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New York Matrimonial Trial Handbook

The New York Matrimonial Trial Handbook by Joel R. Brandes is available online in the print edition at the Bookbaby Bookstore and other bookstores. It is now available in Kindle ebook editions and epub ebook editions in our website bookstore. It is also available at Amazon Kindle, Barnes & Noble and Goodreads.

The New York Matrimonial Trial Handbook was written for both the attorney who has never tried a matrimonial action and for the experienced litigator. It is a “how to” book for lawyers. This 836 page handbook focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action. It is intended to be an aid for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. The handbook deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof. There are thousands of suggested questions for the examination of witnesses at trial to establish each cause of action and requests for ancillary relief, as well as for the cross-examination of difficult witnesses. Table of Contents

Sunday, August 17, 2008

Seventh Circuit Holds That by Virtue of Doctrines of Patria Potestas and Ne Exeat, Venezuelan Father Had "Rights of Custody"

In Vale v. Avila, 2008 U.S. App. Lexis 17068 (7 Cir. 2008) the parties, Venezuelan citizens, were married in Venezuela in 1999 and the following year Avila gave birth to twins. She met an American man on the Internet and in 2005 the parties divorced by mutual agreement. The divorce decree gave Avila physical custody of the children but gave both parents the right (and duty) of patria potestas. That is Latin for "paternal power," and in Venezuela, it is defined (so far as bears on this case) as "all the duties and rights of the parents in relationship to their children who have not reached majority, regarding the care, development and education of their children." Ley Organica para la Proteccion del Nino y del Adolescente [Organic Law for the Protection of Children and Adolescents], tit. IV, ch. 2, § 1, art. 347. The duties and rights "include the physical custody, representation and administration of the property of the minor child(ren) subject to such authority." Id., art. 348. The divorce decree also gave Vale unlimited visitation rights, custody of the children for two weekends a month, and the right of ne exeat, another civil law doctrine, whereby his consent was required before the children could leave the country. Id., § 5, art. 392. The following year, Avila asked Vale for his consent to her taking the children with her to attend a wedding in Florida. She told him they'd be gone from Venezuela for only five days. She lied. She moved to the United States with the children in order to marry the man she had met through the Internet. Vale agreed to let her take the kids to Florida for the wedding. She took them to Peoria, Illinois, and married her Internet pal. Vale filed a petition for the children's return under the Hague Convention. The district judge conducted an evidentiary hearing. After the hearing the parties agreed that the children be allowed to stay in the United States but spend every summer, every spring vacation, and every other Christmas vacation with their father in Venezuela, and that because Vale (who has a serious disability) has a low income, while Avila's new husband has (he said) an income of between $ 100,000 and $ 150,000 a year, Avila with his help would pay the children's travel expenses. The parties signed an agreement containing these terms. A provision captioned "resumption of Hague proceedings" states that if Avila fails to comply with the terms of the agreement, Vale "can refile a Hague Petition in either State or Federal court in the United States to seek the return of the children." The settlement agreement provided that the children's habitual residence was now Illinois and that Vale would dismiss his suit, which he did. Avila submitted a copy of the agreement to an Illinois court, which issued an uncontested judgment declaring in accordance with the agreement that the children were now habitual residents of Illinois. Avila did not comply with the duties that the settlement agreement placed on her, and so this year Vale returned to the federal district court in which he had filed his Hague Convention petition and moved the judge to set aside the judgment dismissing his suit, on the ground that the judgment had been procured by fraud, and to reinstate the suit. Fed. R. Civ. P. 60(b)(3). The judge conducted an evidentiary hearing at the conclusion of which he set aside the judgment. The judge proceeded to the merits of Vale's petition for the return of the children under the Hague Convention, conducted an evidentiary hearing, and concluded that the removal of the children to the United States had indeed violated the father's "rights of custody." He ordered the children sent to Vale in Venezuela, precipitating this appeal by Avila. The Seventh Circuit rejected Avilla’s argument that the District Court no longer had jurisdiction. It held that Rule 60(b) has the force of a federal statute, and federal statutes override conflicting state law. A federal court can set aside a judgment by it that was procured by fraud, and the effect is to reinstate the proceeding that the judgment had concluded. The Court then held that Avila's removal of the children to Illinois violated Vale's "rights of custody" under Venezuelan law and was therefore in violation of the Hague Convention, since before she removed them to the United States, Venezuela was their habitual residence. It indicated that the Convention does not speak simply of "custody," but of "rights of custody," and these are broadly defined to include "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." The enumeration is not necessarily exhaustive. By virtue of the doctrine of patria potestas, Vale, the father, had rights relating to the care of the person of the child, and, by virtue both of that doctrine and by virtue of the doctrine of ne exeat, the right to determine that the child's place of residence would remain Venezuela rather than the United States. The Court pointed out that no more is necessary to establish that Vale had "rights of custody," which Avila infringed. (Citing Furnes v. Reeves, 362 F.3d 702, 714-16 (11th Cir. 2004); Whallon v. Lynn, 230 F.3d 450, 458-59 (1st Cir. 2000); In re B. del C.S.B., 525 F. Supp. 2d 1182, 1196 (C.D. Cal. 2007); Garcia v. Angarita, 440 F. Supp. 2d 1364, 1378-79 (S.D. Fla. 2006); Gil v. Rodriguez, 184 F. Supp. 2d 1221, 1225 (M.D. Fla. 2002). The Court noted that several cases, (Villegas Duran v. Arribada Beaumont, Nos. 02-55079, 02-55120, 2008 WL 2780656, at *4 (2d Cir. July 18, 2008); Fawcett v. McRoberts, 326 F.3d 491, 499-500 (4th Cir. 2003), [*12] and Croll v. Croll, 229 F.3d 133, 138-41 (2d Cir. 2000) hold that the doctrine of ne exeat does not create a right of custody, reasoning that if it did the effect would be to send the child to a parent who did not have custodial rights but merely a right to prevent the child from being removed to another jurisdiction. The Court specifically stated that it need not decide whether the doctrine of ne exeat creates custody rights, for in none of the cases that answer the question in the negative did the plaintiff also have the right of patria potestas. Only Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir. 2002), was cited for the proposition that patria potestas does not confer a custody right, and all that case actually holds, besides that the doctrine of ne exeat does not by itself create a right of custody, is that patria potestas is a default doctrine and does not override rights conferred by a valid custody agreement between the parents. The father in Gonzales had access rights as well as ne exeat, but not patria potestas. There was no such override here. The divorce decree gave Avila physical custody of the children subject to Vale's right of patria potestas. It provided: "The Father and the Mother shall both EXERCISE THE PATRIA POTESTAS over our children as we have been doing and as established by the Law. The aforementioned children shall remain under the Guard of the mother, with whom they are currently living." The Court concluded that when the parent who does not receive physical custody is given the rights and duties of patria potestas, he has custody rights within the meaning of the Hague Convention.

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