Child Abduction

• Author: International Law Group
• Pages: 223-225

Page 223

Defendant Claire Simcox appeals from a district court decision ordering her to return to Mexico with two of the four children who currently reside with her in Ohio. The district court found that the return of the minors was required under the Hague Convention on Civil Aspects of International Child Abduction and its implementing legislation, the International Child Abduction Remedies Act (ICARA).

Page 224

The Defendant and the Plaintiff, both U.S. citizens, had since 2002 resided in Mexico, though in three separate states therein. The family traveled frequently for Mr. Simcox's work, and spent time in some 45 different countries. In January 2006, Mrs. Simcox left Mexico with four of her children, and escaped to Ohio, where she had family. In assessing the case, the district court was hindered by a lack of credible evidence provided from either party, and Mr. and Mrs. Simcox presented vastly diff ering views on the home situation the children had been in. However, based on testimony of the three eldest children, the court determined that Mr. Simcox was verbally abusive to his wife and often used physical punishment against the children.

"Mr. Simcox fi led this petition seeking return of the children to Mexico on January 12, 2007, nearly one year after the abduction. Preliminarily, the district court concluded that Mr. Simcox had established, by a preponderance of the evidence, that the children were wrongfully removed from Mexico-the country of 'habitual residence' within the meaning of the Hague Convention-and thus the burden shifted to Mrs. Simcox to prove one of the defenses against return permitted under Article 13. The court noted that the Convention authorizes a court to decline to order the return of a child who objects to such return, if the child is of sufficient age and maturity to consider its views. Id. at 952. The court found that the two older children 'possessed the requisite level of age and maturity sufficient for this Court to consider their views,' noted their 'unequivocal[] . . . objections to return[ing] to Mexico,' and thus declined to order their return." [¶ 24]. The court also found the two youngest children, aged 4 and 8, lacked the requisite level of age and maturity, and their views were not taken into account.

Despite much evidence of the ill-temperament of Mr. Simcox, and his overwhelming need to control combined with a tendency to act out violently, and noting that Mrs. Simcox "ha[d] provided...