On issues of first impression,
after proceeding in US Immigration Court, Ninth Circuit holds that neither ne
exeat clause in Mexican custody agreement nor Mexican legal concept of patria
potestas conferred “rights of custody” on divorced Mexican husband under Hague
Convention on International Child Abduction
In 1992, Rosa Teresa Gutierrez
(Teresa) and Eduardo Arce Gonzalez (Arce), both Mexican citizens, got married
in Guadalajara, Mexico. Within the next five years, they had two children. It
appears that Arce had been physically abusing Teresa, even after a 1998
separation.
The final divorce agreement in
2000, as entered by a Mexican family court, gave Teresa custody of the children
and granted visitation rights to Arce. It also contained a ne exeat clause, barring
Teresa from taking the children out of Mexico without Arce’s permission. In the
Spring of 2001, however, Teresa and her children entered the U.S., and applied
for asylum as victims of domestic violence. An immigration judge granted it in
June 2002.
In October 2001, the San Diego
District Attorney petitioned the local Superior Court to order the children
sent back to Mexico under the International Child Abduction Remedies Act [42
U.S.C. Sections 11601-11610]. Teresa then removed the action to federal
district court. In December 2001, the district court concluded that Teresa had
wrongfully taken the children out of Mexico in violation of Arce’s rights under
the Hague Convention on the Civil Aspects of International Child Abduction.
[October 25, 1980, T.I.A.S. 11,670, reprinted in 51 Federal Register 10,494
(March 26, 1986)]. Teresa appealed. Deciding two issues of first impression,
the U.S. Court of Appeals for the Ninth Circuit reverses.
“ ... [W]e determine [first]
whether a ne exeat clause contained in a foreign custody agreement constitutes
‘rights of custody’ under the [Hague Convention]. We hold that it does not ...
. In doing so, we follow the approach taken by the Second Circuit in Croll v.
Croll, 229 F.3d 133 (2d Cir. 2000), the only other Circuit to have addressed
this question.” [Slip op. 1-2]
The plain text, purpose and
drafting history of the Hague Convention shows that a ne exeat clause does not
provide “rights of custody” to a parent who otherwise possesses only access
rights to the children. Thus, Article 5 distinguishes between “rights of
custody” and “rights of access.” Under Article 12, only a parent with rights of
custody may petition for the return of children.
In this case, Arce claimed that
he had custodial rights under the Hague Convention because of the ne exeat
clause which purportedly granted him a right to determine the children’s
residence. The Court disagrees. Rather, the ne exeat clause of the divorce
agreement is a veto power, limiting the custodial parent’s right to expatriate
the child.
“At most, Arce could, under the
terms of his divorce agreement with [Teresa], refuse permission for his
children to leave Mexico. He cannot, however, direct with any specificity where
the children will reside ... This, in our view, hardly amounts to a right of
custody, in the plainest sense of the term. ... By taking the children to the
United States, [Teresa] has undoubtedly violated the terms of her divorce
agreement, but addressing that violation is not within our purview. We conclude
that under the text of the Convention the ne exeat clause is merely a condition
designed to protect Arce’s access rights, and no more.” [Slip op. 18]
Secondly, the Convention’s
preamble states that its key purpose is to “protect children internationally
from the harmful effects of their wrongful removal or retention and to
establish procedures to ensure their prompt return to the State of their
habitual residence, as well as to secure protection for rights of access.”
Another Convention goal is to
ensure that parents do not play jurisdictional games, hoping to alter or avoid
custodial agreements or orders that originated at their place of habitual
residence. In this case, a Mexican court determined the custodial arrangement.
Letting Teresa and the children stay in the U.S. does not impair that court
decision.
Finally, the Hague Convention’s
drafting history shows that the drafters debated the issue of access rights.
They did not, however, provide a remedy for a breach of these rights.
In the alternative, Arce raises
another first impression issue on cross-appeal, i.e., whether the Mexican legal
concept of patria potestas granted him rights of custody under the Convention.
“The concept of patria potestas is derived from Roman law and originally meant
paternal power over the family and household. In common law legal systems,
patria potestas was first replaced by parens patriae and eventually by the
‘best interests of the child’ standard.[Cite] Many civil law countries,
however, continue to recognize some form of patria potestas. ...”
“... Here, ... the parties have
executed a formal, legal custody agreement, thus eliminating any basis for
relying on patria potestas. Thus, we hold that patria potestas does not confer
‘right of custody’ upon a parent given access rights from a custody agreement.”
[Slip op. 32-33]
Citation: Gonzalez v.
Gutierrez, 311 F.3d 942 (9th Cir. 2002).
Magdalena Cuprys is the principal of Serving Immigrants, a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals. The law firm is uniquely qualified to manage the most contentious and unusual immigration needs. Swift resolution of immigration-related issues is integral to a client’s ability to conduct business or reach their personal goals in the United States. Located in Miami and Clewiston, the firm’s offices provide corporate and individual clients of foreign nationality with temporary work permits for the U.S., green card petitions, criminal waivers and representation in removal proceedings cases. With over a decade of experience, the law firm provides clients with the confidence that their cases will be handled by an expert who understands their needs and how to obtain their goals. Although the majority of the law firm’s clients live in Florida, it represents people from all over the United States and several foreign countries.
