Pastn v. Velsquez

Citations: 462 F. Supp. 2d 1206; 2006 WL 3063459; 2006 U.S. Dist. LEXIS 78749Docket: Civil Action No. 2:06cv832-MHT

Court: District Court, M.D. Alabama; October 27, 2006; Federal District Court

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Oscar Manuel Reyes Pastén petitions for the return of his daughter RMRV from Alabama to Chile, invoking the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. The court has jurisdiction under relevant U.S. codes. RMRV was born in 1998 to Reyes and Flavia Cecilia Ruiz Velásquez, who never married and separated in 2000. Ruiz relocated to the U.S. with RMRV in 2003 after obtaining permission from a Chilean court, which was valid for three years. However, she did not attend the intended university and moved to Alabama in 2006 without notifying Reyes or the Chilean authorities. After Reyes filed a petition for RMRV's return, the court issued a restraining order to prevent her removal from its jurisdiction. During the October 11, 2006 hearing, Ruiz indicated plans to relocate RMRV to Australia and had initiated legal proceedings in Chile. The court determined that Ruiz's move to Alabama exceeded the limitations set by the Chilean court, violating Reyes's custody rights under the Hague Convention, and ordered her to return RMRV to Chile within 45 days. Additionally, Ruiz was required to surrender her passport and could not remove RMRV from the court's jurisdiction without permission. The court emphasized that the Hague Convention aims to address wrongful removal and restore the child's habitual residence, not to resolve custody disputes.

The Convention provides a remedy for the return of a child to their State of habitual residence in cases of wrongful removal. Article III outlines the criteria for determining wrongful removal, which occurs when a child's removal or retention breaches custody rights under the law of their habitual residence. Courts must examine three elements: (1) the child's habitual residence prior to removal, (2) whether the complaining party had custody rights under the relevant law, and (3) whether those rights were being exercised at the time of removal.

The term 'habitual residence' is not defined in the Hague Convention or its legislation, but the Eleventh Circuit in Ruiz v. Tenorio identified that a settled intention to abandon the previous residence is crucial. In this case, both Reyes and Ruiz were jointly entitled to decide the child's residence but did not show an intention to abandon Chile, as Reyes opposed the child's removal and Ruiz indicated plans to return to Chile after three years. Thus, Chile was determined to be the child's habitual residence.

Regarding the right of custody, it is assessed under the law of the habitual residence. Chilean law grants a non-custodial parent a ne exeat right, allowing them to decide whether the child may leave the country. Although Ruiz had conditional permission from a Chilean court to leave, Reyes argued that Ruiz violated the court's conditions, thus infringing on his ne exeat right. The Eleventh Circuit has recognized that violation of ne exeat rights constitutes a violation of custody rights under the Hague Convention, as these rights pertain to the child's care and residence. This interpretation emphasizes that custody rights extend beyond physical control to include rights related to determining the child's living arrangements.

Reyes’s ne exeat right was violated, paralleling the South African Constitutional Court's ruling in Sonderup v. Tondelli, where a mother’s failure to return a child after one month breached a court order and the father's rights. The Chilean court recognized Reyes’s legitimate ne exeat right but allowed Ruiz to take their child, RMRV, to Texas under specific conditions. Ruiz's subsequent failure to comply with these conditions constituted a violation of Reyes's rights. Reyes attempted to exercise his ne exeat right to prevent the child's removal, similar to the case of Garcia v. Angarita, where a father sought to retain control over the child's residence. The court determined Ruiz wrongfully removed RMRV under the Hague Convention. Consequently, the court ordered Ruiz to return RMRV to Chile by November 28, 2006, while allowing her to pursue permission from Chilean courts to take RMRV to Australia. Additionally, the court prohibited Ruiz from removing RMRV from its jurisdiction without permission and retained her passport until she provided a plane ticket and an affidavit justifying its need. The written judgment and injunction will supersede any conflicting oral orders.

1. Petitioner Oscar Manuel Reyes Pastén's request for the return of his child, RMRV, under the Hague Convention is granted. 
2. The court declares that respondent Flavia Cecilia Ruiz Velásquez wrongfully removed RMRV, violating Reyes's custody rights under the Hague Convention and the International Child Abduction Remedies Act. 
3. Ruiz and her associates are enjoined from removing RMRV from the court's jurisdiction and must return RMRV to Chile by November 28, 2006, unless she obtains written permission from a Chilean court. 
4. Ruiz's counsel must file a compliance statement with the court by November 29, 2006. 
5. The court will return Ruiz's passport upon receiving evidence that she requires it to comply with the judgment. 
6. Should Ruiz encounter delays in obtaining a Chilean court decision, she may petition the court for an extension of deadlines. 
7. Costs are awarded against Ruiz, and the clerk is directed to enter this document as a final judgment. 
8. The court previously ruled that Ruiz had wrongfully relocated RMRV to Alabama and mandated her return to Chile by the specified date. Ruiz's motion for an extension to return RMRV has been denied, as the court aims to prevent any further relocations.

Ruiz's request for an extension to take her child, RMRV, to Australia has been denied by a Chilean court, which ruled the request as procedural and not on the merits, stating that while the prior decision cannot be extended, a new petition could be filed. Ruiz plans to submit a new petition shortly. She contends that returning RMRV to Chile to resolve custody issues with Reyes would impose a significant financial burden. Reyes argues that Ruiz has had ample time to seek resolution in Chile, and her request's denial necessitates the vindication of his rights under the Convention. He highlights that his contact with RMRV has been limited and expresses concern about not being able to enjoy parental time during the upcoming holiday season.

The court emphasizes that the current dispute is a custody issue, which falls under Chilean jurisdiction and not this court's purview. The Convention's purpose is to restore custody rights to the status quo before any wrongful removal, rather than adjudicate custody rights in the new jurisdiction. Therefore, the court's role is limited to determining if Reyes's rights under the Convention were violated and whether RMRV should be returned to her habitual residence in Chile.

The court concludes that RMRV was wrongfully removed to Alabama and must be returned to Chile immediately. It denies Ruiz's extension motion and modifies its previous injunction, allowing Reyes to travel to Alabama to retrieve RMRV. Ruiz may accompany them, but the court expresses concern about the likelihood of her fleeing to another country if allowed to travel alone. The ruling underlines the distinction between custody rights and access rights as defined by the Hague Convention. An appropriate judgment and injunction will be issued accordingly.