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International law - the Hague Convention on the Civil Aspects of International Child Abduction - father failed to establish that he maintained rights of custody under Chilean law - Villegas Duran v. Arribada Beaumont.

The Hague Convention on the Civil Aspects of International Child Abduction was adopted to protect children from the wrongful removal from their home countries and to establish procedures to ensure their prompt return. (1) A parent bringing an action for the wrongful removal of their child must prove that they had custody rights and that the removal of the child was in breach of those custody rights under the law of the home country. (2) In Villegas Duran v. Arribada Beaumont, (3) the United States Court of Appeals for the Second Circuit considered whether a father established that he had rights of custody under Chilean law which would give the court jurisdiction to order the return of the child. (4) The court concluded that the father did not establish by a preponderance of the evidence that he had rights of custody under Chilean law, and therefore, the court could not order the child to be returned. (5)

Hugo Villegas Duran (father) and Johanna Arribada Beaumont (mother), both Chilean citizens, were involved romantically but never married. (6) Their daughter was born in 2001 in Chile and lived with both parents until they separated in 2004. (7) After separating, both parents remained in Chile where the child lived with the mother and the father had visitation rights. (8) A final determination of sole custody for the child had not been determined by the Chilean court. (9)

In 2005, the mother wanted to travel to the United States with the child; however, under Chilean law she could not remove the child from Chile without the father's consent. (10) Therefore, the mother petitioned the Eighth Minors' Court of Santiago, which issued an order authorizing her to travel to the United States with the child for three months. (11) Upon the expiration of the travel period and in violation of the Chilean court order, the mother did not return to Chile with the child. (12) In July 2006, the father filed a petition for the Return of Child and an Order to Show Cause in the Southern District of New York. (13)

At trial, in addition to pointing to Chilean Civil Code Section 229's specific delegation of rights and duties to the parent without "personal care" of the minor, the father entered into evidence an affidavit from Chile's Central Authority. (14) The District Court found that it lacked jurisdiction to order the return of the child because the father did not prove he had rights of custody under Chilean law. (15) The Court focused closely on Second Circuit precedent in affirming the District Court's ruling that violating a ne exeat right is insufficient to qualify as a violation of custodial rights. (16)

The United States Circuit Courts are inconsistent in applying a definition of rights of custody under the Hague Convention, which creates a problem in the effectiveness and application of the treaty. (17) Instead, the Circuit Courts have utilized conflicting approaches in determining whether a parent has rights of custody or rights of access. (18) Furthermore, recent court rulings have run counter to the precedent stating that a foreign government's interpretation of its own law merits considerable deference. (19) As a result, there is a range of interpretations of what constitutes rights of custody and rights of access. (20)

Recently, the Eleventh Circuit, as well as various state courts, held that a ne exeat right creates rights of custody under the Hague Convention. (21) This view affirms the majority of foreign courts view that a ne exeat right coupled with a right of access creates a right to custody. (22) Specifically, these courts emphasize that the drafters defined custody rights as open-ended, favoring a broader interpretation of ne exeat rights under the Hague Convention. (23) The Eleventh Circuit, as well as a majority of international courts, have interpreted rights of custody in a broad, flexible manner in an attempt to follow the Hague Convention's own goal of maintaining uniform international interpretations of its terms and provisions. (24)

Courts in the Second, Fourth, and Ninth Circuits, however, held that the ne exeat clause did not rise to the level of rights of custody. (25) Specifically, these courts reasoned that a ne exeat right is nothing more than a veto power and therefore, does not confer rights of custody. (26) Furthermore, these circuits have consistently held that a foreign country's views regarding its own laws are not absolute and should only be given some degree of deference. (27)

In Villegas Duran v. Arribada Beaumont, the United States Court of Appeals for the Ninth Circuit refused to find that the father had established rights of custody under Chilean Law. (28) Relying on circuit precedent, the court ruled that the father did not have the right to custody, only access. (29) The court acknowledged an affidavit from the Chilean Central Authority asserting that shared joint custody exists as a default in the absence of a court determination when unmarried parents of a minor separate. (30) Nonetheless, the court reasoned that this interpretation rested primarily on the ne exeat right which amounts only to a veto power. (31) Furthermore, the court noted that it was not bound to give absolute deference to a foreign country's views of its own laws. (32) By deemphasizing the Central Authority's affidavit and incorrectly applying Second Circuit precedent, the court concluded that the father lacked rights of custody. (33)

Although Second Circuit precedent has set forth that a ne exeat clause cannot convert rights of access into rights of custody where a judicial determination of the respective rights of the parents has been made, the court failed to distinguish this precedent from the facts of the present case. (34) The Villegas Duran court incorrectly found that the father did not introduce sufficient evidence to determine that he had rights of custody. (35) Notwithstanding an affidavit from the Chilean Central Authority and the absence of a judicial determination of custody, the court reasoned that Second Circuit precedent required a conclusion that the father only had rights of access. (36) The majority relied heavily on the reasoning in Croll that a ne exeat clause cannot convert rights of access into rights of custody. (37) In doing so, however, the majority overlooked significant distinctions between the facts in Croll, which relied heavily on the judicial determination of custody, and the present case, where there had not been a final determination of custody. (38)

Furthermore, the court did not give appropriate deference to the affidavit issued by the Chilean Central Authority setting forth its interpretation of Chilean law. (39) Second Circuit precedent, as well as precedent in other circuits, suggests that a foreign government's interpretation of its own law merits greater consideration, particularly in the context of determining custody rights under the Hague Convention. (40) Without a judicial determination of custody or additional evidence, the court should have adhered to the Central Authority's opinion of the Chilean laws. (41)

The Villegas Duran decision is a further departure from the Hague Convention drafters' intentions to protect wrongfully removed children. (42) To ensure the Convention's effectiveness, States must give deference to a foreign sovereign's views of its own laws. (43) In refusing to adhere to Contracting States' interpretations of their own laws, States will promote forum shopping and destroy the goals of the Convention. (44) Therefore, Judge Wesley correctly noted that in order to ensure a just resolution to this dispute, the court must adhere to the provisions of the Hague convention and give the necessary attention to the rights that Chilean law bestows upon a parent. (45)

The Villegas Duran court considered whether a father, absent a judicial determination of custody, maintained rights of custody. By holding that States are not required to give absolute deference to a foreign government's view of its own laws and incorrectly applying Second Circuit precedent, the court failed to promote the Convention's goals of protecting children from being wrongfully removed from their parent. The decision, therefore, leaves open the possibility of future courts allowing forum shopping in custody disputes, thus hindering the effectiveness of the Hague Convention.

(1) Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1434 U.N.T.S. 48 [hereinafter Hague Convention] (setting forth scope and procedures of Hague Convention). The Hague Convention was designed as an international remedy to secure the return of children taken to another contracting state and to make sure a parent's rights of custody and of access are respected by those contracting states. Id. art. 1.; see also 42 U.S.C. [section][section] 11601-10 (1988) (showing Congress' intent to implement Hague Convention in United States); Scott M. Smith, Construction and Application of International Abduction Remedies Act (42 U.S.C.A. [section][section] 11601 et. seq.), 125 A.L.R. FED. 217, 217 (1995) (noting United States ratified Convention on April 29, 1988). When the United States ratified the Convention, the United States Congress enacted the International Child Abduction Remedies Act to guide U.S. agencies in implementing the Hague Convention. Id. As of October 2008, there were eighty one contracting states to the Convention. See Hague Conference on Private International Law, Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Status Table, http://www.hcch.net/index_en.php?act=conventions.status&cid=24 (noting more than eighty members of the Convention) (last visited Oct. 21, 2008). The Convention is only applicable when the child is abducted both from and to countries that have ratified the treaty. Id.

(2) See Hague Convention, supra note 1, art. 3 (defining wrongful removal and retention). Article 3 of the Hague Convention provides in part:
   The removal or the retention of a child is to be considered
   wrongful where (a) it is in breach of rights of custody attributed
   to a person, an institution or any other body, either jointly or
   alone, under the law of the state in which the child was habitually
   resident immediately before the removal or retention; and (b) at
   the time of removal or retention those rights were actually
   exercised, either jointly or alone, or would have been so exercised
   but for the removal or retention.


Id. The Hague Convention distinguishes between rights of custody and rights of access. Id. art. 5. Rights of custody are rights relating to the care of the child and the right to determine the child's place of residence. Id. art. 5(a). Rights of access include the right to take a child for a limited period of time to a place other than the child's habitual residence. Id. art. 5(b). An order for the return of a child is available as a remedy for wrongful removals only if the removal constitutes a breach of rights of custody. Id. art. 12. Signatory states must designate a Central Authority to carry out the duties which are imposed by the Hague Convention. Id. art. 6. Those states must work together to ensure the prompt return of children. Id. art. 7; see Croll v. Croll, 229 F.3d 133, 137 (2d Cir. 2000) (quoting Elisa Perez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session 434-35, para. 34 (1980) [hereinafter Perez-Vera Report]). The Perez-Vera Report explains the Convention's principal that the child's habitual residence is the best place to decide questions of custody. Id.; see also Department of State Notice on Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,504 (Mar. 26, 1986) (proposing adoption of Hague Convention in United States). A wrongful removal claim is actionable only if both countries involved are signatories to the Convention. Hague International Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. at 10,504. See generally id. at 10,503 (noting Elisa Perez-Vera was the official reporter for the Hague Convention).

(3) 534 F.3d 142 (2d Cir. 2008).

(4) Id. at 146. Chile is a signatory to the Hague Convention. Id.; see 42 U.S.C. [section] 11603(e)(1)(A) (describing evidentiary burden on petitioner); Gitter v. Gitter, 396 F.3d 124, 130 (2d Cir. 2005) (explaining ways courts recognize how rights of custody may arise). The courts recognize rights of custody arising "by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State." Gitter, 396 F.3d at 130.

(5) Villegas Duran, 534 F.3d at 145 (noting district court lacked jurisdiction to grant father's petition for order compelling child's return to Chile). Under Chilean law, when parents live separately, the responsibility for the personal care of their child rests with the mother. Id. at 147 (citing 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. Id. at 147-48 (citing Minors Law 16,618 art. 49 (Chile)).

(6) Id. at 145.

(7) Id.

(8) Id.

(9) Id. (describing certification issued by the Court of Santiago). As of August 2006, the Chilean Court still had not yet determined who had full custody of the child. Id. In Chile, when parents live separately, the responsibility for personal care of the child rests with the mother and the other parent has a right to determine whether the child will leave the country. Id. at 147-48 (citing Code Civil, Section 225 (Chile); Minor's Law, Section 16,618 art. 49 (Chile)). The Chilean Central Authority concluded that joint custody exists under Chilean law if a custody determination has not yet been made. Id. at 148.

(10) Id. at 145 (quoting Law No.16, 618-Minors Law, Title III, Juvenile Court System-Organization and Powers, art. 49). The court noted that Chilean law provides:
   Should the custody of a child have not been granted by the judge to
   either parent or to a third party, the minor may not exit the
   country without the authorization of both parents, or from the one
   who had recognized him . . . . If such authorization cannot be
   granted or if, without reasonable grounds, is refused by the person
   from whom it is required, it may be granted by the juvenile judge
   having jurisdiction over the place of residence of the minor.


Id.

(11) Id.

(12) Id. at 145 (noting mother violated court order by staying beyond authorized time period). Bound for the United States, the mother departed Chile with the child on August 3, 2005 and failed to return when the travel period expired on November 3, 2005. Id.

(13) Id.

(14) Id. at 149. Included in the dissent is the text of Book I of the Civil Code of the Republic of Chile, Title IX, which says in part:
   The father or mother who does not have the personal care of a child
   shall not be exempted from the duty ... to direct, permanent
   relationship with [the child], and to contact it as frequently and
   freely as agreed with its guardian or, otherwise, as determined by
   the judge as being in the best interest of the child.


Id. at 150 (Wesley, J., dissenting); see supra note 2 (describing Central Authority's role in Hague Convention). The Chilean Central Authority wrote that in Chilean legislation the "right of custody" as defined by the Hague Convention includes rights such as the custody, personal care of the minor and rights to authorize the minor, to leave the country. Id. at 150-51 (Wesley, J., dissenting). The Chilean Authority determined the right of custody, as it pertains to the Hague Convention, is shared by both the father and the mother in this case. Id. In addition, the Chilean Authority reasoned that under Chilean law both parents had the guard and custody of their child and both parents were to make the major decisions regarding their child. Id. The Central Authority concluded that joint custody exists under Chilean law. Id.

(15) Id. at 151. See 42 U.S.C. [section] 11603(e)(1)(A) (describing burden of proof on petitioner).

(16) Id. at 148; see Croll, 229 F.3d at 138-40 (holding ne exeat clause does not create rights of custody within meaning of Hague Convention). Ne exeat rights amount only to rights of access. Id. A ne exeat right in child custody disputes gives the noncustodial parent a veto power over the other parent's custody right to determine the residence of the child. See Sara E. Reynolds, Note, International Parental Child Abduction: Why We Need to Expand Custody Rights Protected Under the Child Abduction Convention, 44 FAM. CT. REV. 464, 471 (2006) (describing need to expand custody rights). Where there is a ne exeat right, the custodial parent must get permission from the court or the noncustodial parent before leaving the geographic area with the child. Id. The ne exeat right is designed to protect a noncustodial parent's access rights. Id. The court further noted that even if the Central Authority's affidavit is authoritative with respect to Chilean law, the district court was not bound to follow it. Id. at 148.

(17) See Melissa S. Wills, Note, Interpreting the Hague Convention on International Child Abduction: Why American Courts Need to Reconcile the Rights of Non-Custodial Parents, the Best Interests of Abducted Children, and the Underlying Objectives of the Hague Convention, 25 REV. LITIG. 423, 437-38 (2006) (arguing for uniform interpretation of Hague Convention cases with respect to custody rights); Nigel Lowe, International Forum on Parental Child Abduction: Hague Convention Action Agenda, 11, available at http://www.missingkids.com/en_US/publications/NC84.pdf (Nat'l Center for Missing & Exploited Children, 1999) (explaining inconsistent treatment of cases will damage effectiveness of treaty).

(18) Compare Furnes v. Reeves, 362 F.3d 702, 712 (11th Cir. 2004) (holding right to determine child's language and nationality is custody right), with Croll, 229 F.3d at 133 (concluding ne exeat right is nothing more than veto right). A ne exeat right does not amount to a custody right, therefore, the remedy of return of the child is not available to the petitioning parent. Id.

(19) Villegas Duran, 534 F.3d at 152 (Wesley, J., dissenting); see also Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 313 F.3d 70, 92 (2d Cir. 2002) (noting Second Circuit precedent granting considerable deference to foreign government's interpretations of its laws); Navani v. Shahani, 496 F.3d 1121, 1128 (10th Cir. 2007) (suggesting foreign government's interpretation of its own law merits considerable deference).

(20) See supra note 18 (pointing out differences in interpretations of rights of custody).

(21) Furnes, 362 F.3d at 702; see Janakakis-Kostun v. Janakakis, 6 S.W.3d 843, 849 (Ky. Ct. App. 1999) (granting custodial rights to father residing in Greece, by virtue of judicial decision under Greek Law); David S. v. Zamira S., 574 N.Y.S.2d 429, 432 (N.Y. Fam. Ct. 1991) (holding, pursuant to separation agreement, father should be granted temporary custody in Ontario, Canada, pending hearing).

(22) See, e.g., B. v. B., 3 W.L.R. 865 (U.K. Ct. App. 1993) (granting return of child where interim custody order prohibiting custodial parent from removing child existed); C. v. C., 1 W.L.R. 654 (U.K. Ct. App. 1989) (providing right to consent to conditions is right to determine child's place of residence and right of custody); In re H., 2 F.L.R. 439 (U.K. Fam. Ct. 1990) (holding violation of interim custody order and prohibiting removal of child breached parents right of custody).

(23) See Furnes, 362 F.3d at 716 (indicating ne exeat right is substantive right to determine child's place of residence).

(24) Id. at 714-18 (explaining conclusions aligned with majority of courts of signatory states having addressed this treaty issue). See generally Christopher B. Whitman, Recent Development: Croll v. Croll: The Second Circuit Limits "Custody Rights" Under the Hague Convention on the Civil Aspects of International Child Abduction, 9 TUL. J. INT'L & COMP. L. 605, 624 (2001) (describing majority of courts found consensus view ne exeat provision creates custody rights); Wills, supra note 17, at 447 (indicating attempt by Third Circuit to unify interpretations of Hague Convention terms).

(25) See Croll, 229 F.3d at 143-44 (holding that a ne exeat clause does not confer custody rights to parent); Fawcett v. McRoberts, 326 F.3d 491, 499 (4th Cir. 2003) (affirming ne exeat clauses do not amount to rights of custody); Gonzalez v. Gutierrez, 311 F.3d 942, 954 (9th Cir. 2002) (holding ne exeat clause in foreign divorce agreement does not confer rights of custody upon parent).

(26) See Croll, 229 F.3d at 139 (ruling ne exeat clause falls short of conferring right to determine child's residence); Gonzalez, 311 F.3d at 949 (ruling ne exeat clause does not allow parent's right to custody).

(27) See Villegas Duran, 534 F.3d at 148 (recognizing when foreign countries express views regarding their own laws, courts are not bound to follow); Karaha Bodas Co., 313 F.3d at 92 (indicating foreign law should only be given some deference).

(28) See Villegas Duran, 534 F.3d at 148-49 (reviewing district court's determination that father did not possess rights of custody).

(29) See id. at 149 (holding visitation rights and medical expenses paid did not amount to rights of custody).

(30) See id. at 148 (acknowledging affidavit sets forth default rule pertaining to custody rights of unmarried parents of minor exists).

(31) See id. at 148 (finding no right to custody where Central Authority's joint custody default relies on ne exeat right). The court found that it was inconclusive as to whether the Central Authority's affidavit was an authoritative interpretation. Id. The court noted that the Central Authority may not have had all the information when it issued the affidavit. Id. The Central Authority concluded that, in this case, the father and mother share the rights of custody. Id. at 151.

(32) See id. at 148 (declaring affidavit does not deserve absolute deference). The court reasoned that the Authority's conclusions rest on the ne exeat right which conflicts with Croll. Id.

(33) See id. at 148-49 (ruling ne exeat right does not confer right to custody).

(34) Id. at 150 (discussing the differences between Second Circuit precedent and the present case); cf. Croll, 229 F.3d at 150 (determining where custody decree had been granted, father had only rights of access). The court in Croll relied heavily on the fact that there had already been a judicial determination as to the custody rights. Croll, 229 F.3d at 134-35.

(35) See Villegas Duran, 534 F.3d at 148, 150 (discussing insufficiency of evidence presented by father).

(36) See id. at 148-50 (discussing evidence presented and court's reasoning in determination that rights of access existed). A final determination of custody for the child had not been determined. Id. at 145; see supra note 34 (comparing differences in Croll and Villegas Duran).

(37) See Villegas Duran, 534 F.3d at 148-49 (ruling ne exeat clause does not confer rights of custody).

(38) See supra note 34 and accompanying text (noting differences in two cases and emphasizing importance of judicial determination of custody).

(39) Villegas Duran, 534 F.3d at 148, 151-52 (describing court's refusal to give Central Authority's determination deference). The Hague Convention specifically designates the Central Authority of a Contracting State as that State's authoritative voice regarding its view of its country's custody laws. See Hague Convention, supra note 1, at 1503 (detailing role of Central Authority). Specifically, Article 15 sets forth that a parent may obtain a decision from the State of the child's habitual residence that the child's removal was wrongful. Id. at art. 15.

(40) See Villegas Duran, 534 F.3d at 152 (noting various cases where foreign government's interpretation of its own law given significant deference); supra note 19 (emphasizing importance of giving deference to foreign government's determination of own laws).

(41) See Villegas Duran, 534 F.3d at 150-51 (noting authority father relied upon in case and court's unexplained dismissal of it).

(42) See supra note 17 and accompanying text (explaining concern for lack of uniformity in interpreting Hague Convention will mitigate effectiveness of international treaty).

(43) See supra note 17 and accompanying text (setting forth importance of uniformity and reciprocity in interpreting Hague Convention).

(44) See Navani v. Shahani, 496 F.3d 1121, 1128-29 (10th Cir. 2007) (pointing out importance of preventing forum shopping). The Convention rests on the principle that any disagreement on the merits of custody rights should take place in the child's home state because that State is in the best position to decide questions of custody and access. See Perez-Vera Report, supra note 2, at 434-35, para. 34 (explaining Convention's principal that child's habitual residence is best place to decide questions of custody).

(45) See Villegas Duran, 534 F.3d at 152-53 (Wesley, J., dissenting) (citing errors in majority's decision).
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Date:Sep 22, 2009
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