Imagine you're a parent. Your ex-spouse takes your child to another country without your permission. You fight through courts to get your child back. But then your child tells the judge: "I want to stay here. I like it better."
Should that be enough to let the child remain?
This question lies at the heart of one of the most misunderstood defenses under the Hague Convention on International Child Abduction—the mature child defense.
A recent decision from the U.S. Court of Appeals for the Eighth Circuit, Dubikovskyy v. Goun, provides critical guidance on when a child's views can prevent their return to their country of habitual residence. The case makes one thing crystal clear:
There is a world of difference between a child saying "I prefer to stay" and a child saying "I object to returning."
What Is the Hague Convention?
The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty designed to:
- Protect children from the harmful effects of international abduction
- Establish procedures for the prompt return of children to their country of habitual residence
- Ensure custody disputes are decided in the proper country
When a parent wrongfully takes a child to another country, the Convention generally requires that child's return. However, the Convention recognizes certain narrow exceptions—affirmative defenses—that allow courts to deny return in specific circumstances.
The Mature Child Defense: Article 13 of the Hague Convention
Article 13 of the Convention provides that a court may refuse to order the return of a child if:
"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 views."
This defense has two requirements:
| Requirement | What It Means |
|---|---|
| 1. Age and Maturity | The child is old enough and mature enough that their views deserve consideration |
| 2. Objection | The child actually OBJECTS to returning—not just prefers to stay |
Preference vs. Objection: The Critical Distinction
What Is a Preference?
A preference is simply liking one option more than another.
| Example | Type |
|---|---|
| "I like my school in America better." | Preference |
| "I have more friends here." | Preference |
| "I enjoy my activities more in this country." | Preference |
What Is a Genuine Objection?
An objection is a specific, articulated opposition to returning to the country of habitual residence.
| Example | Type |
|---|---|
| "I am afraid of my father and cannot return." | Objection |
| "I was abused there and cannot go back." | Objection |
| "I refuse to live in that country because..." | Objection |
The Key Difference
| Preference | Objection |
|---|---|
| "I like A better than B." | "I refuse to go to B." |
| Focuses on positive aspects of new place | Focuses on negative aspects of the home country |
| General desire to stay | Specific reasons for not returning |
| Not enough under the Convention | May be enough under the Convention |
The Dubikovskyy v. Goun Case: A Real-World Example
What Happened
| Detail | Information |
|---|---|
| Father | Vladyslav Dubikovskyy (Ukraine citizen) |
| Mother | Elena Goun (Russia citizen) |
| Child | M.D., born June 2008 |
| Family lived in | Switzerland (since 2011) |
| Parents divorced | 2018 – joint custody |
| What mother did | Took child to USA in July 2020 without father's consent |
| Mother's secret | She had accepted a job and bought a house in Missouri |
| Father's action | Filed Hague Convention petition for child's return |
The Child's Testimony
M.D. testified that:
- She "would love to live" in Missouri
- She would be "unhappy" if she had to return to Switzerland
- But she was "not afraid" to go back
- She thought she would be "okay" if she returned
- She "didn't know" if she actually objected
Her reasons for wanting to stay included:
- Missing her friends in Missouri
- Her dog couldn't come to Switzerland
- She preferred her activities in the U.S.
What the Trial Court Found
The trial court found that:
- M.D. was mature enough for her views to be considered
- M.D. objected to returning to Switzerland
What the Appeals Court Found
The Eighth Circuit REVERSED the trial court. It held:
"M.D.'s desire to remain in the United States was not coupled with a particularized objection to returning to Switzerland."
The court said the trial court's finding was "clearly erroneous."
Why the Distinction Matters
Policy Reasons
| Reason | Explanation |
|---|---|
| Prevent manipulation | Parents might coach children to express a "preference" to avoid return |
| Preserve Convention's purpose | The Convention aims to return children, not decide custody |
| Protect children | Children shouldn't be put in the position of choosing between parents |
| Maintain narrow exception | The defense is an exception; it should not swallow the rule |
What the Courts Say
| Quote | Source |
|---|---|
| "A preference is not an objection." | Rodriguez v. Yanez (5th Cir. 2016) |
| "A child's preference or generalized desire to remain is insufficient." | Tsai-Yi Yang v. Fu-Chiang Tsui (3d Cir. 2007) |
| "There is a substantive difference between preferring to live in one of two countries and affirmatively objecting to returning to one country." | Dubikovskyy v. Goun (8th Cir. 2022) |
When Does the Mature Child Defense Apply?
Factors Courts Consider
| Factor | What Courts Look At |
|---|---|
| Age of child | Younger children are less likely to be considered mature |
| Child's intelligence | Above-average intelligence may support maturity finding |
| Independence of views | Are the views genuinely the child's own? |
| Particularity of objections | Are the objections specific and articulated? |
| Influence by parents | Has the child been coached or influenced? |
What IS Enough
| Example | Why It Works |
|---|---|
| "I refuse to return because my father abuses me." | Specific, particularized objection |
| "I am terrified of going back to that country." | Emotional, genuine objection |
| "I have been threatened if I return." | Concrete, articulated objection |
What Is NOT Enough
| Example | Why It Fails |
|---|---|
| "I like my school better here." | Preference, not objection |
| "I have more friends here." | Preference, not objection |
| "I prefer to stay with my mother." | Preference, not objection |
| "I would be unhappy to return." | Unhappiness ≠ objection |
Practical Lessons for Parents and Attorneys
If You Are Seeking Return of Your Child
| Strategy | Why It Matters |
|---|---|
| Challenge ambiguity | If the child's testimony is unclear, argue it shows only preference |
| Highlight coaching | Show the child may have been influenced by the abducting parent |
| Focus on objections | Demand specific, particularized objections, not general preferences |
If You Are Opposing Return
| Strategy | Why It Matters |
|---|---|
| Secure clear testimony | Ensure the child articulates SPECIFIC objections |
| Demonstrate maturity | Present evidence of the child's age, intelligence, and independence |
| Show no coaching | Establish that the child's views are genuinely her own |
Key Takeaways
| Lesson | Why It Matters |
|---|---|
| 1. Preference ≠ Objection | A child saying "I like it here" is not enough |
| 2. Particular objections required | The child must give specific reasons for not returning |
| 3. Maturity alone is insufficient | Even a mature child must OBJECT, not just prefer |
| 4. Courts will scrutinize | Judges will examine whether the child was influenced |
| 5. The defense is narrow | Courts apply the mature child defense strictly |
Conclusion
The mature child defense under the Hague Convention is a powerful tool—but only in the right circumstances. A child's mere preference for staying in a new country is not enough.
"A child's desire to remain in the United States, without a particularized objection to returning to the country of habitual residence, is insufficient to invoke the mature child exception."
For parents caught in international custody disputes, understanding this distinction can mean the difference between keeping a child and losing them to another country.
Case Reference:
Dubikovskyy v. Goun, No. 21-3050 (8th Cir. 2022)
Useful Resources
- Hague Conference on Private International Law
- Peshawar High Court – Official Website
- Islamabad High Court – Official Website
- U.S. State Department — Child Abduction
- Supreme Court of Pakistan
For related matters, you may also want to read our guides on Hague Convention child abduction in Pakistan, habitual residence under the Hague Convention, and child custody rights in Pakistan.
Disclaimer: This article is based on Dubikovskyy v. Goun, No. 21-3050 (8th Cir. 2022), and related Hague Convention cases. This article is for general informational purposes only and does not constitute legal advice. For advice specific to your situation, consult a qualified family lawyer in Peshawar, lawyer in Islamabad, or wherever your matter is being handled.
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