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Case Commentary: J.C.C. v. L.C., No. 20-3289, 2022 U.S. App. LEXIS 8498 (3d Cir. Mar. 31, 2022)

James D. Garbolino
February 17, 2023

Child’s Objection to Return

In this case the mother appealed an order granting the father’s Hague petition for return of his children to El Salvador and challenged the denial of her request to allow the children to testify.[1]


The Third Circuit held that the district court had discretion to deny a request for the children to testify and affirmed the order for return.


The parent’s El Salvadoran divorce agreement in 2016 granted physical custody of their two daughters, aged nine and fifteen, to the father, with open visitation to the mother. Six months after the divorce, the mother moved from El Salvador to the United States, leaving the children in their father’s sole custody. In 2018, the father gave written authorization for the children to travel to the United States for a two-and-a-half-month visit. The mother refused to return the children at the conclusion of the visit, contending that they informed her that the father abused them. The father filed a petition for their return to El Salvador.

After he father filed his Hague case, the mother filed a petition in El Salvadorian family court seeking sole custody. Her petition did not mention the abuse allegations.[2] Before trial on the Hague case commenced, the mother permitted the father to see the children in the United States, including allowing them to stay for overnight visits. The mother also permitted her oldest daughter to have a month-long visit with her father in El Salvador.

The mother and father both introduced witnesses at trial. The mother also testified about five incidents, between 2004 and 2016, where the father physically abused to her. She presented a 2014 photograph purportedly showing a black eye suffered as a result of his abuse. She presented screenshots from videos of her children that purportedly supported her claim that the father abused them.

The district court found that the mother’s allegations of abuse were undermined by her agreement that the father retain physical custody of the children after their divorce, and her agreement that he retain sole physical custody after her move to the United States.

At trial, the mother alleged that the children wished to remain in the United States. The court refused to allow the children to testify on the ground that “it would have been redundant, needlessly harmful to the children, and potentially influenced by [the mother].” The court ruled that the father presented a prima facie case supporting return and the mother’s exceptions to return failed for lack of sufficient proof.


The Third Circuit held that courts have discretion on whether to allow children to testify about their objections to return. The standard of review on appeal is abuse of discretion. The appellate court noted that a child’s objection does not have to be considered if it is the result of undue influence, citing Tsai-Y Yang v. Fu-Chiang Tsui[3] The Third Circuit ruled that in this case, the district court did not abuse its discretion when it decided not to interview or hear testimony from the children.[4]

[1]. The court noted that this case did not constitute binding precedent because it was not circulated to the full court before issuance. Third Circuit I.O.P. 5.2 (2018) provides, “The court by tradition does not cite to its not precedential opinions as authority. Such opinions are not regarded as precedents that bind the court because they do not circulate to the full court before filing.”
[2]. Some of the facts reflected herein were set forth in the district court’s ruling, see J.C.C. v. L.C., Civil Action No. 19-21889 (SDW) (LDW), 2020 WL 6375789 (D.N.J. Oct. 30, 2020).
[3]. 99 F.3d 259, 279 (3d Cir. 2007).
[4]. By the time the matter was decided, the eldest child turned sixteen and was no longer subject to the Convention, and the appeal as to this child was deemed moot.