Katona v. Kovacs ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2040
SANDOR KATONA,
Petitioner - Appellant,
versus
MAGDOLNA MARIANN KOVACS,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CA-04-83-5-2BO)
Submitted: May 31, 2005 Decided: August 31, 2005
Before WILKINSON, NIEMEYER, and WILLIAMS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Stephen John Cullen, MILES & STOCKBRIDGE, PC, Towson, Maryland, for
Petitioner. Magdolna Mariann Kovacs, Appellee Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Sandor Katona appeals from the judgment of the district
court denying his petition for return of children pursuant to the
Hague Convention on the Civil Aspects of International Child
Abduction (“the Convention”), Oct. 25, 1980, T.A.A.S. No. 11670,
1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10494 (Mar. 26, 1986),
and its implementing legislation, the International Child Abduction
Remedies Act, 42 U.S.C.A. §§ 11601-11611 (West 1995 & Supp. 2005).
Because the record before this court fails to adequately
demonstrate whether Katona established a wrongful removal or
whether his former wife, Magdolna Kovacs, has an adequate defense
to the petition, we vacate the judgment and remand for further
proceedings.
A petitioner who claims a child has been wrongfully
removed may bring a petition for an order of return in any federal
district court or state court. 42 U.S.C. § 11603(a), (b) (2000).
In reviewing such a petition under the Convention, the court’s
inquiry is limited only to the merits of the abduction claim; the
merits of the underlying custody dispute are not considered.
Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001). This court
reviews the district court’s findings of fact for clear error and
legal conclusions, whether domestic, foreign, or international, de
novo. Id. at 399.
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To prevail on a petition for return of a child in a child
abduction case under the Convention, a petitioner must establish by
a preponderance of the evidence that: (1) the child was “habitually
resident” in the country from which he or she was taken at the time
of the removal; (2) the removal was in violation of the
petitioner’s custody rights under the law of the country where the
child was “habitually resident;” and (3) the petitioner had been
exercising those rights at the time of removal. Id. at 398 (citing
Hague Convention, art. 3). Once a petitioner establishes these
criteria, the child must be returned unless the respondent can show
by clear and convincing evidence that: (1) returning the child
would expose him to grave risk of physical or psychological harm or
place him in an intolerable situation; (2) return of the child
would be barred by fundamental American principles concerning the
protection of human rights and fundamental freedoms; (3) the action
was not commenced within a year of the abduction and the child is
now well-settled in the new location; or (4) the petitioner was not
exercising custody rights at the time of the removal or had agreed
to the removal. Id. at 398-99 (citing Hague Convention, arts. 12,
13a, 13b, 20).
It is undisputed that the parties’ minor children were
habitual residents of Hungary. Documentation presented to the
district court by Kovacs demonstrated that Katona was entitled to
visitation with the children on a regular basis. Kovacs also
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conceded that Katona was exercising his right of visitation at the
time of the removal. However, the Convention distinguishes custody
from rights of access or visitation. Article 5 of the Convention
defines rights of custody to “include rights relating to the care
of the person of the child and, in particular, the right to
determine the child’s place of residence.” In contrast, “‘rights
of access’ . . . include the right to take a child for a limited
period of time to a place other than the child’s habitual
residence.” While the remedy for violating rights of custody
requires the child’s return to the country of habitual residence,
the remedies for violating rights of access are less drastic, such
as “ordering that the custodial parent who removed the child from
the child’s habitual residence reimburse the other parent for
expenses incurred in exercising his or her rights of access.”
Whallon v. Lynn, 230 F.3d 450, 455 n.3 (1st Cir. 2000) (citing
Hague Convention, art. 26). The record before us is unclear with
regard to whether Katona has a right of custody or a right of
access. Accordingly, we vacate the judgment of the district court
and remand for further proceedings to determine the nature of
Katona’s custodial rights in the context of the Convention.
Should the district court determine Katona to have rights of
custody, the record should be further developed with regard to
whether Kovacs can prevail on a defense that returning the children
would expose them to grave risk of physical or psychological harm
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or place them in an intolerable situation. The court should not
rely on testimony that is clearly part of the underlying custody
dispute and not properly considered in the context of Katona’s
petition. See Miller, 240 F.3d at 398.
Should the court determine from the evidence that Katona
has only a right of access, it should craft a remedy within the
context of the Convention to ensure Katona can exercise that right.
See Whallow, 230 F.3d at 455 n.3.
Finally, we have found nothing to support the district
court’s application of the doctrine of equitable estoppel to the
Convention. See, e.g., Holder v. Holder, 305 F.3d 854, 871-72 (9th
Cir. 2002) (rejecting equitable estoppel defense). While a number
of courts have extended the one-year limitation period in
situations where the abducting parent succeeded in concealing the
location of the child beyond the one-year limit, see, e.g.,
Bocquet v. Ouzid, 225 F. Supp. 2d 1337, 1348-49 (S.D. Fla. 2002)
(extending limitations period), we have found no cases that reduce
the time frame in which a parent must act under the Convention.
Indeed, to do so appears to directly conflict with the intent of
the Convention’s drafters who adopted a one-year limitation.
Accordingly, the district court shall not apply equitable estoppel
on remand.
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We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
VACATED AND REMANDED
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