LOCKHART v. SMITH

Filing 21

FINDINGS OF FACT & CONCLUSIONS OF LAW By JUDGE GEORGE Z. SINGAL. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KIMBERLY A. LOCKHART,
Petitioner,
v.
PHILIP G. SMITH,
Respondent.

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) Docket No. 2:11-cv-00348-GZS
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FINDINGS OF FACT & CONCLUSIONS OF LAW
Before the Court is Petitioner Kimberly Ann Lockhart’s Petition for Return of Child
(Docket #1 (hereinafter, the “Petition”)), which invokes her rights under the Hague Convention
on the Civil Aspects of International Child Abduction (the “Hague Convention”), opened for
signature October 25, 1980, T.I.A.S. No. 11, 670, 19 I.L.M. 1501, and the International Child
Abduction Remedies Act (“ICARA”), 42 U.S.C. § 11601 et seq. This is the Petitioner’s second
Petition for Return of Child. In 2006, the Court held an evidentiary hearing on the Petitioner’s
first Petition for Return of Child. The Court incorporates by reference the factual findings from
its earlier opinion, Lockhart v. Smith, No. 06-cv-160-P-S, 2006 WL 3091295 (D. Me. Oct. 20,
2006), and will not repeat those findings here.
The Court held an evidentiary hearing in this matter on September 20, 2011. Based on
the record now before the Court, the Court GRANTS the Petition for Return (Docket #1). In
connection with this ruling, the Court makes the following findings of fact and conclusions of
law:

I.

FINDINGS OF FACT
A.

The Parties
1.

Petitioner Kimberly Ann Lockhart (“Lockhart") is a citizen of Canada and

resides in Nova Scotia, Canada. She is the mother of S.P.S. and G.T.S.
2.

Respondent Philip Gavin Smith (“Smith”) is a citizen of the United States

and resides in Maine.

He is the father of S.P.S. and G.T.S. (together, the

“Children”).
3.

S.P.S. is the eleven year old daughter of Lockhart and Smith. She has dual

citizenship in the United States and Canada.
4.

G.T.S. is the twelve year old son of Lockhart and Smith. He has dual

citizenship in the United States and Canada.
B.

Habitual Residence, Custody, and Custodial Rights
5.

Petitioner and Respondent stipulate that Petitioner is the custodian of the

Children.
6.

Petitioner and Respondent stipulate that Canada is the habitual residence

of the Children.
7.

Petitioner and Respondent stipulate that Petitioner was exercising or

attempting to exercise her custodial rights at the time she filed her Petition.
8.

Respondent stipulates that Petitioner makes a prima facie case against

Respondent for wrongful retention under the Hague Convention.

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C.

The Hague Convention Article 13 Child’s Wishes Defense
9.

Respondent has waived all other defenses under the Hague Convention

and he stipulates that his sole defense in this action is the “child’s wishes” defense
under Article 13 of the Hague Convention.
10.

Pursuant to Respondent’s “child’s wishes” claim, I interviewed the

Children in camera.
11.

When I interview S.P.S. in camera, I found her to be delightful and

mature. She expressed to me that she is happy to return home to Canada, that she
misses her friends in Canada, and that she is ready to return to school in Canada.
S.P.S. expressed no negative views about returning to Canada and she did not
object to returning to Canada. It is apparent to me that she loves both of her
parents.
12.

When I interviewed G.T.S. in camera, I found him to be delightful and

mature as well. He also expressed to me that he is happy to return home to
Canada, that he misses his friend in Canada, and that he is ready to return to
school in Canada. G.T.S. expressed no negative views about returning to Canada
and he did not object to returning to Canada. It is apparent to me that he loves
both of his parents.
II.

CONCLUSIONS OF LAW
A.

Jurisdiction
1.

The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 11603.

The Children were and continue to be located within the jurisdiction of this Court
since the pending petition was filed.

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B.

Prima Facie Case
2.

It is the burden of the Petitioner to show by a preponderance of the

evidence that S.P.S. and G.T.S. have been wrongfully retained in Maine.
3.

Under Article 3 of the Hague Convention of the Civil Aspects of

International Child Abduction, the removal or retention of a child is deemed
wrongful where “it is in breach of the rights of custody attributed to a person …
under the law of the State in which the child was habitually resident immediately
before the removal or retention” and “at the time of removal or retention those
rights were actually exercised … or would have been exercised but for the
removal or retention.”
4.

Based on the Respondent’s stipulation, the Court finds that Petitioner is

the custodian of the Children.
5.

Based on the Respondent’s stipulation, the Court finds that Canada is the

habitual residence of the Children.
6.

Based on Respondent’s stipulation, the Court finds that Petitioner was

exercising or attempting to exercise her custodial rights at the time she filed her
Petition.
7.

The Court finds that Petitioner has made a prima facie case against

Respondent for wrongful retention under the Hague Convention.
C.

The Hague Convention Article 13 Child’s Wishes Defense
8.

Under Article 13 of the Hague Convention, the Court may refuse to return

a child to the country of his or her habitual residence if the Court “finds that the

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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.”
9.

Pursuant to the “child’s wishes” exception, the Court may take the

testimony of G.T.S. and/or S.P.S. in camera to determine whether to refuse to
return the children to their country of origin because the children object to being
returned. See Yang v. Tsui, 499 F.3d 259, 279 (3d Cir. 2007); Falk v. Sinclair,
No. 09-346-P-S, 2009 WL 4110757, at *3 (D. Me. Nov. 23, 2009). The Court’s
“analysis of whether to apply the wishes of the child exception requires
consideration of the goals of the Convention and a determination of whether the
child is of sufficient age and maturity for his or her views to be taken into
account.” Yang, 499 F.3d at 279. The issue of “sufficient age and maturity” is
decided on a “case-by-case basis.” Id. “In making its determination, a court
should also consider whether a child’s desire to remain or return to a place is the
product of undue influence, in which case the child’s wishes should not be
considered.” Id. (internal quotations omitted).
10.

While “[t]he child’s wishes can be the sole reason that a court refuses to

order the return of the child to his or her habitual residence,” a “court must apply
a stricter standard in considering a child’s wishes when those wishes are the sole
reason underlying a repatriation decision.” Id. at 278.
11.

The child’s expression of a preference to remain in the respondent’s

country “is not enough … to disregard the narrowness of the age and maturity
exception to the Convention’s rule of mandatory return.” Id. at 279.

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12.

Based on my in camera interview of S.P.S., I find that she has attained

sufficient age and maturity that it is appropriate to take her views into account.
S.P.S.’s views do not foreclose her being returned to Canada. She does not object
to being returned to Canada, she expressed no negative views about returning to
Canada, and she expressed that she would be happy to return to Canada.
13.

Based on my in camera interview of G.T.S., I find that he has attained

sufficient age and maturity that it is appropriate to take his views into account. As
with S.P.S., G.T.S.’s views do not foreclose his being returned to Canada. He
does not object to being returned to Canada, he expressed no negative views about
returning to Canada, and he expressed that he would be happy to return to
Canada.
14.

The Court finds that Respondent has failed to establish that the Children

object to being returned to Canada.
D.

Costs
15.

Pursuant to Article 26 of the Hague Convention and 42 U.S.C. §

11607(b)(3), the Court “shall order the [R]espondent to pay necessary expenses
incurred by or on behalf of the [P]etitioner, including court costs, legal fees, foster
home or other care during the course of the proceedings in the action, and
transportation costs related to the return of the child, unless the respondent
establishes that such order would be clearly inappropriate.”

42 U.S.C. §

11607(b)(3). In order to comply with this provision of ICARA, Petitioner shall
file an itemized bill of said costs within 14 days of this Order. Respondent may
respond with any objections to Petitioner’s itemized bill of costs within 14 days.

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III.

CONCLUSION
The Court hereby GRANTS the Petition for Return (Docket #1) and ORDERS that

G.T.S. and S.P.S. shall remain in the custody of their mother, Petitioner Lockhart, so that they
may be transported back to Canada. The Court further ORDERS that the Clerk of the United
States District Court for the District of Maine release the Children’s birth certificates and Social
Security cards to Petitioner so that she may transport the Children back to Canada. Nothing in
this Order shall prevent the relevant courts in Canada from making an independent determination
with respect to the custody of G.T.S. and S.P.S.

SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 20th day of September, 2011.

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