January 14, 2003

By Steven P. Garmisa
Hoey & Farina
sgarmisa@hoeyfarina.com

When a divorce decree gives a parent a veto on changing a child's place of residence, and the other parent moves with the child to another country, does the parent with the veto have a remedy under the Hague Convention on the Civil Aspects of International Child Abduction?

No, according to the 9th U.S. Circuit Court of Appeals. Only a parent with custodial rights has a remedy under the treaty. And a right to veto a change in the child's residence isn't a right of custody. Gonzalez v. Gutierrez, 2002 WL 31564149 (Nov. 20).

Rosa Teresa Gutierrez and Eduardo Arce Gonzalez were married in Mexico. They had two children. Gutierrez alleged she was abused by Gonzalez in front of the children -- verbally and physically -- during the marriage.

She filed for divorce. The divorce decree -- which granted custody of the children to Gutierrez -- contained a "ne exeat" provision, giving Gonzalez a veto on any decision to move the children to another country.

According to Gutierrez, the divorce didn't stop the abuse, and she moved with the children to the United States to escape Gonzalez.

The district attorney's office in San Diego County filed a petition seeking to have the children returned to Mexico. Gutierrez's attorney removed the case to federal court.

The District Court ruled that the children should be returned to Mexico, but stayed the order pending appeal.

As Judge Stephen Reinhardt of the 9th Circuit explained: "The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty among the United States and 50 other countries. Despite the forceful connotation of words like 'abduction' that are employed in the treaty, the Convention's drafters were concerned primarily with securing international cooperation regarding the return of children wrongfully taken by a parent from one country to another, often in the hope of obtaining a more favorable custody decision in the second country.

"The Convention only applies when both countries are parties to it. Under the Convention each country must designate a central authority responsible for overseeing the implementation of a country's obligations.

"Within the State of California, the California attorney general's office acts as the central authority. Under U.S. law, the Convention is implemented by the International Child Abduction Remedies Act ('ICARA'), 42 U.S.C. [sec] [sec]11601-11610.

"A Convention proceeding is a civil action brought in the country to which the child was wrongfully removed. Wrongful removal means that a parent has taken a child out of a country in violation of the other parent's custody rights. ICARA actions may be brought in state or federal court.

The conclusion that a child has been wrongfully removed under the Convention obligates a court to order him returned to the country from which he was taken. A parent who opposes the return of his child may, however, raise four affirmative defenses. Hague Convention, art. 12, 13, 30; 42 U.S.C. [sec]11603(e)(2). Unless these defenses are raised successfully, the court must order a wrongfully removed child returned; a judicial proceeding under the Convention is not meant, however, to inquire into the merits of any custody dispute underlying the petition for return.

"Of paramount importance to the case before us, the Convention provides the remedy of return only for a parent who has 'rights of custody.' Convention, art. 12. A parent possessing only access rights is not entitled to that remedy. Instead, a parent with access rights is permitted to submit an 'application to make arrangements for organizing or securing the effective exercise of [such] rights' to the central authority of the country to which the child has been removed. Convention, art. 21."

"The 'key operative concept' of the Convention is that of 'wrongful' removal. Under the terms of the Convention, a child's removal is wrongful only if one of the parent's custody rights are breached.

"Article 3 provides that a removal is wrongful if (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Convention, art. 3.

"Since no wrongful removal exists without the possession of custodial rights by the parent seeking the child's return, the central question we must decide is whether [Gonzalez] possesses custodial rights as understood under the Convention."

Gonzalez argued that he had custodial rights under the Convention because the ne exeat provision gave him the right to decide the country where his children would be residents.

Reinhardt disagreed.

"The 'right' granted under a ne exeat clause is, at most, a veto power," the judge wrote. "A parent with custodial rights has the affirmative right to determine the country, city and precise location where the child will live. This is one of the primary rights of a custodial parent. By contrast, a ne exeat clause serves only to allow a parent with access rights to impose a limitation on the custodial parent's right to expatriate his child."
Although the divorce decree gave Gonzalez the right to veto moving his children from Mexico, he did not have a right to say where they would live in Mexico. "This, in our view, hardly amounts to a right of custody, in the plainest sense of the term," Reinhardt concluded.

The ne exeat provision was designed to protect Gonzalez's right of access. He didn't have custodial rights under the treaty.

Even though Gutierrez violated the divorce decree by moving the children to the United States without permission, the father has no remedy under ICARA.