Serge Aluker v. Simin Yan

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1279
SERGE MATTHEW ALUKER,
Petitioner - Appellant,
v.
SIMIN YAN, a/k/a Simin Aluker,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, Senior District Judge. (1:20−cv−01117−LO−IDD)
Submitted: June 25, 2021 Decided: August 5, 2021
Before MOTZ, KEENAN, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Stephen J. Cullen, Kelly A. Powers, MILES & STOCKBRIDGE P.C., Washington, D.C.,
for Appellant. Maya Eckstein, Richmond, Virginia, Kelly R. Oeltjenbruns, HUNTON
ANDREWS KURTH LLP, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In this appeal, we consider whether the district court erred in concluding that Serge
Aluker, the father of two minor children, did not have custody rights recognized by the
Hague Convention and, therefore, failed to prove that the children’s mother, Simin Yan,
wrongfully removed the children from Portugal to the United States. For the reasons stated
below, we affirm the district court’s judgment.
I.
Aluker is a United States citizen, a Russian citizen, and a legal resident of Portugal.
Yan is a United States citizen who presently resides in Virginia. In 2006, Aluker and Yan
were married in China, and they moved to the United States in 2008. While living in the
United States, Aluker and Yan had two children. The family moved to Spain in 2015, and
to Portugal in 2017.
Shortly after their move to Portugal, Aluker and Yan separated. Initially, they
shared parental responsibilities. However, in November 2018, Aluker and Yan executed a
Separation and Property Settlement Agreement (PSA), which stated in relevant part:
The parties desire to settle and determine their mutual obligations and all of
their property rights, as well as the maintenance and support of each of the
parties, by the other, and all rights, claims, relationships or obligations
between them arising out of their marriage or otherwise.
...
In full and final settlement of the matters at issue between them, and in
consideration of the mutual promises and covenants contained herein, and
for other good and valuable consideration, receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
...
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[Yan] shall have sole legal and primary physical custody of [the two
children]. [Aluker] shall be entitled liberal and reasonable visitation with the
children.
...
The parties acknowledge that this Agreement is a full and final settlement
that contains the entire understanding of the parties, and there are no
representations, warranties, covenants, or undertakings other than those
expressly set forth herein.
...
This Agreement shall be construed in accordance with the law of the
Commonwealth of Virginia.
Aluker also agreed in the PSA that Yan would have sole ownership of their house
in Falls Church, Virginia. The parties further stipulated therein that each had “the right to
reside at any place . . . without the consent of the other party.” The PSA was not
incorporated into any court order.
Several months after the PSA was executed, Aluker initiated proceedings in May
2019 in a Portuguese court seeking an adjudication of child custody rights. The Portuguese
court had not taken any action when, on October 3, 2019, Yan sent Aluker an e-mail stating
that she was taking the children to the United States to live. Yan and the children traveled
to the United States on the same day.
Almost a year later, in September 2020, Aluker filed a petition in the district court
under the Hague Convention. In his “verified petition of return of children to Portugal,”
Aluker contended that the children were wrongfully removed from Portugal. On the day
of a scheduled bench trial, Yan requested a judgment on partial findings under Federal Rule
of Civil Procedure 52(c). The court conducted a brief evidentiary hearing, allowed Aluker
to file a response memorandum, and later granted Yan’s motion. The court concluded that
the PSA was a valid agreement, which established that Yan had legal custody of the
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children at the time she removed the children from Portugal. Accordingly, the court held
that Yan’s status as legal custodian of the children defeated Aluker’s claim of wrongful
removal. Aluker appeals.
II.
In cases involving claims brought under the Hague Convention, we review a district
court’s findings of fact for clear error and its conclusions of law de novo. Bader v. Kramer,
484 F.3d 666, 669 (4th Cir. 2007). Our determination is limited to the merits of the
wrongful removal claim, without consideration of any underlying custody dispute. Miller
v. Miller, 240 F.3d 392, 398 (4th Cir. 2001).
The Hague Convention was adopted to help “secure the prompt return of children
wrongfully removed to or retained in any Contracting State.” Convention on Civil Aspects
of International Child Abduction (“Hague Convention”) art. 1, Oct. 25, 1980, T.I.A.S. No.
11,670, 19 I.L.M. 1501. Article 3 of the Hague Convention provides:
The removal or the retention of a child is to be considered wrongful where . .
. it is in breach of rights of custody attributed to a person . . . under the law
of the State in which the child was habitually resident immediately before
the removal or retention . . .
The rights of custody mentioned . . . above, may arise in particular by
operation of law or by reason of a judicial or administrative decision, or by
reason of an agreement having legal effect under the law of that State.
Hague Convention, art. 3. To establish a claim of wrongful removal under the Hague
Convention, a petitioner must show that: (1) the children habitually resided in “the
petitioner’s country of residence at the time of removal;” (2) the removal breached “the
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petitioner’s custody rights under the law of his home state;” and (3) the petitioner was
actually exercising his custody rights at the time of removal. Bader, 484 F.3d at 668; see
also Hague Convention, art. 3.
Aluker argues on appeal that the children were habitual residents of Portugal at the
time of their removal and that, under Portuguese law, he maintains rights of custody
recognized by the Hague Convention. He also contends that the PSA lacks any “legal
effect” under the Hague Convention and that, therefore, Yan cannot rely on the PSA to
defeat his wrongful removal claim. We disagree with Aluker’s position.
Irrespective whether the children were habitual residents of Portugal at the time of
their removal, Aluker’s wrongful removal claim fails because he did not establish the other
two requirements for proving his claim, namely, that when the children were taken to the
United States, he had custody rights under Portuguese law and he was actually exercising
those rights. See Bader, 484 F.3d at 668; Hague Convention, art. 3. At the time the children
were removed from Portugal, no court had awarded custody rights to Aluker, and the
parties had not entered into any written agreement providing Aluker with such rights.
When the children were removed from Portugal, Yan had sole legal custody of the children,
as agreed by the parties in the PSA.
Contrary to Aluker’s assertion, Portuguese choice of law rules require that we apply
United States law in this case. Article 57 of the Portuguese Civil Code directs that
“[r]elationships between parents and children are regulated by the common national law of
the parents, and in the lack thereof, by the law of their common habitual residence; if the
parents habitually reside in different countries, the law of the child’s country of origin shall
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apply.” In applying Portugal’s choice of law provision to this case, the “common national
law of the parents” is the United States, because both Aluker and Yan are United States
citizens. Accordingly, United States law, here, the law of Virginia, applies to resolve this
matter.
Aluker has failed to prove under Virginia law that he had any custody rights at the
time the children were removed from Portugal. As noted above, the PSA unambiguously
provided that Yan “shall have sole legal and primary physical custody” of the two children.
Although Virginia courts have the power to modify any private custody agreement that
parents execute, parents still may enter into such custody agreements and courts may rely
on them in making custody determinations. See Shoup v. Shoup, 556 S.E.2d 783, 787-89
(Va. Ct. App. 2001) (“Divorcing parents may and, indeed, are encouraged under Virginia
public policy, to reach agreement respecting the care and support of their minor children.”);
Va. Code Ann. § 20-109.1 (“Any court may affirm . . . any valid agreement between the
parties . . . concerning the . . . care, custody and maintenance of their minor children.”). At
the time the children were removed from Portugal, no court had altered the terms of the
PSA or had adjudicated the issue of the children’s custody.
The terms of the Hague Convention also support the district court’s conclusion that
the PSA was a valid agreement addressing custody rights. Under the Hague Convention,
custody rights can be determined by “an agreement having legal effect under the law of the
[state of the child’s habitual residence].” Hague Convention, art. 3. An agreement having
“legal effect” under the Hague Convention can include “simple private transactions
between the parties concerning the custody of their children.” Elisa Pérez-Vera,
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Explanatory Report on the 1980 HCCH Child Abduction Convention, in 3 Actes et
Documents de la Quatorziéme Session – Child Abduction, at 426, 447, ¶ 70 (1980).
Accordingly, we conclude that the district court did not err in holding that the PSA had
“legal effect” within the meaning of the Hague Convention, and that Aluker failed to prove
his claim of wrongful removal. ∗
III.
For these reasons, we affirm the district court’s judgment.
AFFIRMED
∗
We reject Aluker’s assertion that he was not “fully heard” in accordance with Rule
52(c), because the court did not receive testimonial evidence from Aluker’s expert witness
on Portuguese law. In considering the legal issue regarding the effect of Portuguese law
on the parties’ custody rights, the district court received two affidavits from Aluker’s expert
witness and one from Yan’s expert witness on this topic. Rule 52(c) did not require an
evidentiary hearing on this legal issue. Accordingly, we conclude that Aluker was “fully
heard” on the dispositive issues before the district court.
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