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.
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