RICHMOND, Va. — Where the father alleged his ex-wife removed their two minor children from Anguilla to the United States in violation of his custody rights, but the mother showed the father consented to their removal, and the older and more mature child objected to being returned, the children will remain in the United States, a U.S. District Court judge has rule.<\/p>\n
U.S. District Judge Norman K. Moon of the Western Virginia District made his ruling in Davis v. Lake<\/em>.<\/p>\n Background and ruling<\/strong><\/p>\n Petitioner alleges his former wife wrongfully relocated the parties\u2019 two minor children to the United States from Anguilla. He filed this case pursuant to the Hague Convention and the International Child Abduction Remedies Act. The court makes the following findings following a bench trial.<\/p>\n To make a prima facie case of wrongful removal, petitioner must establish: (1) the children habitually resided in Anguilla at the time respondent removed them to the U.S., (2) petitioner had been exercising his custodial rights at the time of removal and (3) the removal violated petitioner\u2019s custody rights under Anguillan law. The court concludes that petitioner has established each of these elements, and thus shown a prima facie case of wrongful removal under the Hague Convention.<\/p>\n Exceptions<\/strong><\/p>\n \u201cIf a petitioner can demonstrate a prima facie case, the court must order the child[ren]\u2019s return to the country of habitual residence unless the respondent can establish one of the exceptions under the Hague Convention.\u201d In this case, two exceptions apply: petitioner consented to the children\u2019s removal and a mature child objected to being returned.<\/p>\n Consent<\/strong><\/p>\n Respondent testified that in January 2020 she told petitioner about her engagement, intended marriage and plan to relocate to Virginia with the children. And she testified that at that time, petitioner consented to their move to Virginia and further offered that he and respondent each be responsible for the purchase of a ticket per child. The court found respondent\u2019s testimony on this issue and her description of her other communications with petitioner to be forthright and credible, as well as supported by contemporaneous evidence.<\/p>\n Petitioner presented a contrary narrative. He testified that, when respondent brought up relocation, petitioner merely sought to initiate a follow-up conversation\u2014but that he hadn\u2019t consented to their move. However, the court found petitioner\u2019s testimony lacking in credibility, forthrightness and candor, and further it was belied by documentary evidence. Thus, respondent established the consent defense by a preponderance of the evidence, and the court accordingly finds that the children should not be returned to Anguilla.<\/p>\n Mature child<\/strong><\/p>\n The Hague Convention also has an \u201cage and maturity defense\u201d exception. Under this exception, a court is not required to order the return of a child wrongfully removed if the court determines by a preponderance of the evidence that \u201cthe child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.\u201d<\/p>\n Courts within this district have previously considered a child\u2019s testimony under oath to determine maturity. The court finds that 11-year-old A.V.D.D. displayed maturity for her age overall and demonstrated an understanding of the importance of the proceedings when testifying under oath, subject to cross-examination.<\/p>\n A.V.D.D. testified that she objected to returning to Anguilla because she likes her new life in Virginia, particularly her family, church, school and friends, noting she has more friends in Virginia than she did in Anguilla. Thus, her objection to return is not just based on comfort in her new surroundings but in specific aspects of her life that she finds superior in the U.S. The court further finds that A.V.D.D.\u2019s objection to returning to Anguilla does not appear to be the product of respondent\u2019s undue influence.<\/p>\n While the court does not find that nine-year-old V.E.A.D. showed sufficient maturity when testifying, the court notes that he testified as to liking life in Virginia because of the fun places to play, the fast-food restaurants, his school, his friends and activities outside of school. The court also notes his testimony that his mother did not speak with him much about the case.<\/p>\n Judgment for Respondent.<\/p>\n Davis v. Lake<\/em>, Case No. 6:22-cv-00050, Dec. 22, 2022. WDVA at Lynchburg (Moon).<\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" RICHMOND, Va. — Where the father alleged his ex-wife removed their two minor children from Anguilla to the United States in violation of his custody rights, but the mother showed the father consented to their removal, and the older and more mature child objected to being returned, the children will remain in the United States, …<\/p>\n","protected":false},"author":4199,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[52569,2536,71496],"tags":[],"class_list":["post-16382","post","type-post","status-publish","format-standard","hentry","category-articles","category-featured","category-cover-stories","never_free"],"acf":[],"yoast_head":"\n