On January 7, 2021, in the case of Dubikovskyy v. Goun, the U.S. District Court for the WD of Missouri, denied Mr. Dubikovskyy’s request to return his daughter to Switzerland.
Mr. Dubikovskyy (who is Ukrainian) and Ms. Goun (who is Russian) are permanent residents of Switzerland, where they resided with their daughter (age 12) in Lausanne, while Mr. Dubikovskyy commuted to Geneva for work. MD, their daughter, had been born in California, and was a U.S. citizen, but had not lived in the United States since age 3. In 2020, Ms. Goun accepted a teaching position in Missouri, and arranged to move with her new significant other (as the parties were still married), their child, and MD. She told Mr. Dubikovskyy, who was sharing joint custody over MD under a Swiss court order, the day before she left in July 2020. Litigation ensued, where Mr. Dubikovskyy obtained a subsequent Swiss custody order granting him custody, and a criminal arrest warrant for Ms. Goun’s child abduction from a Swiss court, which would extend to the entire Schengen region.
The parties agreed that Mr. Dubikovskyy made out a prima facie case for return. Ms. Goun argued two exceptions: a grave risk and the mature child’s objection. This blog focuses on the second. As a note, this blogger is seeing more cases that argue this exception in recent months.
In that Ms. Goun did not meet her burden to prove a grave risk, and the court was proceeding on only the child’s objection, it applied a stricter standard when evaluating MD’s wishes (see Custodio v. Samillan, 842 F.3d 1084). After speaking to MD twice, with an intervening evaluation, the court found that she had entered puberty, had a strong personality, is substantially above-average intellectually, and had a well-developed sense of responsibility for her sister and the feelings of others. In that English was not her first language, she still expressed her thoughts maturely. She gave particularized reasons for opposing a return to Switzerland that were in line with what an adult may consider when choosing a residence, including her responsibilities, the comfort of each place, and her opportunities to pursue goals and activities that were meaningful to her. She also expressed a sense of responsibility over her half-sister in Missouri.
The court then looked at whether it should nonetheless use its discretion to grant Mr. Dubikovskyy’s petition despite the mature child’s objection. It had some harsh words for Ms. Goun and her actions, but asked “whether the importance of deterring such conduct generally should trump MD’s particularized objection to being returned to Switzerland in this case.” It also considered that Ms. Goun is subject to arrest if she enters the Schengen area that has consequences for her personally and professionally. It concluded that MD is the only “innocent party” and should be permitted to remain in the United States based on her objection.