In 1999, Jose Gregorio Altamiranda Vale (Petitioner) and Maria Jose Figuera Avila (Respondent) got married in Venezuela Respondent gave birth to twins a year later. Six years later, Respondent met an American man on the Internet and divorced Petitioner pursuant to a mutual agreement. The court awarded physical custody of the children to Respondent, but granted both parents rights of patria potestas or "paternal power." Under Venezuelan law, this term includes all the parental duties and rights as to their children's care, development and education.
Respondent obtained Petitioner's consent in 2006 ostensibly to take the twins to Florida to attend a wedding. Respondent, however, took them to Peoria, Illinois where she married the man she had met on the Internet. As part of the ongoing dispute, an Illinois state court issued an uncontested judgment declaring that the children were now habitual residents of Illinois.
Petitioner filed a petition in Illinois federal court for the return of the children under the Hague Convention on the Civil Aspects of International Child Abduction (Convention), T. I. A. S. No. 11,670, 1343 U. N. T: S. 89 (in force for U.S. July 1, 1988) and its implementing U.S. statute: the International Child Abduction Remedies Act (ICARA), 42 U.S.C. [section] [section] 11601 et. seq. The parties later settled and dismissed the litigation by Agreement.
Respondent, however, failed to abide by the Agreement. Petitioner filed his Hague Convention petition and moved to set aside the judgment dismissing his suit, alleging that the Respondent had obtained that judgment by fraud. The district court set aside the judgment, citing evidence that Respondent had lied about financing the children's travel and about the children's ability to travel. Ruling that removal of the children had violated Petitioner's rights of custody, the court ordered the children returned to Venezuela. Respondent appealed. The Seventh Circuit affirms.
The Court dismissed Respondent's objection that the district court lacked the power to reopen the proceeding. The Court explains that: "The settlement agreement itself authorizes Petitioner to resume his Convention suit if Respondent violated it, and she did--and the Agreement is part of the state court judgment.... [T]he reopening of the judgment was lawful ... [as was] the judgment rendered by the district court after the reopening, since implicit in the state court judgment authorizing the reopening was the possibility that the result would be a Convention order that the children be sent back to Venezuela." [Slip Op. 7]
Thus the district court had jurisdiction over Petitioner's case. TIP substantive holding then is that Respondent's removal of the children to Illinois violated Petitioner's "rights of custody" under Venezuelan law and the Convention.
"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.' ... [S]o the enumeration is not necessarily exhaustive. By virtue of the doctrine of patria potestas, [Petitioner], the father, had rights relating to the care of the person of the child, and, by virtue both of that doctrine and even more clearly 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."
"No more is necessary to establish that Petitioner had 'rights of custody' which Respondent infringed. ... [The authorities] 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. That is a fair point, though cutting against it is the invitation to abduction that is tendered if a parent can violate ne exeat with impunity."
"But we 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), is cited for the proposition that patria potestas does not confer a custody right; ... [but] 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 hence does not override rights conferred by a valid custody agreement between the parents. Id. at 954. (The father in Gonzales had access rights as well as ne exeat, but not patria potestas.) There is no such override here."
"The divorce decree gave Respondent physical custody of the children subject to Petitioner'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.' 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." [Slip op. 8-9].
CITATION: Altamiranda Vale v. Avila, 538 F.3d 581; No. 08-2161 (7th Cir. 2008).
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|Publication:||International Law Update|
|Date:||Aug 1, 2008|
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