                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-1268
                         ___________________________

                               Eduardo Paul Custodio

                        lllllllllllllllllllllPetitioner - Appellant

                                            v.

                         Cecilia Marianela Torres Samillan

                      lllllllllllllllllllllRespondent - Appellee
                                      ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                           Submitted: September 21, 2016
                              Filed: December 2, 2016
                                     [Published]
                                   ____________

Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
                         ____________

KELLY, Circuit Judge.

      Eduardo Paul Custodio and Cecilia Marianela Torres Samillan (Torres) are the
parents of two sons, M. and G., who were born and resided in Peru until Torres
removed them to the United States in 2014. Custodio now seeks M. and G.’s return
to Peru under the Hague Convention on Civil Aspects of International Child
Abduction (Hague Convention), Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S.
89—to which Peru and the United States are parties—and its implementing statute the
International Child Abduction Remedies Act (ICARA), 22 U.S.C. §§ 9001–11. The
district court1 denied Custodio’s petition and we now affirm.

                                    Background

       Custodio and Torres, both Peruvian citizens, were married for two years,
separating in May 2004. Their union resulted in two children, 16-year-old M. and 15-
year-old G. The couple subsequently divorced, and the Peruvian court issued a
custody order pursuant to which the children lived with their mother for the majority
of the year.

       In November 2013, Torres sought permission from the Peruvian court to travel
from Peru to St. Louis with M. and G. for medical treatment on M.’s eye and vacation
for G. Without opposition from Custodio, the Peruvian court authorized M. and G.’s
travel to St. Louis, requiring that they return by March 24, 2014. Torres and the
children arrived in St. Louis in February 2014. Shortly thereafter, Torres married an
American citizen, and the couple have since had a son.

       Torres failed to return the children to Peru by the deadline. The Peruvian court
denied Torres’ application to extend the travel authorization, and the denial was
affirmed on appeal. Custodio filed several requests seeking return of the children, and
since April 2015, the Peruvian court has issued four orders compelling Torres to
return M. and G. to Peru. M. and G. have not returned to Peru and currently reside
with Torres, her husband, and their baby brother in the St. Louis area.




      1
      The Honorable John A. Ross, United States District Judge, Eastern District of
Missouri.

                                         -2-
       The Hague Convention entitles a person whose child has wrongfully been
removed to or retained in the United States to secure the prompt return of the child to
the child’s country of habitual residence, unless the respondent can establish that an
affirmative defense applies. See Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995).
On July 28, 2015, Custodio filed a petition in district court seeking return of the
children under the Hague Convention and ICARA. The district court held a three-day
evidentiary hearing, at which Torres appeared pro se. M. and G. testified both in
chambers and in open court. On December 29, 2015, the district court denied the
petition. The court assumed that Custodio had established a prima facie case for
return of the children under the Hague Convention, but refused to order return because
Torres established the mature child affirmative defense. Custodio timely appealed.

                                      Discussion

       The court addresses three issues on appeal. First, Torres argues the appeal is
moot as to M. because he has now reached 16 years old and the Hague Convention no
longer applies to him. Second, Custodio argues the district court erred in finding that
Torres established the mature child defense. Third, even if the mature child defense
applies, Custodio contends the district court abused its discretion in refusing to order
return.

      I.     Mootness

       The Hague Convention states it “shall cease to apply when the child attains the
age of 16 years.” Hague Convention art. 4. M. turned 16 on March 25, 2016. Torres
thus argues that the appeal is moot as to M. because by its terms the Convention no
longer applies. Custodio argues that such an interpretation would incentivize courts
and litigants to delay litigation for older children and reads the Convention only to
require that the child be under age 16 at the time of the abduction.



                                          -3-
       The State Department’s interpretation of the Convention’s age limitation
provision is in accord with Torres’. In its view, “[t]he Convention applies only to
children under the age of sixteen (16). Even if a child is under sixteen at the time of
the wrongful removal or retention as well as when the Convention is invoked, the
Convention ceases to apply when the child reaches sixteen.” U.S. Dep’t of State,
Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed.
Reg. 10,494, 10,504 (Mar. 26, 1986). “It is well settled that the Executive Branch’s
interpretation of a treaty ‘is entitled to great weight.’” Abbott v. Abbott, 560 U.S. 1,
15 (2010) (quoting Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 185 (1982)
(deferring to the State Department’s interpretation of a provision of the Hague
Convention)). Custodio provides no reason to doubt that deference to the State
Department’s interpretation of the age cutoff is appropriate here.

       The State Department’s interpretation is supported by the official Hague
Conference Explanatory Report, which is recognized “as the official history and
commentary on the Convention and is a source of background on the meaning of the
provisions of the Convention.” Barzilay v. Barzilay (Barzilay II), 600 F.3d 912, 916
n.6 (8th Cir. 2010) (quotation omitted). The Explanatory Report is plain that “no
action or decision based upon the Convention’s provisions can be taken with regard
to a child after its sixteenth birthday.” Elisa Pérez-Vera, Explanatory Report: Hague
Convention on Private International Law ¶ 77 (1981),
https://assets.hcch.net/upload/expl28.pdf.

     Because M. turned 16 during the pendency of these proceedings, the Hague
Convention no longer applies to him. The court dismisses as moot the appeal as to M.
We address Custodio’s remaining arguments solely as they apply to G.




                                          -4-
      II.    Mature Child Defense

       “The principal objectives of the Convention are ‘to secure the prompt return of
children wrongfully removed to or retained in any Contracting State’ and ‘to ensure
that rights of custody and of access under the law of one Contracting State are
effectively respected in the other Contracting States.’” Barzilay v. Barzilay (Barzilay
I), 536 F.3d 844, 846 (8th Cir. 2008) (quoting Hague Convention art. 1). To establish
a prima facie case for return of the child under the Convention, the petitioner must
show, by a preponderance of the evidence, that: (1) immediately prior to removal or
retention, the child habitually resided in another Contracting State; (2) the removal or
retention was in breach of the petitioner’s custody rights under that State’s law; and
(3) the petitioner was exercising those custody rights at the time of the removal or
wrongful retention. Hague Convention art. 3; Barzilay I, 536 F.3d at 847; see 22
U.S.C. § 9003(e)(1)(A) (burden of proof); West v. Dobrev, 735 F.3d 921, 929 (10th
Cir. 2013). If a petitioner establishes a prima facie case, the child must be “promptly
returned unless one of the narrow exceptions set forth in the Convention applies.” 22
U.S.C. § 9001(a)(4). The district court assumed without deciding that Custodio
established a prima facie case for return. Because we find that an affirmative defense
applies, we also do not address whether Custodio met his initial burden.2

       The Hague Convention establishes several affirmative defenses that must be
proved by the respondent. See Hague Convention arts. 12, 13, 20. Here, Torres raised
the mature child defense under Article 13 of the Convention. In order to carry her
burden on this defense, Torres must establish by a preponderance of the evidence (1)
that the child has “attained an age and degree of maturity at which it is appropriate to


      2
        As we do not address Custodio’s prima facie case, we need not decide whether
Custodio had “rights of custody” cognizable under the Convention. Hague
Convention art. 5. This argument was not fully developed before the district court or
before us, and the court has previously recognized that distinguishing between custody
rights and access rights “can be a complex question.” Barzilay II, 600 F.3d at 921 n.9.

                                          -5-
take account of its views” and (2) “that the child objects to being returned.” Hague
Convention art. 13; see 22 U.S.C. § 9003(e)(2)(B) (burden of proof); Rodriguez v.
Yanez, 817 F.3d 466, 474 (5th Cir. 2016). Like all defenses under the Hague
Convention, the court construes the mature child defense narrowly. Rydder, 49 F.3d
at 372. The child’s objections can be the sole reason that a court refuses to order
return, but when they are, the “court must apply a stricter standard in considering a
child’s wishes.” Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 278 (3d Cir. 2007)
(quoting de Silva v. Pitts, 481 F.3d 1279, 1286 (10th Cir. 2007)).

       Custodio does not appeal the district court’s finding that G. had reached a
sufficient age and degree of maturity to appropriately take account of his views. The
sole issue is whether the district court properly considered G.’s objections.

       The parties dispute the proper standard of review to apply to a child’s
objections under the Hague Convention. We have not yet addressed this question.
Custodio argues that de novo review is appropriate because evaluating a child’s
objections is a mixed question of fact and law. Cf. Silverman v. Silverman, 338 F.3d
886, 896 (8th Cir. 2003) (en banc) (holding determination of a child’s “habitual
residence” is a mixed question of fact and law reviewed de novo). We find Silverman
inapposite here, and are instead persuaded by out-of-circuit authority, all of which has
concluded that the question of whether a child objected to return is subject to clear
error review. See Vasconcelos v. Batista, 512 F. App’x 403, 407 (5th Cir. 2013)
(unpublished); Tsai-Yi Yang, 499 F.3d at 279; Blondin v. Dubois, 238 F.3d 153,
167–68 (2d Cir. 2001); see also de Silva, 481 F.3d at 1287 (according “great
deference” to the trial court’s findings following its interview of the child). Clear
error is appropriate because the district court’s finding that a child has or has not
objected is a “fact-intensive” determination that is based in part on the court’s
personal observations of the child. See de Silva, 481 F.3d at 1287; Blondin, 238 F.3d
at 167. Such determinations are peculiarly within the province of the trial court and
must be given “great deference.” United States v. Wright, 512 F.3d 466, 472 (8th Cir.

                                          -6-
2008) (trial court’s “credibility judgments based on the testimony and presentation of
the witnesses” given “great deference”); see United States v. Ralph, 480 F.3d 888, 890
(8th Cir. 2007) (district court had “distinct advantage at evaluating the credibility” of
minor child, making such determinations “virtually unreviewable on appeal”).

       Such deference is appropriate here where the district court observed G. testify
twice: first, in chambers outside the presence of the parties and lawyers and later, in
open court and subject to cross examination. The district court found that G. wished
to remain in St. Louis because he did not want to separate from his mother, step-
father, and two brothers. He did not want to return to Peru because he “does not feel
safe with his father.” In chambers, G. said he was afraid of his father, who was “very
aggressive” and had previously struck him and his brother. The district court also
observed that G. liked his school in the United States and had many friends, whereas
he disliked his Peruvian school and had no real friends there. The court found G. to
be a “very thoughtful and intelligent” young man whose testimony represented his
“genuine thoughts and feelings.”

       Custodio argues that the district court improperly considered objections relevant
only to a custody determination. That is, he contends that a wrongfully removed child
may not object based on a wish to live with a particular parent or on circumstances
that are the product of the wrongful retention, as decisions based on these objections
would embroil the court in the underlying custody dispute. It is true that “[a] case
arising from a petition under the Hague Convention is not a custody proceeding.”
Barzilay I, 536 F.3d at 847. Under the Hague Convention and ICARA, a district court
“has authority to determine the merits of an abduction claim, but not the merits of the
underlying custody claim.” Id. (quotation omitted); see Hague Convention art. 19 (“A
decision under this Convention concerning the return of the child shall not be taken
to be a determination on the merits of any custody issue.”); 22 U.S.C. § 9001(b)(4)
(“The Convention and this chapter empower courts in the United States to determine
only rights under the Convention and not the merits of any underlying child custody

                                          -7-
claims.”). Such general principles, however, do not control application of the mature
child defense—a defense that has not previously been considered by this court. The
propriety of considering evidence relevant to custody in a proceeding under the Hague
Convention depends on the nature of the exception to return and the specific facts of
the case. Cf. Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 378, 377 (8th Cir. 1995)
(instructing the district court “not to consider evidence relevant to custody or the best
interests of the child” in evaluating the “grave risk of harm” defense which requires
a determination of “whether the child will face immediate and substantial risk of an
intolerable situation if he is returned”).

      With regard to the mature child defense, the Explanatory Report provides the
following guidance:

             [T]he Convention also provides that the child’s views
             concerning the essential question of its return or retention
             may be conclusive, provided it has, according to the
             competent authorities, attained an age and degree of
             maturity sufficient for its views to be taken into account.
             In this way, the Convention gives children the possibility of
             interpreting their own interests. Of course, this provision
             could prove dangerous if it were applied by means of the
             direct questioning of young people who may admittedly
             have a clear grasp of the situation but who may also suffer
             serious psychological harm if they think they are being
             forced to choose between two parents. However, such a
             provision is absolutely necessary given the fact that the
             Convention applies, ratione personae, to all children under
             the age of sixteen; the fact must be acknowledged that it
             would be very difficult to accept that a child of, for
             example, fifteen years of age, should be returned against its
             will.

Pérez-Vera, supra ¶ 30. This commentary makes clear that a mature child’s views on
return can be “conclusive.” As the Fifth Circuit recently explained, the Explanatory

                                          -8-
Report “does not suggest the child’s interpretation of [his] ‘own interests’ is invalid
if it is based” on custody considerations. Rodriguez, 817 F.3d at 475. Rather, “the
drafters of the Convention simply deemed it inappropriate to return a mature child
‘against its will’—whatever the reason for the child’s objection.” Id. at 475–76. We
agree with the Fifth Circuit’s well-reasoned interpretation of the mature child defense.
Requiring the district court to distinguish between a child’s custody-based and non-
custody-based objections would likely be an impossible task—a task that the
Convention does not require. Accordingly, the district court did not err in considering
objections that may also be relevant to a custody proceeding.

       G.’s testimony included particularized objections to returning to Peru, such as
his fear of his father with whom he felt unsafe, his dislike of his Peruvian school, and
his lack of friends in Peru. Due to mistreatment by his father and paternal
grandmother, G. expressed that he would not visit Custodio even if he was required
to return to Peru. Further, G. has specific ties to the United States, including M. and
his baby brother, whereas he has virtually no ties to Peru and barely any relationship
with Custodio, with whom he has had no contact since arriving in the United States
and saw only sporadically prior to leaving Peru. Based on these facts, the district
court did not clearly err in finding that G.’s statements constituted an objection within
the meaning of the mature child defense.3




      3
        Custodio also argues that the district court should have ignored the children’s
objections because their desire to remain in the United States is the product of Torres’
undue influence. See Rodriguez, 817 F.3d at 476; Tsai–Yi Yang, 499 F.3d at 279.
However, his undue influence argument focuses solely on M.’s testimony and thus is
moot. Even so, Custodio presents no basis to disturb the district court’s conclusion
that G.’s testimony represented his “genuine thoughts and feelings and there was no
indication that [he] had been coached or otherwise unduly influenced” by Torres.

                                          -9-
      III.   Abuse of Discretion

       Even though Torres met her burden of proving the mature child affirmative
defense applies, the district court has the discretion to refuse to apply the defense and
“order the return of the child if it would further the aim of the Convention which is to
provide for the return of a wrongfully removed child.” Tsai-Yi Yang, 499 F.3d at 278
(quoting de Silva, 481 F.3d at 1285); see also Hague International Child Abduction
Convention; Text and Legal Analysis, 51 Fed. Reg. at 10,509 (“The courts retain the
discretion to order the child returned even if they consider that one or more of the
exceptions applies.”). The district court’s decision whether to apply a defense is
reviewed for abuse of discretion. See Garcia v. Pinelo, 808 F.3d 1158, 1167 (7th Cir.
2015) (“[A] district court retains discretion not to apply an exception, and . . . its
decision either way is reviewed only for abuse of discretion.”).

       Custodio argues the district court abused its discretion in refusing to order
return. According to Custodio, allowing G. to remain in the United States improperly
overrides the Peruvian court’s custody orders, which are entitled to deference and
comity in this court. Further, Custodio argues that by refusing to order return, the
district court undermined the aim of the Convention to “deter abduction by
‘depriv[ing] [the abductor’s] actions of any practical or juridical consequences.’”
Barzilay II, 600 F.3d at 916 (alternations in original) (quoting Pérez-Vera, supra ¶ 16).
As Custodio points out, when Torres applied to the Peruvian court for temporary
travel authorization, she had no intention of returning the children: She brought all of
her belongings to St. Louis and married an American citizen ten days after arrival.
Since then, Torres has disobeyed five orders from the Peruvian court compelling her
to return the children. Given these facts, it would not have been an abuse of discretion
for the district court to return the children, regardless of the mature child defense
finding. District courts may decline to apply a defense where doing so would reward
a parent for wrongfully removing or retaining the children in violation of a



                                          -10-
Contracting State’s custody orders. See Garcia, 808 F.3d at 1169; Tsai-Yi Yang, 499
F.3d at 280.

       However, while Torres’ actions are concerning, they do not compel a finding
that the district court abused its discretion in refusing to order return. The district
court’s decision to respect 15-year-old G.’s opposition to returning to Peru and desire
to remain in the United States was not an abuse of discretion. After thorough
questioning by the district court and opposing counsel, the court found G. “understood
the purpose and significance” of the proceedings and conveyed his “genuine thoughts
and feelings” regarding return. The court acted within its discretion in deferring to the
objections of an undisputedly mature child. The district court’s consideration of a
mature child’s views may but need not be affected by the wrongful actions of his or
her parent.

                                      Conclusion

       This is undoubtedly a close case. But, the district court did not clearly err in
considering G.’s objections to returning to Peru. Whether to apply the mature child
defense was within the district court’s discretion. We see nothing powerful enough in
this record to warrant the rejection of its conclusion. We deny as moot the appeal as
to M. and affirm the district court’s judgment as to G.
                        ______________________________




                                          -11-
