Vladyslav Dubikovskyy v. Elena Goun

United States Court of Appeals
For the Eighth Circuit
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No. 21-1289
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Vladyslav Dubikovskyy
Petitioner - Appellant
v.
Elena Goun
Defendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: January 13, 2022
Filed: December 6, 2022
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Before COLLOTON, KELLY, and KOBES, Circuit Judges.
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KELLY, Circuit Judge.
Elena Goun violated her joint custody agreement with Vladyslav
Dubikovskyy by traveling from Switzerland to the United States with their then-12-
year-old daughter, M.D., in July 2020. Dubikovskyy filed a petition seeking M.D.’s
return to Switzerland, pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction (the Hague Convention), Oct. 25, 1980, T.I.A.S.
No. 11,670, 1343 U.N.T.S. 89. After an evidentiary hearing on the merits, the
district court denied the petition based on the mature child defense, finding that M.D.

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was of sufficient age and maturity such that the court should take account of her
views and that she objected to returning to Switzerland. Dubikovskyy appeals.
I.
A.
Dubikovskyy, a citizen of Ukraine, and Goun, a citizen of Russia, married in
December 2007 while living in California. They have one child together, M.D., who
was born in June 2008 in California and is a United States citizen. In 2011, the
family moved to Lausanne, Switzerland, where Goun had taken a job as a chemistry
professor at a university, and became permanent Swiss residents.
Goun and Dubikovskyy separated in 2015, and Goun filed for divorce in
December 2017, after the mandatory two-year waiting period under Swiss law.
Goun was temporarily awarded full custody of M.D. during the pendency of divorce
proceedings, but the ultimate conciliation agreement, reached in April 2018,
provided for shared custody of M.D., including alternating custody on a weekly basis
and split vacations and holidays.
After their separation, Goun and Dubikovskyy disagreed about various
aspects of M.D.’s custody and care, such as whether M.D. could go to Goun’s house
during the school lunch hour when staying with Dubikovskyy and M.D.’s childcare
arrangement while Dubikovskyy was at work. At one point during the divorce
proceedings, Goun sought psychiatric treatment for M.D., but under Swiss law both
parents must consent to such treatment, and Dubikovskyy would not consent. In
March 2019, Goun sought to modify the custody arrangement to obtain sole custody
of M.D., and she asked a Swiss court to order a psychiatric evaluation for M.D.
Dubikovskyy again objected, and the Swiss court found insufficient evidence to
order an examination over his objection. After interviewing M.D., the Swiss court
also denied modification of the custody arrangement, and Goun and Dubikovskyy
continued to have joint custody of M.D.

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B.
During M.D.’s school summer break in 2020, Goun and Dubikovskyy agreed
that M.D. would spend July 3 to 24 with Dubikovskyy and July 24 to August 21 with
Goun. They also agreed that, in light of the COVID-19 pandemic, neither would
take M.D. on any trips requiring air travel, and they specifically agreed not to take
M.D. to North America, where pandemic conditions were much worse than in
Switzerland.
Yet, on July 25, 2020, Goun traveled with M.D. to the United States.
Unbeknownst to Dubikovskyy and M.D., Goun had accepted a permanent faculty
position at the University of Missouri and had purchased a home in Columbia,
Missouri. Goun did not tell M.D. about the trip until the day they left Switzerland,
but Goun had purchased round-trip tickets in case M.D. did not want to stay in the
United States.
On July 28, 2020, Dubikovskyy learned Goun and M.D. had traveled to the
United States. Two days later, he petitioned a Swiss court to order their return to
Switzerland, and on August 4, the court ordered Goun to return M.D. to Switzerland
in time for her to start the school year. On August 13, 2020, Goun petitioned a Swiss
court to transfer M.D.’s residence to the United States on the grounds that M.D. had
decided she wanted to stay in Missouri. The Swiss court denied the petition and
characterized Goun’s actions as an illegal abduction. The court found that Goun
violated the custody arrangement and granted Dubikovskyy the sole right to
determine M.D.’s residence. The ruling was upheld on appeal on September 11,
2020. Dubikovskyy also initiated criminal proceedings against Goun in Switzerland,
and there is a warrant for Goun’s arrest if she returns to Switzerland or any other
country in the Schengen Area.1
1 Dubikovskyy represented to the district court that if the court granted his
petition and M.D. returned to Switzerland, he would drop the criminal charges
against Goun so that she could visit M.D.

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Despite the Swiss court’s ruling, Goun and M.D. remained in Columbia,
Missouri, with M.D.’s half-sister and Goun’s partner, and M.D. started attending
middle school in Missouri when the 2020–21 school year began.
C.
On October 23, 2020, Dubikovskyy filed a petition with the United States
District Court for the Western District of Missouri seeking return of M.D. to
Switzerland pursuant to the Hague Convention, implemented through the
International Child Abduction Remedies Act, 22 U.S.C. §§ 9001–11. Dubikovskyy
alleged that M.D.’s country of habitual residence is Switzerland and that Goun’s
actions constitute an unlawful retention. He asked that the court order M.D. be
returned to Switzerland. In response, Goun asserted two affirmative defenses—that
there is a grave risk that M.D. would be exposed to physical or psychological harm
or otherwise be in an intolerable situation if she returned to Switzerland (the grave
risk of harm defense), and that M.D. objects to being returned and has attained an
age and degree of maturity such that the court should take account of her views (the
mature child defense).
On December 2, 2020, the district court held an evidentiary hearing on the
merits of the petition and heard testimony from Dubikovskyy; one of Dubikovskyy’s
friends who spent time with Dubikovskyy and M.D. in Switzerland; Goun; and
Goun’s Swiss custody lawyer. Goun also called M.D. as a witness,2 and the court
interviewed M.D. with only her parents’ attorneys present.
2 Dubikovskyy had filed a motion in limine to exclude or limit M.D.’s
testimony the day before the bench trial. The district court did not rule on the motion
prior to the hearing but afterward denied the motion as moot.

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Two days after the evidentiary hearing, the district court, pursuant to Federal
Rule of Evidence 706,3 appointed psychologist Dr. James Straub to “provide
information about the maturity and independence of [M.D.]” because the court was
concerned that M.D. may have been unduly influenced by her mother when she was
removed from Switzerland. Dubikovskyy objected to Dr. Straub’s appointment.
Notwithstanding that objection, Dr. Straub examined M.D. and submitted a written
report to the court on December 14, 2020. Dr. Straub concluded that M.D.’s
responses to his questions were based on her own thoughts and not from coaching.
He opined, “[M.D.] expressed well thought out responses about her future and
choices about where to live with a maturity beyond what is typical for her age,” and
“[M.D.] shows the intelligence and maturity to process and understand information
about her situation and make decisions about where to live.” After receiving the
report, the district court again interviewed M.D. in camera, this time outside the
presence of counsel.
On January 7, 2021, the district court denied Dubikovskyy’s petition, relying
on the mature child defense. The district court found that M.D. was “sufficiently
mature and independent [such that the court could] account for her views” and that
M.D. had “stated an objection to returning to Switzerland,” with reasons similar to
those “an adult might consider when deciding where to live, i.e.[,] family
responsibilities, comfort, and opportunities to pursue goals that are meaningful and
inspiring to them.” The district court noted M.D. “was reluctant to use the word
objection because she did not want to make her father sad,” but nonetheless
concluded that “there is no doubt based on her words and expressions that she does
not want to return to Switzerland.” The court further explained it was “confident
3 Under Rule 706, the court may appoint an expert witness of its own choosing
or upon nomination by the parties. Fed. R. Evid. 706(a).

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M.D.’s decision [was] made independently of either parent’s influence.” On
February 5, 2021, Dubikovskyy appealed.4
II.
The Hague Convention “entitles a person whose child has wrongfully been
removed to or retained in the United States to secure the prompt return of the child
to the child’s country of habitual residence, unless the respondent can establish that
an affirmative defense applies.” Custodio v. Samillan, 842 F.3d 1084, 1087 (8th
Cir. 2016) (citing Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995)); see also 22
U.S.C. § 9001(a). The primary purpose of the Hague Convention is “to restore the
status quo ante and to deter parents from crossing international boundaries in search
of a more sympathetic court.” Rydder, 49 F.3d at 372. “It is the Convention’s core
premise that the interests of children in matters relating to their custody are best
served when custody decisions are made in the child’s country of habitual
residence.” Monasky v. Taglieri, 140 S. Ct. 719, 723 (2020) (cleaned up).
To establish a prima facie case for a child’s return, a petitioner must establish
by a preponderance of the evidence that “(1) immediately prior to removal or
retention, the child habitually resided in another Contracting State; (2) the removal
or retention was in breach of the petitioner’s custody rights under that State’s law;
and (3) the petitioner was exercising those custody rights at the time of the removal
or wrongful retention.” Custodio, 842 F.3d at 1088. If a petitioner establishes this
prima facie case, the child must be “promptly returned unless one of the narrow
exceptions set forth in the Convention applies.” Id. at 1089 (quoting 22 U.S.C.
§ 9001(a)(4)). Here, there is no dispute that Dubikovskyy has established a prima
facie case; the sole issue on appeal is whether the district court erred by applying
one of the narrow exceptions—the mature child defense—to deny his petition.
4 Proceedings continued in district court on attorney’s fees and costs. The
district court issued an order on February 7, 2021, finding that costs for the court-
appointed psychologist would be assessed to Goun and each party would bear its
own attorney’s fees.

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The mature child defense comes from Article 13 of the Hague Convention,
which provides that a judicial or administrative authority may “refuse to order the
return of the child if it finds that 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.”
Hague Convention art. 13; see also Elisa Pérez-Vera, Explanatory Report: Hague
Convention on Private International Law ¶ 30 (1981),
https://assets.hcch.net/upload/expl28.pdf (“[T]he Convention also provides that the
child’s views concerning the essential question of its return or retention may be
conclusive . . . . [T]he Convention gives children the possibility of interpreting their
own interests.”). The drafters of the Hague Convention “deemed it inappropriate to
return a mature child ‘against its will.’” Rodriguez v. Yanez, 817 F.3d 466, 476 (5th
Cir. 2016) (quoting see Pérez-Vera, supra ¶ 30).
For the mature child defense to apply, the respondent must establish by a
preponderance of the evidence that (1) the child has attained an age and degree of
maturity at which it is appropriate to take account of her views, and (2) the child
objects to being returned. Custodio, 842 F.3d at 1089 (citing Hague Convention art.
13); see also 22 U.S.C. § 9003(e)(2)(B). If a child is found to be mature, the reasons
the child objects to being returned are immaterial. See Custodio, 842 F.3d at 1091
(adopting the rule from Rodriguez, 817 F.3d at 475–76, that the mature child defense
may apply “whatever the reason for the child’s objection”). We construe the mature
child defense narrowly. Id., 842 F.3d at 1089. A stricter standard also applies when
a child’s views are the sole reason for denying repatriation. See Tsai-Yi Yang v. Fu-
Chiang Tsui, 499 F.3d 259, 278 (3d Cir. 2007).
On appeal, Dubikovskyy does not contest the district court’s finding that M.D.
had attained an age and degree of maturity at which it is appropriate to take account
of her views. Rather, Dubikovskyy argues that the district court erred at the second
step by accepting M.D.’s preference for staying in Missouri, rather than requiring an
objection to returning to Switzerland. Indeed, “[a] preference is not an objection,”
and there is a “substantive difference between preferring to live in one of two
countries . . . and affirmatively objecting to returning to one country.” Rodriguez,

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817 F.3d at 476–77. Under the Hague Convention, a child’s preference or
“generalized desire” to remain in the United States is insufficient to invoke the
narrow mature child exception. See Tsai-Yi Yang, 499 F.3d at 279. Instead, the
child’s testimony must include “particularized objections” to returning to the former
country of residence. Id. The district court recognized the important distinction
between a preference and an objection, citing a dictionary definition for objection,
“a reason, ground, or cause for expressing opposition,” and noting that an objection
“connotes more than a preference for the alternative.”
M.D. testified that she “would love to live [in Missouri] because [she has a]
lot of things here, and it would be really great for [her] dad to come [to Missouri]
for vacation.” When asked about returning to Switzerland, however, she said that
she thought she would be “okay,” and that she was not afraid to go back there. But
she added that she would be “unhappy” if she had to move to Switzerland, and she
gave several reasons: she would not be able to attend the same school as her close
friend who lived in a different Swiss town; she could not bring her dog with her; she
would miss her mother, her half-sister, and her friends in Missouri; and it was more
difficult to ride horses in Switzerland.
In an effort to determine whether M.D. truly “objected” to returning to
Switzerland, the district court asked her if she knew the meaning of the words
“objection” and “preference.” M.D., speaking in a second language,5 said she did
not understand “object.” The court tried to explain the difference between the two
words by offering M.D. some examples: “I object to cleaning the bathroom.” “I
object to my little sister yelling in my ears.” “Do you object to getting up early in
the morning to go to school?” The court continued by saying that “[a]n objection is
something you don’t want. You’re displeased. One is stronger than the other.”
When the court then asked M.D. whether she “objected” to returning to Switzerland
or whether she simply “preferred” one location over the other, M.D. was equivocal.
5 M.D. testified in English, which was not her first language. The record
indicates she also spoke French, Russian, and “a little bit of” German.

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Her most complete answer was: “I would say it’s, like, middle, but, yeah. Maybe I
object — I don’t know. . . . I mean, I — I’m kind of in the middle, but I think I —
I’m more on the object — object side. I don’t know. Objection. Yeah.” The court
asked M.D. why she hesitated in her answer, and M.D. responded, “I don’t know.
It’s, like, hard . . . .”
We recognize the challenges that come with deciphering the difference
between an objection and a preference in a child’s testimony. If given two choices,
country A and country B, an objection to living in A will almost always (although
not invariably) indicate a preference for living in B. But a preference to live in B
does not necessarily indicate an objection to living in A. In this case, M.D.’s
testimony fails to show by a preponderance of the evidence that she “objected” to
returning to Switzerland. Rather, when asked why she would be “unhappy,” or
“dissatisfied” if she had to go back to Switzerland, M.D. consistently responded with
reasons why she preferred to stay in Missouri.6 As to the district court’s discussion
of M.D.’s above-average intelligence, strong personality, and well-developed sense
of responsibility for her younger sibling and the feelings of others, such findings are
relevant to whether the child has reached the age and maturity at which it is
appropriate to consider her views on repatriation. But these observations do not
speak to whether M.D. has in fact lodged an objection to being returned to
Switzerland. Here, M.D.’s desire to remain in the United States was not coupled
with a particularized objection to returning to Switzerland. As a result, it is
insufficient to meet the strict standard that applies when the mature child defense is
the sole grounds for denying an abducted child’s return. See Tsai-Yi Yang, 499 F.3d
at 278.
We agree with the district court that M.D. is an “innocent party” in this
acrimonious dispute. But because M.D. did not express a particularized objection
to returning to Switzerland, instead describing a preference—for a variety of
6 To the extent M.D. equated her feelings about returning to Switzerland to an
objection to household chores or getting up early, we conclude that the analogy is
insufficient on this record to establish the mature child defense.

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understandable reasons—to remain in the United States, the district court’s finding
that M.D.’s statements constituted an objection within the meaning of the mature
child defense was clearly erroneous. Custodio, 842 F.3d at 1089 (whether a mature
child has objected to the return to her country of habitual residence is reviewed for
clear error).
III.
For the above-stated reasons, we reverse the judgment of the district court and
remand the case with directions to grant the petition for the return of M.D. under the
Hague Convention on the Civil Aspects of International Child Abduction.
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