Florida Court Affirms Denial of Hague Convention Petition for Return of Child to Peru

Parents involved in international custody disputes will often seek the return of their child via a Hague petition. While such petitions can be useful tools, they are not foolproof, as exceptions can apply that prevent the return of a child, as demonstrated in a recent Florida decision in which the court found that the mother had met the legal burden for exceptions under the Hague Convention. If you are involved in an international custody dispute, it is in your best interest to consult an experienced Miami divorce attorney regarding your options.

Facts of the Case and Procedural Setting

It is reported that the parents, both Peruvian citizens, were previously married in Peru and later divorced in 2015. Their divorce decree granted them joint custody of their child, though the child primarily resided with the mother. In September 2021, the mother traveled with the child to Florida with the father’s written consent for a temporary stay, but she did not return on the agreed date. More than a year later, the father initiated proceedings under the Hague Convention, seeking the child’s return to Peru.

Reportedly, the father argued that the mother had wrongfully retained the child in the United States in violation of his custodial rights. The mother defended against the petition, invoking two exceptions under the Hague Convention: (1) the “well-settled” child exception, which applies when a child has adapted to a new environment after more than one year of wrongful retention, and (2) the “mature child objection” exception, which allows the court discretion to deny return if the child is sufficiently mature to express a preference. The trial court denied the father’s petition, ruling that the child had become well-settled in Florida and had expressed a clear objection to returning to Peru. The father appealed.

Hague Petitions Under Florida Law

On appeal, the court evaluated whether the trial court erred in denying the father’s petition based on the two recognized exceptions under the Hague Convention. Under the well-settled child exception, if more than one year has passed since the wrongful retention and the child has become well-settled in their new environment, a court may refuse to order the child’s return.

To determine whether a child is well-settled, courts assess factors such as residential stability, school attendance, community ties, and family relationships. The court reviewed the trial court’s findings and determined that the mother presented competent, substantial evidence showing that the child had integrated into life in Florida. The child had attended school consistently, participated in extracurricular activities, and lived in a stable household with family support. Additionally, both the mother and child had obtained legal immigration status, further strengthening the argument that the child had established permanent ties in the United States.

The father challenged the court’s finding on when the one-year period began, arguing that he was unaware of the wrongful retention until a later date. However, the court deferred to the trial court’s credibility determinations, which found that the father was on notice of the mother’s intent to remain in Florida as early as October 2021.

Because his petition was filed more than one year after this date, the well-settled exception applied. The court also reviewed the mature child objection exception, which permits courts to deny a return petition if a child of sufficient maturity objects to being returned. Courts evaluate whether the child’s objection is independent and not unduly influenced by one parent.

In this case, the court found that the trial court properly considered testimony from a court-appointed psychologist who evaluated the child. The psychologist concluded that the child was intelligent, self-motivated, and clearly expressed a desire to remain in Florida. The court found no evidence that the mother had unduly influenced the child’s preference. Given these findings, the appellate court affirmed the trial court’s decision, holding that the child’s maturity level and stated objections were legally sufficient to justify denying the return petition.

Talk to a Dedicated Miami Child Custody Attorney

International child custody disputes are highly complex and require strategic legal advocacy. If you are dealing with an international custody case, it is critical to understand your rights and you should talk to an attorney. The dedicated Miami child custody attorneys at the Law Offices of Sandy T. Fox, P.A. can help you navigate complicated custody disputes and advocate in your child’s best interests. You can call us at 800-596-0579 or use our online form to schedule a meeting.