Pfeiffer v Bachotet, 2018 WL 9563334(N.D. Georgia, 2018)[Switzerland] [Habitual residence] [Rights of custody] [Petition denied]

         In Pfeiffer v Bachotet, 2018 WL 9563334(N.D. Georgia, 2018) Petitioner Marcellinus Pfeiffer’s Petition for Return of the Minor Children was denied.

          Petitioner and Respondent were previously married and had two children, N.A.R., a nine-year-old daughter, and R.H.E., a seven-year-old son. Petitioner was a citizen of Germany, and Respondent a citizen of France. They married in France in 2010 and moved to Switzerland in 2012. The parties obtained a divorce in June 2017 when a Sentence and Decree of Divorce was issued by the District Court of Meilen, under the Canton of Zurich, Switzerland. This divorce judgment incorporated the divorce agreement the parties entered into in May 2017. Under the terms of the divorce judgment, Petitioner had parenting time with the children every other weekend with additional time for holidays and during the summer. This arrangement was modified, by the guardian appointed to oversee the custodial arrangement between the parties, so that Petitioner and Respondent had equal time with the children. While the guardian entered a new parenting plan, she did not modify the divorce judgment, nor could she under Swiss law.

On or about June 17, 2018, Respondent and the children left Switzerland for the United States. Respondent traveled on a K-1 (fiancé) Visa, and the children traveled on K-2 Visas. They currently resided in Marietta, Georgia, with Respondent’s fiancé.

          The district Court concluded that the habitual residence of the children at the time of removal was Switzerland. While the term “habitual residence” is not defined in the Hague Convention or ICARA, courts “in both the United States and foreign jurisdictions have defined habitual residence as the place where the child has been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child’s perspective.” Pesin v. Osorio Rodriguez, 77 F. Supp. 2d 1277, 1284 (S.D. Fla. 1999); see also Ruiz v. Tenorio, 392 F.3d 1247, 1252–58 (11th Cir. 2004). For habitual residence to change, there must first be “a settled intention to abandon the one left behind.” Ruiz, 392 F.3d at 1252. “Although the settled intention of the parents is a crucial factor, it cannot alone transform the habitual residence. In addition, there must be an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized.” Id. at 1253.

        The Court found that Petitioner met his burden in establishing, by a preponderance of the evidence, that at the time of their removal from Switzerland, the children lived in Switzerland for the majority of their lives, had never traveled to the United States, and had not become acclimatized to life in the United States. Petitioner established the first element of his prima facie case.

         

          The Court concluded that Petitioner failed to establish that removal of the children breached his custody rights under the laws of Switzerland. The parties’ divorce agreement stated: [The parties] are aware that relocation of the children requires both parents’ consent 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. The father represents that he does not object to the mother’s taking residence abroad (US or France) at¹ the end of the school term 2016/2017. Under Swiss law, this divorce agreement was approved by the court and became a part of the divorce judgment, which could only be modified by filing a petition with the court. The Court found that the parties’ divorce judgment controlled the issue of whether the children’s removal violated Petitioner’s rights of custody.  Hague Convention, art. 3 (“The rights of custody ... 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 the state.”).

          The Court observed that the Hague Convention distinguishes between “rights of custody,” which “shall 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,” and “rights of access,” which “shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.” Hague Convention, art. 5. The divorce judgment gave Respondent 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. In granting her the right to determine the children’s place of residence, it necessarily deprived Petitioner of the right to determine residence, at least with regards to these three specific countries. He therefore did not have a “right of custody” under the meaning of the Hague Convention, at least in these circumstances. See, e.g., Ibarra v. Quintanilla Garcia, 476 F. Supp. 2d 630, 634–35 (holding that the parties Mexican divorce decree granted father a right of access but not a right of custody, thus barring the child’s return under the Hague Convention).