Carlson v. Carlson

651 F.Supp.3d 516

Anke CARLSON, Petitioner, v. Kurt CARLSON, Respondent.

No. 1:22-cv-00345-MSM-PAS

United States District Court, D. Rhode Island

Signed January 19, 2023

Madeline Becker, Rui P. Alves, Barton Gilman, LLP, Providence, RI, for Petitioner.

Joanna M. Achille, Burns & Levinson LLP, Providence, RI, for Respondent.

MEMORANDUM AND ORDER

Mary S. McElroy, United States District Judge.

E.C. is a thirteen-year-old boy, embroiled in a custody dispute between his German mother and American father. The custody battle is not before this Court and will be resolved at some future date, either in a German or American court with jurisdiction over domestic matters. This Court's involvement is strictly limited to the question of where E.C. will reside pending the resolution of that dispute. The Court's jurisdiction lies pursuant to the International Child Abduction Act, 22 U.S.C. § 9001 et seq¹ which codifies the set of principles and international agreements adopted by the Hague Convention. Hague Convention on the Civil Aspects of International Child Abduction, T.I.A.S. No. 11,670, 19 L.L.M.1 1501 (1980), cited in Whallon v. Lynn, 230 F.3d 450, 452 (1st Cir. 2000).

Both E.C.'s parents love him very much and, it is clear to the Court, want what is best for him. They disagree on what that is.

The Hague Convention, to which the United States is a signatory, sets forth procedures to employ if a child under the age of sixteen² is abducted to, or wrongfully retained in, a country other than that where the other parent lives if the non-abducting parent has custodial rights. It "seeks 'to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.' " Id. at 454. In this case, E.C. declined to return to Germany after a planned visit with his father in Burrillville, Rhode Island. Kurt³ then kept him in the United States and Anke petitioned for an order from this Court directing his return to Germany pending resolution of the custody dispute. This Court's authority is merely to determine his interim location. Vieira v. De Souza, 22 F.4th 304, 312 (1st Cir. 2022).

This Court expedited proceedings and held three hearings (October 4, 2022, October 11, 2022, and December 14-15, 2022); the last was a two-day evidentiary hearing. It appointed a Guardian ad Litem ("GAL") for E.C. and, on December 1, 2022, the Court interviewed E.C. in camera in the presence of the GAL. The parties submitted memoranda early in the case and again after the evidentiary hearing. After a review of this material, the Court finds facts as delineated below, reaches certain legal conclusions based on those facts, and DENIES the Petition for Return of E.C. to Germany.

I. FACTUAL BACKGROUND

E.C.'s parents were married in the United States in 2007 and E.C. was born two years later. When E.C. was just shy of eight years old, they divorced in Rhode Island, agreeing to joint legal custody and physical placement in Germany with his mother. The Final Judgment specified both E.C. and Anke would live in Germany, and they moved there in March 2015.

Since that time, and pursuant to agreement, E.C. has visited Kurt frequently during the summer and school vacations. Kurt has generally accompanied him to and from Germany for these visits. E.C. visited his father extensively in the United States, sometimes accompanied by his mother, and Kurt has visited E.C. in Germany. At one point in 2021, E.C. expressed a desire to live with his father. The parties agreed that he would move to the United States in the summer of 2022 to live with Kurt. In March 2022, Anke testified, E.C. had a change of heart and decided to spend the summer of 2022 with Kurt in Burrillville, but not move there permanently until 2023. E.C. did then journey to the U.S. for the summer of 2022. On August 11, 2022, the day of his scheduled return to Germany, E.C. declined to go home and, according to his father, broke down in the airport, refusing to board the plane. That day, when she discovered E.C. was not on the plane, Anke filed this petition pursuant to the Hague Convention, demanding his return. She also petitioned for physical placement of her son in Germany and filed a Motion to Modify the Final Judgment in the divorce proceedings. Those latter matters are pending disposition in the Rhode Island Family Court.

II. LEGAL ISSUES

A. Preliminary Findings

Most of the relevant factual issues are undisputed. At the close of the evidentiary hearing on December 14, 2022, the Court found that the provisions of the Hague Convention apply here. E.C. is a child under the age of sixteen. (ECF No. 28, Joint Stipulation, at ¶ 6.) Both his parents enjoy custodial rights by virtue of the Final Decree, Kufner v. Kufner, 519 F.3d 33, 39 (1st Cir. 2008), aff'g 480 F. Supp. 2d 491 (D.R.I. 2007), and they agree Anke was exercising her custody rights at the time E.C. failed to return. Id. ¶¶ 8, 22. They also agree the country of his habitual residence is Germany. Id. ¶ 9. See Karim v. Nakato, No. 21-11458-WGY, 2022 WL 1597955, at *10 (D. Mass. May 20, 2022) (finding United Kingdom to be place of habitual residence). Finally, the parties agree that since August 11, 2022, E.C. has been wrongfully retained in the United States. Id. ¶¶ 23, 24. Beyond their agreements, the evidence supports those findings.

The purpose of the Hague Convention is to restore the pre-removal status quo and discourage parents from attempting to deprive the country of habitual residence from deciding custody. Whallon, 230 F.3d at 455. For that reason, there is a "strong presumption" that a child wrongfully retained must be ordered returned to the country of his habitual residence. Rodriguez v. Yanez, 817 F.3d 466, 477 (5th Cir. 2016). Article 13 of the Convention establishes several "narrow exceptions"⁴ that can overcome the presumption of return and justify a Court's decision to retain the child in the jurisdiction where he presently resides. The one relevant here is the mature child exception.⁵ The parent opposing return must prove the applicability of an exception by a preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(A).

B. Mature Child Exception

The "mature child exception" empowers a judicial authority to "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." Hague Convention, Article 13.

[T]he Convention also provides that the child's views concerning the essential question of its return or retention may be conclusive, provided it has, according to the competent authorities, attained an age and degree of maturity sufficient for its views to be taken into account. In this way, the Convention gives children the possibility of interpreting their own interests.

Rodriguez v. Yanez, 817 F.3d 466, 475 (5th Cir. 2016), quoting Elisa Pérez-Vera, Explanatory Report: Hague Convention on Private International Law ¶ 30, available at https://assets.hcch.net/upload/expl28.pdf. There are two parts to this standard: that the child is of sufficient maturity to express an opinion and that the child objects to return. The parties disagree as to each.

1. Age and Maturity

Neither the Convention nor its codification establish a minimum age at which a child may be found sufficiently mature to have his wishes considered. Kurt maintains that E.C. has the maturity required by the exception; Anke contends that he does not. The Court has ample evidence upon which to base a decision from their testimony, plus the opinion of the GAL, a DCYF worker,⁶ and one of E.C.'s teachers.⁷ Children mature at different ages and a child's maturity is influenced by his experience in the world. Maturity is a relative concept: a child may be mature enough to decide which after-school activities he should participate in yet lack the maturity to make a reasoned decision on which continent he should make his home. The Court knows that it must evaluate E.C.'s maturity given his unique cognitive ability, emotional intelligence, and experience.

The testimony of the GAL has been particularly helpful. She met with E.C. at length and spoke with each of his parents. The Court is struck by E.C.'s acknowledgment to her that he has changed his mind several times, but that he has now reached a decision. That shows he understands decision-making and its complications, as well as his thoughtfulness about this particular matter. See Colon v. Montufar, 470 F. Supp. 3d 1280, 1296 (S.D. Fla. 2020) (12-year-old's ability to understand and express mixed feelings was an indication of his maturity). E.C. expressed the concern, which he said his mother shared, that he would not be given credit in Germany for schoolwork he completed in Rhode Island. He also talked about the stress he feels in Germany, much of which is caused by the demands of his school. The night before the GAL's testimony, he commented to her on the phone, "I just know I wouldn't make it another year in Germany.⁸"

The Court finds that E.C. at 13 is of a sufficient age to have his wishes considered. See Falk v. Sinclair, 692 F. Supp. 2d 147, 165 (D. Me. 2010) (close question whether a "very bright" eight-year-old was sufficiently mature to invoke exception); Rodriguez, 817 F.3d at 478 (11-year-old); Garcia v. Pinelo, 808 F.3d 1158, 1167 (7th Cir. 2015) (11-year-old) Dubikovskyy v. Goun, 54 F.4th 1042 (8th Cir. 2022) (12-year-old). It is significant that, despite her protestation to the contrary now, in March 2022 Anke herself believed that E.C.'s then-desire to stay in Germany stemmed from a mature decision.

The Court had a substantial opportunity to talk with E.C. in a comfortable and reassuring setting and finds him sufficiently mature. E.C. demonstrated in the in-camera interview that he is an inciteful, articulate child...