An important case was recently decided by the U.S. Court of Appeal for the Fourth Circuit, wherein it was held that trial court changes to child custody orders that are issued after a parent removes a child from the child’s habitual residence do not affect the validity of the removal under the Hague Convention.  Wrongful removal must be based on custody rights existing at the time of removal.

In the case of White V. White (2013 WL 2284877 – F.3d __, 2013 FA 1593), the Fourth Circuit affirmed an order, which denied the petition for return.  The pertinent facts of the case are as follows:  Husband and Wife were married in Switzerland in 2009.  A Son was born to them later that year.  In June 2010, Husband and Wife separated and Husband initiated legal proceedings in Switzerland pertaining to the separation, including the rights to the couple’s Son.  In October 2010, the Swiss Court in Geneva authorized Husband and Wife to legally separate, while custody was granted to Wife.  Visitation was also granted to Husband, “two afternoons each weekend, to be expanded to one weekend in two, in agreement with the curator when the time comes.”

That same court later ordered court-appointed psychologists to evaluate all three family members for custody purposes.  That evaluation had not been completed, when, on April 24, 2011, Wife left Switzerland with the couple’s Son.  Wife later testified that they headed for the U.S. where she had intended to visit her sister and obtain medical treatment for the Son, whom Swiss doctors had evaluated as autistic.  U.S. doctors later diagnosed Son as having a “feeding disorder,” and they began treatment shortly thereafter

Since entering the United States, Wife and Son had been continuously in the U.S. but for a brief visit to Canada.  In July 2011, when Wife and Son had been in the country for three months, Swiss court-appointed psychologists issued a preliminary report suggesting Wife had “psychological problems, which affected her ability to properly care for her son,” and that the court should transfer custody of the child to Husband if her condition did not improve after six months.

In September of 2011, a Swiss trial court issued an emergency ruling that prohibited Wife from removing Son from Switzerland.  However, in December, that same court found that it did not have jurisdiction to make such an order because Wife and Son no longer resided in Switzerland.

The following February, the Swiss tutelary court in Geneva also found that it lacked jurisdiction.  In it’s ruling, the court noted that Wife having sole custody gave her the right to remove the parties’ Son from Switzerland without prior court approval.

Upon learning that Wife and Son were now living in Alexandria Virginia, Husband brought this action in the U.S. District Court for the Eastern District of Virginia.  On April 6, 2012, Husband filed a petition under the Hague Convention, as implemented in the U.S. by the International Child Abduction Remedies Act.  In his petition, Husband claimed that mom had wrongfully removed their Son from Switzerland, and he was seeking Son’s return to Switzerland.

In June, the court found that Husband failed to establish that his Son’s removal had breached any of his custody rights, and it denied his petition.  Husband appealed, and the parties filed their appellate briefs in late 2012.  The Court of Appeals heard oral argument on March 20 of 2013.

While the appeal was pending in the Fourth Circuit, a Swiss appellate court found the trial court did have jurisdiction to rule on protective measures for Husband and Wife’s Son.  Following that finding, the Swiss trial court adjusted its earlier custody arrangements by granting to Husband sole custody of Son, with visitation rights to Wife.  Due to the undisputed fact Switzerland was Son’s habitual residence before his removal to the U.S., Swiss law applies to whether or not there was a breach of rights.

Acting on Husband’s appeal, and against Husband’s interests, the Fourth Circuit affirmed the District Court.  The appellate court justices explained that a removal or retention of a child from his or her habitual residence is considered wrongful under the Hague Convention and the International Child Abductions Remedy Act if it breaches the custody rights of the non removing parent.

In this case, there was no question that Husband’s and Wife’s habitual residence prior to the removal was Switzerland.  Therefore, the appellate court was caused to focus on whether Husband had custody rights that were breached at the time Wife took Son to the U.S.  The appellate court found that the 2010 custody order awarded to Wife custody and granted to Husband visitation rights only.  And under the Hague Convention, visitation rights equal a “right of access,” which has been defined as the “right to take the child for a limited period of time to a place other than the child’s habitual residence.”  The appellate court further noted that a right of access, by itself, will not support an order for a child’s return.

…In its ruling the court held that the only reasonable reading of the Hague Convention is that a removal’s wrongfulness depends on the rights of custody at the time of the removal.  Removal could not be considered in breach of rights of custody if those rights did not exist at the time of removal.  Moreover, the Hague Convention explicitly provides that removal is only wrongful when” at the time of removal (custody) rights were actually exercised…or would have been so exercised but for the removal.”

In conclusion, the appellate court held that the determination of whether removal is wrongful is based on rights of custody at the time of removal.  The Swiss court’s 2013 order did not act to reject the authenticity of, or retroactively alter, the previously governing October 2010 order granting to Wife sole custody of Son.  Therefore, the order put into effect in October 2010 was determined to be controlling in this case.  Wife keeps son in U.S.  Husband pays lots of legal bills from Switzerland.  And, most probably, not the end to the story.

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