Aluker was a United States citizen,
a Russian citizen, and a legal resident of Portugal. Yan was a United States
citizen who presently resided in Virginia. In 2006, Aluker and Yan were married
in China, and they moved to the United States in 2008. While living in the
United States, Aluker and Yan had two children. The family moved to Spain in
2015, and to Portugal in 2017. Shortly after their move to Portugal, Aluker and
Yan separated. Initially, they shared parental responsibilities. However, in
November 2018, Aluker and Yan executed a Separation and Property Settlement
Agreement (PSA), which stated in relevant part: The parties … agree as follows:
... [Yan] shall have sole legal and primary physical custody of [the two
children]. [Aluker] shall be entitled liberal and reasonable visitation with
the children. ... The parties acknowledge that this Agreement is a full and
final settlement that contains the entire understanding of the parties, and
there are no representations, warranties, covenants, or undertakings other than
those expressly set forth herein.... This Agreement shall be construed in
accordance with the law of the Commonwealth of Virginia. Aluker also agreed in
the PSA that Yan would have sole ownership of their house in Falls Church,
Virginia. The parties further stipulated therein that each had “the right to
reside at any place ... without the consent of the other party.” The PSA was
not incorporated into any court order. Several months after the PSA was
executed, Aluker initiated proceedings in May 2019 in a Portuguese court
seeking an adjudication of child custody rights. The Portuguese court had not
taken any action when, on October 3, 2019, Yan sent Aluker an e-mail stating
that she was taking the children to the United States to live. Yan and the
children traveled to the United States on the same day. Almost a year later, in
September 2020, Aluker filed a petition in the district court under the Hague
Convention. In his “verified petition of return of children to Portugal,”
Aluker contended that the children were wrongfully removed from Portugal. On
the day of a scheduled bench trial, Yan requested a judgment on partial
findings under Federal Rule of Civil Procedure 52(c). The court
conducted a brief evidentiary hearing, allowed Aluker to file a response
memorandum, and later granted Yan’s motion. The court concluded that the PSA
was a valid agreement, which established that Yan had legal custody of the
children at the time she removed the children from Portugal. The court held
that Yan’s status as legal custodian of the children defeated Aluker’s claim of
wrongful removal.
The Fourth Circuit pointed
out that in cases involving claims brought under the Hague
Convention, it review sa district court’s findings of fact for clear error and
its conclusions of law de novo. Bader v. Kramer, 484 F.3d 666, 669 (4th Cir. 2007). It noted
that Article 3 of the Hague Convention provides: The removal or the retention
of a child is to be considered wrongful where ... it is in breach of rights of
custody attributed to a person ... under the law of the State in which the
child was habitually resident immediately before the removal or retention ... The
rights of custody mentioned ... above, 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 that State. Hague Convention,
art. 3. To establish a claim of wrongful removal under the Hague Convention, a
petitioner must show that: (1) the children habitually resided in “the
petitioner’s country of residence at the time of removal;” (2) the removal
breached “the petitioner’s custody rights under the law of his home state;” and
(3) the petitioner was actually exercising his custody rights at the time of
removal. Bader, 484 F.3d at 668; see also Hague Convention, art. 3.
The Fourth Circuit held that irrespective
whether the children were habitual residents of Portugal at the time of their
removal, Aluker’s wrongful removal claim failed because he did not establish
the other two requirements for proving his claim, namely, that when the
children were taken to the United States, he had custody rights under
Portuguese law and he was actually exercising those rights. See Bader, 484 F.3d at 668; Hague Convention, art. 3. At the time the
children were removed from Portugal, no court had awarded custody rights to
Aluker, and the parties had not entered into any written agreement providing
Aluker with such rights. When the children were removed from Portugal, Yan had
sole legal custody of the children, as agreed by the parties in the PSA.
Portuguese choice of law rules
required that it apply United States law in this case. Article 57 of the
Portuguese Civil Code directs that “[r]elationships between parents and
children are regulated by the common national law of the parents, and in the
lack thereof, by the law of their common habitual residence; if the parents
habitually reside in different countries, the law of the child’s country of
origin shall apply.” In applying Portugal’s choice of law provision to this
case, the “common national law of the parents” is the United States, because
both Aluker and Yan are United States citizens. Accordingly, United States law,
here, the law of Virginia, applies to resolve this matter. It found that Aluker has failed to prove under
Virginia law that he had any custody rights at the time the children were
removed from Portugal. The PSA unambiguously provided that Yan “shall have sole
legal and primary physical custody” of the two children. Although Virginia
courts have the power to modify any private custody agreement that parents
execute, parents still may enter into such custody agreements and courts may
rely on them in making custody determinations. See Shoup v. Shoup, 556 S.E.2d 783, 787-89 (Va. Ct. App. 2001); Va. Code Ann. § 20-109.1 At the
time the children were removed from Portugal, no court had altered the terms of
the PSA or had adjudicated the issue of the children’s custody.
The terms of the Hague Convention
also supported the district court’s conclusion that the PSA was a valid
agreement addressing custody rights. Under the Hague Convention, custody rights
can be determined by “an agreement having legal effect under the law of the
[state of the child’s habitual residence].” Hague Convention, art. 3. An
agreement having “legal effect” under the Hague Convention can include “simple
private transactions between the parties concerning the custody of their
children.” Elisa Pérez-Vera, Explanatory Report on the 1980 HCCH Child Abduction
Convention, in 3 Actes et Documents de la Quatorziéme Session – Child
Abduction, at 426, 447, ¶ 70 (1980). It concluded that the district court did
not err in holding that the PSA had “legal effect” within the meaning of the
Hague Convention, and that Aluker failed to prove his claim of wrongful
removal.
