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“Rights of Custody” under the Hague Convention

Posted by Jeremy Morley | Apr 30, 2006 | 0 Comments

In Bader v. Kramer, decided on April 17, 2006, the Fourth Circuit reviewed the meaning of the term “rights of custody,” which is one of the fundamental elements of any application under the Hague Convention on the Civil Aspects of International Child Abduction.

The parties were married, lived in Germany, had a daughter in 1999 and were divorced in 2002. In 2003 the mother petitioned for sole custody and the father promptly counterclaimed for similar relief. On March 20, 2003, the German court ruled on the petitions, setting forth a visitation schedule for the father and granting the mother an award of child support. In April 2003 the mother thereupon took the child to live in the United States, without the father's permission.

In June 2003 the father filed a second petition in Germany for sole custody, followed by a Hague Convention return application. The German Central Authority sent a letter to the American Central Authority in November 2003 stating that, when Bader and Kramer "were divorced, no decision about the rights of custody was issued. So both still have parental responsibility for the child pursuant to Section 1626 of the German Civil Code (BGB)." In the following month, a German court granted sole custody to the father.

The U.S. district court denied the father's return application on the ground that he did not have rights of custody. The court determined that, although German law presumptively confers joint custody of a child upon both parents until a competent court enters a contrary order, the German court's March 20, 2003 order "functioned to alter the presumption of joint custody" by setting forth a visitation schedule.

That determination was overturned on appeal to the Fourth Circuit. The appeal court distinguished Fawcett v. McRoberts, 326 F.3d 491 (4th Cir. 2003), in which a Scottish court had issued a divorce decree modifying a parent's right to custody. The decree had contained a "Residence Order," which gave the father "the exclusive power to determine [the child's] residence, thereby necessarily depriving [the other parent] of that same right." Id.
Although Scottish law prohibited the abducting parent from removing the child from Scotland (equivalent to a so-called ne exeat clause), the Fourth Circuit in Fawcett held that this merely allowed "a parent with access rights to impose a limitation on the custodial parent's right to expatriate his child.” It ruled that “This hardly amounts to a right of custody" within the meaning of the Hague Convention because the divorce decree had deprived the mother of the right to determine the child's place of residence. Id. at 500.

By contrast, in the pending case, the German court order had delineated a schedule of visitation rights that clearly affected the father's rights of access, but it had made no mention of modifying his rights to custody. Since rights of access and rights of custody are not mutually exclusive, the mere fact that the German court had modified the former did not eliminate the latter.

The district court had also relied in part on the fact that the mother was the child's source for "pecuniary and emotional support" and that the father had exercised his visitation rights to only a limited extent. The Fourth Circuit held that that such matters were entirely irrelevant to the question of whether the German court had issued an order contrary to the presumption of joint custody.

Accordingly, the Fourth Circuit remanded to the district court for an expeditious determination of whether the father was exercising his custody rights and whether any defenses apply under the Hague Convention.

About the Author

Jeremy Morley

Jeremy D. Morley was admitted to the New York Bar in 1975 and concentrates on international family law. His firm works with clients around the world from its New York office, with a global network of local counsel. Mr. Morley is the author of "International Family Law Practice,...

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