SJ’s parents filed a return petition under the Hague Abduction Convention on or about August 2022 against SJ’s aunt and uncle in Colorado to return their 15-year-old daughter to the Bahamas.
On July 15, 2021, the Petitioner Parents executed a notarized affidavit to allow SJ to travel to Colorado Springs to “achieve her educational goals in the United States of America” but later revoked their consent of guardianship on December 23, 2021 by executing a separate second document after SJ did not return with them when they traveled to Colorado to retrieve her. The original affidavit gave “full custody care and control along with all necessary rights of guardianship over SJ to Respondents.” The Petitioner Parents traveled a few times to Colorado to attempt to retrieve the child, to no avail, before filing the Hague return petition.
Counsel and Attorney for the Supreme Court of the Bahamas testified remotely as to the guardianship affidavit saying it “simply gave the [aunt and uncle] the authority to have control over the minor child while in the United States for a specific purpose being educational activities.” She further testified it did not confer custody rights and could be revoked at any time. There were no termination of parental rights, and nothing was ever filed with the Bahamian courts.
SJ, in an in camera interview, advised the judge that she had been sexually abused by her father, and that she did not feel as if her mother would protect her. She feared that she would be institutionalized if returned for “ruining” her family’s reputation. She said she wished to remain with Respondents in Colorado permanently. The Petitioners argued that the Father moved from the family home while an investigation into these allegations were ongoing, but SJ did not believe this actually happened.
In its analysis, the court concluded that the United States, not the Bahamas, was SJ’s habitual residence. Petitioners allege that SJ was retained in Colorado as of December 18, 2021, when she did not return to the Bahamas with them. But, the court concluded that SJ’s habitual residence shifted to Colorado in August 2021 when she moved there. She engaged in all normal activities, including school, extracurriculars, medical care, friends, social groups, and planning for her future. SJ advised that she anticipates finishing high school and attending college in the United States. She testified that she considers Colorado her home, not the Bahamas.
The court further addressed three exceptions, argued by the Respondents. The court concluded that SJ would be exposed to a grave risk if returned to the Bahamas due to her father’s repeated sexual assaults, that her father’s connections in the Bahamas make it unlikely he would suffer adverse consequences, that the abuse would continue, and that her mother would not stop the abuse. The court examined ameliorative measures, and concluded that there are insufficient measures to protect the psychological and physical health of SJ if returned. The court found insufficient evidence that the Father would actually move out of the house, that the Bahamian law enforcement would conduct a thorough or impartial investigation, and that the the Petitioners would not place their daughter into a hospital or institution upon her return. Further, the child is mature and uninfluenced and had stated an objection to returning to the Bahamas in her in-camera interview. The Court made note that it found the Petitioner Mother not credible, acting volatile and having repeatedly loud outbursts on the witness stand. The Father did not take the witness stand. Finally, the court found that a May 2022 text from the Father and a May 2022 Facetime from the Mother telling SJ she could remain in Colorado were the Petitioners subsequent acquiescence to the child remaining in Colorado. As a note, the court did not cite to caselaw that defines acquiescence as requiring requisite formalities such as testimony in a judicial proceeding, a convincing written renunciation of rights or a consistent attitude over a specific period of time – see Friedrich v. Friedrich.
Regardless, the Court denied the Petitioner Parents’ request to have SJ returned. In that SJ is now age 15 years and 6 months, a lengthy appeal could end this matter, as once SJ attains age 16, the Convention no longer applies.