White v White, --- F.3d ----, 2013 WL 2284877 (C.A.4 (Va.)) [Switzerland] [Rights of Custody]

In White v White, --- F.3d ----, 2013 WL 2284877 (C.A.4 (Va.)) the Fourth Circuit affirmed an order which denied the petition for return. Mr. White married Ms. White in Switzerland. Later that year, they had a son in Switzerland. In June 2010, Mr. White and Ms. White separated and Mr.White initiated legal proceedings in Switzerland pertaining to the separation, including rights to the couple's child. In October 2010, the Swiss Court of First Instance of Geneva authorized Mr. and Ms. White's legal separation and granted " custody of the child" to Ms. White. The court also granted visitation rights to Mr. White "two afternoons each weekend, to be expanded to one weekend in two, in agreement with the curator when the time comes." Mr. White learned of the April 24, 2011 departure of Ms. White and the child three days after they had left Switzerland. Ms. White left him a voicemail message saying that she had taken their son on a "holiday" in the United States. Ms. White subsequently claimed that she came to the United States to visit her sister and seek medical care for her son. Doctors in Switzerland had diagnosed the child with autism; in the United States, doctors later diagnosed him with a feeding disorder for which he had been receiving treatment. Since coming to the United States, the child was been present in the country continuously, except for a brief visit to Canada. At the time of the departure of Ms. White and the child to the United States, court- appointed psychologists in Switzerland were conducting an analysis of the parties and the child to assess custody arrangements. In July 2011, at which time Ms. White and the child had resided in the United States for three months, the psychologists issued their preliminary report. In it, they suggested that Ms. White suffered from psychological problems, which affected her ability to properly care for her son, and that the court should transfer custody of the child to Mr. White if her condition did not improve within six months. In September 2011, the Court of First Instance of Geneva issued an emergency ruling prohibiting Ms. White from leaving Switzerland with the child. However, in December 2011, the same court found that it did not have jurisdiction because Switzerland was no longer Ms. White and the child's usual place of residence. In February 2012, the Swiss tutelary court in Geneva also found that it lacked jurisdiction but noted that Ms. White had sole custody of the child and could therefore remove the child from Switzerland without authorization. On April 6, 2012, upon finding that Ms. White and the child were residing in Alexandria, Virginia, Mr. White brought this action in the United States District Court for the Eastern District of Virginia.

 Following a bench trial, the district court denied the petition for return finding that Mr. White did not establish by a preponderance of the evidence that his son's removal breached any rights of custody. The parties filed their appellate briefs in the fall of 2012 and the Court of Appeals heard oral argument in the case on March 20, 2013. One day later, Mr. White filed with it an order of the Court of First Instance of Geneva dated March 15, 2013. In that order, the Court of First Instance related that, in September 2012, Geneva's Court of Justice, an appellate court, found the Geneva courts did have jurisdiction to rule on protective measures for the child of Mr. and Ms. White. Accordingly, although Ms. White and the child remained in the United States and did not appear at the hearing before the Court of First Instance, in its March 2013 order the Court of First Instance purported to adjust its earlier custody arrangements to "[g]rant[ ] to Malcolm WHITE the custody of and parental authority over the child" and "[g]rant[ ] to Soudabeh WHITE a visitation right of the child." Because it was undisputed in this case that Switzerland was the child's habitual residence before his removal, Swiss law determined whether there was a breach of rights.

The Fourth Circuit found that the October 2010 separation order explicitly awarded "the custody of the child ... to Soudabeh WHITE."It reserved to Mr. White only the "right to visit the child ." This language clearly seemed to provide that Ms. White had sole custody and Mr. White had only a "right of access," i.e., a "right to take [the] child for a limited period of time to a place other than the child's habitual residence." Hague Convention art. 5(b). Under the Convention, breach of a right of access alone does not provide cause for return of a child. Mr. White contended, however, that the text of the separation order did not tell the full story because there was a background principle in Swiss law that parents share parental authority. See Code Civil [CC] [Civil Code] Dec. 10, 1907, SR 210, RS 210, art. 297 ("During marriage, the parents shall have joint parental authority."). Such parental authority includes joint responsibility for care, education, religion, and legal representation. See id. arts. 296-317. Although Swiss law does specify that, "if the spouses separate, the judge may assign parental authority to one of the spouses,"id. art. 297, in this case the October 2010 separation order did not specifically assign parental authority to either Ms. White or Mr. White. The court found that Swiss parental authority rights alone provide no basis for a wrongful removal action under the Convention. The Swiss Supreme Court has made clear that "subject to an abuse of rights," a parent who holds "exclusive custody is entitled to move with the children, and even abroad, without having to obtain for this the judge's authorization," or the authorization of the other parent. See Tribunal federal [TF] [Federal Supreme Court] June 1, 2010, 136 ATF III 353 P 3.3. This is true even when the other parent retains parental authority rights. See id. PP 3.4-3.5 ("[G]ranting sole custody to one of the parents [removes] from the other the right to decide on the residence ... of the children.... This means that the legal situation of the holder of the restricted parental authority does not suffer any prejudice within the meaning of [ Hague Convention] art. 3 ... if the holder of the exclusive right of custody moves the children out of Switzerland...."). In February 2012, the Swiss tutelary court applied the Swiss Supreme Court's teaching in this very case, explaining that, at the time of removal, "Mrs. Soudabeh WHITE [was] the only one who [held] custody of [her son,]" and "the bearer of sole custody may, breach of law excepted, move with the child, notably to a foreign country." The Court distinguished the out-of-circuit cases Mr. White cited in which courts found removal wrongful, ostensibly based on breach of parental authority-type rights. In none of those cases were the petitioning parent's rights subject to the removing parent's sole right to remove under a governing court order, as interpreted by the courts of the country of habitual residence. Moreover, in most of the cases Mr. White cited, unlike this one, the petitioning parent had a ne exeat right to prohibit the other parent from removing the child. The district court did not err in holding that Mr. White had not demonstrated that the removal of their child by Ms. White breached any parental authority rights he retained at the time of removal.

Mr. White maintained that Ms. White's removal "secretly and in the midst of a court-ordered psychological evaluation, was intended to compromise the Father's relationship with the child and threatened the child's well-being," constituting an "abuse of rights under Swiss law."The Swiss Supreme Court has held that "a relocation without reasonable grounds, that is to say only intended to compromise the personal relationships between the child and the other parent," may be an abuse of rights and consequently a breach of rights of custody under the Convention. See Tribunal federal 136 ATF III 353 P 3.3. Further, "the spouse who holds the right of custody may be barred from taking the child outside the country ... provided that the wellbeing of the person concerned is seriously threatened by this relocation."Id . However, under Swiss law, typical relocation and integration difficulties "do not normally constitute a serious threat" and so "there will rarely be a serious threat to the wellbeing of the child when he is still very young."Id. Whether there was an "abuse of rights" by Ms. White therefore hinged on the factual question of why she decided to leave Switzerland with the child and whether her decision to do so seriously threatened his well being. Ms. White testified at trial in the district court that she brought her son to the United States to see her sister and to seek medical treatment. The district court explicitly found Ms. White's explanation credible. The Court could not hold that the district court clearly erred in finding that Ms. White had legitimate reasons for coming to the United States. It therefore rejected Mr. White's contention that Ms. White's removal of the child from Switzerland constituted an abuse of her rights under Swiss law.

Mr. White relied on the Swiss Court of First Instance's very recent March 2013 order purporting to transfer custody of the child from Ms. White to Mr. White two years after the child's removal to the United States. Mr. White maintained that the new order "dramatically [a]ffects this case" and "confirms that the Swiss Court has always been in accord with [his] position." The Court held that the only reasonable reading of the Convention is that a removal's wrongfulness depends on rights of custody at the time of removal. Removal could not be considered in breach of rights of custody if those rights did not exist at the time of removal. Moreover, the Convention explicitly provides that removal is only wrongful when " at the time of removal " custody "rights were actually exercised ... or would have been so exercised but for the removal."Id. art. 3(b). Thus, courts have repeatedly assumed rights of custody for purposes of Article 3 of the Convention means rights of custody at the time of removal. Because the Court had ot previously addressed directly the question of whether a custody determination after removal affects a Hague Convention case, it looked also to the practice of our sister signatories and concluded that our sister signatories agree that orders claiming to adjust custody arrangements after removal or retention do not typically affect rights under Article 3 of the Convention. Accordingly, it held hold that the determination of whether removal is wrongful is based on rights of custody at the time of removal. The Swiss Court of First Instance's March 2013 order did not purport to reject the authenticity of, or retroactively alter, the previously governing October 2010 order granting Ms. White sole custody of the child. The October 2010 order, which was in effect at the time of the child's removal, therefore controlled this case.