Carlson v. Carlson
1:22-cv-00345
D.R.I.Jan 19, 2023Background
- Parties (U.S.-divorced parents) share joint legal custody; child E.C., a German habitual resident, was born in 2009 and lived in Germany pursuant to the divorce decree.
- E.C., age 13 at time of proceedings, came to Rhode Island to stay with his father, Kurt, for summer 2022 and on August 11, 2022 refused to board his return flight to Germany.
- Mother Anke filed a Hague Convention petition seeking E.C.’s return to Germany; district court expedited proceedings, appointed a GAL, and conducted in-camera interview and a two-day evidentiary hearing.
- Parties agreed Hague applies, E.C. was wrongfully retained in the U.S., and both parents have custodial rights; the sole contested issue became the Article 13(b) (mature-child) exception.
- Court found E.C. articulate and sufficiently mature, and that his objections to return were specific (school-credit/academic disruption, stressful German schooling, living arrangements, extracurricular opportunities) rather than mere preferences.
- Court denied the petition for return under the mature-child exception and assessed legal fees and costs against the petitioner as required by statute.
Issues
| Issue | Plaintiff's Argument (Anke) | Defendant's Argument (Kurt) | Held |
|---|---|---|---|
| Applicability of the Hague Convention | Hague applies; child should be returned | Parties agreed Hague applies | Hague applies; jurisdiction proper (court where child located) |
| Age/maturity for Article 13 consideration | E.C. is not sufficiently mature for his views to control | E.C., age 13, is mature enough to have views considered | Court found E.C. sufficiently mature to invoke Article 13 |
| Objection vs. mere preference | E.C.’s statements are preferences, not an objection that can defeat return | E.C.’s statements are specific, consistent objections to returning | Court found E.C.’s reasons specific and amount to an objection, not a mere preference |
| Effect of mature-child exception on return and costs | Return should be ordered pending custody; fees not necessarily imposed on petitioner | Mature-child exception justifies denying return; prevailing party entitled to statutory fee award | Petition denied under mature-child exception; legal fees/costs assessed against petitioner per statute |
Key Cases Cited
- Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000) (describes Hague Convention purpose to restore pre‑removal status quo)
- Vieira v. De Souza, 22 F.4th 304 (1st Cir. 2022) (district court’s limited Hague role to determine interim location)
- Rodriguez v. Yanez, 817 F.3d 466 (5th Cir. 2016) (explains mature‑child exception and distinction between preference and objection)
- Dubikovskyy v. Goun, 54 F.4th 1042 (8th Cir. 2022) (discusses discerning objection vs. preference and ‘‘particularized objection’’ standard)
- Garcia v. Pinelo, 808 F.3d 1158 (7th Cir. 2015) (addresses maturity inquiry under Article 13)
- Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008) (recognizes custodial rights under an existing decree)