Vladyslav Dubikovskyy v. Elena Goun
54f4th1042
8th Cir.2022Background
- M.D., born in 2008 in California, lived with her parents in Lausanne, Switzerland; parents (Goun and Dubikovskyy) had an April 2018 Swiss conciliation agreement providing weekly shared custody.
- In July 2020, Goun took 12-year-old M.D. to the United States in violation of an agreement (and an explicit COVID-era understanding not to travel to North America); Goun had accepted a U.S. faculty job and purchased a Missouri home.
- A Swiss court ordered Goun to return M.D.; the Swiss court later denied Goun’s request to transfer M.D.’s residence and labeled the travel an illegal abduction; criminal proceedings against Goun were initiated in Switzerland.
- Dubikovskyy filed a Hague Convention petition in U.S. district court seeking M.D.’s return to Switzerland; district court held an evidentiary hearing, interviewed M.D. in camera, and appointed a court expert psychologist.
- The district court denied the petition under the Hague Convention’s Article 13 “mature child” defense, finding M.D. sufficiently mature and that she objected to returning.
- The Eighth Circuit reversed, concluding M.D.’s testimony showed a preference to remain in Missouri, not a particularized objection to returning to Switzerland, so the mature child defense did not apply and return must be ordered.
Issues
| Issue | Dubikovskyy (Plaintiff) | Goun (Defendant) | Held |
|---|---|---|---|
| Whether petitioner proved prima facie Hague return elements (habitual residence, breach of custody, petitioner exercising rights) | Argued yes — child habitually resided in Switzerland; removal breached his custody rights; he was exercising rights | Did not dispute prima facie elements | Court accepted prima facie case for return |
| Whether Article 13 "mature child" defense applies (child objects to return and is mature) | Argued district court erred: M.D. expressed only a preference to stay, not a particularized objection to returning | Argued M.D. is mature and objected to return, so return may be refused | Reversed: although mature, M.D. gave reasons showing preference, not a particularized objection; defense fails |
| Whether the district court’s factual finding that M.D. "objected" was clearly erroneous | Argued yes — record shows equivocal answers and preference-based reasons, not an objection | Argued court reasonably found an objection given M.D.’s statements and demeanor | Eighth Circuit: district court’s finding was clearly erroneous; reversal required |
Key Cases Cited
- Custodio v. Samillan, 842 F.3d 1084 (8th Cir. 2016) (framework for Hague Convention return and mature-child analysis)
- Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995) (purpose of Hague Convention to restore status quo and deter forum-shopping)
- Monasky v. Taglieri, 140 S. Ct. 719 (2020) (best place to decide custody is country of habitual residence)
- Rodriguez v. Yanez, 817 F.3d 466 (5th Cir. 2016) (mature child defense permits refusal to return a mature child who objects)
- Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259 (3d Cir. 2007) (distinguishes mere preference from particularized objection for mature-child defense)