Wednesday, January 16, 2019
Pfeiffer v Bachotet, 2019 WL 190927 (11th Cir., 2019)[Switzerland] [Rights of custody][Petition denied]
In Pfeiffer v Bachotet, 2019 WL 190927 (11th Cir., 2019) the Eleventh Circuit affirmed a judgment of the district court which denied the petition of Plaintiff-Petitioner Marcellinus Pfeiffer, who sought the return of his children N.A.R. and R.H.E. from the United States to Switzerland.
Pfeiffer and Rachel Bachotet were married in France in 2010. Two years later, in 2012, they moved to Switzerland. Pfeiffer and Bachotet had two children: N.A.R., a nine-year-old daughter, and R.H.E., an eight-year-old son. Until June 17, 2018, both children had lived continuously in Switzerland since 2012. In June 2017, Pfeiffer and Bachotet obtained a divorce when the District Court of Meilen, under the Canton of Zurich, Switzerland, issued a Sentence and Decree of Divorce (the “Divorce Judgment”). Among other provisions, this Divorce Judgment provided for the two children to “remain under shared custody of both parents.” It further “require[d] both parents’ consent [to relocate the children] if the new place of residence is located abroad or if relocation has some impact on the exercise of parental custody or visitation rights of either parent.” Nonetheless, section 3.2.a) of the Divorce Judgment expressly specified that Pfeiffer “does not object to the mother’s taking residence abroad (US or France) at/after the end of the school term 2016/2017.” Other parts of the Divorce Judgment also indicated that it anticipated Bachotet would relocate with the children outside of Switzerland. Paragraph 3.2.c) aa provided, “Until [Bachotet] relocates with the children abroad (see section [3.]2. a [)], last paragraph above), the children’s father is entitled and obliged to exercise his obligation of care towards the children as follows ....” Similarly, paragraph 3.2.c) bb stated, “As from relocation of [Bachotet] and the children abroad (see section [3.]2. a [)] last paragraph) the following visitation regime shall be effective .... Once per year, [Bachotet] shall pay for travelling costs (round trip), when the children visit their father. Any other visitation-related costs shall be borne by the father.”
Until Bachotet relocated the Divorce Judgment awarded Pfeiffer parenting time with the children every other weekend, with additional time for holidays and during the summer. In 2018, the guardian appointed to oversee the custodial arrangement between the parties modified the parents’ custodial agreement so that Pfeiffer and Bachotet had equal time with the children. While she entered a new parenting plan, under Swiss law, she lacked the authority to modify the Divorce Judgment. Therefore, the Divorce Judgment remained unchanged.
At the end of the children’s 2016-17 school term, Bachotet began the relocation process by applying for a K-1 (fiancé) Visa for herself and K-2 Visas for the children to emigrate from Switzerland to the United States. Bachotet received notice that the United States had authorized the Visas on May 17, 2018. They were valid until July 6, 2018. On June 9, a letter from Pfeiffer dated June 7 was delivered to Bachotet. In that letter, Pfeiffer wrote that he “revoke[d] [his] consent to [Bachotet’s] relocation with [the] children ... abroad, in the US or in France, as expressed in the [Divorce Judgment] in 2017.” That same afternoon, Bachotet booked plane tickets for herself and her children to the United States for June 17, 2018. On June 15, 2018, Pfeiffer sent a letter to the District Court of Meilen, which had jurisdiction over the Divorce Judgment. In that letter, Pfeiffer stated that he “revoke[d] [his] consent to the relocation of [the] children ... to the United States of America.” He requested that the court “immediately impose a travel ban ... without consultation with ... Bachotet, in order to keep her from leaving [Switzerland] with the children.” The record contained no subsequent order from the Swiss court acting on Pfeiffer’s request. On about June 17, 2018, Bachotet left Switzerland with the children for the United States. The three currently resided in Marietta, Georgia, with Bachotet’s American fiancé.
On July 17, 2018, Pfeiffer filed the litigation seeking return of the children to Switzerland under the Hague Convention.
Following a hearing, on August 29, 2018, the district court issued an order denying Pfeiffer’s petition. The court reasoned that Pfeiffer had failed to satisfy his burden to show that Bachotet’s removal of the children from Switzerland violated Pfeiffer’s rights of custody, in light of the Divorce Judgment’s provision awarding Bachotet “the exclusive right to determine whether the children would remain in Switzerland or move to the United States or France at the end of the 2016/2017 school year.” The Eleventh Circuit affirmed. It found that Pfeiffer had established that the children’s habitual residence at the time of removal was Switzerland, but the district court nonetheless correctly denied Pfeiffer’s petition because Pfeiffer had not demonstrated that Bachotet’s removal of the children violated his custody rights under Swiss law.
The Eleventh Circuit Court noted that in identifying when a child’s habitual residence has been changed, it has set forth two requirements to alter a child’s habitual residence: (1) the parents must share a “settled intention” to leave the old habitual residence behind; and (2) an “actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized” must occur. Ruiz, 392 F.3d at 1252-53. Both must be present to change a child’s habitual residence. It concluded based on the second requirement, that the children’s habitual residence had not changed as of the date of the challenged removal. As of the time of the challenged removal, June 17, 2018, the children—then seven and nine years old—had lived continuously in Switzerland for six years. Nothing in the record indicated that they had ever lived in—or even spent significant time in—the United States as of that date. Nor did the record suggest or did the parties argue that any other country could have served as the children’s habitual residence as of June 17, 2018. And since acclimatization cannot take place without the parties’ physical presence in a new country, the children’s habitual residence as of the date of removal was Switzerland.
The court also found that Bachotet’s removal of the children from Switzerland did not violate Pfeiffer’s custody rights under Swiss law. Rights of custody, 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.” Convention art. 5(a). It observed that Article 133 of the Swiss Civil Code, Code Civil [CC] [Civil Code] Dec. 10, 1907, SR 210, RS 210, as amended, art. 133, endows courts with the authority to “regulate  parental rights and obligations in accordance with the provisions on the legal effects of the parent-child relationship. ... In particular it [has the power to] regulate : ... residence ....” Under Swiss law, in cases like this one, where the parents enjoy joint parental responsibility, either the consent of the other parent or “a decision of the court or the child protection authority” is necessary before one parent may establish a new place of residence outside Switzerland. Swiss Civil Code, Art. 301a, Code Civil [CC] [Civil Code] Dec. 10, 1907, SR 210, RS 210, as amended, art. 301a. Here, the Divorce Judgment constituted a decision of the Swiss court. And though Swiss law generally provides parents with a ne exeat right as it pertains to removal of a child from Switzerland, see Swiss Civil Code, Art. 301a, the Divorce Judgment here expressly empowered Bachotet to relocate with the children to either the United States or France “at [or possibly after] the end of the school term 2016/2017.” So, by Swiss law, under the Divorce Judgment, Bachotet had the sole rights of custody as they pertained to determining whether to move the children to the United States.
Pfeiffer did not contest this analysis, but he nonetheless asserted that events transpiring after the court entered the Divorce Judgment revoked Bachotet’s authority to remove the children from Switzerland. In support of this claim, Pfeiffer urges that Bachotet’s authority to remove the children was time-dependent and automatically expired when Bachotet failed to move them to the United States in June 2017. The Court could not conclude that Bachotet did not take steps to remove the children as soon as possible after the end of the 2016/2017 school term. Second, Pfeiffer contended that, following the court’s entry of the Divorce Judgment, he reestablished his rights of custody to determine the children’s place of residence, based upon the modification to the custodial agreement that the guardian reached and the parents agreed to. But Pfeiffer had not showed that the guardian’s modification of the custodial agreement cognizably revoked the court’s order authorizing Bachotet to remove the children to the United States at the end of the 2016/2017 school term or modified the Swiss Court’s Divorce Judgment. Nor had Pfeiffer showed that the Swiss court ever amended the Divorce Judgment to incorporate or otherwise recognize the modified custodial agreement, even though under Swiss law, the Swiss court retained jurisdiction to amend its orders regarding custody. Under the Divorce Agreement, Pfeiffer did not enjoy a ne exeat right as it pertained to Bachotet’s authority to move the children from Switzerland to the United States. And since the Divorce Agreement was a court order that has not been modified, it constituted Swiss law for purposes of ascertaining the parties’ rights of custody to determine the children’s place of residence. The Court was bound to apply its terms and affirm the district court’s conclusion that Pfeiffer had not satisfied his burden to establish a prima facie case of wrongful removal under the Hague Convention.