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In
Carrascosa v Mcguire, 520 F.3d 249 (3d Cir. 2008) Carrascosa, a citizen
of Spain, and Peter Innes, a United States citizen, were married in
Spain on March 20, 1999. . Their daughter, Victoria, was born on April
17, 2000, in New Jersey, and had dual citizenship in Spain and the
United States. Innes and Carrascosa separated in early 2004. On October
8, 2004, Innes and Carrascosa, both represented by counsel, signed a
"Parenting Agreement" which memorialized "the terms of a proposed
interim resolution of parenting time for Mr. Innes." It specifically
prohibited either of them from "traveling outside of the United States
with Victoria without the written permission of the other party." The
parties did not seek any court's imprimatur for the Parenting Agreement.
This provision, akin to a ne exeat clause in a court order, comported
with New Jersey law, which states that even after custody is determined
in a divorce proceeding, the unilateral removal of a child by a
custodial parent without the other parent's consent or a court order is
forbidden. N.J.S.A. 9:2-2. On December 10, 2004, Innes filed an action
in the Superior Court of New Jersey seeking a divorce from Carrascosa.
On December 15, 2004, Carrascosa filed an action in Spain seeking
"nullification" of the marriage. On January 12, 2005, Carrascosa took
Victoria to Spain, without Innes's permission or knowledge. On February
4, 2005, Judge Parsons of the Superior Court of New Jersey ordered that
Victoria "be returned from Spain immediately" and that, upon her return,
the parties were to abide by the terms of the Parenting Agreement. On
March 22, 2005, Judge Parsons granted Innes temporary custody of
Victoria, again ordered that she be returned from Spain, and, if she
were not, ordered a warrant to issue automatically for Carrascosa's
arrest. On June 14, 2005, Innes filed an application in Spain seeking
the immediate return of Victoria to New Jersey and enforcement of Judge
Parsons' orders. Innes also made the contradictory request "that
Victoria not be permitted to leave Spain" because he apparently "fear[ed]
that she would be taken to a third country." While plainly not what
Innes had in mind, the Spanish Court of First Instance, No. 9 responded
with an order on June 24, 2005, prohibiting Victoria from leaving Spain
until her eighteenth birthday. Innes appealed that decision and, on
November 11, 2005, Spanish Court No. 9 reversed itself, concluding that
it lacked jurisdiction because Victoria's country of habitual residence
was the United States. Judge Torack who was now assigned to the case
"ordered Carrascosa to [bring] Victoria [home] by December 22, 2005, or
face sanctions." He also ordered Innes and Carrascosa to each submit to
a standard custody evaluation, which Innes did, but Carrascosa refused
to do. Carrascosa appealed the November 11, 2005 decision of Spanish
Court No. 9. On January 18, 2006, Spanish Appellate Court No. 10 found
that the October 8, 2004 Parenting Agreement implicitly assigned full
custody of Victoria to Carrascosa and then reinstated the order of
Spanish Court No. 9 prohibiting Victoria from leaving Spain until her
eighteenth birthday. After trial on the divorce action in the Superior
Court of New Jersey Judge Torack issued separate orders of final
judgment of divorce on August 23 and 24, 2006. The August 23 order
"dissolved the marriage between Innes and Carrascosa" and "awarded Innes
sole legal and residential custody" of Victoria. The August 24 order
required Carrascosa to "direct her attorney in Spain to apply to the
[Spanish] courts for the return of Victoria's Spanish and United States
passports" and to return Victoria to the United States from Spain within
ten days. The August 24 order further provided that, if Carrascosa
failed to comply, a warrant for her arrest would issue immediately and
"she [would] remain in the Bergen County jail until Victoria [is turned
over to Innes]." Carrascosa made no efforts to obtain Victoria's
passports or return her to the United States. On September 1, 2006,
after Judge Torack issued a warrant for Carrascosa's arrest and an order
of commitment, effective until Victoria is returned to Innes Carrascosa
was arrested in New York and incarcerated late November 2006, pursuant
to the Superior Court's commitment order. She had since been in the
Bergen County jail. Carrascosa petitioned the District Court for a writ
of habeas corpus, pursuant to 28 U.S.C. s 2254(b)(1), seeking to end and
enjoin her detention. The District Court denied her petition with
prejudice on February 8, 2007. The District Court's February 8, 2007
opinion analyzed the decisions of the Spanish courts and determined that
they ignored the mandates of the Hague Convention by impermissibly
making custody determinations and failing to address and apply New
Jersey law. The District Court also determined that the decision of
Spanish Court No. 10 was "not entitled to reciprocity on principles of
comity." (citing Diorinou v. Mezitis, 237 F.3d 133, 142 (2d Cir.2001)).
Implicit in the District Court's decision was a determination that the
Superior Court was acting within the proper scope of its authority by
holding Carrascosa in contempt, and therefore her federal habeas
petition set forth no basis for relief.
The Court of Appeal held that District Court's
decision denying Carrascosa's petition properly applied the law of the
Convention and its implementing legislation. The Court first recognized
that "[t]here is no dispute that [Victoria's] place of habitual
residence, prior to Carrascosa's removal of her to Spain, was the United
States, in particular New Jersey." accord Feder v Feder-Evans, 63 F.3d
at 224 ("... a child's habitual residence is the place where he or she
has been physically present for an amount of time sufficient for
acclimatization and which has a 'degree of settled purpose' from the
child's perspective."). Spanish Court No. 9 agreed that Victoria's
"habitual residence was in the United States...." As to the question of
whether Victoria's removal to Spain was wrongful under Article 3 of the
Hague Convention, the District Court noted that, "[a]lthough Innes and
Carrascosa signed [the Parenting Agreement]," there was no court order
pertaining to custody at the time Victoria was taken to Spain. Absent a
court order stating otherwise, New Jersey parents possess equal custody
rights to their children. Innes, 918 A.2d at 707 (citing Scanlon v.
Scanlon, 29 N.J.Super. 317, 102 A.2d 656, 661 (App.Div.1954) ("In a
contest between the mother and father, neither has the superior right to
custody of the child.")). To determine whether Innes was exercising
custody rights, the District Court looked at whether he had "any sort of
regular contact with [Victoria]" prior to her removal. (citing Friedrich
v Friedrich, 78 F.3d at 1065). The Court then found that, "[w]ithout a
doubt," Innes had regular contact with Victoria prior to his separation
from Carrascosa and that, after their separation, he continued having
regular contact with Victoria. The District Court concluded that Innes "exercis[ed]
his custody rights in accordance with the [Parenting Agreement] until
Carrascosa prevented him from doing so" by taking Victoria to Spain.
Because Innes had custody rights under New Jersey law and was exercising
those rights at the time of Victoria's removal, and Carrascosa breached
those rights by removing Victoria to Spain without Innes's consent,
Victoria's removal was "wrongful" within the meaning of Article 3 of the
Hague Convention. See Feder, 63 F.3d at 226 (holding that, when parents
are exercising joint custody over their child, one parent's unilateral
decision to take that child to another country is wrongful within the
meaning of the Convention).
The District Court then analyzed Spanish Court
No. 10's decision, observing that it recited certain provisions of the
Hague Convention, but that there was a "glaring departure ... from the
mandate of the Hague Convention" in its "total failure to determine
Innes's rights of custody under New Jersey law...." For example, Spanish
Court No. 10 openly acknowledged that it was applying Spanish law when
it found part of the October 8, 2004 Parenting Agreement was invalid.
Therefore, when, or about, January 12, 2005, the mother brought her
daughter to Spain, she breached the [October 8, 2004 Parenting
Agreement]. However, in Spain such agreement could only be considered a
letter of intent therefore no solution whatsoever could be imposed for
such breach of contract, as it was an agreement limiting the fundamental
rights contained in Article 19 of the Constitution that guarantees all
Spanish citizens the right to freely choose their place of residence and
the use of such expression in the agreement can not be deemed valid. The
incompatibility of this restrictive clause with Spanish law regarding
fundamental rights, under the autonomous system of the Civil Procedure
Act, implies grounds for a public litigation order and from the
standpoint of Article 20 of the [Hague] Convention, in justification for
a refusal to return the child, as has been requested. Valencia argued
that Spanish Court No. 10 found that the Parenting Agreement violated
the fundamental rights of Spanish citizens contained in Article 19 of
the Spanish Constitution, through application of Article 20 of the Hague
Convention, and that its decision should be afforded comity. This
argument had no merit because, prior to her running afoul of the New
Jersey child abduction laws and court orders, Carrascosa was free to
travel where and when she liked. To say that a country can decline to
return a child to the child's habitual residence on the theory that the
child's right to travel is a "fundamental freedom" that would be
violated by the return has the effect of rendering the Hague Convention
meaningless. Given the "bald statement that [Spanish Court No. 10] would
apply Spanish law in total disregard of the law of New Jersey as
required by the Hague Convention," the District Court determined that
there had been a "complete disregard of the principles of international
comity." The Court went on to observe that "[t]he Spanish court departed
from the limited issue it was authorized to decide under the Hague
Convention and undertook to resolve the wide range of issues involved in
a custody dispute, in spite of the fact that the Hague Convention
mandated that [it] order[ ] the return of Victoria ... to New Jersey."
The Spanish courts never applied New Jersey law in this case, despite
their recognition that Victoria's habitual place of residence was New
Jersey. Spanish Court No. 10, in particular, paid lip service to the
Hague Convention and then proceeded to apply Spanish law in its
analysis. Spanish courts made custody determinations in direct
contravention of both the letter and the spirit of the Hague Convention.
In sum, the "Spanish courts departed from the requirements of the Hague
Convention in not returning [Victoria] to New Jersey so that ... custody
... could be litigated there." It conclude that the Spanish courts
departed from the fundamental premise of the Hague Convention and
violated principles of international comity by not applying New Jersey
law. It further concluded that the Superior Court of New Jersey had
authority to rule on Victoria's custody and to issue orders pertaining
to Carrascosa's civil contempt a nd incarceration. It therefore agreed
with the District Court's conclusion that Carrascosa's habeas petition
was without merit and that her incarceration for civil contempt is not
"in violation of the laws or treaties of the United States," 28 U.S.C. s
2254(a).
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