Case Update (10 Sept 2024): Swett Urquieta v. Bowe; 2nd Circuit Appellate Arguments
The Petitioner Mother appealed an order denying her request to return her child to Chile under the Hague Abduction Convention. On September 10, 2024, the U.S. Court of Appeals for the Second Circuit heard oral arguments. There were 2 key issues on appeal. You can listen to the audio of the oral arguments by clicking here.
Issue 1: Did the judge commit clear error in its analysis of the child’s objection?
The Petitioner argued that (1) the child’s objections were not sufficiently particularized, and (2) that the child was unduly influenced, and therefore the judge committed clear error. The Court of Appeals (COA) focused on the fact that, to some extent, the evidence that may be elicited in these situations tends to overlap with a custody determination, and therefore appeared to not fully support the Petitioner’s statement that the evidence was an improper custody determination more about preferences than objections. In that the district court issued a 102 page opinion, the COA asked “where did the District Court go wrong?” There seemed to be some question over the court’s review of evidence before July 2022 on the child’s preferences. Petitioner also argued that the evidence showed that the Respondent discussed, with the child, the litigation, settlement offers, and financial impact of the case, and recorded the child. This is indicative of the type of undue influence seen in caselaw. Respondent argued that all of this is based on factual findings, and in this case, the fact finder was “extraordinary,” with 2 weeks of trial and a lengthy opinion. Respondent argued that the judge did not miss anything, and is the best person to make those findings. Respondent stated that this is not even close to the high standard needed to overturn the judge’s factual findings - the judge considered everything, including some angry emails, but all as part of a broader record, and an interview with the child. Respondent quoted from the record, arguing that the child was found to have genuine opinions and firmly held beliefs that were his own.
Issue 2: Did the court reach the wrong conclusion as to the date of the child’s wrongful retention, essentially placing it beyond 1 year, allowing the Respondent to argue that the child is now settled?
The Petitioner argued that the date of the child’s wrongful retention was in February 2023, and therefore, when she filed her request to return the child in February 2024, she slid it in within one year of the date of the wrongful retention, meaning that the Respondent cannot argue that the child is now settled. The court affixed the date of wrongful retention in early January 2023. Petitioner argued that she begrudgingly agreed to extend the date by which the child must return to Chile out to February, and that it was her right alone to extend. The Respondent argued that there was no agreement as to a return date, except for the January 8th date, which was verified by the expiration of a travel authorization, and correspondence between the parties. The COA seemed to question how many times a Respondent can continuously re-set the retention clock. Her counsel argued that there is a disincentive to do that, because then that permits the child to become more ingrained in that new country, risking a shift of the child’s habitual residence. The Petitioner further argued that certainly the court should reverse on this particular issue, and if it does, then it must remand for reconsideration of the mature child exception, which, as the only remaining exception at issue, must be held to a higher standard.
