Case Update (6 Dec 2022): Dubikovskyy v. Goun; mature child did not state particularized objection; 8th circuit reverses order and requires child's return
The parties are parents to one child, age 12 at the time of the Hague Abduction Convention return trial. They shared custody under a Swiss order. In July 2020, Ms. Goun removed the child to Missouri, after having accepted a faculty position at the University of Missouri. She petitioned the Swiss court to transfer the child's residence to the United States, arguing that the child wanted to remain in the United States. Instead, the Swiss court denied her petition, found that she violated the custody arrangement, and granted Mr. Dubikovskyy the sole right to determine the child's residence. This was upheld on appeal. Separately, Mr. Dubikovskyy initiated criminal proceedings in Switzerland, and there is an arrest warrant for Ms. Goun if she travels anywhere to Switzerland or any other Schengen country.
Mr. Dubokovskyy filed a return petition under the Abduction Convention. Ms. Goun argued, among other things, that the child was mature and objected. The court, 2 days after an evidentiary hearing, appointed a psychologist to opine on the child's maturity and independence, concluding she was not coached (by her mother). The court, upon receiving the opinion, interviewed the child in camera, "this time outside the presence of counsel." On January 7, 2021, the court denied Mr. Dubikovskyy's return petition, relying on the mature child exception.
On December 6, 2022, the U.S. Court of Appeals for the 8th Circuit... On appeal, Mr. Dubikovskyy did not contest that his child had attained an age and degree of maturity. Instead, he argued that the child stated a preference, and not an objection, to remaining in the United States. [Note: "The district court noted M.D. 'was reluctant to use the word objection because she did not want to make her father sad,' but nonetheless concluded that 'there is no doubt based on her words and expressions that she does not want to return to Switzerland.'"]
"In an effort to determine whether M.D. truly 'objected' to returning to Switzerland, the district court asked her if she knew the meaning of the words 'objection' and 'preference.' M.D., speaking in a second language, said she did not understand 'object.' The court tried to explain the difference between the two words by offering M.D. some examples: 'I object to cleaning the bathroom.' 'I object to my little sister yelling in my ears.' 'Do you object to getting up early in the morning to go to school?' The court continued by saying that '[a]n objection is something you don’t want. You’re displeased. One is stronger than the other.' When the court then asked M.D. whether she 'objected' to returning to Switzerland or whether she simply 'preferred' one location over the other, M.D. was equivocal." [Note, the child testified in English, which is not her first language].