Villegas Duran v. Arribada Beaumont , 534 F.3d 142 ( 2008 )

WESLEY, Circuit Judge,

dissenting:

The majority has correctly identified the central question in this case: Whether Appellant has the “rights of custody” over his daughter necessary to invoke the Hague Convention’s remedy of return of the child? See Hague Convention on the Civil Aspects of International Child Abduction art. 3, Oct. 25, 1980, T.I.A.S. No. 22,670, 1343 U.N.T.S. 89. Under the facts of this case, where there has been no judicial determination of custody, the answer to that question depends on whether, under Chilean law, the default rule when the unmarried parents of a minor separate is that they share joint custody or that the mother has sole custody. The majority determined that, notwithstanding the affidavit from the Chilean Central Authority asserting that separated unmarried parents share joint custody by operation of Chilean law, this Circuit’s decision in Croll requires the conclusion that Appellant had only rights of access. I disagree and would vacate the decision below and remand this case for proceedings consistent with this Circuit’s practice of giving some deference to a foreign sovereign’s view of its own law.

DISCUSSION

In Croll, we held that a custody decree that granted a father access rights and contained a ne exeat clause, while explicitly granting sole custody of the minor to her mother, did not bestow the sort of custodial rights on the father necessary for him to invoke the right of return under the Hague Convention. Croll v. Croll, 229 F.3d 133, 134-35 (2d Cir.2000). The majority finds that this forecloses Appellant’s argument that Article 49 of the Minor Law’s ne exeat clause¹ and Section 229² of the Civil Code’s mandate that the parent without “personal care” of the child has the “right” and “duty” to maintain a “direct permanent relationship” with the child are indicative of the fact that, under Chilean law, parents share custody of a minor in the absence of any judicial decree to the contrary.³

I believe that the majority over-reads Croll. Croll undoubtedly holds that a ne exeat clause cannot convert rights of access into rights of custody in the context of an explicit judicial determination of the respective rights of the parents. However, in my mind, this does not foreclose Appellant’s argument that a statutorily enshrined ne exeat clause may be evidence of a legal regime’s recognition of shared “rights of custody” in the absence of any judicial determination. This is particularly true in light of the fact that the Appellant does not solely rely on Article 49’s ne exeat clause, but also points to Section 229’s specific delegation of rights and duties to the parent without “personal care” of the minor. The majority dismisses Section 229 as “addressing] visitation rights only,” but cites no authority for that proposition.⁴ Thus, while this Court’s case law clearly does not compel Appellant’s preferred interpretation of Chilean law, I also do not believe that it requires us to reject it.

The primary evidence that Appellant offers in support of his preferred interpretation of Chilean law is an affidavit from the Chilean Corporation of Judicial Assistance of the Region Metropolitana (the “Central Authority”).⁵ The Chilean Authority writes that:

The “right of custody” alluded [to] by the [Hague] Convention, in [Chilean] legislation ... is linked [to] and includes the following rights: the “custody,” the “personal care of the minor,” the “guard[,]” the “patria potestas,” and the “right to authorize the minor[’s] exit of the country,” which are regulated in different articles contained in different Laws.

Emphasizing the ne exeat clause contained in Article 49 as “relevant, especially” in the instant case, the Chilean Authority concludes that “the ‘right of custody,’ to which the [Hague] Convention ... refer[s] ... is shared by [Appellant] Villegas and [Appel-lee] Arribada.” The Chilean Authority also notes that “both parents have the guard and custody of their daughter” and that “ ‘the decisions of major importance’ must be adopted by both parents” under Chilean law.

The majority concludes that even if the Central Authority’s affidavit is “authoritative” with respect to Chilean law, “the district court was not bound to follow it.” They explain that even though “a foreign sovereign’s views regarding its own laws merit — although they do not command— some degree of deference,” “[r]easons existed for the district court to refrain from giving the affidavit absolute deference.” The only such reason cited by the majority is that “the Chilean Authority’s conclusion that joint custody exists under Chilean law as a default rests almost exclusively on the ne exeat right” — reasoning which they contend conflicts with Croll.

I respectfully disagree with the majority for two reasons. First, it is not clear from the district court’s decision whether it gave any deference at all to the Central Authority’s interpretation of Chilean law.⁶ Indeed, the district court did not even mention the affidavit in justifying his determination that Appellant had no custody rights. This runs counter not only to precedent in this circuit holding that a foreign government’s interpretation of its own law merits considerable deference, see, e.g., Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 318 F.3d 70, 92 (2d Cir.2002), but also to precedent of sister circuits suggesting that such deference is particularly favored in the context of determining custody rights under the Hague Convention, see, e.g., Navani v. Shahani, 496 F.3d 1121, 1128 (10th Cir.2007).

Second, it is not at all clear from the Chilean Authority’s language that its custody determination rests solely on Article 49’s ne exeat clause, which would be necessary for the district court to dismiss the affidavit entirely even under the majority’s reading of Croll. For instance, the affidavit specifically distinguishes the “guard” element of custody from the “right to authorize the minor[’s] exit of the country,” and then notes that separated parents share the former as well as the latter. Moreover, there is language in the affidavit — such as, “ ‘the decisions of major importance’ must be adopted by both parents” — which would seem to favor a finding of joint custody under this Court’s precedent. See Croll, 229 F.3d at 138 (“[Cjustody of a child entails the primary duty and ability to choose and give sustenance, shelter, clothing, moral and spiritual guidance, medical attention, education, etc., or the (revocable) selection of other people or institutions to give these things.”).

CONCLUSION

I see no need to reach a conclusion on the ultimate merits of Appellant’s preferred interpretation of Chilean law. I would vacate the district court’s decision and remand the case for further proceedings consistent with this Court’s practice of giving some deference to a foreign sovereign’s view of its own law.⁷ The majority notes that “[t]he issue of whether the Central Authority’s affidavit constitutes an authoritative interpretation for the purposes of the Hague Convention is inconclusive for a number of reasons, including the fact that the Chilean Authority may not have had all information on this case available to it at the time that it made its assessment.” I agree. On remand, the district court could both ensure that the Chilean Authority had access to all of the relevant materials and determine the precise legal basis for the Authority’s assertion of joint custody (assuming it stands) by following the procedure specified in Article 15 of the Hague Convention for how a judicial authority may obtain a foreign sovereign’s authoritative interpretation of its own custody laws.⁸

The bottom line here is that a child has traveled to the United States with her mother and has not returned to Chile as earlier promised. Thousands of miles and two distant and different legal system separate the child from her father. An international accord provides the substantive and procedural mechanisms to resolve the dispute. Adherence to its provisions and careful attention to rights given a parent under Chilean law are central to a fair and just resolution of the dispute. We would expect the same of a Chilean court if a child from the United States were taken there by her mother and failed to return. I would ask for that same careful attention here and therefore I respectfully dissent.

1 . This provision is reprinted in footnote 1 of the majority's opinion.

2 . Book I of the Civil Code of the Republic of Chile, Title IX: Rights and duties between parents and children, Section 229, provides in relevant part (in translation):

The father or mother who does not have the personal care of a child shall not be exempted from the duty to sep [sic] a direct, permanent relationship with he/she, and to contact it as frequently and freely as agreed with its guardian or, otherwise, as determined by the judge as being in the best interest of the child.

3 . Appellant does not contest that Appellee, the minor's mother, also has rights of custody pursuant to Section 225 of the Chilean Civil Code, which assigns "personal care” of a minor to her mother "if the parents live separately” in the absence of any mutual agreement or judicial decision to the contrary.

4 . It is similarly unclear on what grounds the district court rejected Appellant’s interpretation of Section 229. Carlos Bianchi testified in the district court as a lay witness on behalf of Appellee regarding the proper interpretation of the relevant provisions of Chilean law: Article 49 of the Minor Law, and Sections 225 and 229 of the Civil Code. He asserted, in relevant part, that Section 229 grants only rights of access under Chilean law, not rights of custody. The majority writes that: "The district court explicitly found that [Bianchi] was not an expert, and there is no reason to conclude that it afforded his testimony substantial weight. Instead, the district court looked to the rights Appellant claimed to possess in order to determine whether he, in fact, had custody rights.” Despite the majority’s assertion, however, it is hard to tell on what grounds the district court might have rejected Section 229 as a potential source of custodial rights other than Bianchi’s testimony to that effect. Of course, this Court has held that lay testimony on a question requiring expertise is of no probative value. See Pfeiffer v. Silver, 712 F.2d 799, 804 (2d Cir.1983).

5 . The Appellant also provided an unpublished article by Chilean Professor Bernardita Briones Maira that supports his interpretation of Chilean law, as well as a copy of Professor Maira's impressive resume. Judge Robinson did not mention the article during his oral decision and denied Appellant's motion for reconsideration based on an offer of Professor Maira's testimony on his behalf.

6 . The Hague Convention specifically designates the Central Authority of a contracting State as that State's authoritative voice regarding its view of its own custody laws as relevant to Article 3 of the Convention:

The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.

Hague Convention art. 15.

7 . It would also have aided this Court’s review of the district court’s decision if, on remand, the court clarified its treatment of Bianchi’s testimony and Professor Maira’s article, as well as its grounds for rejecting the Appellant's interpretation of Section 229 of the Chilean Civil code.

8 . See supra note 6.