Decided: May 24, 2013
The Fourth Circuit affirmed the United States District Court for the Eastern district of Virginia.
In May 2009, Malcom White (“Mr. White”) and Soudabeh White (“Ms. White”) were married in Switzerland. Soon thereafter, they had a son. Unfortunately, in June 2010 they were separated and legal proceedings regarding custody rights were initiated. In October 2010, the Swiss Court of First Instance of Geneva (“Swiss Court”) granted full custody of the child to Ms. White (“2010 Order”). Mr. White was granted visitation rights. This action stemmed from Ms. White’s subsequent decision to leave Switzerland for the United States with the minor child in April 2011. Mr. White was not notified prior to the day of departure, instead Ms. White notified him via voicemail three days later. The voicemail indicated that Ms. White had taken their son on a “holiday” in the United States, although Ms. White subsequently claimed that she came to the United States to visit her sister and to seek medical care for her son. At the time of the departure, court-appointed psychologists in Switzerland were conducting an analysis of the parties and the child to assess custody arrangements. In a preliminary report issued in July 2011—three months after the departure—it was suggested that Ms. White suffered from psychological problems, which affected her ability to properly care for her son, and that the court should transfer custody of their son to Mr. White if her condition did not improve within six months. Subsequently, in September 2011 the Swiss Court issued an emergency ruling prohibiting Ms. White from leaving 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’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 at the time of departure and could therefore remove the child from Switzerland without authorization. On April 6, 2012, Mr. White filed this petition for return under the Hague Convention on the Civil Aspects of International Child Abduction (“Convention”) and the International Child Abduction Remedies Act. The district court denied the petition for return and Mr. White appealed. Following oral argument, Mr. White filed an order of the Swiss Court dated March 15, 2013 (“2013 Order”). In that order, the Swiss Court related that an appellate court had found that Geneva courts did in fact have jurisdiction to rule on protective measures for the child and, although Ms. White remained in the United States, adjusted its earlier custody arrangements to grant Mr. White custody of and parental authority over the child.
In conformance with the Convention, because Switzerland was the child’s habitual residence before his removal, Swiss law governed the determination of the legal issues presented. In his amended appellate brief, Mr. White offered three reasons why the district court erred in refusing to find that Ms. White wrongfully removed the child in violation of the Convention. Addressing Mr. White’s first contention, the Fourth Circuit found that his parental authority rights alone did not provide a basis for a wrongful removal action under the Convention as the Swiss Supreme court has held that a parent who holds exclusive custody is entitled to move abroad with the children without having to obtain authorization of the other parent. Next the court addressed Mr. White’s second contention that the removal was intended to compromise his relationship with the child and threatened the child’s well being, constituting an abuse of rights under Swiss law. The court found that, because the record indicated that Ms. White had legitimate reasons for leaving Switzerland, including seeking medical treatment for the child in the United States, the removal did not constitute an abuse of her rights under Swiss law. Lastly the court found that Mr. White’s reliance on the 2013 Order was misguided as the 2010 Order controlled the case because it was in effect at the time of removal controlled. Therefore, because Ms. White had sole custody over the child pursuant to the 2010 Order, she was free remove the child unilaterally under Swiss law.
-W. Ryan Nichols