Jose Vale v. Maria Avila

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 08-2161
JOSE GREGORIO ALTAMIRANDA VALE,
Petitioner-Appellee,
v.
MARIA JOSE FIGUERA AVILA,
Respondent-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 06 CV 1246—Joe Billy McDade, Judge.
____________
ARGUED JULY 16, 2008—DECIDED JULY 17, 2008Œ
____________
Before POSNER, FLAUM, and KANNE, Circuit Judges.
POSNER, Circuit Judge. The petitioner, Vale, seeking
the return of his children to Venezuela, filed suit in fed-
eral district court against their mother—Avila, his ex-
wife—under the International Child Abduction
Remedies Act, 42 U.S.C. §§ 11601 et seq. The Act, imple-
menting the Hague Convention on the Civil Aspects of
International Child Abduction, T.I.A.S. No. 11,670, 1343
U.N.T.S. 89 (Oct. 25, 1980) (which both the United States
and Venezuela have signed), entitles a person whose
Œ
With notation that opinion would follow.
2 No. 08-2161
child has been wrongfully removed to the United States
(usually by a parent) in violation of the Hague Convention
to sue the wrongdoer in federal court for the return of the
child. 42 U.S.C. § 11603(b). The suit is begun by the filing
of a petition rather than a complaint. 42 U.S.C. § 11603(b).
Wrongful removal is defined as removal “in breach of
rights of custody” vested in the party complaining of the
removal. Hague Convention, Art. 3(a). These rights 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.” Id., Art. 5(a). The Convention also
recognizes “rights of access,” but they are limited to “the
right to take a child for a limited period of time to a
place other than the child’s habitual residence,” id.,Art 5(b), and the violation of them is not deemed
wrongful removal. Vale prevailed in the district court,
which ordered the return of the children to Venezuela.
We stayed the district court’s order pending our decision
of Avila’s appeal.
The Convention seeks to discourage abductions by
parents who either having lost, or expecting to lose, a
custody battle remove children to a country whose
courts are more likely to side with that parent. Kijowska v.
Haines, 463 F.3d 583, 586 (7th Cir. 2006); Blondin v. Dubois,
189 F.3d 240, 246 (2d Cir. 1999). To prevent such forum
shopping, the Convention requires that the determination
of whether the child’s removal was wrongful be made
under the laws of the country in which the child has his or
her “habitual residence.” Hague Convention, Art. 3. The
determination of “habitual residence” is to be based on the
everyday meaning of these words rather than on the legal
meaning that a particular jurisdiction attaches to them.
Otherwise forum shopping would come in by the back
No. 08-2161 3
door—the removing parent would remove the child to a
jurisdiction that would define “habitual residence” favor-
ably to the parent. Kijowska v. Haines, supra, 463 F.3d at
586. Should the courts of a nation that is not the child’s
habitual residence award custody to the parent who is not
entitled to it under the law of the child’s habitual resi-
dence, the custody decree is not a defense to an order
to return the child. Hague Convention, Art. 17.
The parties, Venezuelan citizens, were married in
Venezuela in 1999 and the following year Avila gave
birth to twins. But later she met an American man on the
Internet and in 2005 asked Vale for a divorce. The parties
divorced that year by mutual agreement. The divorce
decree gave Avila physical custody of the children but
gave both parents the right (and duty) of patria potestas.
That is Latin for “paternal power,” and in Roman law
denoted the father’s absolute right (including the right of
life and death) over his wife, children, and other subor-
dinate family members. Much modified, it survives as a
legal doctrine in civil law countries, such as Venezuela,
where it is defined (so far as bears on this case) as “all the
duties and rights of the parents in relationship to their
children who have not reached majority, regarding the
care, development and education of their children.” Ley
Orgánica para la Protección del Niño y del Adolescente
[Organic Law for the Protection of Children and Adoles-
cents], tit. IV, ch. 2, § 1, art. 347. The duties and rights
“include the physical custody, representation and ad-
ministration of the property of the minor child(ren) subject
to such authority.” Id., art. 348. (The translation into
English is by a translator hired by Vale, but Avila does not
question its accuracy; nor shall we. We have not found an
official translation.) The divorce decree also gave Vale
4 No. 08-2161
unlimited visitation rights, custody of the children for two
weekends a month, and the right of ne exeat, another
civil law doctrine, whereby his consent was required be-
fore the children could leave the country. Id., § 5, art. 392.
The following year, Avila asked Vale for his consent to
her taking the children with her to attend a wedding in
Florida. She told him they’d be gone from Venezuela
for only five days. She lied. She was moving to the United
States with the children in order to marry the man she
had met through the Internet. Vale agreed to let her take
the kids to Florida for the wedding. She took them to
Peoria, Illinois, and married her Internet pal.
Vale filed a petition for the children’s return under
the Hague Convention. The district judge conducted an
evidentiary hearing at which Vale testified and on cross-
examination denied, in response to a question by Avila’s
lawyer, that he had struck his son with a video-game cord.
After Vale rested his case, Avila’s lawyer suggested to the
judge that the parties try to work out a settlement. Avila
and her new husband met with Vale and proposed that the
children be allowed to stay in the United States but spend
every summer, every spring vacation, and every other
Christmas vacation with their father in Venezuela, and
that because Vale (who has a serious disability) has a low
income, while Avila’s new husband has (he said) an
income of between $100,000 and $150,000 a year, Avila with
his help would pay the children’s travel expenses.
The parties signed an agreement containing these terms.
A provision captioned “resumption of Hague proceedings”
states that if Avila fails to comply with the terms of the
agreement, Vale “can refile a Hague Petition in either
State or Federal court in the United States to seek the re-
No. 08-2161 5
turn of the children.” Avila argues that the next sentence
of the provision, which states that until a certain date
she could not raise a statute of limitations defense in a
resumed federal suit and that for purposes of such a
suit the children’s habitual residence would be deemed
Venezuela (for that is what it was before Avila removed
them to the United States), somehow barred resumption
of the suit; we cannot begin to understand the argument.
The settlement agreement provided that the children’s
habitual residence was now Illinois and that Vale would
dismiss his suit, which he did. Avila submitted a copy
of the agreement to an Illinois court, which issued an
uncontested judgment declaring in accordance with the
agreement that the children were now habitual residents
of Illinois. But Avila did not comply with the duties that
the settlement agreement placed on her, and so this
year Vale returned to the federal district court in which he
had filed his Hague Convention petition and moved the
judge to set aside the judgment dismissing his suit, on the
ground that the judgment had been procured by fraud,
and to reinstate the suit. Fed. R. Civ. P. 60(b)(3). The judge
conducted an evidentiary hearing at the conclusion of
which he set aside the judgment, finding on ample evi-
dence that Avila had lied when she had told Vale in the
settlement negotiations that she would finance the chil-
dren’s travel to Venezuela and later when she told him
that the children could not travel outside the United
States because they were not yet lawful residents; they
were.
The judge proceeded to the merits of Vale’s petition for
the return of the children under the Hague Convention,
conducted an evidentiary hearing, and concluded that the
removal of the children to the United States had indeed
6 No. 08-2161
violated the father’s “rights of custody.” So he ordered
the children sent to Vale in Venezuela, precipitating
this appeal by Avila.
Avila’s main argument is that the district court
lacked jurisdiction to reopen the Hague Convention
proceeding because of the recital in the state court judg-
ment that the children are habitual residents of Illinois.
Illinois law does not have the doctrines of patria potestas
or ne exeat, so (we may assume) if the recital is conclusive
of Vale’s rights, he loses because the rights of custody on
which his claim is based are founded on those doctrines
and so his claim fails unless the children’s habitual resi-
dence is Venezuela. Avila argues that a federal court
cannot wrest jurisdiction from a state court, that the
state court judgment is entitled to full faith and credit,
that the reopening of the federal suit was barred by the
Rooker-Feldman doctrine (the doctrine that only the U.S.
Supreme Court can review a state court judgment), and
that, at the very least, the district court should have
abstained in favor of the state court proceeding.
None of these arguments holds water. Rule 60(b) has
the force of a federal statute, and federal statutes
override conflicting state law. A federal court can set aside
a judgment by it that was procured by fraud, and the
effect is to reinstate the proceeding that the judgment
had concluded. Ditto v. McCurdy, 510 F.3d 1070, 1077 (9th
Cir. 2007); 12 James Wm. Moore, Moore’s Federal Practice
¶ 60.20 (3d ed. 1997). What then happens in the resumed
proceeding may be affected by a parallel state court
proceeding or judgment, but that depends on the circum-
stances. In this case, there was no litigation in the state
court, no contest, no significant judicial involvement at
all. All that happened was that the parties petitioned the
No. 08-2161 7
state court to register “a foreign custody judgment” and the
court responded by ordering the clerk of the court to
“register and enroll” the Venezuelan divorce decree and
the settlement agreement. The state court was not asked to
and did not make a determination that the settlement
was proper, although the judgment does contain a recital
that the agreement to register and enroll the foreign
judgment was not “unconscionable.” No evidence of fraud
had come to light when the settlement agreement was
registered in the state court. Nor in the reopened federal
proceeding was Vale asking the district judge to enjoin
the state court proceeding or judgment. He was asking
that the children be returned to Venezuela pursuant to a
treaty (the Hague Convention) that, like its implementing
statute, overrides a state custody decree. Article 17 of the
Convention is explicit about this override, and anyway
a treaty implemented by a federal statute overrides a
state law or judgment. U.S. Const., art. VI, cl. 2; Medellin v.
Texas, 128 S. Ct. 1346, 1365 (2008); Missouri v. Holland,
252 U.S. 416, 432, 435 (1920) (Holmes, J.).
The settlement agreement itself authorizes Vale to
resume his Hague Convention suit if Avila violated it, and
she did—and the agreement is part of the state court
judgment. So all other considerations to one side, that
judgment could not be violated by the reopening of
the suit, or by the judgment rendered by the district
court after the reopening, since implicit in the state
court judgment authorizing the reopening was the possi-
bility that the result would be an order under the Hague
Convention that the children be sent back to Venezuela.
So the district court had jurisdiction over Vale’s petition
and the question on the merits is whether Avila’s removal
of the children to Illinois violated Vale’s “rights of cus-
8 No. 08-2161
tody” under Venezuelan law and was therefore in viol-
ation of the Hague Convention, since before she removed
them to the United States, Venezuela was unques-
tionably their habitual residence. The Convention does not
speak simply of “custody,” but of “rights of custody,”
and these are broadly defined 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.” To
include: so the enumeration is not necessarily exhaustive.
By virtue of the doctrine of patria potestas, Vale, the father,
had rights relating to the care of the person of the
child, and, by virtue both of that doctrine and even more
clearly by virtue of the doctrine of ne exeat, the right to
determine that the child’s place of residence would
remain Venezuela rather than the United States.
No more is necessary to establish that Vale had “rights
of custody,” which Avila infringed. Furnes v. Reeves, 362
F.3d 702, 714-16 (11th Cir. 2004); Whallon v. Lynn, 230 F.3d
450, 458-59 (1st Cir. 2000); In re B. del C.S.B., 525 F. Supp. 2d
1182, 1196 (C.D. Cal. 2007); Garcia v. Angarita, 440 F. Supp.
2d 1364, 1378-79 (S.D. Fla. 2006); Gil v. Rodriguez, 184 F.
Supp. 2d 1221, 1225 (M.D. Fla. 2002). Several cases, it is
true—Villegas Duran v. Arribada Beaumont, Nos. 02-55079,
02-55120, 2008 WL 2780656, at *4 (2d Cir. July 18, 2008);
Fawcett v. McRoberts, 326 F.3d 491, 499-500 (4th Cir. 2003),
and Croll v. Croll, 229 F.3d 133, 138-41 (2d Cir. 2000)—hold
that the doctrine of ne exeat does not create a right of
custody, reasoning that if it did the effect would be to
send the child to a parent who did not have custodial
rights but merely a right to prevent the child from being
removed to another jurisdiction. That is a fair point, though
cutting against it is the invitation to abduction that is
tendered if a parent can violate ne exeat with impunity.
No. 08-2161 9
But we need not decide whether the doctrine of ne exeat
creates custody rights, for in none of the cases that answer
the question in the negative did the plaintiff also have the
right of patria potestas. Only Gonzalez v. Gutierrez, 311 F.3d
942 (9th Cir. 2002), is cited for the proposition that patria
potestas does not confer a custody right, and all that that
case actually holds (besides that the doctrine of ne exeat
does not by itself create a right of custody) is that patria
potestas is a default doctrine and hence does not override
rights conferred by a valid custody agreement between the
parents. Id. at 954. (The father in Gonzales had access
rights as well as ne exeat, but not patria potestas.) There is no
such override here. The divorce decree gave Avila
physical custody of the children subject to Vale’s right of
patria potestas. It provided: “The Father and the Mother
shall both EXERCISE THE PATRIA POTESTAS over our
children as we have been doing and as established by the
Law. The aforementioned children shall remain under the
Guard of the mother, with whom they are currently living.”
When the parent who does not receive physical custody
is given the rights and duties of patria potestas, he has
custody rights within the meaning of the Hague Conven-
tion.
So the cases we cited earlier hold, none to the contrary,
and we think they are right. The rights and duties of patria
potestas are so extensive that a parent given them is
thereby denoted a fit custodial parent (as may not be
the case when the parent is merely given the right of ne
exeat), even if, when both parents are holders, one is likely
to have physical custody, as otherwise the children will
be shuttled back and forth between two homes (“joint
custody”), which can be, on balance, a bad thing, depend-
ing on the circumstances. Robert E. Emery, Marriage,
10 No. 08-2161
Divorce, and Children’s Adjustment 79-81 (2d ed. 1999);
Judith S. Wallerstein, Julia M. Lewis & Sandra Blakeslee,
The Unexpected Legacy of Divorce: A 25 Year Landmark Study
215-16 (2000); Jann Blackstone-Ford, The Custody Solutions
Sourcebook 102 (1999).
So Vale has a prima facie right to have the children
returned to Venezuela. Article 13(b) of the Hague Conven-
tion excuses return, however, if the abductor proves by
clear and convincing evidence (42 U.S.C. § 11603(e)(2)(A))
that “there is a grave risk that [the child’s] return would
expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation.” The
evidence presented in the district court on this question,
mainly the contested assertion that Vale once struck his
son with a video-game cord, fell short of meeting this
demanding burden. See Gaudin v. Remis, 415 F.3d 1028,
1036-37 (9th Cir. 2005); Whallon v. Lynn, supra, 230 F.3d at
459-60; compare Van De Sande v. Van De Sande, 431 F.3d 567(7th Cir. 2005); Baran v. Beaty, 526 F.3d 1340, 1345-46 (11th
Cir. 2008); Simcox v. Simcox, 511 F.3d 594, 604-08 (6th Cir.
2007); In re Application of Adan, 437 F.3d 381, 395-97 (3d Cir.
2006); Walsh v. Walsh, 221 F.3d 204, 219-20 (1st Cir. 2000).
Or so at least the district judge could find without being
thought to have committed a clear error.
AFFIRMED.
8-11-08