By Linda D. Elrod
Richard S. Righter Distinguished Professor of Law
Washburn Law School Children and Family Law Center
6th World Congress, Sydney
Hear the children
“Being heard and having one’s views
taken into account. . . is one of the
main determinants of the perception
that the decision making process is fair,
even if the outcome is not the one that
is wanted.” Parkinson & Cashmore
UN Convention on Rights of
Art. 12: child has right to be heard on
all matters relating to child’s custody.”
“The right of all children to be heard
and taken seriously constitutes one of
the fundamental values of the
Parental child abduction:
205,000- 354,000 abducted annuall
often by mothers
Child’s wishes exception
The court may refuse to order the
return of the child “if it finds that the
child objects * * *and has attained an
age and degree of maturity at which it
is appropriate to take account of its
views.” Hague Convention, art. 13. 42
U.S.C. § 11603(e)(2)(A).
Perez-Vera Report - rationale
[The Convention] provides that the
child's views concerning the essential
question of its return or retention may
be conclusive, provided it has, . . .
attained an age and degree of maturity
sufficient for its views to be taken into
account. . . . the Convention gives
children the possibility of interpreting
their own interests.
Of course this provision could prove
dangerous if it were applied by means of the
direct questioning of young people who may
admittedly have a clear grasp of the situation
but who may also suffer serious psychological
harm if they think they are being forced to
choose between two parents.
Caveat . . .
Provision is absolutely necessary given
the fact that the Convention applies to
all children under age 16; the fact must
be acknowledged that it would be very
difficult to accept that a child of, for
example, fifteen years of age, should be
returned against its will.
Burden – P/E
Respondent must prove by a
preponderance of the evidence through
testimony or otherwise that the minor
child is of an age and maturity level for
their views to be taken into account.
See England v. England, 234 F.3d 268,
272 n. 5 (5th Cir. 2000).
Discretionary Application
Application of the defense is within the
court's discretion if the court believes that the
child's preference is the product of undue
influence over the child. See Hazbun Escaf v.
Rodriguez, 200 F. Supp. 2d 603, 615 (E.D.
Va. 2002).
How to get voice heard
Age and maturity
Interview with judge
Lawyer for child
Social worker or other representative for
Weight to be given
Standard for review
The determination of whether a
particular child “has attained an age
and degree of maturity” is a factual
issue for which deferential appellate
review is appropriate. Escobar v. Flores,
107 Cal. Rptr. 3d 596 (Ct. App. 2010)
(following Blondin).
Minimum age?
“. . . all efforts to agree on a minimum age at
which the views of the child could be taken
into account failed, since all the ages
suggested seemed artificial, even arbitrary. It
seemed best to leave the application of this
clause to the discretion of the competent
authorities.” Pérez-Vera Report at 433, para.
Should He
Have a Say?
Children age 10
10 year old boy was of an age and maturity
level. The court was “particularly impressed
by his behavior in learning of the upcoming
legal proceedings and his desire to express
his views in a letter and have them
considered. Silverman v. Silverman, 2002 WL
971808 at *10 (D. Minn. 2002), aff'd, 312
F.3d 914 (8th Cir. 2002).
Undue influence?
Court felt ten year old’s wishes were
the product of undue influence of
parent and counselor where child
wrote letter using language that he was
“settled in.”
In re Robinson, 983 F. Supp. 1339 (D.
Colo. 1997).
Under age 10
Tahan v. Duquette, 613 A.2d 486, 490 (N.J.
Super. Ct. App. Div. 1992)(indicating court
did not have to interview 9 year old –
assumed not mature enough).
Mendez Lynch v. Mendez Lynch, 220 F. Supp.
2d 1347, 1361 (M.D. Fla. 2002) (finding 9
year old mature enough but ordering return
because child remembered Argentina as a 6
year old, had lived with mother who was not
going to return – unduly influenced).
Too young?
Court would not hold as a matter of law
that 8 year old girl was too young for
her views to be taken into account.
Court did not err in finding 8 year old
was mature enough. Blondin v. Dubois,
238 F.3d 153, 166-67 (2nd Cir. 2001)
Eight year olds
Raijmakers-Eghaghe v. Haro, 131 F.
Supp. 2d 953 (E.D. Mich. 2001)
(genuine issues of material fact
precluded SJ – court could consider
eight-year old son's objection to
returning to the Netherlands).
Anderson v. Acree, 250 F. Supp. 2d 876
(S.D. Ohio 2002)(8 year old girl “of
sufficient age and maturity” to permit
court to consider whether she wanted
to be returned to New Zealand).
Eight-year-old child was of sufficient
age and degree of maturity. Court
listened to his views to not be returned
to Chile. He felt safe here, had friends,
and wanted to learn English. “Heart”
was here. Escobar v. Flores, 107 Cal.
Rptr. 3d 596 (Ct. App. 2010).
Trial court had the discretion to decline
to interview three children, ages 13, 11,
and 7 on their wishes as to the return
to Spain. Caro v. Sher, 687 A.2d 354
(N.J. Super. Ct. 1996)
Siblings – All or none?
Two of the three children were of
sufficient age and maturity and did not
have to return to Switzerland against
their wishes. To avoid separating
siblings, the youngest child should also
not be returned. Smyth v. Blatt, 2009
WL 3786244 (E.D. N.Y.
Two children – both returned
The preference of the older child to stay in
the United States was based on his desire not
to be separated from his younger brother.
Younger child was not of sufficient age to
express an opinion and should be returned to
England. Court could follow the older child’s
preference by returning him to England too.
Haimdas v. Haimdas, 720 F. Supp. 2d 183
(E.D. N.Y. 2010).
Pre Teens – 11 years old
Castillo v. Castillo, 597 F. Supp. 2d 432
(D. Del. 2009) – 11 year old did not
want to return to mother in Columbia –
court appointed attorney interviewed –
sufficient age and maturity.
Convention does not apply to children
over age 16
16 year old can determine where he or
she lives.
Mohamud v. Guuleed, 2009 WL
1229986 (E.D. Wis. May 4, 2009)
Influence and teenagers
15 ½ year old ordered returned to
Germany even though he wanted to
remain in United States – court found
he was “likely unduly influenced” by his
mother. Trudrung v. Trudrung, 686 F.
Supp. 2d 570 (M.D. N.C. 2010).
13 – 14 year olds
Most get to stay if well reasoned
objections to return
Ago v. Odu,2009 WL 2169857 (M.D.
Fla. July 20, 2009) (14 year old did ot
want to return to Italy).
13 year old boy’s “considered decision”
to stay with father in Oklahoma was
appropriate basis to deny mother’s
return request to Canada. The judge
interviewed child in camera, without the
parents or counsel present.
de Silva v. Pitts, 481 F.3d 1279 (10th
Cir. 2007)
Weight—parental influence?
The court must consider the extent to
which the “child[ren]'s views have been
influenced by an abductor, or if the
objection is simply that the child wishes
to remain with the abductor.” In Re
Nicholson, 1997 WL 446432 (D. Kan.
1997) (unpublished).
Weight – Good Reasons
14 year old strongly objected to return to Greece
Often truant in Greece, attended school regularly in U.S.
 Therapist testified that he had demonstrated ageappropriate maturity and morality levels
 Child testified twice during the proceedings and the judge
spoke with him once in chambers – consistent in wishes
 No evidence of coaching or undue influence
Andreopoulos v. Koutroulos, 2009 WL 1850928 (D. Colo. June
29, 2009)(unpublished) (allowed to stay).
Safety issue - Mexico
14 year-old child - sufficient age and maturity
His reasons were not influenced by the
retaining parent
He enjoys the freedom of living in a safe
neighborhood where he is allowed to visit
friends on his own without fear for his safety
Had a close relationship with his step-mother
and his new nine-month-old half-sister. Haro
v. Woltz, 2010 WL 3279381 (E.D. Wis. 2010).
US Obstacles
No adoption of UN Convention on
Rights of Child
Most Hague cases in federal courts –
judges do not hear family cases usually
No consensus on how to hear the
child’s voice
Other countries
United Kingdom
New Zealand
It is the child, more than anyone else,
who will have to live with what the
court decides. . . In re D [2007]

Child’s Voice in Return