Case Update (2021): Avendano v. Balza; Hague Abduction Convention, mature child objection and undue influence

Jan 21

In Avendano v. Balza, the First Circuit affirmed the U.S. District Court's refusal to return G, a minor child, to Venezuela on the basis that G was mature, and objected to the return. The Petitioner Mother appeals the court's finding on two points.

Point one: Petitioner argues the court wrongly concluded the child was mature

The trial judge did not commit clear error when concluding that the child was mature. The trial judge had examined a variety of witnesses who had observed the minor child's demeanor, heard testimony from the child's Guardian Ad Litem, and had even interviewed the minor child personally in the GAL's office before concluding that the child's desires were "very clear, consistent, and rational" and that he not only stated a preference for the United States, but clearly objected to being returned to Venezuela. The Court rejected the Petitioner's argument that the Court should have examined the child's maturity at the time of the wrongful retention instead of at the time of the evidentiary hearing.

Point two: Petitioner argues the court wrongly concluded that the child was not unduly influenced

While the language of the Hague Abduction Convention does not require that the court examine any undue influence over the minor child when assessing the child's objections to being returned, the U.S. Department of State has highlighted the potential for the Taking Parent to "brainwash" the minor child, thereby influencing the child's viewpoint. If the court concludes that the child was unduly influenced, it has the discretion to weigh the child's objection accordingly. The court did not clearly err in determining that the Respondent did not unduly influence G's views.

Melissa Kucinski

Melissa Kucinski works with family lawyers to strategically resolve their clients’ complex international cases. A fellow of the AAML, the IAFL, and chair of international family law committees in the American Bar and New York State Bar Associations, Melissa is a respected colleague to have on any legal team. A former consultant for the Hague Conference on Private International Law, member of the Uniform Law Commission’s Joint Editorial Board on Uniform Family Laws, and member of the U.S. Secretary of State’s Advisory Committee on Private International Law, Melissa maintains a robust network to help her clients in international disputes.

https://mkfamily.law/