Objection of the Child | Manner of Hearing | Wishes vs. Objections | Immigration Status and Settlement

In this case, the Eleventh Circuit affirmed a district court’s findings that sustained defenses of grave risk based on domestic violence, the settlement of the children, and a child’s objection to return.

Holdings

The child’s statements in chambers may be considered for the mature child objection as well as other substantive issues; where there was no immediate threat of removal, the undocumented status of the children and mother did not prevent a finding that the children were “settled.”

Facts

Two children were born to an unmarried Chilean couple. They lived in Chile until December 2017 when they were taken to the United States by their father for a temporary visit. Within a month of their arrival, the father obtained a full-time job in the United States, purchased a car, and enrolled the children in school and daycare. Upon learning this, the mother left Chile and traveled to Florida to be with the children. Shortly after the mother’s arrival, the father continued his psychological and physical abuse of her.  She obtained a domestic violence protection order, and the father returned to Chile, taking the children’s passports with him. In November 2018 the mother moved with the children to Georgia. Reports on the children’s education and extracurricular activities indicated that they did well socially and scholastically. The mother and the children overstayed their visas, but their immigration attorney indicated that they were not under threat of removal. The father petitioned for return of the children to Chile in June 2020.

Discussion

Procedure Used for Child’s Interview and Child’s Statements on Issues Other Than Objection to Return. The court interviewed the children in chambers and provided the parties a summary of their objections. The court then asked the children questions prepared by the parties with the parties listening by phone. The parties declined the judge’s invitation to submit follow-up questions. The interview of one child revealed that she objected to return to Chile because she feared father would continue to physically abuse the mother, her life in Chile was unstable, she lived in poverty, and the family had to move frequently to avoid contact with the father. The child described numerous instances of witnessing the father’s domestic abuse of the mother and his purchase and use of drugs.

The father objected to the court’s process for interviewing the child, arguing that the Convention does not authorize an interview in chambers without the opportunity for cross-examination when the child testifies on issues other than her objection to return. The father also objected to the court’s consideration of the child’s statements about the alleged abuse of the mother. The Eleventh Circuit rejected these arguments, noting precedent in other courts^[1] that accepted a child’s statements concerning substantive issues other than the mature child objection. The court found that the district court’s reliance on the child’s statements concerning father’s abusive conduct was appropriate and relevant to its finding of a grave risk.

Considerations for Determining Mature Child’s Objection. Citing Colon v. Mejia Montufar,^[2] the court found three factors relevant to a child’s objection to return:

(1) Is the child sufficiently mature?

(2) Does the child have a particularized objection to being repatriated?

(3) Is the objection the product of undue influence?^[3]

The court found that the child’s testimony regarding her opposition to return were not merely the expression of a preference to remain in the United States but were “lengthy and detailed particularized objections.”

Well-Settled Defense: Immigration Status. The father’s petition for return was filed more than one year after the children were retained. As a result, a court may deny return if the child has become well-settled in the new environment.^[4] The father argued that due to the undocumented status of the mother and children, the children could be deemed “well-settled.”^[5] The court disagreed. The mother presented expert testimony that neither she nor the children were under an immediate threat of removal.