Last month, we discussed the law in the U.S. and beyond pertaining to the establishment of a child's habitual residence. The next issue to cover, once habitual residence of the child has been established, is whether or not the petitioning party has a right to custody of the child in question.
A parent need not have a custody order to invoke the Convention, but to apply for the return of a child, a parent must be actually exercising "rights of custody" under the law of the country where the child was "habitually residing" at the time of the abduction or wrongful retention. The rights of custody may arise, according to Article 3 of the Convention, by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Although the Hague Convention defines "rights of custody," there has been substantial litigation as to whether a party has a right of custody or merely a right of access. This is a key distinction. "Access rights," which are synonymous with "visitation rights," are protected by the Convention but to a lesser extent than custody rights. The remedies for breach-of-access rights are enunciated in Article 21 and do not include the return remedy provided by Article 12. Article 5(b) defines "access rights" as including "the right to take a child for a limited period of time to a place other than the child's habitual residence." A parent who takes a child from the country of its habitual residence to another country that is a party to the Convention for a summer visit pursuant to either an agreement between the parents or a court order is exercising his or her access rights.
"Custody rights" are defined in Article 5(a) as "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Such custody rights are determined by law of child's habitual residence. In addition to including the right to determine the child's residence, the term "custody rights" covers a collection of rights that take on more specific meaning by reference to the law of the country in which the child was habitually resident immediately before the removal or retention. Nothing in the Convention limits this "law" to the internal law of the State of the child's habitual residence. Consequently, it could include the laws of another State if the choice of law rules in the State of habitual residence so indicate. According to Article 3, custody rights may arise: 1) by operation of law; 2) by reason of a judicial or administrative decision; or 3) by reason of an agreement having legal effect under the law of that State.
Ne Exeat Rights and Patria Potestas
The Circuits disagree as to when a parent has a "right of custody" rather than a 'right of access," and there has been much litigation in the district courts regarding the significance of ne exeat rights and patria potestas. "Ne exeat" has been defined as an equitable writ restraining a person from leaving, or removing a child or property from, the jurisdiction. A ne exeat is therefore often issued to prohibit a person from removing a child or property from the jurisdiction -- and sometimes from leaving the jurisdiction.
"Patria potestas" has been explained as follows: "The authority held by the male head of a family (the senior ascendant male) over his legitimate and adopted children, as well as further descendants in the male line, unless emancipated. 42 Black's Law Dictionary (8th Edition 2004).
In Croll v. Croll, 229 F3d 133 (2d Circuit 2000), Mrs. Croll removed her daughter from Hong Kong to the United States in violation of her custody agreement with Mr. Croll. Under their agreement, Mrs. Croll maintained sole "custody, care, and control" of the child, and Mr. Croll had a right of "reasonable access." The agreement also provided that the child "not be removed from Hong Kong until she attains the age of 18 years" without leave of court or consent of the other parent. The U.S. Court of Appeals for the Second Circuit relied for its decision on three main conclusions: 1) that Mr. Croll's ne exeat right was not a right to determine the child's place of residence, but only a limitation on her right to determine the child's place of residence; 2) that his ne exeat right could not be exercised absent removal; and 3) that the history and drafters' intent of the Hague Convention supported the view that a ne exeat right was not custodial. The Second Circuit held that a ne exeat right is not custodial, and is only a limitation. The court relied in part on how the particular agreement in that case gave Mrs. Croll the sole "custody, care, and control" of the child, and thus the sole right to determine her place of residence within Hong Kong. The Fourth Circuit came to a similar conclusion in Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir. 2003).
In Furnes v. Reeves, 362 F3d 702 (11th Cir. 2004), the Eleventh Circuit distinguished Croll because Furnes involved Norwegian law, and plaintiff Furnes' ne exeat right had to be considered in the context of his additional decision-making rights by virtue of his joint "parental responsibility" under Norwegian law. The Eleventh Circuit noted that under Norways "Children Act,"parental responsibility is broadly defined to include the right "to make decisions for the child in personal matters." Where parents exercise "joint parental responsibility" but the child lives with only one parent, the parent with whom the child resides has decision-making authority "concerning important aspects of the child's care," but not all aspects of the child's care. While the parent with whom the child resides has the authority to determine where the child will live within Norway, the Children Act grants a parent with joint parental responsibility decision-making authority over whether the child lives outside Norway. Both parents must consent to the child moving abroad. In the Furnes case, this joint parental responsibility effectively gave the father a ne exeat right to determine whether the child could live outside of Norway with her mother. The Eleventh Circuit held that the father's rights to his daughter under Norwegian law were the type of rights that entitled him to the return of his child under the express terms of the Hague Convention. The father's ne exeat right granted him the substantive right (albeit a joint right) to determine whether the child lived within or outside of Norway, and thus the right to determine jointly with the mother the child's place of residence. This ne exeat right in the context of the father's retained rights constituted a "right of custody" as defined in the Convention.
In Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir. 2002), the district court had ordered that children taken out of Mexico be returned. The appellate court held, as matters of first impression, that: 1) for purposes of Convention, a ne exeat clause in a foreign divorce agreement does not confer "rights of custody" upon a parent who otherwise possesses only access rights to the parties' children; and 2) for purposes of the Convention, patria potestas does not confer "rights of custody" upon a parent given access rights in a custody agreement. The father had argued that he had custodial rights under the Convention because the ne exeat clause of the divorce agreement constituted "the right to determine [his children's] place of residence." The Ninth Circuit rejected the argument and, citing to Croll, held that the "right" granted under a ne exeat clause is, at most, a veto power. A parent with custodial rights has the affirmative right to determine the country, city, and precise location where the child will live, as this is one of the primary rights of a custodial parent. By contrast, a ne exeat clause serves only to allow a parent with access rights to impose a limitation on the custodial parent's right to expatriate his child. At most, the father could, under the terms of his divorce agreement with Gutierrez, refuse permission for his children to leave Mexico. He could not, however, direct with any specificity where the children would reside either within the borders of Mexico or within any other country. This, in the court's view, hardly amounted to a right of custody.
The father in Gonzalez went on to argue that the Mexican legal concept of patria potestas conferred upon him rights of custody under the Convention. The Ninth Circuit considered this issue as one of first impression. It noted that the concept of patria potestas is derived from Roman law and originally meant paternal power over the family and household. In common law legal systems, patria potestas was first replaced by parens patriae and eventually by the "best interests of the child" standard. Many civil law countries, however, continue to recognize some form of patria potestas. However, the Ninth Circuit held the Mexican legal concept of patria potestas did not confer "rights of custody" upon the non-custodial parent where a competent Mexican court had already decided the rights and obligations of both parents.
In contrast, in Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000), the First Circuit held that a father had "rights of custody" under Mexican law, which was the law of the child's habitual residence at time of her removal, as the doctrine of patria potestas gave the father custodial rights greater than mere visitation rights, notwithstanding the Mexican court's rejection of the father's petition to terminate the mother's parental rights. The court held that the Affidavit of a Mexican attorney indicating that both parents exercise patria potestas rights under Mexican law and stating that both parents must consent to the removal of the child under Mexican law was an acceptable form of proof in determining issues of foreign law, and was permitted under the Hague Convention.
In Hanley v. Roy, 485 F.3d 641 (11th Cir. 2007), the Hanleys were the Irish maternal grandparents of Roy's children. Their daughter, Margaret, married Roy, a United States citizen, in England in 1986, and the two resided in England together. In 1997, shortly after the couple's separation and the birth of their third child, Margaret was diagnosed with cancer and wanted to return to Ireland.
The Hanleys bought Margaret and the children a house in Ireland, and Roy eventually rejoined the family there. In March 2000, Margaret executed a will designating the Hanleys as trustees of her estate and testamentary guardians of the children. After she died, Roy and the children continued to live with the Hanleys until July 29, 2005, when Roy suddenly moved the children from Ireland to Florida without the Hanleys' knowledge or consent, leaving only a note behind. The Eleventh Circuit held that the substantive rights the Hanleys enjoyed as testamentary guardians under Irish law were sufficient to create "rights of custody" under the Convention.
Exercising Rights of Custody: A Liberal Approach
The Circuits appear to be in agreement as to when a parent is "exercising' rights of custody.
In Friedrich v. Friedrich (II), 78 F3d 1060 (6th Cir. 1996), the Sixth Circuit held that a person having valid custody rights to a child under the law of the country of the child's habitual residence cannot "fail to exercise" those custody rights under the Hague Convention, short of acts that constitute clear and unequivocal abandonment of the child. Once a court determines that the parent exercised custody rights in any manner, the court should stop it's inquiry into the exercise of custody rights, completely avoiding whether the parent exercised those rights well or badly. The rule enunciated by the Sixth Circuit in Friedrich was adopted in by the Second Circuit in Croll.
In Sealed Appellant v Sealed, 394 F3d 338 (5th Cir. 2005), the Fifth Circuit adopted the reasoning from Friedrich II and held that in the absence of a ruling from a court in the child's country of habitual residence, when a parent has custody rights under the laws of that country, even occasional contact with the child constitutes "exercise" of those rights. To show failure to exercise custody rights, the removing parent must show the other parent has abandoned the child.
Similarly, in Bader v. Kramer, 484 F.3d 666 (4th Cir. 2007), the Fourth Circuit held that it will liberally find "exercise" whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child. See also Baxter v. Baxter, 423 F3d 363 (3d Cir. 2005). The Bader court pointed out in a footnote that this approach will not apply when the country of habitual residence, by law, expressly defines the exercise of custody rights for purposes of the Hague Convention. Similarly, when a competent judicial tribunal in the country of habitual residence has made a determination as to whether a parent was exercising his custody rights, that determination will normally be conclusive.
FNa1. Bari Brandes Corbin and Evan B. Brandes, both members of this newsletter's Board of Editors, are with Joel R. Brandes Consulting Services Inc., Jersey City, NJ, and Ft. Lauderdale, FL (www.brandeslaw.com or www.nysdivorce.com). (c) Copyright, 2007. Joel R. Brandes Consulting Services, Inc., Evan B. Brandes and Bari Brandes Corbin. All rights reserved.