Judges are permitted to interview children in their parents’ Hague Abduction Convention cases in the United States. In fact, this is a common way to elicit a child’s views (and to assess their maturity) in recent years. But, should judges be conducting these interviews? An Abduction Convention case can be brought in either U.S. state or federal court. If it is filed in a state court, it may be assigned to a judge who also handles family cases, including those cases that require the judge to conduct an analysis of the child’s best interests. While these judges may interview children more routinely than their federal counterparts, they may be tempted to expand the interview beyond the scope of a narrow Abduction Convention proceeding. Their typical child interviews tend to focus on eliciting a child’s preferences for a residential custodian, because that is the legal analysis required in these courts when they resolve custody of a minor child. If the case is filed in a federal court, the judge may have no experience in speaking with children (short of speaking to their own children at home) because federal courts are divested of jurisdiction in family law cases, and so it is rare that a federal judge will see a case that invokes any consideration of a child’s and a family’s situation. Separately, Abduction Convention proceedings are intended to be quick, summary proceedings, meaning that the judge likely has less time to conduct the interview or to gather corollary information to instruct them on the child’s maturity (including their education, emotional and mental health, full family situation, culture, language skills, and other peripheral assessments that impact a child’s communication).
Interviewing a child, and how the interviewer interprets a child’s views are extraordinarily important to the ultimate outcome in a case. Take, for example, a 2022 U.S. federal Abduction Convention case, Dubikovskyy v. Goun. The trial judge interviewed the child twice. At the end of the interviews, the judge felt that the child had a mature objection to being returned to Spain and declined to return the child. But, after a year of deliberating, the U.S. Court of Appeals for the 8th Circuit, disagreed. The appellate court reviewed the transcripts of the trial judge’s interview and concluded that the child did not have an objection, but, instead, had an equivocal preference for the United States, which didn’t meet the legal standard to deny the Father’s request to have the child returned. The appellate court instructed the trial judge to return the child to Spain, now more than one year later. (The Mother is appealing the case). This case is an example of how more than one judge can draw a different legal conclusion from the very same words spoken by a child.
The U.S. Uniform Law Commission, understanding the need for consistency and guidelines has formed a Drafting Committee for a new uniform law on judicial interviews of children in situations where the child’s parents (or guardians) are engaged in a private dispute over the child (as opposed to a public welfare neglect or abuse matter). These private disputes would include not only custody matters, but Abduction Convention cases (at least brought in the U.S. state level courts). The Committee will hold its first meeting in November 2023, and conduct its work over the next several years.