Eduardo Custodio v. Cecilia Marianela Torres Samil
2016 U.S. App. LEXIS 21517
8th Cir.2016Background
- Parents are Peruvian citizens; mother Torres brought sons M. and G. to St. Louis in Feb 2014 with Peruvian court permission to return by Mar 24, 2014; she did not return them.
- Peruvian courts denied extension and since April 2015 issued multiple orders directing return; children have lived in St. Louis with Torres, her husband (U.S. citizen), and a baby brother.
- Father Custodio filed a Hague/ICARA petition (July 28, 2015) seeking prompt return; district court held a three-day evidentiary hearing with both boys testifying and Torres pro se.
- District court assumed a prima facie Hague case but denied return based on the Article 13 “mature child” affirmative defense for G.; M. turned 16 during the case.
- Custodio appealed, challenging mootness as to M., the district court’s mature-child finding for G., and whether the district court abused its discretion in refusing return.
Issues
| Issue | Plaintiff's Argument (Custodio) | Defendant's Argument (Torres) | Held |
|---|---|---|---|
| Mootness as to M. (age 16) | Convention should apply if child was under 16 at removal; otherwise delay would be incentivized | Convention ceases to apply when child reaches 16, even during proceedings | Affirmed moot as to M.: Convention ceases at 16 (appeal dismissed as to M.) |
| Standard of review for child’s objection | De novo review; objection is mixed question of law and fact | Clear-error review; credibility and demeanor findings are factual | Clear-error review applies to whether child objected |
| Scope of mature-child defense (may child base objection on custody-related reasons?) | Child’s custody-based objections are improper because they require deciding custody | Child’s views can be conclusive even if based on custody concerns; Convention contemplates mature child’s own assessment | District court may consider custody-relevant objections; not required to segregate them |
| Abuse of discretion in refusing return despite defense | Refusal rewards wrongful retention, undermines Peruvian custody orders and Convention’s deterrent purpose | Court may defer to mature child’s views; discretion to decline return remains | No abuse of discretion: district court reasonably credited G.’s sincere objections and exercised permissible discretion |
Key Cases Cited
- Rydder v. Rydder, 49 F.3d 369 (8th Cir.) (explains Hague Convention return framework)
- Barzilay v. Barzilay, 536 F.3d 844 (8th Cir. 2008) (distinguishes custody merits from Convention return proceedings)
- Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) (gives deference to trial court’s child-interview credibility findings)
- de Silva v. Pitts, 481 F.3d 1279 (10th Cir. 2007) (discusses weighing mature child’s views and deference to trial court)
- Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259 (3d Cir. 2007) (explains stricter standard when child’s wishes are sole basis for refusal)
- Rodriguez v. Yanez, 817 F.3d 466 (5th Cir. 2016) (holds mature child’s custody-based objections may still be conclusive)
- Abbott v. Abbott, 560 U.S. 1 (2010) (Executive Branch treaty interpretations receive substantial deference)