| In Duran v Beaumont, ---
F.3d ----, 2008 WL 2780656 (2nd Cir.(N.Y.)) Appellant and Appellee, both
Chilean citizens, never married. Their daughter was born on April 22,
2001, in Chile and lived with both parents until they separated in 2004.
While the separated couple lived in Chile, the child lived with Appellee,
and Appellant had visitation rights. Under Chilean law, Appellee could
not remove the child from Chile without Appellant's permission, and
Appellant refused to consent. Therefore, Appellee petitioned the Eighth
Minors' Court of Santiago, and the court issued an order authorizing her
to travel to the United States with the child for three months. Appellee
and the child departed Chile on August 3, 2005. The travel period
expired on November 3, 2005, but Appellee remained with the child in the
United States, in violation of the Chilean court's order. According to a
certification issued by the Eighth Minors' Court of Santiago on August
28, 2006, a final determination of sole custody for the child had not
yet been determined. On July 25, 2006, Appellant filed a Petition for
the Return of Child. The district court held evidentiary hearings on the
Petition and found that it lacked jurisdiction to order the return of
the child because Appellant did not have rights of custody under Chilean
law.
The primary issue before the Second Circuit was
whether under the Hague Convention Appellant had custody rights as
opposed to rights of access. If Appellant had custody rights, United
States courts would have jurisdiction to order the return of the child.
However, if Appellant merely had access rights, then United States
courts were without jurisdiction to order this remedy. The Hague
Convention distinguishes between rights of custody and rights of access.
It defines the latter as "the right to take a child for a limited period
of time to a place other than the child's habitual residence." Hague
Convention, art. 5, 51 Fed.Reg. at 10,498. Although remedies exist in
the event that a child is removed in breach of access rights, recourse
for such removal does not include an order of return to the child's
place of habitual residence. See id. art. 21, 51 Fed.Reg. at 10,500. The
court held that in such situations, district courts may fashion a remedy
ordering the custodial parent who has removed the child to allow and
financially provide for periodic visits by the non-custodial parent.
The Court pointed out that neither the Hague
Convention nor its implementing legislation defined "habitual
residence." However, it had previously articulated the standard used to
determine a child's habitual residence in Gitter v Gitter, 396 F.3d at
134: "First, the court should inquire into the shared intent of those
entitled to fix the child's residence (usually the parents) at the
latest time that their intent was shared. In making this determination
the court should look, as always in determining intent, at actions as
well as declarations. Normally the shared intent of the parents should
control the habitual residence of the child. Second, the court should
inquire whether the evidence unequivocally points to the conclusion that
the child has acclimatized to [a] new location and thus has acquired a
new habitual residence, notwithstanding any conflict with the parents'
latest shared intent." Applying these principles it held that the
district court properly found Chile to be the child's place of habitual
residence. Because both parents were Chilean citizens, their child was
born in Chile and lived in Chile until August 2005 when Appellee took
her to the United States, a settled mutual intent to make Chile the
child's permanent home could be easily concluded. There was no evidence
to the contrary and no joint settled intention to abandon Chile as the
habitual residence. Appellee represented to the Chilean court that the
child's removal was only temporary and that she intended to return the
child to Chile after three months. Therefore, Chile was the habitual
place of the child's residence.
Turning to the primary issue whether Appellant
had rights of custody the court found that under Chilean law, when
parents live separately, the responsibility for the personal care of
their child rests with the mother. See Code Civil Section 225 (Chile).
However, the other parent still has a ne exeat right: the right to
determine whether the child will leave the country. See Minors Law
16,618 art. 49. Although Appellee was granted permission the Chilean
court to leave the country with the child for three months, violation of
the conditions of that order can be a violation of Appellant's ne exeat
right. In interpreting the Hague Convention, the Court has held that
violating a ne exeat right is insufficient to qualify as a violation of
custodial rights. See Croll v Croll, 229 F.3d at 138-140. In Croll, it
found that a ne exeat clause does not create rights of custody within
the meaning of the Hague Convention. It explained that "custody of a
child entails the primary duty and ability to choose and give
sustenance, shelter, clothing, moral and spiritual guidance, medical
attention, education, etc., or the (revocable) selection of other people
or institutions to give these things." It reasoned that custody under
the Hague Convention "references a bundle of rights ... and is in some
tension with the idea ... that one can have custody by holding a single
power such as the veto conferred by a ne exeat clause." In Croll it said
that although a ne exeat right limits a custodial parent's power to
expatriate a child, it does not amount to a power to determine where the
child will live. To hold otherwise would be "unworkable" because the
Hague Convention assumes that "the remedy of return will deliver the
child to a custodial parent who (by definition) will receive and care
for the child. It does not contemplate return of a child to a parent
whose sole right-to visit or veto-imposes no duty to give care." It
agreed with the district court that Appellant did not establish the
custody requirement by a preponderance of the evidence. Appellant
primarily relied on an affidavit from the Chilean Central Authority as
support for his argument that he had custodial rights under Chilean law.
Appellant maintained that the district court failed to afford the
Chilean Authority's interpretation of Chilean law appropriate weight.
The issue of whether the Central Authority's affidavit constituted an
authoritative interpretation for the purposes of the Hague Convention
was inconclusive for a number of reasons, including the fact that the
Chilean Authority may not have had all information on this case
available to it at the time that it made its assessment. Even if it was
authoritative, the district court was not bound to follow it. A foreign
sovereign's views regarding its own laws merit, although they do not
command, some degree of deference." Karaha Bodas Co., L.L. C. v.
Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 313 F.3d 70, 92 (2d
Cir.2002). Reasons existed for the district court to refrain from giving
the affidavit absolute deference. Most importantly, the Central
Authority's conclusion that joint custody existed under Chilean law as a
default rested almost exclusively on the ne exeat right. This veto power
does not confer rights of custody.
The district court looked to the rights
Appellant claimed to possess in order to determine whether he had
custody rights. Appellant also relied on the fact that he had visitation
rights and that he paid for certain medical expenses. He pointed to
Article 229 of the Chilean Civil Code which provides that a parent "who
is not personally responsible for the care of a child will not be
deprived of the right ... to maintain a direct and regular relationship
with the child." However, this article addresses visitation rights only
and not rights to care for the child under a custodial relationship.
Appellee had the authority to make all the crucial decisions for the
child. The only restrictions on Appellee's decision-making power under
Chilean law was that she had to allow Appellant his scheduled
visitations and she could not take the child out of the country without
either Appellee's permission or a court order. The bundle of rights
Appellant laid claim to did not create rights of custody under the Hague
Convention and ICARA; they cumulatively amounted merely to a right of
access. The Court held that under the Hague Convention, the rights
conferred on Appellant did not amount to rights of custody. The removal
of the child from Chile, although in violation of a lawful order from a
Chilean court, did not breach rights of custody and was therefore not
"wrongful" under the Hague Convention. The district court's order
dismissing the petition for lack of jurisdiction and ordering periodic
visitation of the child for Appellant was affirmed.
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