648 F. App'x 146
2d Cir.2016Background
- Petitioner Lisa Tann (U.K. citizen, lives in Northern Ireland) sought return of her son J.D. (then ~13) under the Hague Convention and ICARA after respondents George Alan Bennett (father) and Miranda Bennett (stepmother) retained him in New York.
- Magistrate Judge McCarthy conducted an in camera interview of J.D. and denied repatriation, finding J.D. objected to return and was sufficiently mature for his views to be considered; J.D. was allowed to remain in the U.S. pending state custody proceedings.
- Tann appealed, arguing (1) J.D. was not sufficiently mature to invoke Article 13 and (2) respondents unduly influenced J.D.’s testimony.
- The Second Circuit reviews legal interpretations de novo and factual findings for clear error; findings based on witness observation receive particular deference.
- The district court found J.D. articulate, expressed safety concerns about Northern Ireland, feared harming himself or others if returned, understood the oath, and denied undue influence by respondents.
- While a New York Family Court later awarded sole custody to George Bennett, this appeal focused on the Hague/Article 13 determination and the propriety of crediting J.D.’s objection.
Issues
| Issue | Plaintiff's Argument (Tann) | Defendant's Argument (Bennett) | Held |
|---|---|---|---|
| Whether J.D. attained an age and degree of maturity under Hague Art. 13 | J.D. was not sufficiently mature; court erred in relying on his views | J.D. was mature; his in camera demeanor and statements warranted consideration | Court: no clear error in finding J.D. sufficiently mature; deference to judge’s observation |
| Whether J.D. actually objected to return (vs. mere preference) | J.D.’s statements reflected preference, not a particularized objection | J.D. expressed specific fears and objections to returning to Northern Ireland | Court: J.D. expressed particularized objections; finding not clearly erroneous |
| Whether wrongful retention by respondents tainted J.D.’s objection | Tann: respondents’ prior wrongful retention contributed to J.D.’s objection, so Article 13 shouldn’t apply | Bennett: a considered objection by a mature child can alone justify refusal to repatriate | Court: precedent permits refusal based solely on a considered objection by a mature child; no requirement to discount objection due to retention |
| Whether respondents unduly influenced J.D.’s testimony | Tann: J.D.’s testimony was product of undue influence | Bennett: J.D. understood oath, said he wasn’t influenced, and testified consistently | Court: district court did not clearly err; found no undue influence based on record and J.D.’s statements |
Key Cases Cited
- Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) (Article 13 maturity and objection analyses are factual; deference to factfinder’s observations)
- Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (Hague Convention’s purpose to protect children and restore status quo via prompt return)
- United States v. Cuevas, 496 F.3d 256 (2d Cir. 2007) (factual findings based on witness observation entitled to particular deference)
- Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259 (3d Cir. 2007) (distinguishes generalized preference from particularized objections by a child)
- Tann v. Bennett, 807 F.3d 51 (2d Cir. 2015) (related proceeding addressing custody jurisdiction after repatriation denial)