Foreign Custody Order Issued After Child Abduction Cannot Sustain Hague Petition

MALCOLM WHITE, Petitioner-Appellant, v. SOUDABEH WHITE, Respondent-Appellee. No. 12-1835 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Argued: March 20, 2013 Decided: May 24, 2013

The Respondent Mother left Switzerland with her child after she had obtained a Swiss order that authorized a settlement agreement and awared her “custody of the child.” Petitioner Father was greanted visitation rights. A few months later Swiss court appointed psychologists issued a report recommending that the Mother suffered from psychological problems and recommended that sole custody be transferred to the Father.

Several months after the abduction a Swiss court issued an order prohibiting Mother from taking the child from Switerland, but subsequently determined it had no jurisdiction since the child and Mother were no longer resident in Switzerland.

On the eve of oral argument before the Fourth Circuit, a Swiss court ruled it did have jurisdiction and awarded custody to Father.

In affirming the Eastern District of Virginia’s decision below denying the Hague Petition, the 4th Circuit wrote:

“Finally, Mr. White relies on the Swiss Court of First Instance’s very recent March 2013 order purporting to transfer custody of the child from Ms. White to Mr. White two years after the child’s removal to the United States. Mr. White maintains that the new order “dramatically [a]ffects this case” and “confirms that the Swiss Court has always been in accord with [his] position.”

But the only reasonable reading of the Convention is that a removal’s wrongfulness depends on rights of custody at the time of removal. The Convention states that “removal . . . is to be considered wrongful where . . . it is in breach of rights of custody.” Hague Convention art. 3(a). Removal could not be considered in breach of rights of custody if those rights did not exist at the time of removal. Moreover, the Convention explicitly provides that removal is only wrongful when ” at the time of removal” custody “rights were actually exercised . . .or would have been so exercised but for the removal.” Id. art. 3(b) (emphasis added).

Thus, courts have repeatedly assumed rights of custody for purposes of Article 3 of the Convention means rights of custody at the time of removal. See, e.g., Hanley, 485 F.3d at 645 (“To establish wrongful removal under the Convention, the Hanleys must show that they had ‘rights of custody’ . . . when Roy removed the children . . . .” (emphasis added)); Bader, 445 F.3d at 351 (“Bader did retain some existing custodial rights over [the child] at the time of removal.” (emphasis added)); Shealy, 295 F.3d at 1124 (finding removal not wrongful based on a “interim decision” although “the German courts ha[d] not yet made a final [custody] determination” because the Convention is concerned with “custody rights [that] existed at the time of removal” (emphasis added)); Whallon, 230 F.3d at 459 (“The pending Massachusetts custody proceedings commenced by Lynn after her removal of [the child] are inapplicable to this action because the Convention refers specifically to . . . rights of custody at ‘the time of removal.'”).

The purposes of the Convention further explain why courts consider only rights of custody at the time of removal when assessing wrongful removal claims. “The Convention is based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence.” Abbott, 130 S. Ct. at 1995. But, under Mr. White’s view, a country that has not been the habitual residence of a child for years could at any time modify a previous custody determination, in the absence of the child and the parent who took the child abroad, and thereby potentially justify a return remedy. This would stray far afield from the best interests of the child and the “primary purpose” of the Convention “to preserve the [pre-removal] status quo.” Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001) (internal quotation marks omitted); see also Elisa Pérez-Vera, Explanatory Report: Hague Conference on Private International Law ¶ 71 (1982) (“[The Convention] is not concerned with establishing the person to whom custody of the child will belong at some point in the future, nor with the situations in which it may prove necessary to modify a decision awarding . . . custody on the basis of facts which have subsequently changed.”).

Accordingly, we hold that the determination of whether removal is wrongful is based on rights of custody at the time of removal.


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