In Lalo v. Malca, 318 F.Supp.2d 1152 (S.D., Florida, 2004),
petitioner and Respondent were married and resided in Panama with their
son, Victor. The parties=
divorce decree provided the following custodial arrangement:
Both parts decide that the Mother will have the guard and raising of
the minor, Victor Lola Malca who will usually live with her, without
damaging the right of the Father to a communication regime, visits, and
to the shared patria potestas power, in accordance with which on the
matter has been provided by the code of the family and the minor...
The divorce decree included a ne exeat clause that required the
express consent of the remaining parent before a parent is allowed to
emigrate with Victor from Panama and reside permanently in another
country. On August 5, 2002, Respondent removed Victor from Panama and
emigrated permanently to the United States. Following recourse to
Panamanian courts, where Respondent was ordered to return the child to
Panama, Petitioner filed suit under the "Hague Convention".
The Court held that the specific inclusion of patria potestas in the
divorce decree, in addition to the presence of a ne exeat clause,
required the denial of Respondent's motion to dismiss for lack of
jurisdiction.
The Hague Convention defines "right of custody" as including "rights
relating to the care of the person of the child and, in particular, the right
to determine the child's place of residence." Hague Convention, Art.
5(a).
The Eleventh Circuit held that in applying the Hague Convention, "we
must look to the definition of 'rights of custody' set forth in the
Convention and not allow our somewhat different American concepts of custody to cloud our application of
the Conventions terms." Furnes v. Reeves, 362 F.3d 702, 711 (11th
Cir.2004). In order to determine whether Petitioner retained a right of
custody sufficient to survive a motion to dismiss, the Court had to look
to Panamanian law in interpreting the parties' custodial arrangement.
The Court stated that the notion of patria potestas predates the
modern conception of custody rights, as distinguished from rights of
access. Black= s Law
Dictionary defines it as follows: "[t]he authority held by the male head
of a family over his children and further descendants in the male line,
unless emancipated."
The Court held that patria potestas, specifically incorporated in a
custody agreement, must amount to a divisible custody right. The divorce
decree specifically incorporated patria potestas. The decree stated
Malca shall have the guardianship, or physical custody, of the child
without damaging Lalo's shared patria potestas. Holding the parties to their custody agreement, the Court held that patria
potestas confers a divisible custody right.
Petitioner also retained a ne exeat right. A ne exeat right can
generally be defined as the right to determine if a child may live
outside a particular country. Respondent argued that a ne exeat right is
only a "veto right" and as a result, amounts to nothing more than a
right of access. Respondent cited Croll v. Croll, 229 F.3d 133 (2d
Cir.2000). There, the Second Circuit held that a ne exeat right gives
the non-custodial parent a reserve power to veto the child's
geographical location and nothing more than mere leverage as to other
parenting issues. The Second Circuit's reasoning in Croll was
subsequently adopted by the Fourth and Ninth Circuits. See Fawcett v.
McRoberts, 326 F.3d 491, 500 (4th Cir.2003), cert. denied --- U.S. ----,
124 S.Ct. 805, 157 L.Ed.2d 732 (2003); Gonzalez v. Gutierrez, 311 F.3d
942, 954 (9th Cir.2002).
However, in Furnes v. Reeves, 362 F.3d 702 (11th
Cir.2004). The Eleventh Circuit explicitly disagreed with the Croll
majority and held that a ne exeat right does constitute a right of
custody. Id. at 719. The Court disagreed with the Croll court's
characterization of a ne exeat right as a mere limitation on the right
to determine the place of residence and was ultimately persuaded by the
weight of foreign courts holding similarly that ne exeat rights
constitute custody rights.
The Court held that Petitioner retained a right of custody sufficient
to continue his claim for the return of Victor to Panama. The award of
patria potestas in the divorce decree, coupled with Petitioner's ne
exeat right, leads to the inescapable conclusion that Petitioner
retained a sufficient right of custody to survive dismissal.
