Wigley v. Hares
82 So. 3d 932
Fla. Dist. Ct. App.2011Background
- Father Shawn Wigley, a St. Kitts resident, seeks return of his son S.W. under the Hague Convention as implemented by ICARA after the mother removed the child from St. Kitts to Florida in 2006.
- Trial court found removal wrongful and found, as defenses, that the child was settled in a new environment and that return would pose grave risk; court denied petition for return.
- Mother testified to a history of domestic violence, threats, and alleged sexual abuse allegations, and she concealed the child’s whereabouts after fleeing to Guyana and later to Florida.
- Child lived with mother in Florida since October 2006, was homeschooled without school district oversight, and had limited contact with relatives and outside activities.
- On appeal, the court held the child was not settled in his environment under Article 12, but affirmed the grave risk defense by clear and convincing evidence, thereby denying the return.
- The court reviewed through a limited, de novo lens on the legal standards, upholding the grave risk finding while reversing on the settled environment finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the child settled in his environment defense applicable? | Wigley argues settled status existed due to duration in Florida and bonding with new environment. | Hares contends child was not settled; concealment and lack of community ties undermine settled status. | Not settled in environment as contemplated by ICARA. |
| Does the grave risk defense justify denial of return? | Wigley asserts there is grave risk of harm to child if returned due to father’s violence threats. | Hares contends no grave risk; psychological harm is not grave harm and evidence insufficient. | Affirmed grave risk finding; return denied on that defense. |
| What is the proper standard of review for these factual determinations? | Wigley maintains deferential standard for factual findings should not reweigh credibility. | Hares argues that the appellate court should give deference but can review for clear error where appropriate. | Applied competent substantial evidence and de novo review for legal standards; did not reweigh the trial court’s credibility ruling. |
Key Cases Cited
- In re Ahumada Cabrera, 323 F.Supp.2d 1303 (S.D. Fla. 2004) (settled environment analysis, evidentiary standards)
- Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) (grave risk and settled environment conceptions; court’s stance on return vs protection)
- Lops v. Lops, 140 F.3d 927 (11th Cir. 1998) (consideration of concealment and related conduct in ICARA analysis)
- Baran v. Beaty, 526 F.3d 1340 (11th Cir. 2008) (court rejects burden on respondent to prove country protections)
- Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000) (grave harm standard; normal harms from removal are insufficient)
- In re Application of Adan, 437 F.3d 381 (3d Cir. 2006) (standard of review for Convention issues; deference to factual findings)
- Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir. 2005) (rejects reliance on foreign protections when grave risk exists)
- Baran v. Beaty, 526 F.3d 1340 (11th Cir. 2008) (explicit rejection of requiring proving country’s inability to protect)