Case Update (12 Sept 2023): McElligott v. McElligott; mature 12-year old with particularized object was found to be unduly influenced and therefore returned to Ireland
The parties are parents to two sons, both born in Ireland. Respondent Mother, an American citizen born in New York, is accused of wrongfully retaining the parties’ eldest son (age 12) from Ireland in New Jersey on or around November or December 2022 (beyond a planned 2-week holiday). The Petitioner Father, an Irish citizen, seeks the return of that child pursuant to the Hague Abduction Convention. As a note, the parties’ youngest son was also with the Respondent in New Jersey, but was returned on a plane alone in January 2023 to Ireland.
The court granted Respondent’s request to conduct an in camera interview (on-the-record) of the child and did so one week before the trial, but denied the Respondent’s request for attorneys to be present at the interview in order to “best… determine the applicability of the mature child defense.” The parties separately submitted proposed questions for the interview, and the interview ultimately lasted about 35 minutes. This interview was followed by pre-trial memoranda and a 2-day bench trial. Each party called their own expert child psychologist at trial, who rendered opinions on the child’s maturity, his reasons for wanting to remain in the United States, and whether his reasons were the product of undue influence. Both experts agreed as to the child’s maturity and particularized objections, but diverged on whether those objections were the product of undue influence. The court sustained the Petitioner’s objection to the child testifying at trial.
The court found the fact witnesses to be credible, and described Respondent’s parents as not hiding their animosity towards the Petitioner, with each acknowledging unflattering discussions about and/or characterizations of the Petitioner, with no effort to refrain from these statements in the child’s presence.
During the child’s in camera interview, along with his 4 interviews with the 2 experts, the child “painted, among other things, a picture of his unadulterated misery in Ireland, with disdain and outright loathing of his father, portraying Petitioner as evil incarnate. In contrast, he described his life here in the United States as Shangri-la.” … “the Court found [the child’s] in camera rendition of his life in Ireland and the United States, and his portrayal of his father, only marginally reliable as they appeared self-serving, contrived, and quite skewed.” The child was apparently apprised of a plan to remain in the United States prior to traveling for the 2-week holiday in November 2022. He told one of the experts that there was a backup plan if the courts were to force him to return to Ireland that involved his mother filing for divorce and custody. Apparently to the other expert, the child reportedly stated that “he would make his father’s life a ‘living hell and that the police would need to be called all the time’” if he were returned to Ireland.
The court found that Respondent did not meet her burden to prove that returning the child would expose him to a grave risk of harm, leaving only the argument that the child is mature and objects. “[T]he Court ‘must apply a stricter standard in considering a child’s wishes when those wishes are the sole reason underlying a repatriation decision and not part of some broader analysis,’ such as whether the child would suffer a grave risk of harm…” The Court further noted that undue influence can be caused by the length of time the child remains in the new environment, and the passage of time may create the child’s desire to remain in said new environment. Citing a 3rd Circuit case, the Court noted that this “would encourage parents to wrongfully retain a child for as long as possible.”
The child’s unbalanced views of his parents was concluded to be the product of undue influence. His lengthy stay in New Jersey, coupled with the admitted animosity towards the Petitioner Father by his Mother and her family, also contributed. The testimony of the Father’s expert, who the Court found more credible and neutral, concluded that the child’s polarized opinion of his Father was the result of undue influence. The child’s choice of words were uncommon for a 12-year old, and were attributed to repeating the words of those adults with whom he was living.
The Court declined to use its discretion and ordered the minor child returned to Ireland.
