CASO

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Nombre del caso

Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir 2002)

Referencia INCADAT

HC/E/USf 493

Tribunal

País

Estados Unidos de América - Competencia Federal

Nombre

United States Court of Appeals for the Ninth Circuit (Estados Unidos)

Instancia

Tribunal de Apelaciones

Estados involucrados

Estado requirente

México

Estado requerido

Estados Unidos de América - Competencia Federal

Fallo

Fecha

20 November 2002

Estado

Definitiva

Fundamentos

Derechos de custodia - art. 3

Fallo

Apelación concedida, solicitud desestimada

Artículo(s) del Convenio considerados

3

Artículo(s) del Convenio invocados en la decisión

3

Otras disposiciones

-

Jurisprudencia | Casos referidos

-

INCADAT comentario

Mecanismo de restitución del artículo 12

Derechos de custodia
¿Qué se entiende por derecho de custodia a los fines del Convenio?
Patria potestad

SUMARIO

Sumario disponible en EN | FR | ES

Facts

The children, a girl and a boy, were aged 8 and 4 at the date of the alleged wrongful removal. Until the removal they had spent all of their lives in Mexico. The parents, both Mexican citizens, were divorced. The divorce order, made in August 2000, awarded the mother custody, the father access. However, the mother was not entitled to take the children out of the jurisdiction without obtaining the consent of the father.

During the course of the marriage the mother suffered domestic violence at the hands of the father. This continued after the divorce. In early March 2001 the mother took the children to the United States without seeking the father's permission. Upon arriving she applied for asylum for herself and the children on the basis of her status as a victim of domestic violence.

On 25 June 2002 the application was granted, but this was appealed by the relevant public body (INS). The appeal was still pending during the course of the Convention proceedings.

On 6 December 2001 the United States District Court for the Southern District of California ruled that the children had been wrongfully removed in violation of the father's custody rights and that the mother had failed to establish any of the exceptions. On 31 December the District Court stayed the return order whilst the mother issued appeal proceedings.

Ruling

Appeal allowed and application dismissed; a right of veto over the removal of a child from the jurisdiction did not afford a non-custodial parent a "right of custody" for the purposes of the Convention.

Grounds

Rights of Custody - Art. 3

The Court of Appeals ruled that the father’s right of veto over the removal of his children from the jurisdiction did not amount to a right of custody for the purposes of the Convention. It endorsed the view reached by the majority in Croll v. Croll, 229 F.3d 133, 140 (2d Cir. 2000) [INCADAT cite: HC/E/USf 313]. It noted that a parent with custodial rights has the affirmative right to determine the country, city, and precise location where the child will live. In 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. The Court added that while the mother might be frustrating an important objective of the divorce decree, the frustration of judicial power is not, as the majority in Croll held, ‘the touchstone for a return remedy under the Convention.’ The Court further held that there was no real consensus from foreign case law as to whether a right of veto over the removal of a child from the jurisdiction should of itself be taken to amount to a right of custody for the purposes of the Convention. The Court of Appeals further held that the father could not claim custody rights on the basis of the Mexican concept of patria potestas because the parties had executed a formal legal custody agreement.

INCADAT comment

What is a Right of Custody for Convention Purposes?

Courts in an overwhelming majority of Contracting States have accepted that a right of veto over the removal of the child from the jurisdiction amounts to a right of custody for Convention purposes, see:

Australia
In the Marriage of Resina [1991] FamCA 33, [INCADAT cite: HC/E/AU 257];

State Central Authority v. Ayob (1997) FLC 92-746, 21 Fam. LR 567 [INCADAT cite: HC/E/AU 232];

Director-General Department of Families, Youth and Community Care and Hobbs, 24 September 1999, Family Court of Australia (Brisbane) [INCADAT cite: HC/E/AU 294];

Austria
2 Ob 596/91, OGH, 05 February 1992, Oberster Gerichtshof [INCADAT cite: HC/E/AT 375];

Canada
Thomson v. Thomson [1994] 3 SCR 551, 6 RFL (4th) 290 [INCADAT cite: HC/E/CA 11].

The Supreme Court did draw a distinction between a non-removal clause in an interim custody order and in a final order. It suggested that were a non-removal clause in a final custody order to be regarded as a custody right for Convention purposes, that could have serious implications for the mobility rights of the primary carer.

Thorne v. Dryden-Hall, (1997) 28 RFL (4th) 297 [INCADAT cite: HC/E/CA 12];

Decision of 15 December 1998, [1999] R.J.Q. 248 [INCADAT cite: HC/E/CA 334];

United Kingdom - England & Wales
C. v. C. (Minor: Abduction: Rights of Custody Abroad) [1989] 1 WLR 654, [1989] 2 All ER 465, [1989] 1 FLR 403, [1989] Fam Law 228 [INCADAT cite: HC/E/UKe 34];

Re D. (A Child) (Abduction: Foreign Custody Rights) [2006] UKHL 51, [INCADAT cite: HC/E/UKe 880];

France
Ministère Public c. M.B. 79 Rev. crit. 1990, 529, note Y. Lequette [INCADAT cite: HC/E/FR 62];

Germany
2 BvR 1126/97, Bundesverfassungsgericht, (Federal Constitutional Court), [INCADAT cite: HC/E/DE 338];

10 UF 753/01, Oberlandesgericht Dresden, [INCADAT cite: HC/E/DE 486];

United Kingdom - Scotland
Bordera v. Bordera 1995 SLT 1176 [INCADAT cite: HC/E/UKs 183];

A.J. v. F.J. [2005] CSIH 36, 2005 1 SC 428 [INCADAT cite: HC/E/UKs 803];

South Africa
Sonderup v. Tondelli 2001 (1) SA 1171 (CC), [INCADAT cite: HC/E/ZA 309];

Switzerland
5P.1/1999, Tribunal fédéral suisse, (Swiss Supreme Court), 29 March 1999, [INCADAT cite: HC/E/CH 427].

United States of America
In the United States, the Federal Courts of Appeals were divided on the appropriate interpretation to give between 2000 and 2010.

A majority followed the 2nd Circuit in adopting a narrow interpretation, see:

Croll v. Croll, 229 F.3d 133 (2d Cir., 2000; cert. den. Oct. 9, 2001) [INCADAT cite: HC/E/USf 313];

Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir 2002) [INCADAT cite: HC/E/USf 493];

Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir. 2003), cert. denied 157 L. Ed. 2d 732, 124 S. Ct. 805 (2003) [INCADAT cite: HC/E/USf 494];

Abbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008), [INCADAT cite: HC/E/USf 989].

The 11th Circuit however endorsed the standard international interpretation.

Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) [INCADAT cite: HC/E/USf 578].

The matter was settled, at least where an applicant parent has a right to decide the child's country of residence, or the court in the State of habitual residence is seeking to protect its own jurisdiction pending further decrees, by the US Supreme Court endorsing the standard international interpretation. 

Abbott v. Abbott, 130 S. Ct. 1983 (2010), [INCADAT cite: HC/E/USf 1029].

The standard international interpretation has equally been accepted by the European Court of Human Rights, see:

Neulinger & Shuruk v. Switzerland, No. 41615/07, 8 January 2009 [INCADAT cite: HC/E/ 1001].

Confirmed by the Grand Chamber: Neulinger & Shuruk v. Switzerland, No 41615/07, 6 July 2010 [INCADAT cite: HC/E/ 1323].


Right to Object to a Removal

Where an individual does not have a right of veto over the removal of a child from the jurisdiction, but merely a right to object and to apply to a court to prevent such a removal, it has been held in several jurisdictions that this is not enough to amount to a custody right for Convention purposes:

Canada
W.(V.) v. S.(D.), 134 DLR 4th 481 (1996), [INCADAT cite: HC/E/CA17];

Ireland
W.P.P. v. S.R.W. [2001] ILRM 371, [INCADAT cite: HC/E/IE 271];

United Kingdom - England & Wales
Re V.-B. (Abduction: Custody Rights) [1999] 2 FLR 192, [INCADAT cite: HC/E/UKe 261];

S. v. H. (Abduction: Access Rights) [1998] Fam 49 [INCADAT cite: HC/E/UKe 36];

United Kingdom - Scotland
Pirrie v. Sawacki 1997 SLT 1160, [INCADAT cite: HC/E/UKs 188].

This interpretation has also been upheld by the Court of Justice of the European Union:
Case C-400/10 PPU J. McB. v. L.E., [INCADAT cite: HC/E/ 1104].

The European Court held that to find otherwise would be incompatible with the requirements of legal certainty and with the need to protect the rights and freedoms of others, notably those of the sole custodian.

For academic commentary see:

P. Beaumont & P. McEleavy The Hague Convention on International Child Abduction, Oxford, OUP, 1999, p. 75 et seq.;

M. Bailey The Right of a Non-Custodial Parent to an Order for Return of a Child Under the Hague Convention; Canadian Journal of Family Law, 1996, p. 287;

C. Whitman 'Croll v Croll: The Second Circuit Limits 'Custody Rights' Under the Hague Convention on the Civil Aspects of International Child Abduction' 2001 Tulane Journal of International and Comparative Law 605.

Patria Potestas

The doctrine of patria potestas which continues to occupy a residual role in many Spanish speaking jurisdictions, has, when not otherwise limited or restricted, been interpreted by Courts in several Contracting States as giving rise to custody rights for the purposes of the Convention, see:

Iceland
The Supreme Court of Iceland has found that the removal of a child in breach of the patria potestas held by a father under Spanish law gave rise to a wrongful removal, see:

M. v. K., 20/06/2000; Iceland Supreme Court [INCADAT cite: HC/E/IS 363].

United Kingdom - Scotland
The Court of Session in Scotland has similarly found that the removal of a child in breach of the patria potestas held by a father under Spanish law gave rise to a wrongful removal, see:

Bordera v. Bordera 1995 SLT 117 [INCADAT cite: HC/E/UKs 183].

United States of America
In Whallon v. Lynn, 230 F.3d 450 (1st Cir. October 27, 2000) [INCADAT cite: HC/E/USf 388] the concept of patria potestas under Mexican law was given the same interpretation;

In Gil v. Rodriguez, 184 F.Supp.2d 1221 (M.D.Fla.2002) [INCADAT cite: HC/E/USf 462]

and

Vale v. Avila, 538 F.3d 581, (7th Cir. 2008), [INCADAT cite: HC/E/USf 990]

the concept of patria potestas under Venezuelan law was given the same interpretation.

However, in the case of Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir 2002) [INCADAT cite: HC/E/USf 493], the United States Court of Appeals for the Ninth Circuit held that the applicant father could not claim custody rights on the basis of the Mexican concept of patria potestas because he and the mother had executed a formal legal custody agreement.