Where Chilean father challenged removal of his child to United States by child's mother, Second Circuit rules that parent did not have custody rights under Hague Convention, where father only had rights to visitation and to prevention of wife from removing child from Chile
On April 22, 2001 Valentina Almendra Villegas Arribada (Child) was born to Hugo Alejandro Villegas Duran (Petitioner) and Johana Ivette Arribada Beaumont (Respondent), an unmarried couple. The child lived with Respondent in Chile following the couple's separation in 2004.
Petitioner had visitation rights, and Respondent was not supposed to remove the Child from Chile without Petitioner's permission. Respondent obtained an order from the Eighth Minors' Court of Santiago to travel to the U.S. temporarily.
After the Respondent and the Child remained in the U.S., Petitioner petitioned for the Return of Child in a New York federal court on July 25, 2006. The Court denied the petition and dismissed on jurisdictional grounds. It held that Petitioner did not have custody rights under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) [T. I. A. S 11670, in force for U.S. July 1, 1988] as implemented by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. Section 11601 et seq. (2000). Petitioner noted this appeal.
The U.S. Court of Appeals for the Second Circuit, however, affirms the district court. The issue is whether the Petitioner has custody rights under the Hague Convention, or whether they are simply rights of access. If the Petitioner has custody rights, then a U.S. Federal court would have jurisdiction to order the return of the Child. If the Petitioner has merely has access rights (as the district court found), then a United States court lacks jurisdiction to order the return of the Child.
The Court explains. "A petitioner cannot invoke the protection of the Hague Convention unless the Child to whom the petition relates is `habitually resident' in a State signatory to the Convention and has been removed to, or retained in, a different State. [Cite]. ... [A] removal or retention is considered "wrongful' for the purpose of return of the Child under the Hague Convention where: (a) it is in breach of rights of custody attributed to a person 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. Hague Convention, Art. 3, 51 Fed. Reg. at 10,498."
"Under Chilean law, when parents live separately, the responsibility for the personal care of their child rests with the mother. [Cite]. However, the other parent still has a ne exeat right: the right to determine whether the child will leave the country. [Cite]. Although Respondent was granted permission by order of 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 Petitioner's ne exeat right."
"In interpreting the Hague Convention, this Court has held that violating a ne exeat right is insufficient to qualify as a violation of custodial rights...we found that a ne exeat clause does not create rights of custody within the meaning of the Hague Convention. We agree with the district court that Petitioner did not establish the custody requirement by a preponderance of the evidence. Petitioner primarily relies on an affidavit from the Chilean ... "Central Authority' as support for his argument that he has custodial rights under Chilean law... However, it is readily apparent that, even if it is authoritative, the district court was not bound to follow it."
"As this Court has previously stated, "a foreign sovereign's views regarding its own laws merit " although they do not command " some degree of deference.' [Cite] Reasons existed for the district court to refrain from giving the affidavit absolute deference. Most importantly, the Central Authority's conclusion that joint custody exists under Chilean law as a default rests almost exclusively on the ne exeat right."
The rights that the Petitioner has in this case do not create rights of custody under the Hague Convention and ICARA. They only consist of Petitioner's right of access to the Child.
Citation: Duran v. Beaumont, 534 F.3d 142 (2nd Cir. 2008).
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