he did not think about the case often. The Court was
struck by ABA's honesty, maturity, and intelligence. Without the
slightest hint in the record of any psychopathology or social
maladjustment on ABA's part, the Court had no doubt that the reasoned
testimony provided by ABA represented his honest opinions and wishes and
was not the product of his parents' influence. Cf. Blondin v. Dubois, 78
F.Supp.2d 283, 296 (S.D.N.Y.2000) (finding that while child might have
been coached by mother to some degree, her objection to being returned
was not the product of mother's "undue influence"), aff'd 238 F.3d 153
(2nd Cir.2001); Kofler v. Kofler, Civil No. 07-5040, 2007 WL 2081712 (W.D.Ark.
July 18, 2007) (district court found that respondent might have been the
impetus behind children's letters to the court, but that the children
were not unduly influenced). The Court found that ABA's testimony was
not unduly influenced and that there was no overt attempt by Avila to
exercise undue influence. The Court's conclusion that ABA's objection to
repatriation to Colombia was the product of his own reasoning was
buttressed by his testimony that he liked his school here in the United
States and that he made good grades. He made a lot of friends at school
here, he claimed. By contrast, ABA testified that he had had no real
friends in Colombia and had performed poorly in school. The Court was
impressed as ABA testified calmly but with deep feeling that he believed
that the United States will provide him personally with far better
opportunities in life than Colombia, because America "has more economy,
more business, more industry, more opportunities, things like that."
And, that, while he loved his father and wanted to be with him in
America, if he had to choose between his father and America, he would
choose America. The Court found that ABA had clearly reached an age and
shown such maturity that it was appropriate to take account of his views
and, more to the point, his objection to returning to Colombia. The
Court found that, coupled with ABA's demonstrable age and maturity, the
bases, breadth, depth and perceptive nature of his objection to his
return to Colombia, including the effect such a result would have on his
relationship with each parent, met the narrow exception created by the
Hague Convention's unnumbered defense to repatriation. The Court noted
that establishment of the age and maturity defense did not end the
Court's inquiry. A court retains the discretion to return a child to his
home country, regardless of any other determination, if return would
further the aims of the Convention. In ABA's case, the required further
review did not alter the result. The Court found that return of ABA to
Blanco's custody in Colombia would be neither appropriate nor necessary
to further the goals of the Hague Convention. Avila did not come to the
United States in order to gain a jurisdictional home court advantage.
Indeed, as Blanco emphasizes, Avila sought to resolve the matter through
the Colombian court, just without physically returning to Colombia.
Simply put, there was nothing in the record that would suggest Avila
behaved as she did because she believed New York would be a more
hospitable forum to have a custody battle. Therefore, the Court did not
believe that return was necessary to further the objectives of the Hague
Convention and declined to exercise its discretion to order the return
of ABA to Colombia. (Citing In re Kim, 404 F.Supp.2d at 520-21 (district
court declined to exercise discretion to repatriate child where
respondent did not cross international borders in order to gain a
jurisdictional home court advantage).
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