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Media Alerts - Custodio v. Torres Samillan - Eighth Circuit
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December 19, 2016
  Custodio v. Torres Samillan - Eighth Circuit
Headline Eighth Circuit panel affirms denial of petition under international child abduction statute

Area of Law International Law, Child Custody

Issue(s) Presented Whether the district court properly denied a Peruvian citizen's petition under an international child abduction statute seeking the return of his two sons removed to the United States by their mother.

Brief Summary The parties were both born and resided in Peru, and were previously married. That marriage produced two children. After the couple divorced, the children lived primarily with their mother, Torres Samillan. In 2014, Torres Samillan sought and was granted permission by a Peruvian court to take the children to the United States. The order required that they return to Peru by March 24, 2014. Shortly after arriving in the United States, Torres Samillan married an American citizen, and subsequently had a child. Meanwhile, Custodio sought and obtained four Peruvian court orders compelling the return of the children to Peru. Torres Samillan never returned the children, and Custodio filed a petition seeking return of the children under the Hague Convention on Civil Aspects of International Child Abduction (Hague Convention) and its implementing statute, the International Child Abduction Remedies Act (ICARA).

The district court denied the petition. It found that one child was 16 years old, and as such the Hague Convention no longer applied to him. With respect to the younger child, the district court applied the mature child defense in denying the petition, and credited the child's testimony that he wished to remain in the United States with his mother and was afraid of his father. Custodio appealed, and a panel of the Eight Circuit affirmed the denial with respect to both children.

Concerning the elder child, the Eighth Circuit held that the language of the Hague Convention and the State Department's interpretation of the Convention make clear that it ceases to apply to children once they reach the age of 16. Because the elder child had turned 16 years old during the pendency of the proceedings, the Hague Convention no longer applied to him.

With regard to the younger child, who was 15 years old, the court affirmed the district court's application of the mature child defense, which is an affirmative defense to the Hague Convention. It requires that the child be of an age and level of maturity that it is appropriate to take its views into account, and that the child objects to being returned. The proper standard of review to apply to a child's objections was a matter of first impression for the Eighth Circuit, which followed out-of-circuit authority in determining that the child's objection is subject to a clear error standard of review. Here, the district court observed the child twice, in chambers and in open court subject to cross examination. The district court found the child to be thoughtful, intelligent, and genuine. The district court credited his testimony that he wished to remain with his mother, brothers, and stepfather, and did not want to return to Peru because he was afraid of is father and preferred his school and friends in America. A mature child's views on return can be conclusive, and the district court did not commit clear error in finding that the child's statements supported denial of the petition based on the mature child defense.

The full text of the opinion may be found at

Panel Circuit Judges Arnold, Kelly, and Wollman

Date of Issued Opinion December 2, 2016

Decided Affirmed

Docket Number 16-1268

Counsel Gregory J. Minana for Appellant and Kelley Farrell for Appellees

Author Circuit Judge Kelly

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 12/19/2016 12:57 PM     8th Circuit  

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