     Case: 15-40048   Document: 00513440876     Page: 1   Date Filed: 03/28/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 15-40048                  United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
PEDRO ANTONIO FLORES RODRIGUEZ,                                  March 28, 2016
                                                                 Lyle W. Cayce
             Plaintiff - Appellant                                    Clerk

v.

YOLANDA IVONNE SALGADO YANEZ; A. S. F. S., A Minor Child,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Eastern District of Texas


Before HIGGINBOTHAM, SOUTHWICK, and HIGGINSON, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Appellant Pedro Antonio Flores Rodriguez petitioned for the return of
his child, A.S.F.S., under the Hague Convention on the Civil Aspects of
International Child Abduction and the International Child Abduction
Remedies Act. The district court denied Flores’s petition. Flores now appeals,
and we REVERSE in part, VACATE in part, and REMAND for further
proceedings consistent with this opinion.
                                      I.
      Appellant Pedro Antonio Flores Rodriguez (“Flores”) and Appellee
Yolanda Ivonne Salgado Yanez (“Salgado”) are the parents of A.S.F.S., an
     Case: 15-40048        Document: 00513440876           Page: 2      Date Filed: 03/28/2016



                                         No. 15-40048
eleven-year-old girl. 1 A.S.F.S. was born in Chihuahua, Mexico on January 6,
2005. A.S.F.S. lived in Mexico until October 2013, when Salgado took her to
the United States without Flores’s permission. On July 17, 2014, Flores filed
a petition in the Eastern District of Texas seeking the return of A.S.F.S. to
Mexico under the Hague Convention on the Civil Aspects of International
Child Abduction 2 and the International Child Abduction Remedies Act. 3 The
district court appointed a guardian ad litem for A.S.F.S. and held a show cause
hearing on the petition in November 2014.
   A. Show Cause Hearing
       The lion’s share of the show cause hearing was devoted to the testimony
of the two parents. Flores and Salgado testified consistently as to the general
course of their relationship. They met in either 2001 or 2002 in Torreón,
Mexico. Both were married at the time, but they began a romantic relationship
soon after meeting. Salgado discovered that she was pregnant with A.S.F.S.
in 2004.      Flores initially denied that he was the father, but eventually
acknowledged paternity and was present when A.S.F.S. was born.                              After
A.S.F.S.’s birth, Flores continued to live with his wife—who did not know about
his relationship with Salgado or A.S.F.S.—but he sometimes spent the night
at Salgado’s house. Flores testified that he would stay with Salgado and
A.S.F.S. four to five days a month while Salgado testified that it was only one
day a month.         Flores also provided Salgado and A.S.F.S. with financial
assistance. While he was working as a federal police officer, Flores “paid the
water, the electric bill, the telephone, and food.” In addition, Flores paid for



       1 The district court and Salgado refer to the child as A.S.F.S. while the guardian ad
litem and Flores, at least in his opening brief, refer to the child as A.S.F.G. The record reflects
that A.S.F.S. is the correct abbreviation.
       2 Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10,494

(Mar. 26, 1986).
       3 22 U.S.C. §§ 9001-11.

                                                2
    Case: 15-40048    Document: 00513440876     Page: 3   Date Filed: 03/28/2016



                                 No. 15-40048
A.S.F.S. to attend private school. After Flores retired in 2007, the financial
support became more irregular, but Salgado testified that he still paid her bills
“probably eight or nine months” out of the year.
      In either 2011 or 2012, Salgado and A.S.F.S. left Torreón and moved into
Salgado’s mother’s house in Chihuahua. Salgado testified that she moved
because she was fearful of Flores, who she alleged was physically abusive and
an alcoholic. Though Chihuahua and Torreón are several hours apart, Flores
traveled to Salgado’s mother’s house “[e]very month or every month and a
half.” In October 2013, Salgado and A.S.F.S. crossed into the United States
using “six-month entry card[s].” Salgado told Flores that they would only be
gone for a few weeks while they visited relatives. Salgado’s intention, however,
was to permanently remain in the United States. Once Salgado and A.S.F.S.
crossed, Flores had difficulty contacting them. Although Salgado told Flores
that she and A.S.F.S. were in Denver, they were actually in Texas. After
staying briefly with two different friends, Salgado moved into her boyfriend’s
apartment in Tyler, Texas. Flores was eventually able to get in touch with
Salgado and A.S.F.S., but his contact with A.S.F.S. has remained limited.
      Beyond these background facts, Flores and Salgado testified very
differently about Flores’s relationship with A.S.F.S. Flores testified that they
had a “beautiful” relationship with “very nice communication.”            Flores
elaborated that he often helped A.S.F.S. with her homework, took her to school
events, and went to the park and the movies with her. Salgado testified that
she never allowed Flores to be alone with A.S.F.S. because she “didn’t trust
him.” Salgado explained that “every time he’s spent time or tried to spend time
with [her] by himself, he always bother[s] her accosting her with questions
towards me to the point that the girl was afraid and . . . cr[ied].” Salgado also
testified that Flores was “very aggressive” and physically abused her in front
of A.S.F.S. “[m]any times,” although he was never violent with A.S.F.S.
                                       3
    Case: 15-40048          Document: 00513440876   Page: 4    Date Filed: 03/28/2016



                                     No. 15-40048
Salgado acknowledged that Flores regularly visited Chihuahua, but testified
that “he only came to see [her] . . . [b]ecause he has never cared for [A.S.F.S.].”
Salgado added that Flores was “drunk” and “[a]lmost always” violent during
these visits.
      After Flores and Salgado completed their testimony, the district court
briefly questioned A.S.F.S. in chambers.              A.S.F.S. testified that her
relationship with her father was poor. She indicated that Flores never spent
time with her and did not even speak to her except to ask questions about
Salgado’s love life. A.S.F.S. explained that she “would just go to [her] room”
when Flores visited Chihuahua because “he was always drunk” and would say
“ugly things . . . [l]ike dirty words.” She characterized the relationship between
her parents as “[f]ighting” and reported that she had seen Flores “push[]”
Salgado.
      At two different points, the district court asked A.S.F.S. whether she was
happier living in Mexico or the United States. A.S.F.S. testified that she was
happier in Texas, although she was happy living in Mexico too:
                Q. . . . Are you happy living here in Texas?
                A. Yes.
                Q. Okay. Now, you lived in Mexico before Texas; is that
      right?
                A. Yes.
                Q. Were you happy living in Mexico?
                A. Yes.
             Q. Well, do you like living in Texas better, or do you like
      living in Mexico better?
                A. Texas.
                ....
            Q. So, [A.S.F.S.], I asked you this before but I will just ask
      you again: Are you happier here in Texas or in Mexico?

                                           4
    Case: 15-40048    Document: 00513440876      Page: 5   Date Filed: 03/28/2016



                                  No. 15-40048
            A. In Texas.
            Q. Why are you happier here?
            A. Because I am going to be able to learn more languages,
      and I want to learn much more in here.
   B. District Court’s Decision
      In December 2014, the district court issued a decision in Salgado’s favor.
The district court agreed with Flores that A.S.F.S. was (1) a “habitual resident”
of Mexico at the time of removal and that (2) her removal was in breach of
Flores’s custody rights under Mexican law. Nevertheless, the district court
denied Flores’s petition because he “was not exercising his custody rights at
the time of A.S.F.S.’s removal to the United States.” After summarizing the
evidence, the district court reasoned as follows:
      [Flores] adduced insufficient evidence that he provided any
      physical care or financial assistance to A.S.F.S. during the time
      she was living with [Salgado] in Chihuahua. In addition, the Court
      heard uncontroverted testimony that during almost all of his visits
      to Chihuahua, [Flores] physically and verbally abused [Salgado] in
      front of A.S.F.S. Thus, the evidence before the Court indicates that
      [Flores] visited Chihuahua about once a month in order to harass
      [Salgado], rather than spend time with or provide care for A.S.F.S.
      In fact, during A.S.F.S.’s in camera interview, she indicated that
      the only contact she had with [Flores] was when he pressured her
      for details about [Salgado]’s activities. Moreover, testimony from
      both parties indicated that [Flores] had frequent contact with
      A.S.F.S. while she was living in Torreón. However, [Flores] did not
      present any evidence indicating that he actively sought a custody
      determination or other form of judicial relief in Mexico after
      [Salgado] moved A.S.F.S. to Chihuahua—more than five hours
      from [Flores]’s residence in Torreón.
      The district court also denied Flores’s petition for the independent
reason that A.S.F.S. “objects to being returned and has attained an age and
degree of maturity at which it is appropriate to take account of [her] views.”
The district court briefly explained:
      Based upon the in camera interview, the Court finds that it is
                                   5
    Case: 15-40048       Document: 00513440876         Page: 6     Date Filed: 03/28/2016



                                      No. 15-40048
      appropriate to take into account A.S.F.S.’s views. Despite
      becoming shaken and upset while describing her relationship with
      [Flores], A.S.F.S. exhibited strong cognitive and social abilities,
      and clearly expressed a desire to remain with [Salgado] in the
      United States. Further confirming her maturity, A.S.F.S. stated
      that she would be happier remaining in the United States because
      she would have greater educational opportunities, and the ability
      to learn more languages.
Flores timely appealed to this Court.
                                            II.
      We review the district court’s findings of fact for clear error and its
legal conclusions de novo. 4 “A factual finding is not clearly erroneous as long
as it is plausible in the light of the record as a whole.” 5
                                            III.
      Under the Hague Convention on the Civil Aspects of International Child
Abduction, “courts in contracting countries must return a wrongfully-removed
child to his country of habitual residence.” 6             The Convention, however,
“provides several narrow affirmative defenses to wrongful removal.” 7 Two are
relevant here: (1) “the judicial or administrative authority of the requested
State is not bound to order the return of the child if the person, institution or
other body which opposes its return establishes that . . . the person, institution
or other body having the care of the person of the child was not actually
exercising . . . custody rights at the time of removal or retention”; 8 and (2) “[t]he
judicial or administrative 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




      4 Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 342 (5th Cir. 2004).
      5 Id. (quoting United States v. Powers, 168 F.3d 741, 752 (5th Cir. 1999)).
      6 Id. at 342-43.
      7 Id. at 343.
      8 Convention art. 13(a).

                                             6
     Case: 15-40048      Document: 00513440876        Page: 7     Date Filed: 03/28/2016



                                     No. 15-40048
and degree of maturity at which it is appropriate to take account of its views.” 9
The only dispute in this case is whether Salgado has established one or both of
these “affirmative defenses.” Salgado does not challenge the district court’s
conclusion that A.S.F.S. was wrongfully removed. But she does defend the
district court’s conclusion that Flores’s petition should be denied because either
(1) Flores was not exercising his custody rights at the time of removal or (2)
A.S.F.S. objects to being returned and has attained an age and degree of
maturity at which it is appropriate to take account of her views. If Salgado
has established either of these defenses, the district court did not err in
denying Flores’s petition. If neither applies, A.S.F.S. must be returned to
Mexico. We address each defense in turn.
                                            A.
      Under Article 13(a), a court does not have to order the return of a
wrongfully removed child if the non-removing party was not “exercising” his
custody rights at the time of removal. Article 13(a) does not define “exercising,”
so courts have looked to the Convention’s underlying purposes for guidance in
applying this exception. The Supreme Court recently expounded on these
purposes, explaining that “[t]he Convention is based on the principle that the
best interests of the child are well served when decisions regarding custody
rights are made in the country of habitual residence.” 10 This means that
“courts in countries other than that of the child’s habitual residence” are
prohibited from “adjudicating the merits of the underlying custody dispute.” 11
“To avoid th[e] possibility” of “cross[ing] the line into a consideration of the
underlying custody dispute,” “American courts have interpreted ‘exercise’



       9 Id. art. 13(b).
       10 Abbott v. Abbott, 560 U.S. 1, 20 (2010).
       11 Sealed Appellant, 394 F.3d at 344 (quoting Nunez-Escudero v. Tice-Menley, 58 F.3d

374, 376 (8th Cir. 1995)).
                                            7
     Case: 15-40048       Document: 00513440876         Page: 8     Date Filed: 03/28/2016



                                       No. 15-40048
broadly.” 12      This Court, like many others, 13 has adopted the expansive
interpretation of “exercise” articulated by the Sixth Circuit in Friedrich v.
Friedrich (Friedrich II). 14 Under this standard, “when a parent has custody
rights under the laws of that country, even occasional contact with the child
constitutes ‘exercise’ of those rights. To show failure to exercise custody rights,
the removing parent must show the other parent has abandoned the child.” 15
“Once it determines that the parent exercised custody rights in any manner,
the court should stop—completely avoiding the question whether the parent
exercised the custody rights well or badly. These matters go to the merits of
the custody dispute and are, therefore, beyond the subject matter jurisdiction
of federal courts.” 16
        Though this Court “defer[s]               to the district      court’s credibility
determinations” regarding exercise, this Court reviews the district court’s
application of this standard de novo. 17 Upon de novo review, we easily conclude
that Flores was exercising his custody rights at the time of removal. In Sealed
Appellant, this Court held that evidence that the petitioner “visited the
children about five times a year and paid child support to [the mother]” was
sufficient to demonstrate exercise of custody rights. 18 In this case, the evidence
of exercise is effectively identical. Salgado testified at the show cause hearing
that Flores visited A.S.F.S. at least once every six weeks, or around 8 times a
year.        Salgado also concedes in her brief that Flores “paid the fees” for



        12Id.
        13See Walker v. Walker, 701 F.3d 1110, 1121-22 (7th Cir. 2012); Asvesta v. Petroutsas,
580 F.3d 1000, 1018-19 (9th Cir. 2009); Bader v. Kramer, 484 F.3d 666, 670-72 (4th Cir. 2007);
Baxter v. Baxter, 423 F.3d 363, 369-70 (3d Cir. 2005) (Alito, J., on panel).
       14 78 F.3d 1060 (6th Cir. 1996).
       15 Sealed Appellant, 394 F.3d at 345.
       16 Id. (quoting Friedrich II, 78 F.3d at 1066).
       17 See id.
       18 Id.

                                              8
     Case: 15-40048       Document: 00513440876         Page: 9    Date Filed: 03/28/2016



                                      No. 15-40048
A.S.F.S.’s public school in Chihuahua. 19                “By visiting [A.S.F.S.] and
contributing to [her] financial support,” Flores was exercising his custody
rights. 20
       Despite these clear parallels, Salgado urges that her “mistress
relationship” with Flores distinguishes this case from Sealed Appellant. That
is, like the district court, she contends that any contact that Flores had with
A.S.F.S. was merely incidental to seeing her. 21 Such arguments, however, go
to whether Flores was exercising his “custody rights well or badly.” Regardless
of whether Flores was interested in seeing A.S.F.S. when he traveled to
Chihuahua, the record is undisputed that he did maintain some sort of
relationship with her, which is enough to demonstrate exercise. 22 The district
court’s suggestion that Flores did not “actively s[eek] a custody determination”
because he did not care about A.S.F.S. is irrelevant for the same reason—it
concerns the quality of Flores’s relationship with A.S.F.S., not whether he was
exercising his custody rights.           Accordingly, the district court erred in
concluding that Flores was not exercising his custody rights at the time of
removal.
                                             B.
       “The Convention establishes that a court ‘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




       19 Salgado’s Brief at 3; see also Guardian Ad Litem’s Brief at 3 (same).
       20 Sealed Appellant, 394 F.3d at 345.
       21 Salgado’s Brief at 12-13.
       22 See Bader v. Kramer, 484 F.3d 666, 671 (4th Cir. 2007) (“[W]e will ‘liberally find

“exercise” whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of
regular contact with his or her child.’” (quoting Friedrich II, 78 F.3d 1060, 1065 (6th Cir.
1996))).
                                             9
    Case: 15-40048           Document: 00513440876        Page: 10      Date Filed: 03/28/2016



                                          No. 15-40048
views.’” 23 Salgado has the burden to establish that this exception applies. 24 In
order to carry this burden, Salgado must establish two distinct facts: (a)
A.S.F.S. “has attained an age and degree of maturity at which it is appropriate
to take account of [her] views”; and (b) A.S.F.S. “objects to being returned.” 25
As with other exceptions to the Convention, this Court has instructed that the
age and maturity exception “is to be applied narrowly.” 26
          The main thrust of Flores’s briefing is that Salgado has not established
that A.S.F.S. “objects to being returned.” Nevertheless, there are also a few
passages that suggest that A.S.F.S. has not “attained an age and degree of
maturity at which it is appropriate to take account of [her] views.” 27 Assuming
Flores has properly presented this separate argument, it has no merit.
“Whether the child has reached an appropriate age and degree of maturity is
a factual determination and thus subject to clear error review.” 28 “And, given
the reliance on live oral testimony, ‘the clearly erroneous standard is
particularly strong because the judge had the opportunity to observe the




          23   England v. England, 234 F.3d 268, 272 (5th Cir. 2000) (quoting Convention art.
13(b)).
           See id. at 272; see also id. at 272 n.5 (noting that the “burden” was “salient” to this
          24

Court’s decision); Sealed Appellant, 394 F.3d at 343.
       25 See Vasconcelos v. Batista, 512 F. App’x 403, 405-08 (5th Cir. 2013) (treating the

inquiries as distinct); see also England, 234 F.3d at 272-73 (suggesting that the inquiries are
distinct).
       26 England, 234 F.3d at 272; see also Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259,

278 (3d Cir. 2007); Locicero v. Lurashi, 321 F. Supp. 2d 295, 298 (D.P.R. 2004).
       27 Flores’s Opening Brief at 32 (arguing that Salgado did not carry her burden of

establishing that A.S.F.S. “understood what she was being asked”); id. at 34 (arguing that
A.S.F.S. did not “understand the consequences of a decision to remain in the United States”).
At oral argument, counsel further suggested that the issue of whether A.S.F.S. objected is
“intertwined” with her age and degree of maturity. We decline to consider this argument
because it was not raised in Flores’s opening brief. See Comsat Corp v. FCC, 250 F.3d 931,
936 n.5 (5th Cir. 2001) (“Arguments presented for the first time at oral argument are
waived.”).
       28 Vasconcelos, 512 F. App’x at 405; see also Dietz v. Dietz, 349 F. App’x 930, 934 (5th

Cir. 2009); Simcox v. Simcox, 511 F.3d 594, 604 (6th Cir. 2007).
                                                10
    Case: 15-40048        Document: 00513440876          Page: 11      Date Filed: 03/28/2016



                                        No. 15-40048
demeanor of the witness[es].’” 29 This standard is dispositive here. As in the
typical Convention case, the district court had the opportunity to personally
observe and question A.S.F.S. Based on this interaction, the court concluded
that A.S.F.S. “exhibited strong cognitive and social abilities.” Though this
conclusion is not necessarily dictated by the transcript, Flores points to nothing
that leaves us with “the definite and firm conviction that a mistake has been
made.” 30 In fact, the only thing that Flores does point to is A.S.F.S.’s young
age at the time of the hearing. This Court, however, has “declined to hold, as
a matter of law, that any particular age is sufficient or insufficient to meet the
defense.” 31
       Whether A.S.F.S. “objects to being returned” is more difficult. Salgado
and A.S.F.S.’s guardian ad litem both assert that “A.S.F.S. listed [the
following] reasons for her objection to returning to Mexico:”
       • Her father’s psychological harassment of her mother;
       • Her father’s physical abuse of her mother;
       • Her father’s use of foul language;
       • His interrogation of her for information on her mother;
       • Her fear of her father. 32
Flores argues that these reasons cannot form the basis of an objection under
the Convention. That is, he contends that a wrongfully removed child may not
object to returning to her country of habitual residence because she does not
want to live with the petitioning parent.               Flores urges that honoring an
objection based upon a wish to live with a particular parent would embroil the



       29 Dietz, 349 F. App’x at 934 (alteration in original) (quoting United States v. Santiago,
410 F.3d 193, 197 (5th Cir. 2005)).
       30 See Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 345 (5th Cir. 2004) (quoting

Tulia Feedlot, Inc. v. United States, 513 F.2d 800, 806 (5th Cir. 1975)).
       31 Dietz, 349 F. App’x at 934 (citing England, 234 F.3d at 272 n.4).
       32 Salgado’s Brief at 17; Guardian Ad Litem’s Brief at 9-10.

                                              11
    Case: 15-40048       Document: 00513440876        Page: 12     Date Filed: 03/28/2016



                                      No. 15-40048
state of refuge in the underlying custody dispute and reward abducting parents
for their misconduct. Although this position is not without some appeal, and
support, 33 we disagree.        The Pérez-Vera Explanatory Report—which “is
recognized as the official history, commentary, and source of background on
the meaning of the provisions of the Convention” 34—provides the following
commentary on the age and maturity exception:
              In addition, the 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. 35
       This commentary indicates that the age and maturity exception is rooted
in the autonomy of the wrongfully removed child.                   The drafters of the
Convention sought to deter wrongful removals, but they also recognized that
wrongfully removed children are not inanimate objects—they are people with



       33 See Hirst v. Tiberghien, 947 F. Supp. 2d 578, 597 (D.S.C. 2013) (“The defense does
not apply if the ‘objection is simply that the child wishes to remain with the abductor.’”
(quoting In re Nicholson, No. 97-1273-JTM, 1997 WL 446432, at *3 (D. Kan. July 7, 1997)));
Haimdas v. Haimdas, 720 F. Supp. 2d 183, 208 (E.D.N.Y.), aff’d, 401 F. App’x 567 (2d Cir.
2010); Lieberman v. Tabachnik, 625 F. Supp. 2d 1109, 1126 (D. Colo. 2008); Hazbun Escaf v.
Rodriquez, 200 F. Supp. 2d 603, 615 (E.D. Va.), aff’d, 52 F. App’x 207 (4th Cir. 2002).
       34 Sealed Appellant, 394 F.3d at 343.
       35 Elisa Pérez–Vera, Explanatory Report: Hague Convention on Private International

Law ¶ 30, available at https://assets.hcch.net/upload/expl28.pdf.
                                            12
   Case: 15-40048     Document: 00513440876      Page: 13   Date Filed: 03/28/2016



                                  No. 15-40048
agency of their own. The age and maturity exception acknowledges this agency
by allowing a sufficiently mature child to “interpret[] [her] own interests.” The
Pérez-Vera Explanatory Report does not suggest the child’s interpretation of
her “own interests” is invalid if it is based on her wish to stay with the
abducting parent. To the contrary, the Report acknowledges that the child
may “think [she] [is] being forced to choose between two parents,” but states
that this “danger[]” must be tolerated because “such a provision is absolutely
necessary.”   As the closing example demonstrates, 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. In such cases, the
child’s autonomy trumps the Convention’s interest in preventing wrongful
removals.
      We have serious doubts that a rule to the contrary would be
administrable. For most wrongfully removed children, the choice between
countries is effectively a choice between parents. If the court honors the child’s
objection to returning, she will almost certainly live with the abducting
parent—at least until the custody dispute is resolved. As a result, whether the
child wants to live with the abducting parent is very relevant to her
interpretation of her immediate “interests.”      Indeed, it is likely the most
important consideration. We fear that a rule formally prohibiting objections
based upon this consideration would result in hearings full of winks and nods.
Rather than express the real reason for her objection, a wrongfully removed
child would be coached to testify that she has strong preferences about where
she goes to school, but no preference about who she lives with or who takes
care of her. The district court, and this Court on appeal, would then be tasked
with the impossible task of determining if the child was dissimulating. Flores
might respond that the rule we adopt invites a different form of coaching, as
the abducting parent will instruct the child to testify that she would prefer to
                                       13
    Case: 15-40048        Document: 00513440876          Page: 14      Date Filed: 03/28/2016



                                        No. 15-40048
live with her. The State Department, however, has instructed that “[a] child’s
objection to being returned may be accorded little if any weight if the court
believes that the child’s preference is the product of the abductor parent’s
undue influence over the child.” 36 Flores is correct that a child’s objection
should be ignored if the court believes the abducting parent has exercised
“undue influence over the child.” 37 But otherwise, as we see it, an objection by
the child to being returned, if found to be a considered and mature decision,
will be honored whether or not it rests in part on her objection to living with
the abducting parent.
       Even so, Flores urges that A.S.F.S. did not “object[]” to returning to
Mexico—she only expressed a preference for the United States. During her in
camera interview, A.S.F.S. testified that she “like[s] living in Texas better”
than Mexico and is “happier here in Texas” than in Mexico. But she also
testified that she was “happy living in Mexico.” Flores argues that that these
statements amount only to a preference for the United States—and do not
satisfy the plain language of the age and maturity exception. We agree with
Flores that the Convention requires an “object[ion],” not a mere preference.
The Supreme Court has instructed that the interpretation of the Convention,
“like the interpretation of a statute, begins with its text.” 38 The text of the
Convention restricts the age and maturity exception to cases in which the child




       36  Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed.
Reg. 10,494, 10,509 (Mar. 26, 1986). As with any treaty, “[i]t is well settled that the Executive
Branch’s interpretation of” the Convention “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)).
        37 See Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 279 (3d Cir. 2007) (adopting

State Department’s “undue influence” rule); de Silva v. Pitts, 481 F.3d 1279, 1286 (10th Cir.
2007) (same); see also Vasconcelos v. Batista, 512 F. App’x 403, 405-06 (5th Cir. 2013)
(applying “undue influence” rule).
        38 See Abbott, 560 U.S. at 10 (quoting Medellín v. Texas, 552 U.S. 491, 506 (2008)).

                                              14
    Case: 15-40048        Document: 00513440876           Page: 15      Date Filed: 03/28/2016



                                        No. 15-40048
“objects” to being returned. A preference is not an objection. 39 This is not a
matter of magic words or talismanic language.                      There is a substantive
difference between preferring to live in one of two countries—when living in
either country would be acceptable—and affirmatively objecting to returning
to one country—when living in that country would be unacceptable. Only an
objection is sufficient to trump the Convention’s strong presumption in favor
of return.
       This interpretation is consistent with our previous recognition that “the
‘age and maturity’ exception is to be applied narrowly” 40 and the guidance of
the Pérez-Vera Explanatory Report—which warns that exceptions to “the rule
concerning the return of the child must be applied only so far as they go and
no further . . . if the Convention is not to become a dead letter.” 41 It is also
consistent with the views of several other contracting states. As with the
interpretation of any treaty, “[t]he ‘opinions of our sister signatories’ . . . are
‘entitled to considerable weight’” when interpreting the Convention. 42 “The
principle applies with special force here, for Congress has directed that


       39  See, e.g., Garcia v. Pinelo, 808 F.3d 1158, 1169 (7th Cir. 2015) (assuming that child’s
statement that “he preferred to stay in Chicago” was not an “object[ion] to being returned to
Mexico”); Tsai-Yi Yang, 499 F.3d at 279 (concluding that child’s “generalized desire to remain
in Pittsburgh” was insufficient “to invoke the exception”); Haimdas v. Haimdas, 720 F. Supp.
2d 183, 208 (E.D.N.Y.), aff’d, 401 F. App’x 567 (2d Cir. 2010); Falk v. Sinclair, 692 F. Supp.
2d 147, 165 (D. Me. 2010); Trudrung v. Trudrung, 686 F. Supp. 2d 570, 578 (M.D.N.C. 2010);
In re Skrodzki, 642 F. Supp. 2d 108, 118 (E.D.N.Y. 2007); R.B. v. K.G., 993 N.Y.S.2d 869, 886
(Fam. Ct. 2014); In re S.H.V., 434 S.W.3d 792, 801 (Tex. Ct. App. 2014) (“A reasonable
interpretation of the psychological report about S.H.V. is that he preferred the United States
over Panama because he perceived the United States to offer better educational and social
opportunities, but he did not find life in Panama intolerable or even unpleasant.”).
        40 England v. England, 234 F.3d 268, 272 (5th Cir. 2000). Several courts have also

held that “[a] court must apply a stricter standard in considering a child’s wishes when”—as
here—“those wishes are the sole reason underlying a repatriation decision and not part of
some broader analysis.” de Silva, 481 F.3d at 1286; accord Tsai-Yi Yang, 499 F.3d at 278;
Blondin v. Dubois, 238 F.3d 153, 166 (2d Cir. 2001).
        41 Explanatory Report: Hague Convention on Private International Law, supra, ¶ 34.
        42 Abbott, 560 U.S. at 16 (alterations in original) (quoting El Al Isr. Airlines, Ltd. v.

Tsui Yuan Tseng, 525 U.S. 155, 176 (1999)).
                                               15
    Case: 15-40048        Document: 00513440876          Page: 16      Date Filed: 03/28/2016



                                        No. 15-40048
‘uniform international interpretation of the Convention’ is part of the
Convention’s framework.” 43           Though not exhaustive, 44 as we review the
international case law, courts in Argentina, 45 Australia, 46 Austria, 47
Belgium, 48 Canada, 49 England, 50 France, 51 New Zealand, 52 Northern Ireland, 53
and Switzerland 54 have concluded that a preference to remain in the state of
refuge is insufficient to trigger the age and maturity exception. Indeed, it
appears that only courts in Scotland 55 have adopted a broader test. We are not
persuaded by this singular variation in a fabric woven to be of one piece.



       43  Id. (quoting 22 U.S.C. § 9001(b)(3)(B)).
       44   The Hague Conference on Private International Law maintains a database of
decisions concerning the Convention “to promote mutual understanding, consistent
interpretation and thereby the effective operation of the . . . Convention.” International Child
Abduction Database (INCADAT), Hague Conference on Private International Law,
http://www.incadat.com. Most of the cited decisions—and accompanying translations—were
located using this database.
        45 Corte Suprema de Justicia de la Nación [CSJN] [National Supreme Court of

Justice], 22/8/2012, “G., P. C. c/ H., S. M. s/ reintegro de hijo.”
        46 Richards & Director-General, Department of Child Safety [2007] FamCA 65.

Australia has passed a regulation that sets the applicable standard. Under this regulation,
the age and maturity exception applies only if “the child’s objection shows a strength of
feeling beyond the mere expression of a preference or of ordinary wishes.” Family Law (Child
Abduction Convention) Regulations 1986 (Cth) reg 16(3)(c)(ii).
        47 Oberster Gerichtshof [OGH] [Supreme Court] Oct. 8, 2003, 9 Ob 102/03w.
        48 Tribunal de Première Instance [Civ.] [Tribunal of First Instance] Bruxelles, May

27, 2003, 02/7742/A.
        49 Crnkovich v. Hortensius, 2008 CarswellOnt 6951 (Can. Ont. Sup. Ct. J.) (WL) (“The

objection . . . must be something stronger than a mere expression of preference.”).
        50 In re M et al. (Abduction: Child’s Objections) [2015] EWCA (Civ) 26, 2015 WL 55897

(“[T]he child’s views have to amount to objections before they can give rise to an article 13
exception. This is what the plain words of the Convention say. Anything less than an
objection will therefore not do.”).
        51 Cour d’appel [CA] [regional court of appeal] Grenoble, civ., Mar. 29, 2000, 00/00797.
        52 Damiano v. Damiano [1993] NZFLR 548 (FC) (“The first requirement is clearly that

there is an objection on the part of a child. Preference is not sufficient. There must be a quite
emphatic reluctance that extends to the unacceptable.”).
        53 RA v. DA [2012] NIFam 9, 2012 WL 6151752 (“The objection of the child must be

more than a mere preference expressed by the subject child.”).
        54 Tribunal fédérale [TF] Dec. 4, 2007, 5A_582/2007.
        55 Urness v. Minto (1994) SC 249, 265, 1993 WL 966242 (“In our opinion counsel for

the petitioner have sought to read the word ‘objects’ in art. 13 too narrowly . . . . If John
                                              16
    Case: 15-40048       Document: 00513440876         Page: 17     Date Filed: 03/28/2016



                                      No. 15-40048
       This legal conclusion, however, does not resolve whether the age and
maturity exception applies in this case. The district court may have framed its
questions during the private colloquy in terms of whether A.S.F.S. preferred to
live in the United States—as opposed to whether she objected to returning to
Mexico—but its written findings are more ambiguous. In its order, the district
court found that it was “appropriate to take into account A.S.F.S.’s views”
because she “exhibited strong cognitive and social abilities, and clearly
expressed a desire to remain with [Salgado] in the United States.” The court
also noted that A.S.F.S.’s testimony “that she would be happier remaining in
the United States because she would have greater educational opportunities,
and the ability to learn more languages” “[f]urther confirm[ed] her maturity.”
Although these findings adequately explain why A.S.F.S. is mature enough to
object, they only hint at whether she did object and, if so, for what reasons.
Rather than speculate, we vacate this portion of the district court’s order and
remand to allow the court to reassess whether Salgado has met her burden in
light of the legal principles established by this decision. On remand, the
district court is ordered to engage in a new colloquy with A.S.F.S. and enter
more detailed findings regarding its eventual conclusion.
                                            IV.
       For the reasons stated above, we REVERSE in part, VACATE in part,
and REMAND for further proceedings consistent with this opinion.




prefers to be with his mother and close family who live in Scotland, the corollary is that he
does not wish to be in the United States of America . . . .”).
                                             17
