In the Supreme Court of the United States In the Supreme Court of the United States In the Supreme Court of the United States In the Supreme Court of the United States In the Supreme Court of the United States PETER VALDEZ CAHUE, Petitioner, v. JADED MAHELET RUVALCABA MARTINEZ, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit MOTION FOR LEAVE TO FILE BRIEF AND BRIEF AMICI CURIAE OF THE INTERNATIONAL ACADEMY OF FAMILY LAWYERS IN SUPPORT OF PETITIONER Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 TIM AMOS TIMOTHY SCOTT GERALD L. NISSENBAUM DANA PRESCOTT ISABELLE REIN-LESCASTEREYRES CHARLOTTE BUTRUILLE-CARDEW IAN KENNEDY INTERNATIONAL ACADEMY OF FAMILY LAWYERS 81 Main Street, Suite 405 White Plains, New York 10601 NO. 16-582 EDWIN A. FREEDMAN Counsel of Record LAW OFFICES OF EDWIN FREEDMAN 58 Harakevet Street Tel-Aviv 6777016 Israel 00-972-3-6966611 [email protected]Counsel for Amici Curiae International Academy of Family Lawyers
Transcript
In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States
PETER VALDEZ CAHUE,Petitioner,
v.
JADED MAHELET RUVALCABA MARTINEZ, Respondent.
On Petition for Writ of Certiorari to the United StatesCourt of Appeals for the Seventh Circuit
MOTION FOR LEAVE TO FILE BRIEF AND BRIEFAMICI CURIAE OF THE INTERNATIONAL ACADEMY OF
Counsel for Amici CuriaeInternational Academy of Family Lawyers
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MOTION FOR LEAVE TO FILE BRIEF
The International Academy of Family Lawyersmoves for leave to file an amici curiae brief in supportof petitioner, pursuant to Supreme Court Rule 37.2(b).Amici are filing this motion because respondents havenot consented to filing this brief.
Amici’s brief may assist the Court in determiningwhether to grant certiorari to review the issuespresented in this case. Amici are a professionalinternational association of lawyers whose expertisefocuses on family law issues. Matters relating to theinternational application of Conventions focusing onchildren, in particular the Hague Child AbductionConvention, are of special interest to the IAFL. Amicihave been represented at all six of the SpecialCommissions of the Hague Conference on PrivateInternational Law that deliberate on the AbductionConvention’s implementation. Amici filed an amicicuriae brief in Lozano v. Montoya, 134 S. Ct. 1224(2014), which also concerned the implementation ofthe Abduction Convention.
Given the importance of uniformity between thecontracting States in implementing the AbductionConvention, the international perspective which amicibrings can be helpful in determining the issues in thiscase. The Abduction Convention deliberately did notprovide a definition of habitual residence in order toprevent the application of a rigid formula. This hascreated different definitions of habitual residence, bothinternationally and within the member states as seenin the use of the term by the courts of the individualFederal Judicial Circuits. In addition to the definitionof habitual residence, there is conflict in the definition
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of custody rights when one of the legally acknowledgedparents is an unmarried father. Certain jurisdictions,such as Illinois in the present matter, require somejudicial act of recognition before taking into account theparental intent of an unmarried father, while otherjurisdictions do not require any legal act. Although anunmarried father who is legally acknowledged as aparent and has actively raised the child is responsiblefor the child’s welfare and support, in somejurisdictions that father is not recognized by a courtadjudicating an Abduction Convention matter.Parental intent, which is a crucial factor indetermining the habitual residence of a minor, is solelydetermined by the mother in those states. This createsan unconstitutional category of fathers whose dueprocess rights are violated. Amici’s brief attempts tocompare the definition of habitual residence in thejurisdiction of the member states as well as the varyingapproaches of the states in regard to the parentalrights of unmarried fathers. It offers an analysis whichcan lead to uniformity in the definition and applicationof the crucial elements of the Abduction Convention.
Amici therefore request the Court to grant thismotion for leave to file this brief amici curiae.
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Respectfully submitted,
Edwin FreedmanCounsel of Record
Law Offices of Edwin Freedman58 Harakevet StreetTel Aviv [email protected]
Counsel for Amici CuriaeInternational Academy of Family Lawyers
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QUESTIONS PRESENTED FOR REVIEW
I. What are the factors in determining habitualresidence as that term is used by The HagueConvention on the Civil Aspects of InternationalChild Abduction (“The Abduction Convention”)?
II. In determining habitual residence under TheAbduction Convention, does the refusal to considerthe intent of an unmarried father whose paternityis acknowledged and not in dispute, violate the DueProcess Clause of the United States Constitution?
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TABLE OF CONTENTS
MOTION FOR LEAVE TO FILE BRIEF . . . . . . . . . i
I. Shared parental intent is necessary in order tochange the habitual residence of a minor child inproceedings under the Abduction Convention . . 5
II. The intent of an unmarried father whosepaternity is acknowledged and undisputed mustbe taken into account when analyzing thehabitual residence of a minor for purposes of theHague Abduction Convention . . . . . . . . . . . . . . 13
The International Academy of Family Lawyers(IAFL) adopts the facts as they are stated in thePetitioner’s brief.
INTEREST OF THE IAFL1
The IAFL (formerly the International Academy ofMatrimonial Lawyers, whose name was changed in2015) was formed in 1986 to improve the practice oflaw and the administration of justice in the area ofdivorce and family law throughout the world. TheIAFL currently has 745 “Fellows” in 55 countries, eachof whom is recognized by the bench and bar in his orher country as an experienced and skilled family lawpractitioner.2 It is a worldwide association of practicinglawyers who are experienced and skilled family lawspecialists in their respective countries.
IAFL Fellows have made presentations in the USand in other Fellows’ States in relation to legalreforms. The IAFL has sent its representatives toparticipate in relevant international conferences, oftenas non-governmental experts, including the six SpecialCommissions on the Hague Convention on the CivilAspects of International Child Abduction. Its Fellowshave also written and lectured widely on the
1 Pursuant to Supreme Court Rule 37.6 counsel for the amicicertify that no counsel for a party authored any part of this briefand no person or entity other than counsel for the amici has madea monetary contribution to the preparation or submission of thisbrief. Petitioner has consented to the filing of this Brief.Respondent has not consented.
2 The IAFL website, www.iafl.org, contains, among other items, alisting of the Fellows.
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Convention and related topics, such as proceedings toobtain court approved relocation of children to anothercountry.
The IAFL filed an amicus curiae brief in Lozano v.Montoya, 572 U.S. ____, 134 S. Ct. 1224 (2014). TheAcademy has also filed amicus briefs in casesconcerning the interpretation of the AbductionConvention in the Supreme Courts of the UnitedKingdom, In the Matter of AR, (Children) (Scotland)UKSC 2105/0048 and France, Bowie v. Gaslain (No.T15-26664)
The IAFL’s interest in the instant case relates to itsconcern that implementation of the Convention, whichhas significantly reduced the harmful effects ofinternational child abduction, will be severelyundermined if the judgment of the Seventh Circuit inthis matter is not overturned. Many Convention casesare brought to court in the signatory States by IAFLFellows. The IAFL, therefore, has a significantprofessional and policy interest in preserving thedeterrent effect of the Convention and ensuring theprompt return of wrongfully removed or retainedchildren to their habitual residence.
The IAFL is acting pro bono in submitting this brief.
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SUMMARY OF ARGUMENT
The purpose of the Abduction Convention is toreturn a minor child who has been wrongfully removedor retained to his or her country of habitual residenceas swiftly as possible. It is an instrument to determinejurisdiction, not custody. The Abduction Conventiontherefore does not apply a best interests test but ratherdetermines the correct forum to apply that test.
The term habitual residence was deliberately notdefined by the drafters of the Abduction Convention inorder to avoid the application of rigid formulas to anissue which is fact driven. The Federal Circuits havedeveloped different approaches to determine habitualresidence. A majority of the Circuits focus on jointparental intent in conjunction with a physical presenceof the minor in the new jurisdiction. The minority haveapplied a test that emphasizes the perspective of thechild, particularly his or her acclimation to the newsurroundings. It looks back in time, not forward. Thegeographical change, coupled with the passage of time,can alter habitual residence, even where one of theparents had no intent to make a change.
A parent or institution may initiate proceedingsunder the Abduction Convention if they have rights ofcustody (Par. 3 of the Convention). Those rights aredetermined by State law. Thus, when consideringparental intent, only the intent of a parent with rightsof custody as defined by the State of the left behindparent will be taken into account. Some Statesrecognize unmarried fathers as having the same rightsof custody as married fathers, while other Statesrequire the unmarried father to take legal steps inorder for their rights to be recognized. This creates two
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categories of fathers, resulting in unlawfuldiscrimination against the unmarried fathers.
In addition, this discrimination underminesuniformity in the application of the AbductionConvention. Identical fact patterns regarding the non-consensual removal of a child between the same twocountries can result in completely opposite outcomes.
The petitioner is a resident of Illinois, a state whichdoes not automatically recognize the parental rights ofan unmarried father, even where paternity was legallyacknowledged and not in question. Without obtaininga court order recognizing his rights, the petitioner’sintent in determining habitual residence is not takeninto account.
The IAFL believes that the correct approach indetermining habitual residence is that adopted by themajority of Circuits, holding that joint parental intentis required. The failure to recognize the petitioner’sparental rights is therefore a denial of due process andequal protection under the Fourteenth Amendment ofthe United States Constitution.
In addition, it is argued that Abduction Conventioncase law has developed an autonomous definition ofparental rights. That definition should be theapplicable one. Its adoption will promote uniformityamong the member states and prevent discriminationagainst a class of fathers whose categorization resultsin a denial of due process.
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ARGUMENT
I. Shared parental intent is necessary in orderto change the habitual residence of a minorchild in proceedings under the AbductionConvention.
The United States Supreme Court has yet to rule onthe issue of habitual residence in the context of theHague Abduction Convention. The thirteen FederalCircuit Courts and the fifty State Courts therefore haveno precedent which binds them all.
The distinction in the analysis of habitual residencelies in the weight given to parental intent as opposed tothe physical location of the child. The First, Second,Fourth and Seventh Circuits follow the analysis of theNinth Circuit’s judgment in Mozes v. Mozes, 239 F.3d1067 (9th Cir. 2001). The Mozes court held that theanalysis is fact intensive and therefore there are norigid rules to apply. It ruled that there must be ashared parental intent to abandon the existing habitualresidence before a new one can be acquired. Thereforethe length of the move must be examined in the contextof the parties’ agreement as to the purpose of the move.The relocation need not be permanent. It can be for anynumber of reasons: business, study, health or just thedesire to explore other ways of life. However, theremust be a settled purpose to the move and the movemust actually take place.
The interrelationship between parental intent andthe child’s adaption to new surroundings exists on acontinuum. The weight given to each factor will dependon the circumstances of the case. The shorter the timein the new jurisdiction, the more weight given to
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parental intent. In Mozes, the children had spent 15months in the US while the father remained in Israel.There was no agreed upon intent to abandon Israel asthe habitual residence. The court found that thechildren’s habitual residence did not change, regardlessof how much they adjusted to their new surroundings.Had the move been for a substantially longer period,the court might have given less weight to parentalintent and given more emphasis to the child’sadjustment to his or her new surroundings. Mozesstands for an integration of parental intent and thechild’s adjustment to its new environment, with norigid formula to on how balance the two.
Focusing on parental intent attains an importantAbduction Convention objective: the prevention of aunilateral change of the child’s habitual residence. Oneof the essential motivating factors in adopting theAbduction Convention is to prevent the unlawfulremoval of children from one country to another.Changing a child’s habitual residence without consentof both parents, in situations where the left-behindparent was exercising his or her custodial rights, orwithout court approval, is an act that seriously harmsboth the child and parent. It severely interferes withand often totally prevents the continuance of theparent-child relationship. Parental intent musttherefore always be an important and essential criteriawhen determining if the change of habitual residencewas unlawful under the Hague Convention.
In addition, by placing primary evidence on theacclimation of the child to the new environment, theAbduction Convention will lose its deterrent capacity.The proceedings will shift from determining
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jurisdiction, which is at the heart of the AbductionConvention, to an analysis more appropriate to acustody proceeding. The outcome will no longer bedetermined by the actions of the parent, whetherlawful or unlawful, but by the nature of the child. Achild who has the ability to easily adapt to newsurroundings will have been found to have acquired anew habitual residence, while a child who struggles tomake new friends, learn a new language or adjust to aforeign school system will be considered not to haveacquired a new habitual residence. This would result infederal courts applying a “best interests” test as itwould in a conventional custody case. That would becontrary to the essence of an Abduction Conventionproceeding, whose purpose is to determineinternational jurisdiction, not custody. The purpose ofthe Abduction Convention is not served by the outcomeof a proceeding under its framework being determinedprimarily by a child’s ability to make the switch fromAmerican football to European soccer.
The continuum between parental intent and thechild’s adaptation to new surroundings is also impactedby the age of the child. The impact of relocation on a 13or 14 child is significantly different from that of a 3 or4 year old. The ability of a 4 year old to adapt to theirnew surroundings may be of far less significancecompared to that of a 14 year old.
The Mozes court divided the question of habitualresidence into three different scenarios; 1) Where thefamily unit has manifested a settled purpose to changehabitual residence, despite the qualms of one of theparents, 2) Where the translocation from anestablished habitual residence was clearly intended to
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be of a specific, delimited period, 3) In between caseswhere the petitioning parent had earlier consented tolet the child stay abroad for some period of ambiguousduration. The first situation will result in habitualresidence being acquired in a relatively short period oftime. In the second situation, habitual residence willnot be acquired even after an extended stay, althoughonce the delimited period has passed the length of thecan determine the change in habitual residence. Thethird situation is the problematic one. The court statedthat in the absence of settled parental intent, courtsshould be slow to infer from acclimatization that anearlier habitual residence has been abandoned.
The Ninth Circuit recently reaffirmed the Mozesprecedent in the case of In re ALC, 2015 WL 1742347(9th Cir. 2015). The court held that the first task is toexamine shared parental intent. When that does notresolve the dispute, then the new jurisdiction will beconsidered the habitual residence when objective factspoint unequivocally to the child’s relative attachmentsto the two countries changing to the point whererequiring a return would be tantamount to removingthe child from the environment in which its life hasdeveloped. The court held that where a child is bornunder the cloud of disagreement between the parentsover its habitual residence, a child of tender ageremains without an habitual residence.
The First Circuit followed the Mozes approach inthe case of Mauvis v. Herisse, 2014 WL 5659412 (1stCir. 2014) an abduction from Haiti to Massachusetts.The court stated that the analysis of habitual residenceis a two-part approach. The first question is whetherthere was a shared parental intent or settled purpose
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to abandon the prior habitual residence and acquire anew one. The court then stated that as a secondaryfactor, it would ascertain whether the acclimatizationof the child to the new residence is relevant. Itreiterated that a new habitual residence cannot beacquired without abandoning the prior one.
The Fourth Circuit adopted the Mozes analysis inMaxwell v. Maxwell, 588 F.3d 245 (4th Cir. 2009). Thecourt held that habitual residence is determined by atwo-part formula. First it attempts to determine theshared parental intent. Where a shared parental intentis lacking or cannot be determined, the court mustdecide if petitioner has agreed to taking up a newhabitual residence.
The recent Fourth Circuit case of Velasquez v.Funes de Velasquez, 2015 WL 1565142 (E.D. Va 2015)involved the third position stated in the Mozes decision.The move from El Salvador to the US was an openended one. There was no clear parental intent toabandon the habitual residence in El Salvador. Thecourt affirmed the two-part approach of Mozes. Itexamined whether there was an actual change ofgeography coupled with an appreciable passage of time.It found that returning the children to El Salvadorwould not be tantamount to returning them home andtherefore denied the appeal of the father for a returnorder.
The Sixth Circuit takes an approach that is morechild focused. In the case of Friedrich v. Friedrich, 983F.2d 1396 (6th Cir. 1993) (Friedrich I), the court heldthat the habitual residence of the child is its customaryresidence prior to the removal. It looks back in time,not forward. It is the child’s habitual residence, not the
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parents’, which is determinative. A child can have onlyone habitual residence. There must be a change ingeography to alter habitual residence. That change ingeography must occur prior to the removal in question.The geographical change, coupled with the passage oftime, can alter habitual residence.
A recent First Circuit case, Mendez v. May, 2015WL 627215 (1st Cir. 2015), rejected the propositionthat a change of geography is a prerequisite to achange in habitual residence. It held that it is only onefactor and not a prerequisite. It is the last sharedparental intent which is determinative, even if thechange in geography had yet to take place.
The courts of the Third and Eighth Circuits havetaken a child centered approach in conjunction withequal weight given to the parents’ present sharedintentions. The Third Circuit case of Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) established thedefinition of habitual residence for that Circuit. It heldthat a child’s habitual residence is the place where heor she has been physically present for an amount oftime sufficient for acclimatization and which has adegree of settled purpose from the child’s perspective.A determination of whether any particular placesatisfies this standard must focus on the child. Itconsists of an analysis of the child’s circumstances inthat place and the parents’ shared, present intentionsregarding the child’s presence there. See Delvoye v. Lee,329 F.3d 330 (3d Cir. 2003), Didon v. Castillo, 15-3350,2016 WL 5349733 (3d Cir. Sept. 26, 2016).
The Third Circuit case of Karkkainen v. Kovalchuk,445 F.3d 280 (3d Cir. 2006) made a distinction as to theage of the children regarding parental intent. In the
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case of very young children, particular weight is placedon parental intent. In the case of older children, theimpact of parental intention is more limited.
The recent case of Panteleris v. Panteleris, WL468197 (6th Cir. 2015) rejected the Mozes analysis andreaffirmed the Friedrich I precedent and furtherelaborated. It established 5 principles to determinehabitual residence:
1) Not to use technical rules but examine the facts,
2) Consider only the child’s experiences,
3) Focus on the child’s past,
4) A person can have only one habitual residence,
5) Only a change in geography and a passage oftime can combine to establish a new habitualresidence.
The Eighth Circuit also applies a two-pronged testthat takes into account parental intent and the child’sperspective, with an emphasis on the child’sperspective. In the case of Silverman v. Silverman, 338F.3d 886 (8th Cir. 2003) the court was called upon todetermine whether the habitual residence of childrenborn and raised in Minnesota had been changed toIsrael after ten months. It held that the court mustexamine habitual residence from the children’sperspective, including the family’s change in geographyalong with personal possessions and pets, the passageof time, the selling of their prior residence, enrollmentin school, obtaining benefits granted to newimmigrants and to some degree, the parents’ intentionsat the time of the move to Israel. Assessing these facts
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led to the conclusion that the children’s habitualresidence had been changed to Israel.
The relevant factors in determining habitualresidence in the Eighth Circuit are the settled purposeof the move to the new country from the child’sperspective, parental intent, a change in geography,the passage of time and the acclimation of the child tothe new country. See Barzilay v. Barzilay, 600 F.3d 912(8th Cir. 2010), Stern v. Stern, 639 F.3d 449 (8th Cir.2011), Sorenson v. Sorenson, 559 F.3d 871 (8th Cir.2009).
All of the US Federal Courts take into accountparental intentions to some degree. While the courtsthat follow the Ninth Circuit place significant emphasison parental intent, particularly the First Circuit, eventhe courts that are more child focused still weighparental intent to some degree. The courts all agreethat the definition is fact intensive and no fixedformula should be applied. Yet it is clear that theunilateral decision of one parent is not sufficient tochange the habitual residence of a child. The analysisof the Ninth Circuit requires mutual parental consentand should be the analysis that is followed.
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II. The intent of an unmarried father whosepaternity is acknowledged and undisputedmust be taken into account when analyzingthe habitual residence of a minor for purposesof the Hague Abduction Convention.
The Seventh Circuit found that the Petitioner, thelegally recognized father who had been activelyinvolved in the child’s upbringing, lacked custodyrights under Illinois law and therefore did not have totake into account his intent when analyzing thehabitual residence of the minor in question. Petitionerargues that his intent must be taken into account inorder to determine the habitual residence of the minor.
The Seventh Circuit’s approach violates due processand equal protection under the Due Process Clause ofthe Fourteenth Amendment to the U.S. Constitution.The Supreme Court has held that the Due ProcessClause of the Fourteenth Amendment protects thefundamental right of parents to make decisions as tocare, custody and control of their children. Troxel v.Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d49 (2000). “It is well established that a parent’s interestin maintaining a relationship with his or her child isprotected by the Due Process Clause of the FourteenthAmendment.” United States v. Myers, 426 F.3d 117, 125(2d Cir. 2005). When an unwed father demonstrates afull commitment to the responsibilities of parenthoodby “com[ing] forward to participate in the rearing of hischild his interest in personal contact with his childacquires substantial protection under the Due Processclause.” Lehr v. Robertson, 463 U.S. 248, 261, 103 S. Ct.2985, 2993, 77 L. Ed. 2d 614 (1983).
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By entirely disregarding the legal father’s intentand failing to conduct a shared parental intentanalysis, the Seventh Circuit has deprived non-marriedfathers of their interest in continuous personal contactwith their children without due process of law. Such anapproach fails to take into account the entirety of thecircumstances of the case and the Constitutionallyguaranteed substantial protection afforded to thefather under the Due Process Clause.
This approach also fails to take into account theright of the child to maintain a personal relationshipwith his or her father, “… a child has a constitutionallyprotected liberty interest under the FourteenthAmendment in the ‘companionship and society’ of herfather.” Hayes v. County of San Diego, 638 F.3d 688,693 (9th Cir. 2011) opinion withdrawn, 658 F.3d 867(9th Cir. 2011), certified question answered, 57 Cal. 4th622, 305 P.3d 252 (2013). Considering only themother’s intent to determine habitual residence deniesdue process to the father as well as the child asprotected by the Fourteenth Amendment.
The Seventh Circuits decision also represents anunconstitutional classification which discriminatesbetween married fathers and unmarried fathers withno compelling societal justification. A married fatherhas the same right to determine the habitual residenceof his minor child as the mother. However, anunmarried father, even though his paternity has beenlegally acknowledged and is not in dispute, does nothave the same right. The unmarried father, accordingto the Seventh Circuit’s application of Illinois law,must take additional legal action, not required by amarried father, in order that his intent be considered
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when determining the minor’s habitual residence. Nopublic interest is served by this arbitrarydiscrimination between categories of fathers. Thisresult of this erroneous interpretation is that the minorchild may be deprived of a personal relationship withhis or her father based on a marriage certificate ratherthan the actual circumstances of the case.
Petitioner further argues that there should be auniform interpretation of custody rights under theHague Convention.
Custody Rights: Defined by the State, Construedby The Hague Convention on Child Abduction
“An international convention, expressed in differentlanguages and intended to apply to a wide range ofdiffering legal systems cannot be construed differentlyin different jurisdictions. The convention must have thesame meaning and effect under the laws of allContracting States”. (Lord Browne-Wilkinson, Re H(Abduction: Acquiescence) [1998] AC 72.) The principleof uniformity in applying Abduction Conventionprinciples is an accepted one. Courts that have weighedin on the issue have all stated the importance ofuniform definitions in order to avoid both uncertaintyand asymmetry in applying the Convention.
The United States Abduction Conventionimplementing legislation, The International ChildAbduction Remedies Act, (ICARA) directs that“uniform international interpretation” of theConvention is part of its framework, see 42 U.S.C.§ 11601(b)(3)(B). The Guide to Good Practice, which iscompiled by the delegates to the Special Commissionsof the Hague Conference convened every four years and
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updated from time to time, emphasizes an autonomousdefinition of the Abduction Convention terms. Part IIIof the Guide, under Implementing Measures, statesthat an international approach is necessary forconsistent interpretation and application.
Case law and legal scholars have supported theapproach taken by the Guide to Good Practice.Interpreting rights of custody solely according to statelaw can not only lead to inconsistent interpretation, butcreate totally unacceptable outcomes which arecontrary to the objectives of the Abduction Convention.Prof. Linda Silberman, who has written extensively onthe Abduction Convention, has stated “If Conventioncases became subject to varying national approachesand perspectives, neither of the core objectives of thetreaty would be attainable.” (Law and ContemporaryProblems, Vol. 57: No.3, Summer 1994, p.258.)
Custody rights as defined by the various signatorystates can vary significantly. Custody rights of thefathers are those most often subject to interpretation.Some jurisdictions, such as Illinois, require unmarriedfathers to take specific legal action in order to havetheir custodial rights recognized. Failure to do soleaves the father without custodial rights, even if defacto he is an active parenting partner, includingfinancially supporting the child. This can create asituation whereby two cases of abduction with identicalfact patterns can result in contrary decisions, theoutcome depending solely on the different laws of thestate of habitual residence.
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Custody Rights and Ne Exeat Orders
The significance of a ne exeat order has exemplifiedhow courts of the member states have given differentmeaning to the same term as it pertains to the right ofcustody. In an attempt to clarify the definition ofcustody rights, the Abduction Convention states inArticle 5(a) that the right of custody includes the rightto determine the child’s residence. That has notprevented extensive litigation in the contracting statesas to whether the issuance of a ne exeat order alone,absent any other basis in law or by agreement, fallswithin that definition.
The conflicting interpretations of the significance ofa ne exeat order in the various U.S. federal courtseventually led to the U.S. Supreme Court’s grant ofcertiorari in the case of Abbott v. Abbott, 560 U.S. 1,130 S. Ct. 1983 (2010). Until then, the majority of U. S.Federal Circuits had adopted the restrictiveinterpretation as defined in Croll, which held that theissuance of a ne exeat order did not constitute a rightof custody in favor of the requesting parent. (seeGonzalez v. Gutierrez, 311 F.3d 942 (9th Cir. 2002),Fawcett v. McRoberts, 326 F.3d 491 (4th Cir. 2003) andAbbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008). Theexception was the Eleventh Circuit which applied theaccepted interpretation in the majority of AbductionConvention jurisdictions, (see Furnes v. Reeves, 362F.3d 702 (11th Cir. 2004).
The majority opinion of the Supreme Courtoverturned the judgment of the Court of Appeals andheld that the accepted interpretation of custody rightsincludes the right to prevent the removal of a childfrom the jurisdiction. Any other interpretation would
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render the Abduction Convention meaningless. Thecourt stated that it was not relevant that traditionalnotions of custody referred to physical custody. Theemphasis needs to be placed on the AbductionConvention’s understanding of the term. Doing sowould promote international consistency and preventarbitrary results. Abbott boldly stated that “Thedefinition of ‘rights of custody’ is an issue of treatyinterpretation and does not depend on the domestic lawof the country of habitual residence.” Id. at 1991. Thatperhaps was the clearest declaration of a uniqueautonomous Abduction Convention definition ofcustody rights to be applied by any court called upon todetermine a petition for return in a Conventionproceeding.
It is now accepted case law in the majority ofjurisdictions that the definition of custody rights forpurposes of implementing the Abduction Conventionincludes the right to prevent the removal of the childfrom the jurisdiction of his or her habitual residence.
Autonomous Nature of the Child AbductionConvention
As the definition of custody has evolved in statecourts, there has developed an autonomous HagueConvention definition of custody rights which placesthe emphasis on the right to determine the child’s placeof residence. The synthesis between custody rights asdefined by the state and the autonomous AbductionConvention definition has been addressed in a numberof cases. A two step approach has been developed whichtakes into account the law of the habitual residence asstated in Article 3 while applying a common AbductionConvention definition of those rights.
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In the 2004 case of Re P (Abduction Consent) [2004]EWCA Civ 971, LJ Ward held that the HagueConvention requires the court to give the expression“rights of custody” and autonomous interpretation. Hefurther stated that the task of the court is to establishthe rights of the parents under the law of the State ofhabitual residence and then to consider whether thoserights are rights of custody for Hague Conventionpurposes.
The case of Re P gave the courts the legal basis fordeveloping a uniform definition of custody rights thatwould be conducive to the Abduction Convention’s goalswithout the need to amend it, a difficult and arduoustask, which has not happened since its adoption in1980. It made it clear that the state definition ofcustody rights was not simply to be applied, as is, to apetition for return under the Abduction Convention.
A year later, in another Court of Appeal of Englandcase, LJ Thorpe expanded on Re P and took itsdevelopment to the next level. Justice Thorperecognized that the Abduction Convention is a livinginstrument. He was also aware that revision of its text“is simply impracticable…”. He cited the provisions ofthe Vienna Convention on the Law of Treaties, whichalso came into force in 1980, permitting a constructionthat reflects “any subsequent practice in theapplication of the treaty which establishes theagreement of the parties regarding its interpretation”(Article 31(3)(b). He held that social developmentsmust be incorporated by evolutions in interpretationand construction in order for a treaty to remainrelevant (Hunter v. Murrow (Abduction: Rights ofCustody) [2005] EWCA Civ 976).
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In interpreting the meaning of an Article of theAbduction Convention, Justice Thorpe held that theanswer is to be found in the internationaljurisprudence of the Contracting States. He goes as farto say that it is not sufficient to argue the case law ofthe jurisdiction in which the case is litigated. He holdsthat it is incumbent upon an attorney arguing a HagueConvention case to not only cite English case law butalso to refer to the international jurisprudence of theAbduction Convention as applied by the signatorystates. The court even makes reference to the case lawdata base of the Hague Conference, the INCADATwebsite, in order to encourage attorneys to refer tointernational case law.
Having established that there is an autonomousAbduction Convention definition of custody rights, weare still faced with the question of which case law iscontrolling. Are the courts hearing a Hague Abductionpetition to review the international judgments andattempt to determine the controlling case law? Perhapsit is the Abduction Convention case law of thejurisdiction in which the proceedings take place thatshould prevail. Justice Thorpe, relying on the case ofRe H (Abduction: Acquiescence)[1997] 1 FLR 872, heldthat it is the English perception of the autonomous lawof the Hague Convention which should be applied.
The Abduction Convention is essentially a treatywhich determines jurisdiction. As such, one of itsprimary purposes is to discourage forum shopping. Ifthe Abduction Convention produces contradictoryoutcomes due to the application of conflictingdefinitions of its terms, then forum shopping will not bediscouraged. On the contrary, it may encourage some
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parents to remove their child to a jurisdiction that hasa more favorable legal interpretation. A goal of theAbduction Convention is to discourage unlawfulremovals. The more clarity there is regarding whatconstitutes an unlawful removal, the better the chanceof deterring a potential abduction.
The clearest expression of the synthesis of statedefinition of custody rights and a determination ofwhether those rights constitute a right of custodyunder the Abduction Convention can be found in ajudgment of the U. S. Court of Appeals for the SecondCircuit (Ozaltin v. Ozaltin, 708 F.2d 355 (2d Cir. 2013).The case involved a Turkish couple whose twodaughters were taken by the mother to the UnitedStates without the father’s permission.
The father promptly filed an application for returnwith the Turkish Central Authority. The mother thenobtained an ex parte order of protection in the TurkishFamily Court. The mother subsequently filed fordivorce in Turkey and was awarded temporary childsupport.
This prompted the father to file in the TurkishCourt for temporary custody, or in the alternative, anorder requiring that the children be brought to Turkeyand visitation rights be granted. The request fortemporary custody was denied but visitation in NewYork was granted, as well as the right to take thechildren for a visit to Turkey during the summer. Thechildren were belatedly returned to the mother in theU.S. and the father was again granted visitation withthem in New York. A second application by the fatherfor temporary custody was rejected by the TurkishFamily Court. The father then filed his petition in the
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U.S. Federal Court. The mother opposed the petition,claiming, among other arguments, that the father didnot have custody rights under Turkish Law.
The District Court heard opposing expert testimonyfrom two witnesses regarding the nature of the father’scustody rights under Turkish Law. The District Courtfound that the removal was in violation of the father’srights of custody and ordered the return of the twochildren, In re S.E.O., 873 F. Supp. 2d 536 (S.D.N.Y.2012). The mother appealed, claiming that the removalwas lawful under Turkish law. She cited in particularthe order of the Turkish Court requiring the father toreturn the children’s passports to her after the summervisit so that she could return to the U.S. The FederalCourt of Appeals rejected the appeal. Citing the Abbottcase, the court held that “the definition of ‘rights ofcustody’ under the Convention is an issue of treatyinterpretation and does not depend on the domesticcustody law of the country of habitual residence”. Thecourt went on to explain that it is domestic law thatsupplies the “substance of parental rights, but therelevant provisions of the Hague Convention determinewhether those rights are considered ‘rights of custody’under the Convention”. The court gave us a two stepformula for analyzing custody rights under theAbduction Convention. The first step is to examinestate law to ascertain the substance of the parentalrights held by the petitioner. The second step is todetermine whether those rights meet the definition ofcustody rights under the Abduction Convention’sguidelines.
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CONCLUSION
The definition of habitual residence must be asynthesis of joint parental intent combined withphysical relocation. The length of time in the newjurisdiction as well as the age of the minor child arefactors to be considered in the analysis.
Discrimination between married and unmarriedfathers whose paternity is legally acknowledged is aviolation of the Due Process Clause of the FourteenthAmendment to the U.S. Constitution. Excluding theintent of the unmarried father in determining habitualresidence is harmful to the Constitutionally protectedrights of both father and child.
There is a growing body of Abduction Conventioncase law which is developing an autonomousConvention definition of custody rights. In order toattain uniformity in application of the AbductionConvention and to prevent unjust results betweenAbduction Convention member states in casesinvolving identical fact patterns, the courts shouldapply a uniform definition of father’s rights,recognizing the parental intent of unmarried fathers.
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Respectfully submitted,
Edwin FreedmanCounsel of Record
Law Offices of Edwin Freedman58 Harakevet StreetTel Aviv [email protected]
Tim AmosTimothy ScottGerald L. NissenbaumDana PrescottIsabelle Rein-LescastereyresCharlotte Butruille-CardewIan KennedyInternational Academy of
Family Lawyers81 Main Street, Suite 405White Plains, New York 10601
Counsel for Amici CuriaeInternational Academy ofFamily Lawyers
