In Pasten v Velasquez, 462 F.Supp.2d 1206 (M.D. Alabama, 2006) RMRV was
born to Reyes and Ruiz in 1998. The two were never married, and they
terminated their relationship in 2000. Since then, Ruiz married an
American citizen. Reyes still resided in Chile. Ruiz lived in Chile
until late 2003, when she and RMRV came to the United States, ostensibly
so that Ruiz could enroll in oceanography school at Texas A& M
University. Under Chilean law, Ruiz could not remove RMRV from Chile
without Reyes's permission, which he declined to give. Therefore, before
leaving Chile, Ruiz sought, and a Chilean court granted, permission to
bring her daughter to the United States for three years, during her
enrollment in the oceanography school. However, Ruiz never attended the
university; instead, sometime in 2006, she moved to Alabama. She did not
notify Reyes or the Chilean court. Upon learning that Ruiz had moved to
Alabama, Reyes filed a petition in this court for the return of RMRV to
Chile based on the Hague Convention. At the hearing. Ruiz expressed that
she intended to take RMRV, permanently, to live in Australia. She said
that she had already initiated legal proceedings in Chile, seeking
permission to take RMRV there.
Noting that "habitual residence" was considered by the Eleventh Circuit
in Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir.2004) the court was of the
view, that the "crucial factor" in establishing habitual residence is
that "the person or persons entitled to fix the place of the child's
residence" have "form[ed] a settled intention to abandon the [place] one
left behind." Under Chilean law, Reyes and Ruiz were jointly entitled to
fix the child's residence, but they did not "settle" any intention that
RMRV would abandon Chile. Reyes had, at all times relevant, strenuously
objected to RMRV's removal from Chile. Further, whatever Ruiz's
later-developed or concealed intention, she represented to the Chilean
court, and RMRV's removal was premised on, her intention to return to
Chile after a period of three years. Thus, here there was not a settled
intention to abandon Chile on the part of both of those entitled to fix
the place of residence. Chile, and not the United States, was therefore
the habitual place of RMRV's residence.
The court noted that whether a right of custody exists is to be
determined by reference to the law of the country of habitual residence.
Under the law of Chile, and under the Chilean court's decision on RMRV's
custody, Reyes's custody rights had been violated. Under Chilean law,
although when parents live separately Chile vests the responsibility for
personal care of the child in the mother, a non-custodial parent still
has a ne exeat right. In interpreting theHague Convention, the Eleventh
Circuit has held that violation of the ne exeat right is enough to
qualify as a violation of custody rights. In Furnes v. Reeves, 362 F.3d
702 (11th Cir.2004), the appellate court found that the ne exeat right
was a "custody right" within the meaning of the Hague Convention.
Custody under the Convention, the court further explained, does not mean
the right to possess the child or physical control over the child;
rather, certain rights of control will qualify as custody rights. The
court cited the Hague Convention for the proposition that those rights
are those "relating to the care of the person of the child" and, in
particular, the right to determine the child's place of residence. The
court said that the ne exeat right was exactly such a right: a right to
determine where the child will live, even if, as was the case in Furnes,
the country of habitual residence grants only the right to veto exit
from the country, and not the right to determine where within the
country of habitual residence the child will live. Here, the breach of
the court's order granting the mother a right to remove is a breach of
the father's custody right. The court held that Ruiz's violation of the
Chilean court's order amounted to a violation of Reyes's ne exeat right.
The Chilean court determined that Reyes had a legitimate ne exeat right,
but that Ruiz could leave the country under certain conditions without
violating that right. Thus, the Chilean court limited Reyes's ne exeat
right, but only to the degree that it allowed Ruiz to take RMRV to Texas
so that Ruiz could study oceanography. Because those conditions had been
violated, Ruiz was no longer within the boundaries of Reyes's right, set
forth in the Chilean court's opinion. That is, to whatever extent
Reyes's right to prohibit RMRV's exit from the country was limited by
the Chilean court's opinion, Ruiz was beyond the limit of that right in
going beyond the court's order. Reyes sought to exercise the ne exeat
right within the meaning of the Hague Convention. Before the removal,
Reyes sought to prevent removal through the exercise of his ne exeat
right. Ruiz, the mother, had to seek consent from Reyes, the father, to
remove their child; however, Reyes strenuously disagreed. Reyes sought
to retain control over the place of residence, even if the children
were, at the outset, legitimately removed. The court, therefore, held
that Ruiz wrongfully removed RMRV within the meaning of the Hague
Convention and ordered the child’s return.
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