Opinion
Civil Action 23-3175 (RK) (RLS)
07-26-2023
STEPHEN MCELLIGOTT, Petitioner, v. AUDREY MCELLIGOTT, Respondent.
NOT FOR PUBLICATION
MEMORANDUM OPINION
ROBERT KIRSCH, UNITED STATES DISTRICT JUDGE
THIS MATTER conies before the Court upon Respondent's motion to appoint a guardian ad litem for the benefit of the minor child C.M. (ECF No. 11), whom Petitioner seeks returned to Ireland pursuant to the International Child Abduction Remedies Act. (ECF No. 1.) The Court has considered the parties' submissions and resolves the matter without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1. For the reasons set forth below, Respondent's motion to appoint a guardian ad litem (ECF No. 11) is DENIED.
I. BACKGROUND
On June 9, 2023, Stephen McElligott (“Petitioner”) filed a petition pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) and the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. §§ 11601-11610, seeking the return of his 12-year-old son (C.M.), whom he alleges Audrey McElligott (“Respondent”) - C.M.'s mother and Petitioner's spouse - removed from Ireland to the United States and wrongfully retained in the United States beginning December 11, 2023. (ECF No. 1.) A trial on the merits of the Petition is scheduled for August 21 and 22, 2023. (ECF No. 13.)
On July 12, 2023, Respondent filed a motion seeking appointment of a guardian ad litem for the benefit of C.M. and for the Court to conduct an in camera interview with C.M. (ECF No. 11.) In support, Respondent filed a certification (ECF No. 11-1) and moving brief (ECF No. 112). The Court has already granted Respondent's request to interview C.M. in camera, which is scheduled to take place on August 15, 2023. (ECF No. 13). On July 21, 2023, Petitioner filed a brief opposing appointment of a guardian ad litem. (ECF No. 17.)
II. DISCUSSION
Once a petitioner seeking a child's return under the Hague Convention and IC ARA makes aprima facie showing that the child was wrongfully removed, “the burden shifts to the respondent to prove an affirmative defense against the return of the child to the country of habitual residence.” Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 271 (3d Cir. 2007) (citing Karkkainen v. Kovalchuk, 445 F.3d 280,288 (3d Cir. 2006)). One affirmative defense available under the Hague Convention is the “wishes of the child” defense, which permits the Court to refuse to order a child's return when “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.” Tsai-Yi Yang, 499 F.3d at 278 (citing Hague Convention art. 13, Oct. 25, 1980, T.I.A.S. No. 11,670, 1988 WL 411501)).
The Supreme Court has observed that “courts can achieve the ends of the Convention and ICARA-and protect the well-being of the affected children-through [] familiar judicial tools . . . .” Chafin v. Chafin, 568 U.S. 165, 178 (2013) (discussing ability of courts to stay execution of a return order pending appeal in an ICARA case). Pursuant to Federal Rule of Civil Procedure 17, “[t]he court must appoint a guardian ad litem-or issue another appropriate order-to protect a minor or incompetent person who is unrepresented in an action.” Fed.R.Civ.P. 17(c)(2). Whether to appoint a guardian ad litem is a determination “generally [] left to the discretion of the district courts.” Powell v. Symons, 680 F.3d 301, 303 (3d Cir. 2012). Federal courts hearing ICARA cases have found, on occasion, the appointment of a guardian ad litem appropriate to represent a child. See Sanchez v. R. G.L., 761 F.3d 495, 508 (5th Cir. 2014) (“District courts have sometimes allowed children to participate through guardians ad litem when their interests were not adequately represented by either party.”).
Respondent asserts that appointing a guardian ad litem is appropriate here. Respondent indicates that she will raise the “wishes of the child” defense. C.M. is twelve years old and sufficiently mature for the Court to take his view into consideration, and, according to the certification accompanying Respondent's brief (see ECF No. 11-1), will express “specific and particularized objections to returning to Ireland.” (ECF No. 11-2 at 13). Respondent discusses several cases in which courts have applied this exception and refused to order a child's return. (ECF No. 11-2 at 7-12.) Respondent concludes that she seeks “the appointment of a guardian ad litem who will have the opportunity to interview the Child and collateral contacts deemed relevant by the guardian ad litem" in order to assist the Court in evaluating the “wishes of the child” defense here. (Id. at 13.)
The Court finds C.M.'s interests are adequately protected in this matter without the appointment of a guardian ad litem. Rule 17(c)(2) only requires the Court to appoint a guardian for a minor “who is unrepresented in an action.” The Court is fully satisfied that C.M.'s interests are well represented by his parents and their attorneys, who together will surface the relevant facts and legal arguments necessary to decide the Petition. These protections distinguish this case from those “exceptional” cases cited by Respondents (ECF No. 11-2 at 13) in which appointment of a guardian ad litem was found necessary because the child's interests would be otherwise unrepresented. See Sanchez, 761 F.3d at 508 (appointing a guardian ad litem because “[t]he abducting respondents have disclaimed any responsibility for the children”).
The Court is also unpersuaded by Respondent's argument that appointment of a guardian ad litem will assist the Court in determining whether the “wishes of the child” exception applies to C.M. (ECF No. 11-2 at 13.) First, the parties will present their own witnesses and evidence relevant to this affirmative defense. The Court will thus hear directly from the “collateral contacts” (ECF No. 11-2 at 13) whose perspective Respondent seeks to have an appointed guardian ad litem relay to the Court second-hand. Second, the Court has already set a date to interview C.M. in camera prior to the trial. (ECF No. 13.) The parties may also call expert witnesses, such as child psychologists, whose testimony will would presumably be relevant to determining C.M. 's maturity and potential objections to returning to Ireland. Testimony from a guardian ad litem regarding C.M.'s views would duplicate evidence the Court will already hear from the parties' experts and C.M. himself. Finally, the Court notes that in two of the three cases Respondent's brief treats at length in which the Court found the “wishes of the child” exception applied, the judge reached his decision evidently without hearing from a guardian ad litem. (ECF No. 11-2 at 8-12 (discussing Colon v. Mejia Montufar, 470 F.Supp.3d 1280 (S.D. Fla. 2020) and de Jesus Joya Rubio v. Alvarez, 526 F.Supp.3d 1186 (S.D. Fla. 2021)).)
III. CONCLUSION
For the foregoing reasons, Respondent's motion to appoint a guardian ad litem for the benefit of the minor child C.M. (ECF No. 11) is DENIED.