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.

DRL 111-c Added to Grant Foreign Adoptions Full Faith and Credit in New York State

Section 111-c was added to the Domestic Relations Law. It provides the same rights to foreign adoptions as adoptions in New York State, provided that either adopting parent is a resident of this state and the validity of the foreign adoption has been verified by the granting of an IR-3 immigrant visa, or a successor immigrant visa, for the child by the United States Citizenship and Immigration Services. It grants foreign adoptions full faith and credit by the courts of New York State and provides that they shall be enforced as if the order were rendered by a court within New York, unless the foreign country violates the fundamental principles of human rights. No action is required. An adoption is considered "final" under the laws of New York state upon either adopting parent being a resident of this state and the granting of an IR-3 immigrant visa, or a successor immigrant visa. However, either adoptive parent or a guardian or a guardian ad litem may register the order in this state with the judge or surrogate of the county in which the adoptive parent or parents reside. It appears that a petition must be filed to register the foreign adoption order. If the court finds that the foreign adoption order meets complies with this section, the court must issue an order of adoption to the party who has petitioned for such an order and upon registration a birth certificate shall be issued. Laws of 2008, Ch 329, §1, effective October 19, 2008.

Family Court Act 812 Amended

Family Court Act 812 (1) (c) was amended to include in the list of persons who the court has jurisdiction to grant an order of protection, persons formerly married to one another, "regardless of whether they still reside in the same household” and persons who are not related by consanguinity or affinity. Subdivision (e) was added to Family Court Act 812 include in the list of persons who the court has jurisdiction to grant an order of protection, “persons who are or have been in an intimate relationship regardless of whether such persons have lived together at any time”. For purposes of subdivision (e), neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an "intimate relationship". Factors the court may consider in determining whether a relationship is an "intimate relationship" include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Laws of 2008,, Ch 325, § 10, effective July 21, 2008). [Criminal Procedure Law 530.11 (1) (c) was amended in the same manner and an identical subdivision (e) was added. See Laws of 2008, Ch 325, § 11, effective July 21, 2008.

Divorce or Annulment Now Revokes Any Revocable Disposition or Appointment of Property to a Former Spouse

Under former EPTL 5-1.4, a disposition in a will to a former spouse was revoked by a divorce or annulment unless the will expressly provides otherwise. In addition, a divorce revokes a revocable disposition of securities under the "Transfer-on-Death Security Registration Act" (see EPTL 5-1.4(c)) and, under case law, transforms a tenancy by the entirety into a tenancy in common.Under EPTL 5-1.4, a divorce revokes a will provision nominating a former spouse as executor or trustee; and under provisions of the Public Health Law, divorce revokes a Health Care Proxy given to a former Spouse (NY Public Health Law §2985) or, under recently enacted Public Health Law §4201, a former Spouse's power to dispose of a decedent's "remains." However, a divorce did not revoke many other revocable dispositions ( "testamentary substitutes"), such as lifetime revocable trusts (including Totten Trusts), life insurance policies, or joint tenancies (including joint bank accounts). A divorce did not revoke a power of attorney given to a former Spouse under provisions of the General Obligations Law. Laws of 2008, Chapter 173 repeals EPTL 5-1.4 and a new EPTL 5-1.4 is added which provides that a divorce or annulment will revoke any revocable disposition or appointment of property to a former Spouse, including a disposition or appointment by will, by beneficiary designation, or by revocable trust (including a bank account in trust form). It also revokes any revocable provision conferring a power of appointment on the former spouse and any revocable nomination of the former Spouse to serve in a fiduciary or representative capacity, such as nomination of the former Spouse as a personal representative, executor, trustee, guardian, agent, or attorney-in-fact. A divorce would sever joint tenancies between former Spouses (including joint bank accounts) and transform them into tenancies in common. According to the Sponsor’s Memorandum the new statute does not change the New York case law concerning the effect of divorce on tenancies by the entirety. (See Kahn v Kahn, 43 NY2d 203 (1977); Anello v Anello, 22 AD2d 694 (1964)).New EPTL 5-1.4 continues the rules of former EPTL 5-1.4 which provide that the provisions of the governing instrument are given effect as if the former spouse predeceased the divorced individual, and that a revoked disposition, appointment, provision or nomination is revived by the divorced individual's remarriage to the former spouse. It protects a payor, such as a bank in connection with a joint account, or a life insurance company in connection with a life insurance policy, where the payor has made a payment to a beneficiary designated in the governing instrument after the divorce has taken place, unless and until the payor has received written notice of the divorce. Even after such written notice is received, the payor can still receive protection and a complete discharge of liability by making the payment to the court.EPTL 5-1.4 is effective July 7, 2008 and applies only where the marriage of a person executing a disposition, appointment, provision or nomination in a governing instrument, as defined in EPTL 5-1.4(f)(5), to or for the benefit of a former spouse ends in a divorce or annulment, as defined in EPTL 5-1.4(f)(2), on or after such effective date or, where such a marriage ends prior to such effective date, only where such a disposition, appointment, provision or nomination takes effect only at the death of the person who executes it and such person dies on or after the effective date. Laws of 2008, Chapter 173, § 2, effective July 7, 2008.

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.