Case Update (7 May 2024): Swett Urquieta v. Bowe; in camera interview and child counsel assist court in finding child has a particularized objection to returning to Chile
The parties are parents to a son, age 11. The child is subject to a custody order that provided for Petitioner Mother to have sole physical custody of the child in Chile, shared legal custody, and visitation in New York City with his Father for about 90 days every year. In mid-2022, the Respondent Father “noticed a dramatic shift in [the child’s] mood and affect” which included depression, references to suicide, and self-harm. On December 23, 2022, the child and Father left Child for an authorized Christmas holiday in the USA, scheduled to return on January 8, 2023, but the Respondent Father did not return the child to Chile. The Petitioner Mother filed her request to return the minor child to Chile on February 23, 2024. During the litigation in the Hague Abduction Convention matter, the child was appointed independent counsel. The Respondent Father argued 3 separate exceptions to returning the child: (1) the child was “well-settled” in the USA, (2) the child objects to being returned, and (3) the child faces a grave risk of harm if returned to Chile. The Petitioner Mother proposed “ameliorative measures” to implement in Chile if the child were returned. On April 15th, the Court heard “extended in camera” testimony (of 3.5 hours) from the child, “in which the Court - guided by questions proposed by counsel for the parties and [the child] - questioned [the child].”
At trial, the court found some of the “most enlightening” information to come from the child himself. The child described his time in Chile in 2022 as “lonely and unhappy”. He had “at least 20 different nannies before leaving Chile”. He had 2 friends at school, but “could recall only one birthday party and two playdates with [the one friend].” He found his classwork “hard to understand and hard to keep up with” and more about “memorizing lessons” rather than “understanding the material.” He described school as “chaotic” with other children disrupting class. He described his weekends as “particularly lonesome” where he would wake “around 6:30 a.m.” and wait for his Mother to wake “often around midday”. He would spend most of his time in the apartment, and in 2022, he started to “feel his life was ‘messed up,’ and that Chile ‘wasn’t the right place’ for him…”. He missed his father, “with whom he spoke almost every day.” At one point, his unhappiness was so bad that “he scratched his arm with his fingernails, just below the elbow, digging deep enough to draw blood.” The child apparently told his father several times that he was depressed and did not want to live in Chile any longer. The court found the child’s testimony “broadly credible” and a “believable middle path between the accounts of his parents.” The court noted that the child’s behavior and affect “should have put custodial parent [Petitioner Mother] on red alert that the child was badly struggling and in need of help and attention, and that these signs grew during the final months of 2022.”
Ultimately, the child did not return to Chile on January 8, 2023, when the child’s travel authorization expired. In the subsequent month, the Father considered his options, and finally decided to not return the child “shortly before February 23, [2023] when, through the mediator, he conveyed that decision to [Mother].” On January 10, 2023, the Mother filed a police report in Chile, advising that the child had not been returned, but did not complete the police reporting process, and did not commence formal legal proceedings against the child’s Father. The Mother subsequently wrote to the Father asking him to confirm that he would be returning the child in time to start school on March 1, 2023. They engaged in mediation on February 23, 2023, when the Father, through the mediator, informed the Mother that the child would not be returning to Chile. On February 26, 2023, the date which the Mother insisted the Father would return the child to Chile for the start of the school year, the child did not return to Chile.
The Hague court rejected the grave risk of harm exception, indicating that “although [Father] fairly casts himself as rescuing [the child] from a sad existence to which [Mother] had turned a blind eye, the evidence falls far short of showing that [the child’s] circumstances in Chile were so intolerable, or durable, to make out the grave risk defense, let alone by clear and convincing evidence.”
The Hague court did, however, conclude that the child was mature and had “particularized and concrete” objections to returning to Chile, and that the Mother’s petition had been filed more than one year from the wrongful retention and the child is now settled in New York. The court concluded that the child never equivocated in his desire to be in New York and not Chile, and told everyone of this, even before he traveled to New York in late 2022. With the help of his attorney, the child also prepared a written statement that he presented to the court, in addition to his in camera interview. The court made note that the more luxurious lifestyle would be in Chile, with a large high rise apartment, a spacious vacation home in a beach town, and live-in nannies, as opposed to a “walk-up studio apartment, in which the two [Father and child] work side-by-side at a common desk”. The Mother’s expert opined that the child’s objections to return were the product of manipulation and intense influence, but the court disagreed, saying that the Father’s “words surely had the capacity to sway an undecided child” but qualifying that this child was far from undecided. The court scrutinized the child’s use of certain words that clearly came from adults, or his outcome-driven statements, but still found his responses “thoughtful, reflective, and genuine.”
In terms of the now-settled exception, the parties dispute the date on which the child was retained in New York, with the Father arguing January 8th, the Mother arguing February 23rd. The court selected January 8th, agreeing with the Father, citing to the volume of messages back and forth between the parents that reflected that the Mother did not consent or acquiesce to a later date in February for the retention, and the Father did not equivocate in his message that the child would not return.
Finally, the court concluded it was not going to exercise its equitable discretion to nonetheless return the child to Chile. The Mother had argued that the messages sent from Father to Child in the months leading up to the child’s departure from Chile, “alienated him from life in Chile, thus skewing in [Father’s] favor the two defenses the Court has found established here.”
