Karla Cecelia Escobar v. Cesar Flores, C061316

In an April 7, 2010 decision, CA-3 affirmed a Mono County Court decision to reject a mother’s petition to compel her 8-year-old son’s return to his native Chile under the rules of the 1980 Hague Convention based on the boy’s clearly stated preference to remain in the United States.

Born in 2000, Cesar Flores resided in Mono County, CA for the first 4 years of his life. His unmarried parents agreed to let Cesar take an extended vacation with his mother in her native Chile in 2004, but the mother decided that neither she nor Cesar would be returning. A Chilean Court granted the mother custody, and for the next 4 years, Cesar lived in Chile with his mother and her family.

In 2008, Cesar was sent by his mother back to Mono County to visit his mother’s sister. Upon learning of this, Cesar’s father filed a petition to establish parentage and was awarded temporary custody. Cesar’s mother immediately filed a petition under the Hague Convention (adopted 1980 to prevent the unilateral retention of children across national borders). Cesar’s father responded that, according to a clause under Article 13 of the Convention, the judicial authority may “refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”

Cesar did not want to go back to Chile. He told the Court he only had one friend and no room, bed or television of his own. He liked being with his father more than with his mother. Cesar said he felt good in America, not in Chile. The Court determined Cesar was not under undue influence when he told the Court his preference of residence and custodial parent. Moreover, the Court determined Cesar possessed a sufficient degree of maturity to express that preference. The Mono County Superior Court thus rejected the mother’s petition and rendered a Statement of Decision on March 5, 2009.

Cesar’s mother appealed the decision and argued that the appellate court’s review would ultimately be de novo, reviewing all the evidence to determine whether or not Cesar was mature enough to express his preference. Cesar’s father responded that the Appellate Court’s role was only to determine if the lower Court had made an error in determining Cesar’s maturity.

The CA-3 Appellate Court determined that it would be inappropriate to do a de novo review as it only had Cesar’s transcript before it and not a living, breathing child whose nuance and body language might convey maturity where unadorned words would not. In reviewing other cases, the Court determined that an 8-year-old child is not too young to display the sufficient degree of maturity required under the Hague Convention, and upon reviewing the case transcript, further determined it could “not say the inferences the trial court drew were unreasonable, and this precludes us from overturning the court’s determination.” The Appellate Court cited Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1122: “Where two or more different inferences can reasonably be drawn from the evidence, this court is without power to substitute its own inferences for those of the trial court and decide the case accordingly.”

Full transcript of the Court’s decision can be found here.