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In Vale v. Avila, 2008 U.S. App. Lexis 17068 (7
Cir. 2008) the parties, Venezuelan citizens, were married in Venezuela
in 1999 and the following year Avila gave birth to twins. She met an
American man on the Internet and in 2005 the parties divorced by mutual
agreement. The divorce decree gave Avila physical custody of the
children but gave both parents the right (and duty) of patria potestas.
That is Latin for "paternal power," and in Venezuela, it is defined (so
far as bears on this case) as "all the duties and rights of the parents
in relationship to their children who have not reached majority,
regarding the care, development and education of their children." Ley
Organica para la Proteccion del Nino y del Adolescente [Organic Law for
the Protection of Children and Adolescents], tit. IV, ch. 2, § 1, art.
347. The duties and rights "include the physical custody, representation
and administration of the property of the minor child(ren) subject to
such authority." Id., art. 348. The divorce decree also gave Vale
unlimited visitation rights, custody of the children for two weekends a
month, and the right of ne exeat, another civil law doctrine, whereby
his consent was required before the children could leave the country.
Id., § 5, art. 392. The following year, Avila asked Vale for his consent
to her taking the children with her to attend a wedding in Florida. She
told him they'd be gone from Venezuela for only five days. She lied. She
moved to the United States with the children in order to marry the man
she had met through the Internet. Vale agreed to let her take the kids
to Florida for the wedding. She took them to Peoria, Illinois, and
married her Internet pal. Vale filed a petition for the children's
return under the Hague Convention. The district judge conducted an
evidentiary hearing. After the hearing the parties agreed that the
children be allowed to stay in the United States but spend every summer,
every spring vacation, and every other Christmas vacation with their
father in Venezuela, and that because Vale (who has a serious
disability) has a low income, while Avila's new husband has (he said) an
income of between $ 100,000 and $ 150,000 a year, Avila with his help
would pay the children's travel expenses. The parties signed an
agreement containing these terms. A provision captioned "resumption of
Hague proceedings" states that if Avila fails to comply with the terms
of the agreement, Vale "can refile a Hague Petition in either State or
Federal court in the United States to seek the return of the children."
The settlement agreement provided that the children's habitual residence
was now Illinois and that Vale would dismiss his suit, which he did.
Avila submitted a copy of the agreement to an Illinois court, which
issued an uncontested judgment declaring in accordance with the
agreement that the children were now habitual residents of Illinois.
Avila did not comply with the duties that the settlement agreement
placed on her, and so this year Vale returned to the federal district
court in which he had filed his Hague Convention petition and moved the
judge to set aside the judgment dismissing his suit, on the ground that
the judgment had been procured by fraud, and to reinstate the suit. Fed.
R. Civ. P. 60(b)(3). The judge conducted an evidentiary hearing at the
conclusion of which he set aside the judgment. The judge proceeded to
the merits of Vale's petition for the return of the children under the
Hague Convention, conducted an evidentiary hearing, and concluded that
the removal of the children to the United States had indeed violated the
father's "rights of custody." He ordered the children sent to Vale in
Venezuela, precipitating this appeal by Avila.
The Seventh Circuit rejected Avilla’s argument
that the District Court no longer had jurisdiction. It held that Rule
60(b) has the force of a federal statute, and federal statutes override
conflicting state law. A federal court can set aside a judgment by it
that was procured by fraud, and the effect is to reinstate the
proceeding that the judgment had concluded. The Court then held that
Avila's removal of the children to Illinois violated Vale's "rights of
custody" under Venezuelan law and was therefore in violation of the
Hague Convention, since before she removed them to the United States,
Venezuela was their habitual residence. It indicated that the Convention
does not speak simply of "custody," but of "rights of custody," and
these are broadly defined to include "rights relating to the care of the
person of the child and, in particular, the right to determine the
child's place of residence." The enumeration is not necessarily
exhaustive. By virtue of the doctrine of patria potestas, Vale, the
father, had rights relating to the care of the person of the child, and,
by virtue both of that doctrine and by virtue of the doctrine of ne
exeat, the right to determine that the child's place of residence would
remain Venezuela rather than the United States. The Court pointed out
that no more is necessary to establish that Vale had "rights of
custody," which Avila infringed. (Citing Furnes v. Reeves, 362 F.3d 702,
714-16 (11th Cir. 2004); Whallon v. Lynn, 230 F.3d 450, 458-59 (1st Cir.
2000); In re B. del C.S.B., 525 F. Supp. 2d 1182, 1196 (C.D. Cal. 2007);
Garcia v. Angarita, 440 F. Supp. 2d 1364, 1378-79 (S.D. Fla. 2006); Gil
v. Rodriguez, 184 F. Supp. 2d 1221, 1225 (M.D. Fla. 2002). The Court
noted that several cases, (Villegas Duran v. Arribada Beaumont, Nos.
02-55079, 02-55120, 2008 WL 2780656, at *4 (2d Cir. July 18, 2008);
Fawcett v. McRoberts, 326 F.3d 491, 499-500 (4th Cir. 2003), [*12] and
Croll v. Croll, 229 F.3d 133, 138-41 (2d Cir. 2000) hold that the
doctrine of ne exeat does not create a right of custody, reasoning that
if it did the effect would be to send the child to a parent who did not
have custodial rights but merely a right to prevent the child from being
removed to another jurisdiction. The Court specifically stated that it
need not decide whether the doctrine of ne exeat creates custody rights,
for in none of the cases that answer the question in the negative did
the plaintiff also have the right of patria potestas. Only Gonzalez v.
Gutierrez, 311 F.3d 942 (9th Cir. 2002), was cited for the proposition
that patria potestas does not confer a custody right, and all that case
actually holds, besides that the doctrine of ne exeat does not by itself
create a right of custody, is that patria potestas is a default doctrine
and does not override rights conferred by a valid custody agreement
between the parents. The father in Gonzales had access rights as well as
ne exeat, but not patria potestas. There was no such override here. The
divorce decree gave Avila physical custody of the children subject to
Vale's right of patria potestas. It provided: "The Father and the Mother
shall both EXERCISE THE PATRIA POTESTAS over our children as we have
been doing and as established by the Law. The aforementioned children
shall remain under the Guard of the mother, with whom they are currently
living." The Court concluded that when the parent who does not receive
physical custody is given the rights and duties of patria potestas, he
has custody rights within the meaning of the Hague Convention.
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