Case Update (30 Oct 2024): Silva v. Santos; a 13-year-old’s “preferences” meant the Court did not return the child to Brazil
The parties are parents to one 13-year old son. The parties stipulated to the Petitioner Father’s prima facie case, and that left only the one exception argued by the Respondent Mother - that the child was mature and objected to his return. The court, in stating the law, acknowledged that a court may refuse repatriation solely on a sufficiently mature child’s considered objection, and that the court must apply a stricter standard if the child’s wishes are the sole reason for denying the return petition. The court also noted that undue influence is to be considered in assessing the child’s objection. The child, in this case, testified at trial, and “explained that there is more opportunity in the U.S. and he hopes to earn a scholarship and attend college here.” Apparently, when the Respondent Mother was served with the Petition, she picked up the child from school and “explained the meaning of the Petition to him, and stated that he has discretion on whether to remain in Florida or return to Brazil”. The Father argued that the Respondent and her sister would “influence” the child’s responses to him during telephone calls, but the court noted that the Petitioner “fails to describe which responses were influenced or how [the Child’s] mother and aunt influenced” him. The court concluded that the child had attained an age and degree of maturity sufficient “to have his preferences heard and acknowledged”. The court felt that the child’s decision to remain is the “product of thoughtful consideration, including the presence of family and friends, educational opportunities, and quality of life.” The court further found that his “preference” was “not the product of undue family pressure” and therefore the court will honor his “preference” and deny the Father’s request to return the child.
Compare this case to a few other cases where children’s views were considered, all that focused on whether the child had a particularized “objection”, (the word used in Art. 13) rather than a “preference.” In McElligott v. McElligott, a 12 year old was found to be unduly influenced, and returned to Ireland. In Swett v. Bowe, an 11 year old was found to be mature and had “particularized and concrete” objections to returning to Chile. In 2022, the 8th Circuit Court of Appeals reversed a non-return order, finding the child’s objections to not be an objection, but instead a preference. Also, look at Romanov v. Soto, where it was a close call, but the court concluded that the child’s preference were not particularized objections, and therefore could not make out the basis of the argument.
