Swett Urquieta v. Bowe
- Paul Engelmayer
- 1:24-cv-01379
- U.S. District Court · Southern District of New York
- 4
In Swett Urquieta v. Bowe, Judge Engelmayer appointed independent counsel for the child in a Hague Convention return proceeding.
The order directly affects S.B.S., the minor child, by providing him independent legal representation in the return proceeding. It also affects Maria Elena Swett Urquieta and John Francis Bowe because Professor Baum may help communicate with the court and facilitate communication or visitation with the petitioner.
What happened
Swett Urquieta v. Bowe concerns a petition seeking the return of a child to Chile under an international treaty governing the return of children taken across borders and its federal implementing law.
The opinion states that the child, S.B.S., grew up in Chile with his mother and visited his father in New York twice a year, but had lived only in the United States with his father for 14 months. The parents disputed whether the father could keep the child in the United States, and the petitioner alleged that the child could be influenced by his father.
Judge Paul A. Engelmayer appointed Professor Jennifer Baum as S.B.S.’s independent counsel. Her limited role is to help the child understand the case, communicate his position to the court, protect his ability to participate appropriately, and help with communication or visits with his mother; the order did not decide whether the child must return to Chile.
The detailed version
- Swett Urquieta v. Bowe · No. 1:24-cv-01379
- Paul Engelmayer
- Mar. 5, 2024
Background
Maria Elena Swett Urquieta filed a petition seeking the return of her child, S.B.S., under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. The court held a hearing on March 4, 2024, at which counsel for both parents appeared.
According to the pleadings and the lawyers’ statements described in the order, S.B.S. is 11 years old, grew up in Chile with his mother, and visited his father in New York twice each year under custody orders entered by courts in the United States and Chile. The child had instead lived exclusively in the United States with his father for the previous 14 months. The proceeding raises whether a defense under the Hague Convention allows the father to retain the child in the United States or requires the child’s return to Chile.
Appointment of Counsel
The court determined that the child’s interests might not align with either parent’s interests. It also considered the petitioner’s allegation that the child could be vulnerable to influence by his father. The court therefore found that S.B.S.’s interests were not adequately represented by either parent.
The court gave particular weight to the respondent’s stated intent to rely on the Hague Convention’s Article 13 age-and-maturity defense. That defense requires the court to consider a child’s views if the child is found to be of sufficient age and maturity. The court explained that this process could involve private questioning of the child, making independent counsel useful in helping him through the process.
Ruling
Judge Paul A. Engelmayer appointed Professor Jennifer Baum, director of the child advocacy clinic at St. John’s University School of Law, as independent counsel for S.B.S. The appointment is limited to helping the child understand the proceedings; communicate his position to the court; protect his ability to be interviewed or testify in a developmentally appropriate way; and facilitate communication or visitation with the petitioner when appropriate.
The order states that the parties or their counsel may ask to modify the appointment, including by expanding or clarifying Professor Baum’s responsibilities or appointing others to work with her. The order addresses representation for the child and does not decide the underlying question of whether S.B.S. must be returned to Chile.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.