11th Circuit Defines "Retention" in Hague Cases

In Pielage v McConnell, --- F.3d ----, 2008 WL 399431 (11th Cir., 2008) Plaintiff Mariette Pielage, a native of the Netherlands, was involved in a child custody battle with James Vincent McConnell, III, a native of this country. That battle was being fought in the Circuit Court of Baldwin County, Alabama, and in the course of it the state court issued a ne exeat order, which forbid Pielage from removing the child from its jurisdiction pending its decision. Pielage filed a complaint in federal district court claiming that the state court's order constituted a "wrongful retention" under the Hague Convention. The district court dismissed her complaint and Pielage appealed. The Eleventh Circuit affirmed. In her complaint, Pielage alleged that all of her time in the United States was just visits, and that the Netherlands was both her and Josha's "habitual residence." Any thoughts she had about returning to the Netherlands while the custody battle was ongoing were interrupted on September 6, 2006, when the Baldwin County Circuit Court granted McConnell's ex parte motion for a ne exeat order. That order prohibited Pielage from removing Josha from the state court's jurisdiction until the custody dispute was resolved. Thirteen weeks after the ne exeat order was issued, Pielage filed a complaint in the United States District Court for the Southern District of Alabama, claiming that the order constituted an "unlawful retention" that deprived her of her custody rights, in violation of the Hague Convention and requested multiple forms of relief, including an order from the district court directing that Josha be returned to his "habitual residence of the Netherlands. McConnell responded with a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, arguing that the state court's ne exeat order did not constitute an "unlawful retention" within the meaning of ICARA. Ruling on the motion, the district court assumed that the Netherlands was Josha's habitual residence. Even with that assumption, the district court agreed with McConnell that the state court ne exeat order did not constitute a wrongful removal or retention under ICARA, because Josha had been in Pielage's physical custody since his birth, and she still had physical custody of him after the order was entered. The district court dismissed Pielage's complaint for failure to state a claim.Pielage contended on Appeal that the ne exeat order constituted a wrongful retention of Josha under the Hague Convention because it amounts to an interference with her custodial right to return the child to his habitual residence in the Netherlands. The obvious initial issue was whether there had been a "retention" at all under the Hague Convention. Neither the Hague Convention nor ICARA actually defines the term "retention." Pielage pointed to Article V of the Hague Convention, which defines a parent's "rights of custody" over a child as including "the right to determine the child's place of residence." Using that definition, Pielage contended that the state court ne exeat order was interfering with one of her rights of custody by preventing her from removing Josha from the state court's jurisdiction to take him to her desired place of residence, the Netherlands. According to her, that is all she needed to show to state a valid claim under the Hague Convention. The Eleventh Circuit was not persuaded to define "retention" to include every breach of a parent's rights of custody. Doing that would render the treaty's definition of "wrongful" superfluous. The treaty provides that a retention is wrongful only where "it is in breach of rights of custody attributed to a person, an institution or any other body." That necessarily means that there are some retentions that are not wrongful. Under Pielage's construction, however, none would be. Any breach of the rights of custody would be a retention and it would be wrongful. There would be no retention unless there were a wrongful one. It noted that according to one dictionary, the primary definition of the term "retain" is "to keep possession of." This meaning of the term "retention" was supported by the Perez-Vera Report, which states that the Hague Convention was meant to remedy situations where a "child is taken out of the family and social environment in which [he] has developed." This indicates that the term "retention" is meant to cover the circumstances where a child has been prevented from returning to his usual family and social environment. The court held that because the order did not disrupt or otherwise alter the "family and social environment in which [he] has developed," it was not the type of "retention" that the Hague Convention was intended to remedy. Although the preamble to the Hague Convention does state that one of its purposes is the return of the child to its state of habitual residence, the substantive provisions of the treaty are silent on where the child is to be returned. This silence, according to the Perez-Vera Report, was intentional and must be "understood as allowing the authorities of the State of refuge to return the child directly to the applicant, regardless of the latter's present place of residence." In cases such as this one, where the child remains in the physical care of the petitioner, it is impossible "to return the child directly to the applicant.". That is so because there has been no "retention" within the meaning of the Convention. There having been no retention, there can have been no "wrongful retention." Because the state court's ne exeat order did not constitute a "retention" within the meaning of the Hague Convention the district court did not err in granting McConnell's motion to dismiss.