Academic journal article Suffolk Transnational Law Review

International Law - the Hague Convention on the Civil Aspects of International Child Abduction - Father Failed to Establish That He Maintained Rights of Custody under Chilean Law - Villegas Duran V. Arribada Beaumont

Academic journal article Suffolk Transnational Law Review

International Law - the Hague Convention on the Civil Aspects of International Child Abduction - Father Failed to Establish That He Maintained Rights of Custody under Chilean Law - Villegas Duran V. Arribada Beaumont

Article excerpt

The Hague Convention on the Civil Aspects of International Child Abduction was adopted to protect children from the wrongful removal from their home countries and to establish procedures to ensure their prompt return. (1) A parent bringing an action for the wrongful removal of their child must prove that they had custody rights and that the removal of the child was in breach of those custody rights under the law of the home country. (2) In Villegas Duran v. Arribada Beaumont, (3) the United States Court of Appeals for the Second Circuit considered whether a father established that he had rights of custody under Chilean law which would give the court jurisdiction to order the return of the child. (4) The court concluded that the father did not establish by a preponderance of the evidence that he had rights of custody under Chilean law, and therefore, the court could not order the child to be returned. (5)

Hugo Villegas Duran (father) and Johanna Arribada Beaumont (mother), both Chilean citizens, were involved romantically but never married. (6) Their daughter was born in 2001 in Chile and lived with both parents until they separated in 2004. (7) After separating, both parents remained in Chile where the child lived with the mother and the father had visitation rights. (8) A final determination of sole custody for the child had not been determined by the Chilean court. (9)

In 2005, the mother wanted to travel to the United States with the child; however, under Chilean law she could not remove the child from Chile without the father's consent. (10) Therefore, the mother petitioned the Eighth Minors' Court of Santiago, which issued an order authorizing her to travel to the United States with the child for three months. (11) Upon the expiration of the travel period and in violation of the Chilean court order, the mother did not return to Chile with the child. (12) In July 2006, the father filed a petition for the Return of Child and an Order to Show Cause in the Southern District of New York. (13)

At trial, in addition to pointing to Chilean Civil Code Section 229's specific delegation of rights and duties to the parent without "personal care" of the minor, the father entered into evidence an affidavit from Chile's Central Authority. (14) The District Court found that it lacked jurisdiction to order the return of the child because the father did not prove he had rights of custody under Chilean law. (15) The Court focused closely on Second Circuit precedent in affirming the District Court's ruling that violating a ne exeat right is insufficient to qualify as a violation of custodial rights. (16)

The United States Circuit Courts are inconsistent in applying a definition of rights of custody under the Hague Convention, which creates a problem in the effectiveness and application of the treaty. (17) Instead, the Circuit Courts have utilized conflicting approaches in determining whether a parent has rights of custody or rights of access. (18) Furthermore, recent court rulings have run counter to the precedent stating that a foreign government's interpretation of its own law merits considerable deference. (19) As a result, there is a range of interpretations of what constitutes rights of custody and rights of access. (20)

Recently, the Eleventh Circuit, as well as various state courts, held that a ne exeat right creates rights of custody under the Hague Convention. (21) This view affirms the majority of foreign courts view that a ne exeat right coupled with a right of access creates a right to custody. (22) Specifically, these courts emphasize that the drafters defined custody rights as open-ended, favoring a broader interpretation of ne exeat rights under the Hague Convention. (23) The Eleventh Circuit, as well as a majority of international courts, have interpreted rights of custody in a broad, flexible manner in an attempt to follow the Hague Convention's own goal of maintaining uniform international interpretations of its terms and provisions. …

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