The 5th Circuit, Court of Appeals has affirmed an order under the Hague Abduction Convention that children must be returned from Texas to Panama, resulting in a victory for our client. What follows is a synopsis of the facts of the case and the Appellate Courts ruling. In the Interest of SHV and PJVC, Children (05-13-00864-CV) is significant for its rulings on the age and maturity exception in the Convention.
The family, all U.S. nationals, had been living in Panama when Father and Mother separated in 2010. Father started a custody case in Panama, the result of which gave Mother custody with Father having visitation/possession of the children every weekend. The order prohibited the children from leaving Panama. In August 2012, Mother removed the children from Panama to Texas, and Father filed a petition under the Hague Convention in Dallas County seeking return of the children to Panama. The trial court granted Father's petition and awarded him travel expenses and attorney fees.
On appeal, Mother argued that the trial judge abused her discretion by ruling that Panama was the children's habitual residence. The 5th Circuit applied the Gitter test, which requires a two-pronged inquiry; the last “shared-intent” of the parents and whether the children have acclimatized to a new location and thereby acquired a new habitual residence (despite any conflict with any shared intent). Mother argued that there was no shared intent to remain in Panama, yet the facts demonstrate that the family lived in Panama from 2006 through 2012 and the 5th Circuit found that the trial judge did not abuse her discretion by concluding that the last shared intent was to make Panama the children's habitual residence. As to the second prong, the court ruled that there was no record evidence that the children had acclimatized to life in the United States in the five months that passed before Father filed his Hague petition.
Mother also argued that the trial judge erred by not denying Father's petition based on the “age and maturity” defense under the Hague Convention, which allows a judge to deny a petition for a return if he or she finds by a preponderance of the evidence that the child objects to being returned and has attained an age and degree of maturity that make it appropriate to consider the child's views. The only evidence introduced below was a psychological report containing an opinion that SHV's maturity was higher than average for a boy of almost ten. Yet, although the report contained several passages of quotations/statements made by SHV, none distinctly objected to a return to Panama and the 5th Circuit found that although it would be reasonable to conclude that SHV prefered the United States over Panama as he did not find life there unpleasant and thus evidence that a child has a generalized desire to stay in one country rather than another does not compel a court to apply the age and maturity defense.
Mother further argued that the trial judge erred by failing to grant her motion for an in camera interview with the children and her motion for the appointment of a guardian ad litem. However, these motions were filed less than an hour before the court was scheduled to hear Father's petition, neither were ruled on, and ultimately the 5th Circuit ruled that, since Mother did not preserve a potential error (by making proper action to make the trial judge aware of the complaint and obtain a ruling-either express or implied), the Court is precluded from making an implicit ruling on that aspect of Mother's argument. Mother's counsel did mention her desire for an in camera interview during the hearing, but did not mention the motion, did not follow through with the request, did not preserve error as to this motion, did not make an offer of proof as to what the children might say (rendering the 5th Circuit unable to tell if any error was harmful), and made no showing that that she had made any arrangements for the interview (which would have had to been by telephone since the children were in Panama at the time).
Hence, the 5th Circuit rejected Mother's appeal. Our client is delighted.