2d Circuit Reaffirms Croll Holding That Ne Exeat Clause Does Not Create Rights of Custody and Holds That District Court May Enforce Rights of Access

In Duran v Beaumont, --- F.3d ----, 2008 WL 2780656 (2nd Cir.(N.Y.)) Appellant and Appellee, both Chilean citizens, never married. Their daughter was born on April 22, 2001, in Chile and lived with both parents until they separated in 2004. While the separated couple lived in Chile, the child lived with Appellee, and Appellant had visitation rights. Under Chilean law, Appellee could not remove the child from Chile without Appellant's permission, and Appellant refused to consent. Therefore, Appellee petitioned the Eighth Minors' Court of Santiago, and the court issued an order authorizing her to travel to the United States with the child for three months. Appellee and the child departed Chile on August 3, 2005. The travel period expired on November 3, 2005, but Appellee remained with the child in the United States, in violation of the Chilean court's order. According to a certification issued by the Eighth Minors' Court of Santiago on August 28, 2006, a final determination of sole custody for the child had not yet been determined. On July 25, 2006, Appellant filed a Petition for the Return of Child. The district court held evidentiary hearings on the Petition and found that it lacked jurisdiction to order the return of the child because Appellant did not have rights of custody under Chilean law. The primary issue before the Second Circuit was whether under the Hague Convention Appellant had custody rights as opposed to rights of access. If Appellant had custody rights, United States courts would have jurisdiction to order the return of the child. However, if Appellant merely had access rights, then United States courts were without jurisdiction to order this remedy. The Hague Convention distinguishes between rights of custody and rights of access. It defines the latter as "the right to take a child for a limited period of time to a place other than the child's habitual residence." Hague Convention, art. 5, 51 Fed.Reg. at 10,498. Although remedies exist in the event that a child is removed in breach of access rights, recourse for such removal does not include an order of return to the child's place of habitual residence. See id. art. 21, 51Fed.Reg. at 10,500. The court held that in such situations, district courts may fashion a remedy ordering the custodial parent who has removed the child to allow and financiallyprovide for periodic visits by the non-custodial parent.The Court pointed out that neither the Hague Convention nor its implementing legislation defined "habitual residence." However, it had previously articulated the standard used to determine a child's habitual residence in Gitter v Gitter, 396 F.3d at 134: “First, the court should inquire into the shared intent of those entitled to fix the child's residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to [a] new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' latest shared intent.” Applying these principles it held that the district court properly found Chile to be the child's place of habitual residence. Because both parents were Chilean citizens, their child was born in Chile and lived in Chileuntil August 2005 when Appellee took her to the United States, a settled mutualintent to make Chile the child's permanent home could be easily concluded. There wasno evidence to the contrary and no joint settled intention to abandon Chile as the habitual residence. Appellee represented to the Chilean court that the child's removal was only temporary and that she intended to return the child to Chile after three months. Therefore, Chile was the habitual place of the child's residence.Turning to the primary issue whether Appellant had rights of custody the court found that under Chilean law, when parents live separately, the responsibility for the personal care of their child rests with the mother. See 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. See Minors Law 16,618 art. 49. Although Appellee was granted permission 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 Appellant's ne exeat right. In interpreting the Hague Convention, the Court has held that violating a ne exeat right is insufficient to qualify as a violation of custodial rights. See Croll v Croll, 229 F.3d at 138-140. In Croll, it found that a ne exeat clause does not create rights of custody within the meaning of the Hague Convention. It explained that "custody of a child entails the primary duty and ability to choose and give sustenance, shelter, clothing, moral and spiritual guidance, medical attention, education, etc., or the (revocable) selection of other people or institutions to give these things." It reasoned that custody under the Hague Convention "references a bundle of rights ... and is in some tension with the idea ... that one can have custody by holding a single power such as the veto conferred by a ne exeat clause." In Croll it said that although a ne exeat right limits a custodial parent's power to expatriate a child, it does not amount to a power to determine where the child will live. To hold otherwise would be "unworkable" because the Hague Convention assumes that "the remedy of return will deliver the child to a custodial parent who (by definition) will receive and care for the child. It does not contemplate return of a child to a parent whose sole right-to visit or veto-imposes no duty to give care." It agreed with the district court that Appellant did not establish the custody requirement by a preponderance of the evidence. Appellant primarily relied on an affidavit from the Chilean Central Authority as support for his argument that he hadcustodial rights under Chilean law. Appellant maintained that the district courtfailed to afford the Chilean Authority's interpretation of Chilean law appropriateweight. The issue of whether the Central Authority's affidavit constituted anauthoritative interpretation for the purposes of the Hague Convention wasinconclusive for a number of reasons, including the fact that the ChileanAuthority may not have had all information on this case available to it at thetime that it made its assessment. Even if it was authoritative, the district court was not bound to follow it. A foreign sovereign's views regarding its own laws merit, although they do not command, some degree of deference." Karaha Bodas Co.,L.L. C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 313 F.3d 70, 92 (2d Cir.2002). Reasons existed for the district court to refrain from giving theaffidavit absolute deference. Most importantly, the Central Authority's conclusionthat joint custody existed under Chilean law as a default rested almost exclusivelyon the ne exeat right. This veto power does not confer rights of custody.The district court looked to the rights Appellant claimed to possess in order to determine whether he had custody rights. Appellant also relied on the fact that he had visitation rights and that he paid for certain medical expenses. He pointed to Article 229 of the Chilean Civil Code which provides that a parent "who is not personally responsible for the care of a child will not be deprived of the right ... to maintain a direct and regular relationship with the child." However, this article addresses visitation rightsonly and not rights to care for the child under a custodial relationship. Appellee had the authority to make all the crucial decisions for the child. The only restrictions on Appellee's decision-making power under Chilean law was that she had to allow Appellant his scheduled visitations and she could not take the child out of the country without either Appellee's permission or a court order. The bundle of rights Appellant laid claim to did not create rights of custody under the Hague Convention and ICARA; they cumulatively amounted merely to a right of access. The Court held that under the Hague Convention, the rights conferred on Appellant did not amount to rights of custody. The removal of the child from Chile, although in violation of a lawful order from a Chilean court, did not breach rights of custody and was therefore not "wrongful" under the Hague Convention. The district court's order dismissing the petition for lack ofjurisdiction and ordering periodic visitation of the child for Appellant was affirmed.