|
In Lockhart v Smith, 2011 WL 4402361 (D.Me.)
the District Court granted Kimberly Ann Lockhart’s second Petition for
Return of her child. In 2006, the Court held an evidentiary hearing on
her first Petition for Return and it incorporated by reference the
factual findings from its earlier opinion, Lockhart v. Smith, 2006 WL
3091295 (D.Me. Oct. 20, 2006). Petitioner was a citizen of Canada and
resided in Nova Scotia, Canada. She was the mother of S.P.S. and G.T.S.
Respondent Philip Gavin Smith ("Smith") was a citizen of the United
States and resided in Maine. He was their father. S.P.S. was the eleven
year old daughter of Lockhart and Smith. G.T.S. was their twelve year
old son. They each had dual citizenship in the United States and Canada.
Petitioner and Respondent stipulated that
Petitioner was the custodian of the Children; that Canada was their
habitual residence; that Petitioner was exercising or attempting to
exercise her custodial rights at the time she filed her Petition; and
that Petitioner made a prima facie case against Respondent for wrongful
retention under the Hague Convention. In addition the Respondent waived
all other defenses under the Hague Convention and stipulated that his
sole defense in this action was the "child's wishes" defense under
Article 13 of the Hague Convention.
The District Court indicated that it had
interviewed the Children in camera. When it interviewed S.P.S. in
camera, it found her to be delightful and mature. She expressed that she
was happy to return home to Canada, that she missed her friends in
Canada, and that she was ready to return to school in Canada. S.P.S.
expressed no negative views about returning to Canada and she did not
object to returning to Canada. When it interviewed G.T.S. in camera, it
found him to be delightful and mature as well. He also expressed that he
was happy to return home to Canada, that he missed his friend in Canada,
and that he was ready to return to school in Canada. G.T.S. expressed no
negative views about returning to Canada and he did not object to
returning to Canada.
The District Court found that Petitioner had
made a prima facie case against Respondent for wrongful retention under
the Hague Convention. It observed that under Article 13 of the Hague
Convention, the Court may refuse to return a child to the country of his
or her habitual residence if the Court "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." Pursuant to the
"child's wishes" exception, the Court may take the testimony of G.T.S.
and/or S.P.S. in camera to determine whether to refuse to return the
children to their country of origin because the children object to being
returned. See Yang v. Tsui, 499 F.3d 259, 279 (3d Cir.2007); Falk v.
Sinclair, No. 09-346-P-S, 2009 WL 4110757, at *3 (D.Me. Nov. 23, 2009).
Based on its in camera interview of S.P.S., the court found that she had
attained sufficient age and maturity that it was appropriate to take her
views into account. S.P.S.'s views did not foreclose her being returned
to Canada. She did not object to being returned to Canada, she expressed
no negative views about returning to Canada, and she expressed that she
would be happy to return to Canada. Based on the in camera interview of
G.T.S., the court found that he had attained sufficient age and maturity
that it was appropriate to take his views into account. As with S.P.S.,
G.T.S.'s views did not foreclose his being returned to Canada. He did
not object to being returned to Canada, he expressed no negative views
about returning to Canada, and he expressed that he would be happy to
return to Canada. The Court found that Respondent has failed to
establish that the Children objected to being returned to Canada, and
granted the Petition.
|
