Malcolm White v. Soudabeh White , 718 F.3d 300 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MALCOLM WHITE, 
Petitioner-Appellant,
v.  No. 12-1835
SOUDABEH WHITE,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, Senior District Judge.
(1:12-cv-00378-TSE-JFA)
Argued: March 20, 2013
Decided: May 24, 2013
Before NIEMEYER, MOTZ, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opin-
ion, in which Judge Niemeyer and Judge Keenan joined.
COUNSEL
ARGUED: Stephen John Cullen, MILES & STOCK-
BRIDGE, PC, Washington, D.C., for Appellant. Michael
Alexander Johnson, ARNOLD & PORTER, LLP, Washing-
ton, D.C., for Appellee. ON BRIEF: Kelly A. Powers,
MILES & STOCKBRIDGE, PC, Washington, D.C., for
2 WHITE v. WHITE
Appellant. R. Stanton Jones, ARNOLD & PORTER, LLP,
Washington, D.C., for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
In April 2011, Soudabeh White left Switzerland for the
United States with her minor son, who had previously resided
habitually in Switzerland. The child’s father, Malcolm White,
initiated this action for wrongful removal under the Hague
Convention, seeking the return of his son to Switzerland. The
district court found that Ms. White breached no rights of cus-
tody in removing the child and therefore denied Mr. White’s
petition for return. For the reasons set forth within, we affirm
the judgment of the district court.
I.
In May 2009, 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 only learned of the April 24, 2011 departure of
Ms. White and the child three days after they had left Switzer-
land. 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
WHITE v. WHITE 3
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 feed-
ing disorder for which he has been receiving treatment. Since
coming to the United States, the child has been present in the
country continuously, except for a brief visit to Canada.1
At the time of the departure of Ms. White and the child to
the United States, court-appointed psychologists in Switzer-
land 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 psy-
chological 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 leav-
ing 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
1
There is a reference in Swiss proceedings to a sighting of Ms. White
in Switzerland after April 2011. But, noting the absence of support on Ms.
White’s passport and her sworn testimony to the contrary, the district court
did not credit this reference. We do not find this factual determination to
be clearly erroneous.
4 WHITE v. WHITE
Eastern District of Virginia. He filed this petition for return
under the Hague Convention on the Civil Aspects of Interna-
tional Child Abduction ("Hague Convention" or "Conven-
tion"), Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89,
and the International Child Abduction Remedies Act, 42
U.S.C. § 11601 et seq. (2006). The petition alleged one count
of wrongful removal. On June 7, 2012, following a bench
trial, the district court denied the petition for return. The court
found that Mr. White did not establish by a preponderance of
the evidence that his son’s removal breached any rights of
custody. Mr. White noted a timely appeal of that judgment.2
The parties filed their appellate briefs in the fall of 2012
and we heard oral argument in the case on March 20, 2013.
One day later, Mr. White filed with us 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 mea-
sures 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."
II.
This case requires us to decide whether the district court
erred in finding that Ms. White’s removal of her son from
Switzerland to the United States breached no rights of custody
under the Hague Convention. In a Convention case, we
review factual findings for clear error and legal conclusions
2
Ms. White unsuccessfully sought attorneys’ fees in the district court
but does not challenge that determination on appeal.
WHITE v. WHITE 5
regarding domestic, foreign, and international law de novo.
Maxwell v. Maxwell, 588 F.3d 245, 250 (4th Cir. 2009). "The
interpretation of a treaty, like the interpretation of a statute,
begins with its text." Abbott v. Abbott, 130 S. Ct. 1983, 1990
(2010) (internal quotation marks omitted).
The Convention states that "[w]here a child has been
wrongfully removed or retained . . . the authority concerned
shall order the return of the child forthwith."3 Hague Conven-
tion art. 12. "The removal or retention of a child is to be con-
sidered wrongful where . . . it is in breach of rights of custody
attributed to a person . . . either jointly or alone, under the law
of the State in which the child was habitually resident imme-
diately before the removal." Id. art. 3(a). Because it is undis-
puted in this case that Switzerland was the child’s habitual
residence before his removal, Swiss law determines whether
there was a breach of rights. See id.The Convention further specifies that "‘rights of custody’
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." Id. art. 5(a). It distinguishes "rights of access"
from "rights of custody," explaining that "‘rights of access’
shall include the right to take a child for a limited period of
time to a place other than the child’s habitual residence." Id.art. 5(b).
Mr. White, as the petitioner, must prove wrongful removal
by a preponderance of the evidence. 42 U.S.C.
3
Mr. White’s petition alleged wrongful removal, not wrongful retention.
Under the Convention, retention may be wrongful only when, unlike in
this case, the petitioning parent originally has no objection to the child
traveling abroad but the other parent later retains the child abroad against
the petitioning parent’s will. See, e.g., Karkkainen v. Kovalchuk, 445 F.3d
280, 290 (3d Cir. 2006) ("Once Karkkainen filed the petition . . . she
unequivocally signaled her opposition to [the child]’s presence in the
United States. After that date, there was no doubt that [the child] remained
with her father against her mother’s wishes and was therefore retained.").
6 WHITE v. WHITE
§ 11603(e)(1)(A). He offers three reasons why the district
court erred in refusing to so find and denying his petition for
return. First, he contends that Ms. White’s removal of the
child breached parental authority rights he retained at the time
of removal. Second, he argues that, even if Ms. White had
sole custody of the child at the time of removal, under Swiss
law, she abused her custody rights. Finally, relying on the
new March 2013 Swiss custody determination, Mr. White
argues that he now has sole custody over the child and thus
the child should be returned to Switzerland. We consider
these contentions in turn.
A.
Mr. White first maintains that Ms. White’s removal of the
child to the United States inhibited parental authority rights he
retained under Swiss law and that such rights constitute rights
of custody protected under the Convention. Ms. White
responds that, even if Mr. White had parental authority rights
under Swiss law, her removal of the child did not breach any
such rights and thus did not violate the Convention.
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 seems 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. See id. arts. 3, 12; Jen-
kins v. Jenkins, 569 F.3d 549, 555 n.3 (6th Cir. 2009) ("[T]he
remedy of return is available for a wrongful removal or reten-
tion but not for a breach of the right to access.").
Mr. White contends, however, that the text of the separa-
tion order does not tell the full story because there is a back-
ground principle in Swiss law that parents share parental
WHITE v. WHITE 7
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
(emphasis added), in this case the October 2010 separation
order did not specifically assign parental authority to either
Ms. White or Mr. White.
Thus the order perhaps leaves room for Mr. White’s reten-
tion of parental authority rights. Courts have previously
deemed certain seemingly analogous rights of other countries
to be rights of custody under the Convention. See, e.g., Han-
ley v. Roy, 485 F.3d 641, 647-48 (11th Cir. 2007) (finding
grandparents’ testamentary guardianship under Irish law,
involving "joint decision-making authority over the children’s
education, health, and religious life," sufficient for Conven-
tion right of custody); Whallon v. Lynn, 230 F.3d 450, 458
(1st Cir. 2000) (same for Mexican patria potestas rights
requiring "adequate connection" between parent and child
and, by implication, "a meaningful, decisionmaking role in
the life and care of the child").
But 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 authoriza-
tion of the other parent. See Tribunal fédéral [TF] [Federal
Supreme Court] June 1, 2010, 136 ATF III 353 ¶ 3.3. This is
true even when the other parent retains parental authority
rights. See id. ¶¶ 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
8 WHITE v. WHITE
not suffer any prejudice within the meaning of [Hague Con-
vention] art. 3 . . . if the holder of the exclusive right of cus-
tody 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 out-of-circuit cases Mr. White cites in which courts
found removal wrongful, ostensibly based on breach of paren-
tal authority-type rights, are distinguishable. 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. See Hanley, 485 F.3d 641; Furnes v.
Reeves, 362 F.3d 702 (11th Cir. 2004); Whallon, 230 F.3d
450; Lieberman v. Tabachnik, 625 F. Supp. 2d 1109 (D. Colo.
2008); cf. Bader v. Kramer, 445 F.3d 346, 350 (4th Cir. 2006)
("In the absence of any order removing Bader’s ability to
determine [the child]’s residence, he continued to retain joint
custody . . . ." (emphasis added)); Shealy v. Shealy, 295 F.3d
1117, 1123-24 (10th Cir. 2002) (finding removal not wrongful
when the father’s custody rights were subject to the mother’s
right to remove under the applicable circumstances of military
necessity).4
4
Moreover, in most of the cases Mr. White cites, unlike this one, the
petitioning parent had a ne exeat right to prohibit the other parent from
removing the child. See Furnes, 362 F.3d at 714-16; Whallon, 230 F.3d
at 458; Lieberman, 625 F. Supp. 2d at 1120-23. The Supreme Court has
held that, when a parent removes a child without the other parent’s con-
sent and there is a ne exeat right, there is a breach of custody rights under
the Convention -– whatever other custody rights the petitioning parent
may also hold. See Abbott, 130 S. Ct. at 1990; see also Furnes, 362 F.3d
at 714 (holding that "[o]ur ultimate decision that Plaintiff Furnes has . . .
rights of custody . . . need not, and thus does not, depend wholly on"
parental responsibility constituting a right of custody because an applica-
ble "ne exeat right . . . constitutes a ‘right of custody’ as defined in the
Convention.").
WHITE v. WHITE 9
In short, 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.
B.
Mr. White next maintains that Ms. White’s removal "se-
cretly and in the midst of a court-ordered psychological evalu-
ation, was intended to compromise the Father’s relationship
with the child and threatened the child’s well-being," consti-
tuting 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 per-
sonal 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 fédéral 136
ATF III 353 ¶ 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 con-
cerned is seriously threatened by this relocation." Id. How-
ever, 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 there-
fore hinges on the factual question of why she decided to
leave Switzerland with the child and whether her decision to
do so seriously threatened his wellbeing. 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. Indeed, the record makes clear that, soon after her
arrival in the United States, Ms. White sought medical treat-
ment for the child and received a diagnosis different from the
autism diagnosis with which she had been dissatisfied in
Switzerland. The child has since continued medical treatment.
10 WHITE v. WHITE
Mr. White alleges that the timing of his son’s removal to
the United States renders this explanation "highly suspect."
He points out that the Swiss psychological assessment of the
family for custody evaluation purposes was ongoing at the
time and that assessment was ultimately unfavorable to Ms.
White. The difficulty with Mr. White’s reliance on these facts
is that the psychologists issued their report three months after
Ms. White had taken the child to the United States. Mr. White
offered no evidence at trial before the district court that Ms.
White left the country solely, or even in substantial part, to
evade this evaluation and its consequences or that the removal
otherwise seriously threatened the child’s wellbeing.
Accordingly, we cannot hold that the district court clearly
erred in finding that Ms. White had legitimate reasons for
coming to the United States. We therefore reject Mr. White’s
contention that Ms. White’s removal of the child from Swit-
zerland constituted an abuse of her rights under Swiss law.
C.
Finally, Mr. White relies on the Swiss Court of First
Instance’s very recent March 2013 order purporting to trans-
fer custody of the child from Ms. White to Mr. White two
years after the child’s removal to the United States. Mr. White
maintains that the new order "dramatically [a]ffects this case"
and "confirms that the Swiss Court has always been in accord
with [his] position."
But the only reasonable reading of the Convention is that
a removal’s wrongfulness depends on rights of custody at the
time of removal. The Convention states that "removal . . . is
to be considered wrongful where . . . it is in breach of rights
of custody." Hague Convention art. 3(a). 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 . . .
WHITE v. WHITE 11
or would have been so exercised but for the removal." Id. art.
3(b) (emphasis added).
Thus, courts have repeatedly assumed rights of custody for
purposes of Article 3 of the Convention means rights of cus-
tody at the time of removal. See, e.g., Hanley, 485 F.3d at 645("To establish wrongful removal under the Convention, the
Hanleys must show that they had ‘rights of custody’ . . . when
Roy removed the children . . . ." (emphasis added)); Bader,
445 F.3d at 351 ("Bader did retain some existing custodial
rights over [the child] at the time of removal." (emphasis
added)); Shealy, 295 F.3d at 1124 (finding removal not
wrongful based on a "interim decision" although "the German
courts ha[d] not yet made a final [custody] determination"
because the Convention is concerned with "custody rights
[that] existed at the time of removal" (emphasis added));
Whallon, 230 F.3d at 459 ("The pending Massachusetts cus-
tody proceedings commenced by Lynn after her removal of
[the child] are inapplicable to this action because the Conven-
tion refers specifically to . . . rights of custody at ‘the time of
removal.’").
Because we have not previously addressed directly the
question of whether a custody determination after removal
affects a Hague Convention case, we look also to the practice
of our sister signatories. See Abbott, 130 S. Ct. at 1993 ("In
interpreting any treaty, the opinions of our sister signatories
are entitled to considerable weight. The principle applies with
special force here, for Congress has directed that uniform
international interpretation of the [Hague] Convention is part
of the Convention’s framework." (internal citations and quo-
tation marks omitted)). 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. See, e.g., Thomson v. Thomson, [1994] 3 S.C.R.
551 (Can.) ("There is nothing in the Convention requiring the
recognition of an ex post facto custody order of foreign juris-
dictions. And there are several statements in the supplemen-
12 WHITE v. WHITE
tary material to support the view that ‘wrongful retention’
under the Hague Convention does not contemplate a retention
becoming wrongful only after the issuance of a ‘chasing
order.’"); Re J. (A Minor), [1990] 2 A.C. 562 (H.L.) (appeal
taken from Eng.) (holding removal not wrongful because of
a purported change in custody after the child was removed
and no longer habitually resident where the new custody
determination was made); Taylor v. Ford, (1993) S.L.T. 654
(Scot.) (holding removal not wrongful on the basis of an
interim order professing to transfer custody after the child’s
removal).
The purposes of the Convention further explain why courts
consider only rights of custody at the time of removal when
assessing wrongful removal claims. "The Convention is based
on the principle that the best interests of the child are well
served when decisions regarding custody rights are made in
the country of habitual residence." Abbott, 130 S. Ct. at 1995.
But, under Mr. White’s view, a country that has not been the
habitual residence of a child for years could at any time mod-
ify a previous custody determination, in the absence of the
child and the parent who took the child abroad, and thereby
potentially justify a return remedy. This would stray far afield
from the best interests of the child and the "primary purpose"
of the Convention "to preserve the [pre-removal] status quo."
Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001) (internal
quotation marks omitted); see also Elisa Pérez-Vera, Explana-
tory Report: Hague Conference on Private International Law
¶ 71 (1982) ("[The Convention] is not concerned with estab-
lishing the person to whom custody of the child will belong
at some point in the future, nor with the situations in which
it may prove necessary to modify a decision awarding . . .
custody on the basis of facts which have subsequently
changed.").
Accordingly, we 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
WHITE v. WHITE 13
order does not purport to reject the authenticity of, or retroac-
tively 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 controls this case.5
III.
In sum, Ms. White had sole custody of her son when she
traveled with him to the United States and Swiss law gave her
a unilateral right to remove the child while he was in her sole
custody. Mr. White has failed to prove by a preponderance of
the evidence that Ms. White’s removal of the child abused
Ms. White’s rights under Swiss law or breached any rights of
custody Mr. White held at the time of removal. Accordingly,
we affirm the judgment of the district court.
AFFIRMED
5
In so holding, we express no view on the merits of the underlying cus-
tody determination. See 42 U.S.C. § 11601(b)(4) ("The Convention and
this chapter empower courts in the United States to determine only rights
under the Convention and not the merits of any underlying child custody
claims."); Hague Convention art. 19.