[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
March 10, 2004
No. 03-12826 THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 02-02998-CV-TWT-1
TOM A. FURNES,
Plaintiff-Appellant,
versus
PAMELA KAY REEVES,
Defendant-Appellee.
__________________________
Appeal from the United States District Court for the
Northern District of Georgia
___________________________
(March 10, 2004)
Before TJOFLAT, HULL and FAY, Circuit Judges.
HULL, Circuit Judge:
Plaintiff Tom A. Furnes filed a petition under the International Child
Abduction Remedies Act, 42 U.S.C. §§ 11601-11611 (1988) (“ICARA”), seeking
the return of his daughter Jessica to Norway from Georgia, where she now resides
with her mother, Defendant Pamela Kay Reeves. Jessica was born in Norway in
1996 and lived there until 2001, when her mother visited the United States and
later refused to bring Jessica back to Norway, in violation of Furnes’s rights under
Norwegian law and their custody agreement. After an evidentiary hearing, the
district court denied Plaintiff Furnes’s ICARA petition. After review and oral
argument, we reverse.
I. Factual Background
A. Norwegian Court’s Custody Order
Plaintiff Furnes, a citizen and resident of Norway, and Defendant Reeves, a
citizen and resident of the United States, were married in 1994 and resided in
Norway. Their daughter Jessica was born on September 17, 1996, in Norway, and
resided with both parents until they separated in January of 1998.
During and after their separation, Plaintiff Furnes and Defendant Reeves’s
relationship was marked by constant conflict, and they were unable to agree on the
division of their assets or the custody of their daughter. Defendant Reeves
maintained custody of Jessica during the separation, and commonly thwarted
Plaintiff Furnes’s attempts to exercise his visitation rights. Defendant Reeves also
made serious allegations against Plaintiff Furnes (including that Furnes had
physically threatened and abused Reeves and had poisoned Jessica), which were
2
later determined to be groundless. In addition, in December of 1998, there was a
fire in the home of Defendant Reeves (the couple’s former joint home), and
Defendant Reeves was charged with arson and insurance fraud. Although
ultimately acquitted, Defendant Reeves was ordered to pay a large civil judgment
in connection with the fire.
On August 25, 1999, the Bergen City Court in Norway entered an order
granting Plaintiff Furnes custody of his daughter Jessica. The Bergen City Court
found that there was little doubt that Defendant Reeves played the “leading part” in
the conflict between the parties, that unrest in Reeves’s life negatively affected her
ability to care for her daughter, and that, in light of her previous “sabotage” of
Furnes’s scheduled visits, it was not realistic to believe that Defendant Reeves
would be able to respect an agreement granting access rights to Furnes. The
Bergen City Court specifically found as follows:
Production of evidence has shown that the level of conflict between the
parties is high, and that there is little doubt as to that it is the defendant
[Reeves] who is the leading part in this conflict. She emerges as the
conflict instigator and has on several occasions made serious accusations
against the plaintiff and other involved parties. These accusations have
later proven to be completely groundless. . . .
The court also finds grounds to comment that the defendant is
presently involved in two cases with the plaintiff in two different courts:
a dispute concerning a distribution of estate and the case concerning
custody/access of the child. Moreover, she has been remanded in
custody and is still charged with arson, insurance fraud and for filing
3
false complaints. In spite of this she is also involved in and has hired
attorneys for a private legal dispute in connection with the purchase of
a dog. Thus there is much unrest involved with her and this has
undoubtedly a negative affect in regards to the care of the child.
The defendant has furthermore shown a negative attitude to
cooperating with the plaintiff concerning already determined access. . . .
In this connection the court refers to that the defendant in several
occasions has sabotaged the visits that have been determined by legally
enforceable and provisional decisions concerning access. . . .
It is the court’s opinion that this episode clearly shows that the
defendant has problems respecting the child’s rights and protecting the
child from conflicts between the parties. As maintained by the expert,
the defendant can not differentiate between her own fears and skepticism
and the child’s fears and skepticism. Another situation that the court
would like to mention in this connection is the episode that took place at
the home of the plaintiff, where the defendant, in the presence of the
expert, provoked a conflict with the plaintiff, knowing that the expert
was preparing his report to be used in the upcoming case.
The court is not in doubt that continuous conflicts at this level over
a period of time will be harmful for the child.
In contrast, the Bergen City Court found, based in part on the testimony of
the psychiatrist assigned as the case expert, that Plaintiff Furnes was an
understanding and cooperative parent and was able to offer Jessica a secure home.
On that basis, the Bergen City Court concluded that, notwithstanding Jessica’s
primary attachment to her mother, Furnes was best suited to maintain custody of
Jessica, as follows:
The court agrees with the expert that the plaintiff is the party that
emerges as the best suited person to care for Jessica, also taking into
consideration the conflicts and cooperation problems between the parties.
In the court’s opinion, a transfer of custody to the plaintiff in itself might
4
reduce the possibilities for conflicts and thereby create more peace and
quiet for the child. The plaintiff has shown that he is more aware of the
child’s situation in relation to the conflict than the defendant is, and there
is little reason to believe that his negative attitude towards the other party
will hinder the child from having contact with her mother. In this
connection the court finds reason to refer to the following from the
expert’s report. . . .
“Ms. Reeves is the person that Jessica is primarily attached to.
However, it is Mr. Furnes that has shown most understanding for
Jessica’s needs for regular contact with both parents and for her marked
need for peace in her current situation. . . . In addition, Mr. Furnes, in his
current situation, is able to offer Jessica a secure home and a more
structured life than the mother can, though this can not be given decisive
importance as one must expect Ms. Reeves’ situation to improve with
time.”
Having concluded that Plaintiff Furnes was the more fit parent, the Bergen
City Court granted custody of Jessica to her father, Plaintiff Furnes, and mere
access rights to her mother, Defendant Reeves. Specifically, the Bergen City Court
ordered that Jessica live with her father and that Defendant Reeves have access to
Jessica on alternating weekends; alternating Wednesdays; alternating Christmas,
New Year, and Easter holidays; and for two weeks over Jessica’s summer vacation.
B. Settlement Agreement
Defendant Reeves appealed the August 25, 1999, judgment of the Bergen
City Court to the Norwegian Gulating Court of Appeals. In 2001, the parties
reached an agreement regarding custody (the “Agreement”), which was approved
by the Gulating Court, and the appeal was dismissed. Pursuant to the Agreement,
5
dated February 28, 2001, the parties would maintain “joint parental responsibility”
for their daughter under Norwegian law; Jessica would live with her mother; and
her father would have access to their daughter on certain days and at certain times.
Specifically, the Agreement provided in relevant part as follows:
1. Today a court settlement has been entered into between Pamela
Kay Reeves, date of birth and Nation ID No. 24.02.69 25270,
hereinafter called the mother, and Tom Arne Furnes, date of birth
and National ID No. 23.12.67 45788, hereinafter called the father.
2. The agreement concerns our child, Jessica Anne Kristine Furnes,
date of birth and National ID No. 17.09.96 38072, hereinafter
called the daughter.
3. We shall have joint parental responsibility for our daughter.
4. The daughter shall live with her mother, who shall have custody
of the child.
5. The father shall have the following access to the daughter:
a) Alternating weeks from Thursday at 4pm to Monday
morning when the daughter is to be brought at school
(kindergarten).
b) Alternating fall vacations. During the fall vacation 2001 the
daughter shall be with the mother.
c) Alternating Christmas vacations. During the Christmas
vacation 2001 the daughter shall be with the father.
d) Alternating Easter vacations. During the Easter vacation
2001, from April 9, 2001 to April 17, 2001, the daughter
shall be with the father.
e) Three weeks during the summer, whereof two of the weeks
shall be consecutive. Summer vacations shall be agreed
upon within May 1st of every year. In regards to the 2001
summer vacation, the mother shall decide when she wants
to have her vacation and thereafter the two parents shall
alternately decide their vacations every other year within
May 1st.
6
6. The parents have further agreed to cooperate loyally for the best
for their daughter, ensuring that this agreement and what it
confirms can be carried out. (Emphasis added.)
The term “joint parental responsibility” used in the Agreement has a
designated meaning under Norwegian law. Thus, in addition to access rights,
Plaintiff Furnes had additional rights associated with “joint parental responsibility”
under Norwegian law. Specifically, under Norway’s Act No. 7 of 8 April 1981
relating to Children and Parents (the “Children Act”), parental responsibility is
broadly defined to include the right “to make decisions for the child in personal
matters.” Section 30 of the Children Act states:
Meaning of parental responsibility
The child is entitled to care and consideration from those who have
parental responsibility. These persons have the right and the duty to
make decisions for the child in personal matters within the limits set by
sections 31 and 331. Parental responsibility shall be exercised on the
basis of the child’s interests and needs.
Those who have parental responsibility are under obligation to
bring up and maintain the child properly. They shall ensure that the child
receives an education according to his or her ability and aptitude.
The child must not be subjected to violence or in any way be
treated so as to harm or endanger his or her mental or physical health.
As regards the right to make decisions on behalf of the child in
financial matters, the provisions of Act No. 3 of 22 April 1927 on
Guardianship shall apply.
1
Sections 31 and 33 relate to the child’s rights of self-determination as he or she grows
older, such as the rights to state her opinion at age 12 and to make decisions as she “comes of
age.” Jessica was not yet five years old when removed from Norway in 2001, and is only seven
years old now. Thus, the limits of those sections are not involved in this case.
7
Children Act, § 30 (emphasis added). Accordingly, under § 30, a parent with joint
“parental responsibility” has the right, albeit a shared right, “to make decisions for
the child in personal matters.”
Where parents exercise “joint parental responsibility” but the child lives with
only one parent, this joint but broad decision-making authority of the other parent
granted under § 30 is, however, narrowed by § 35b of the Children Act, as follows:
Decisions that may be taken by the person with whom the child lives
permanently
If the parents have joint parental responsibility, but the child lives
permanently with only one of them, the other parent may not object to the
parent with whom the child lives making decisions concerning important
aspects of the child’s care, such as the question of whether the child shall
attend a day-care centre, where in Norway the child shall live and other
major decisions concerning everyday life.
Id. § 35b (emphasis added). Accordingly, where the parents have “joint parental
responsibility,” the parent with whom the child resides (in this case, Defendant
Reeves) has decision-making authority “concerning important aspects of the child’s
care,” but not all aspects of the child’s care. Section 35b of the Children’s Act thus
does not take away all decision-making authority granted the other parent under
§ 30. Instead, Plaintiff Furnes still retains some decision-making authority over
some aspects of the child’s care under § 35(b) and for the child in other personal
matters under § 30.
8
In addition, while the parent with whom the child resides has the authority
under § 35b to determine where the child will live within Norway, § 43 of the
Children Act grants a parent with joint parental responsibility, here Furnes,
decision-making authority over whether the child lives outside Norway.
Specifically, § 43 provides that both parents must consent to the child moving
abroad, as follows:
Moving abroad with the child
If one of the parents has sole parental responsibility, the other
parent may not object to the child moving abroad. If the parents have
joint parental responsibility, both of them must consent to the child
moving abroad.
If the parents disagree as to who shall have parental responsibility
or with whom the child shall live permanently, the child must not move
abroad until the matter has been decided.
Id. § 43 (emphasis added). Consequently, Plaintiff Furnes’s joint parental
responsibility effectively gave him the right, generally referred to as a “ne exeat”
right, to determine whether Jessica can live outside of Norway with her mother.
C. Removal
During the evidentiary hearing, Plaintiff Furnes introduced a Bergen police
report summarizing how the removal of Jessica to the United States occurred and
his subsequent efforts to locate his daughter. Furnes also testified about these
events. The district court found that Furnes’s testimony was credible, that the
9
police report accurately summarized his efforts to locate his daughter, and that
Furnes did not acquiesce in the removal of Jessica to the United States.2
In May of 2001, Defendant Reeves approached Plaintiff Furnes and
requested a modification to the access schedule. She proposed that Jessica stay
with Furnes for a longer period than scheduled in May 2001 and in the fall of 2001
in exchange for Furnes’s consent to Jessica spending the entire summer in the
United States with Reeves. According to Furnes, Reeves explained that her brother
was getting married in the United States, and Reeves wanted to take Jessica to
spend the summer of 2001 with her family. Furnes agreed, with the clear
expectation that Jessica would return to start school in Norway in the Fall of 2001.
According to Furnes, Defendant Reeves neither returned nor contacted him to
inform him of her whereabouts.
Plaintiff Furnes presented evidence that, when Reeves failed to contact him
at the end of the summer 2001, he began ceaseless efforts to locate Defendant
Reeves and Jessica, at first in Bergen and Oslo and then in the United States. He
first tried calling and writing to Reeves at her home in Bergen, with no response.
He then contacted Reeves’s landlord, who informed him that she had moved to
2
We note that Defendant Reeves’s account of these facts is substantially different from
Plaintiff Furnes’s, but the district court did not credit her account.
10
Oslo. Furnes then contacted the local post office and was informed that Reeves’s
mail was being forwarded to her sister’s address in Oslo. Later in the fall of 2001,
Furnes made numerous telephone calls to Reeves’s sister in Oslo, who promised to
pass the messages on to Reeves. When Reeves failed to return any of the calls,
Furnes contacted Reeves’s sister’s husband at his place of business and begged him
to tell Plaintiff Furnes where Reeves was, but Reeves’s sister’s husband denied any
knowledge of Reeves’s whereabouts.
On March 25, 2002, Plaintiff Furnes filed a police report at the Bergen
Police Station, which summarized his above efforts to locate his daughter. He was
ultimately told by Norwegian authorities that Defendant Reeves probably was not
in Oslo and that there was little else they could do to locate Reeves or Jessica. On
March 27, 2002, Furnes filed a petition for the return of his daughter with the
Norwegian Ministry of Justice, who helped Furnes in his attempts to locate his
daughter. Plaintiff Furnes then began searching for Reeves and Jessica in the
United States. In August 2002, Plaintiff Furnes traveled to Tampa, Florida and
Atlanta, Georgia, where he had been informed that Reeves might be living, to
search for Reeves and Jessica.
D. ICARA Petition
11
On November 4, 2002, Plaintiff Furnes filed a Petition for Return of Child to
Petitioner under ICARA in the district court in Atlanta, Georgia. Furnes’s ICARA
petition alleged that Defendant Reeves wrongfully removed Jessica from Norway
in violation of Furnes’s joint custody rights and sought her return pursuant to
Article 12 of the Hague Convention on the Civil Aspects of International Child
Abduction3 (the “Hague Convention” or “Convention”) and 42 U.S.C. § 11603(b).
After an evidentiary hearing, the district court concluded that Defendant
Reeves’s removal of Jessica from Norway violated Plaintiff Furnes’s rights to his
daughter under Norwegian law. The district court further found (1) that Plaintiff
Furnes was a credible witness, (2) that Furnes had not acquiesced in Defendant
Reeves’s removal of Jessica from Norway, (3) that Furnes had been unable to
locate Reeves and Jessica for many months after the removal, and (4) that his
ICARA petition had been timely filed within one year of removal, in accordance
with the Hague Convention.
The district court, however, concluded that Plaintiff Furnes was exercising
mere access rights coupled with a ne exeat right under Norwegian law – not
3
Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980,
T.I.A.S. No. 11670, 1343 U.N.T.S. 89, reprinted in 51 Fed.Reg. 10,494 (1986). For an overview
of the structure and implementation of the Hague Convention and a list of many law review
articles about the Hague Convention, see Linda Silberman, Hague International Child Abduction
Convention: A Progress Report, 57 Law & Contemp. Probs. 209 (1994).
12
custody rights – over Jessica at the time of removal. On that basis, the district
court decided that it was not authorized to order the return of the child pursuant to
the Convention and ICARA, and denied the petition.
On March 7, 2003, Plaintiff Furnes sought a clarification of his rights from
the Bergen City Recorder on an ex parte basis.4 On March 11, 2003, the Bergen
City Recorder issued a ruling discussing § 30 and § 35b of the Norwegian Children
Act and clarifying that Defendant Reeves’s emigration with her daughter violated
Furnes’s “right of codetermination with regard to the child,” as follows:
The legal point of departure is that, pursuant to the settlement in court of
February 28 2001, the parties shall have joint legal custody of the child.
That entails that, pursuant to section 30 of the Norwegian Children Act,
the parties shall jointly make all of the necessary decisions about the
child’s circumstances, in which the child herself is unable to take part
because of her maturity, etc. According to an express provision of
section 43, paragraph 1 of the Children Act, both parties must agree
before the child can emigrate from Norway.
According to the settlement in court, the defendant, Pamela Kay
Reeves, shall have the daily care and control of the parties’ joint child.
Pursuant to section 35b of the Children Act, this entails the authority to
make decisions about the child’s daily circumstances, including moving
within the borders of Norway. This authority does not include
emigrating abroad with the child.
According to the documents of the case, the court presumes that
Pamela Kay Reeves did not ask for the plaintiff’s consent before she
emigrated with the child to the USA in 2001. The emigration with the
4
This ruling was entered by the Bergen City “Recorder,” which the parties advise us is a
judge on the Bergen City court.
13
child was thereby in violation of [Tom] A. Furnes’s right of
codetermination with regard to the child.
This ruling indicated that, pursuant to § 30, Furnes and Reeves “shall jointly make
all of the necessary decisions about the child’s circumstances,” and that pursuant to
§ 35b, Reeves had “the authority to make decisions about the child’s daily
circumstances, including moving within the borders of Norway,” but not to
emigrate abroad with the child.
Plaintiff Furnes then filed a motion for reconsideration with the federal
district court on the basis of the Bergen City Recorder’s ruling. The district court
denied the motion.
II. STANDARD OF REVIEW
“We review the district court’s factual findings for clear error and its legal
conclusions de novo.” Lops v. Lops, 140 F.3d 927, 935 n.6 (11th Cir. 1998)
(citation omitted).
III. DISCUSSION
Plaintiff Furnes seeks return of his daughter to Norway pursuant to the
Hague Convention, as adopted in the United States in ICARA. See 42 U.S.C.
§§ 11601-11611. The paramount issue in this case is whether Plaintiff Furnes’s
rights to his daughter under Norwegian law are the type of rights that entitle him to
14
the return of his child under the express terms of the Hague Convention. We
conclude that they are.
In so doing, we first review the terms and purposes of the Hague
Convention. We then analyze the extent and nature of Plaintiff Furnes’s
Norwegian law rights, place them in the framework of the Hague Convention’s
terms, and explain why Plaintiff Furnes is entitled to return of Jessica to Norway.
Finally, we address Defendant Reeves’s two affirmative defenses.
A. Purpose of the Hague Convention
The Hague Convention was created in 1980 with the stated purpose “to
protect children internationally from the harmful effects of their wrongful removal
or retention and to establish procedures to ensure their prompt return to the State of
their habitual residence, as well as to secure protection for rights of access.”
Convention, intro. The Hague Convention specifies that its objects are: “a) to
secure the prompt return of children wrongfully removed to or retained in any
Contracting State; and b) to ensure that rights of custody and of access under the
law of one Contracting State are effectively respected in the other Contracting
States.” Convention, Art. 1.
To effect these general goals, Articles 3, 5, 12, and 13 of the Hague
Convention together establish the remedy of return of a child to his or her country
15
of habitual residence and set forth the circumstances under which the return remedy
is available. Convention, Arts. 3, 5, 12, 13. The Convention is designed to restore
the pre-abduction status quo and to deter parents from crossing international
borders in search of a more sympathetic forum. Lops, 140 F.3d at 936 (citing
Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir. 1996)).
B. Hague Convention’s Return Remedy
Article 12 of the Hague Convention establishes the general rule that a child
who has been “wrongfully removed or retained” within the meaning of the
Convention shall be returned unless more than a year has elapsed between the
removal and the date of commencement of the proceedings and the child has
become settled. Convention, Art. 12; see 42 U.S.C. § 11601.5
Article 3 of the Hague Convention outlines the conduct that is “wrongful”
for purposes of Article 12. Pursuant to Article 3, the removal or retention of a
5
In this regard, Article 12 provides in relevant part:
Where a child has been wrongfully removed or retained in terms of Article 3 and, at
the date of the commencement of the proceedings before the judicial or
administrative authority of the Contracting State where the child is, a period of less
than one year has elapsed from the date of the wrongful removal or retention, the
authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have
been commenced after the expiration of one year referred to in the preceding
paragraph, shall also order the return of the child, unless it is demonstrated that the
child is now settled in its new environment.
Convention, Art. 12 (emphasis added).
16
child is wrongful if it violates the “rights of custody” of another person, either
jointly or alone, and those “rights of custody” were actually being exercised at the
time of the removal or retention or would have been exercised absent the removal
or retention. Convention, Art. 3. Article 3 provides:
The removal or the retention of a child is to be considered wrongful
where –
a) it is in breach of rights of custody attributed to a person, an institution
or any other body, either jointly or alone, under the law of the State in
which the child was habitually resident immediately before the removal
or retention; and
b) at the time of removal or retention those rights were actually
exercised, either jointly or alone, or would have been so exercised but for
the removal or retention.
Id. (emphasis added); see Lops, 140 F.3d at 935.
The Hague Convention does not include an exhaustive list of rights that
constitute “rights of custody.” However, Article 5 does distinguish between “rights
of custody” and “rights of access” as follows:
a) “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;
b) “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.
Convention, Art. 5 (emphasis added). Accordingly, “rights of custody” is a term
expressly defined in the Convention. In American courts, we tend to think of
custody rights primarily in the sense of physical custody of the child. However, in
17
applying the Hague Convention, we must look to the definition of “rights of
custody” set forth in the Convention and not allow our somewhat different
American concepts of custody to cloud our application of the Convention’s terms.
Specifically, in this case we must think of “rights of custody” as including “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.
Further, Article 13 of the Convention sets forth certain narrow exceptions to
Article 12's mandatory-return rule. Under Article 13, a court is not bound to order
the child’s return if the person opposing the return establishes that “the person,
institution or other body having the care of the person of the child was not actually
exercising the custody rights at the time of removal or retention, or had consented
to or subsequently acquiesced in the removal or retention . . . .” Convention,
Article 13(a).6
In sum, the Hague Convention provides that the removal or detention of a
child from his or her State of habitual residence is wrongful if the petitioner
establishes by a preponderance of the evidence that: (1) the child has been removed
or retained in violation of the petitioner’s “rights of custody,” i.e., “rights relating
6
Article 13 provides for certain other narrow exceptions to the mandatory-return rule,
none of which is implicated here.
18
to the care of the person of the child and, in particular, the right to determine the
child’s place of residence,” either jointly or alone; and (2) “at the time of removal
or retention those rights were actually exercised, either jointly or alone, or would
have been so exercised but for the removal or retention.” Convention, Arts. 3, 5;
42 U.S.C. § 11603(e)(1)(A); see Lops, 140 F.3d at 936.7 Once the petitioner
satisfies this burden, the child must be returned to her State of habitual residence
unless the respondent establishes one of these affirmative defenses: (1) that the
petition for return was filed more than one year from the removal or retention and
the child is well-settled in her new environment, or (2) that the petitioner “was not
actually exercising the custody rights at the time of the removal or retention, or had
consented to or subsequently acquiesced in the removal or retention.” Convention,
Arts. 12, 13; 42 U.S.C. § 11603(e)(2)(B).8
C. Furnes’s Norwegian Law Rights Under §§ 30 and 35b
7
“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 that State.” Convention, Art. 3.
8
There are two other available affirmative defenses to the respondent that are not at issue
in this case. Return is not required if the respondent establishes by clear and convincing
evidence that (1) “there is a grave risk that his or her return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable situation,” Convention, Art.
13(b); or (2) the return of the child “would not be permitted by the fundamental principles of the
requested State relating to the protection of human rights and fundamental freedoms,” id. Art. 20.
42 U.S.C. § 11603(e)(2)(A). See infra note 19; see also Ostevoll v. Ostevoll, 2000 WL 1611123
at 11 (S.D. Ohio 2000).
19
The paramount issue in this case is whether Plaintiff Furnes’s rights to his
daughter under Norwegian law are “rights of custody,” as defined under the Hague
Convention. The parties agree that Jessica was a habitual resident of Norway from
her birth in 1996 until immediately before her removal in 2001, and that Plaintiff
Furnes had certain parental rights with regard to Jessica. However, they dispute
whether Furnes’s rights under Norwegian law, either individually or together, are
“rights of custody,” as defined under the Hague Convention. The Convention
defines “rights of custody” to 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.”
Convention, Art. 5(a). Thus, the question becomes whether Furnes’s rights under
Norwegian law are “rights relating to the care of the person of the child.”9
The Agreement provided that Furnes shall have “joint parental
responsibility” over Jessica, and the Norwegian Children Act provides what
parental rights are conferred by “joint parental responsibility.” However, the
parties dispute the proper characterization of the rights attendant to “joint parental
responsibility” under Norwegian law. Plaintiff Furnes argues that § 30 and § 43 of
9
Plaintiff Furnes had visitation or access rights under the Agreement. The parties agree
that the Convention distinguishes between “rights of custody” and “rights of access” and
provides the return remedy only for violations of rights of custody. Accordingly, Plaintiff
Furnes’s rights of access, although valuable, do not help him here.
20
the Children Act provide him with rights of custody as defined by the Convention.
We address each section.
Section 30 of the Norwegian Children Act establishes general rights and
duties of a person who has parental responsibility, including “the right and the duty
to make decisions for the child in personal matters.” Children Act, § 30 (emphasis
added). The Norwegian Children Act does not define further “decisions for the
child in personal matters.” We believe that the right “to make decisions for the
child in personal matters” necessarily embraces a broad range of personal
decisions, such as decisions regarding the personal care, protection, maintenance,
and finances of the child. Further, the child’s care would include everyday
decisions about the child’s shelter, food, clothing, education, and medical needs.
However, this broad decision-making power granted persons with parental
responsibility is limited by § 35b, which provides:
If the parents have joint parental responsibility, but the child lives
permanently with only one of them, the other parent may not object to the
parent with whom the child lives making decisions concerning important
aspects of the child’s care, such as the question of whether the child shall
attend a day-care centre, where in Norway the child shall live and other
major decisions concerning everyday life.
21
Children Act, § 35b (emphasis added).10 Section 35b’s provision that Plaintiff
Furnes cannot object to Defendant Reeves making decisions concerning “important
aspects of the child’s care” clearly subsumes a measure of his authority to make
“decisions for the child in personal matters” granted under § 30. The question then
is whether any of his § 30 rights survives the application of § 35b. We believe that
they do.
It is a fundamental rule of statutory interpretation that, within an act, the
same words have the same meanings and different words have different meanings.
See United States v. Gonzales, 520 U.S. 1, 5, 117 S. Ct. 1032, 1035 (1997)
(“Where Congress includes particular language in one section of a statute but omits
it in another section of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion.”) (quoting
Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 300 (1983)) (internal
quotation marks omitted); Iraola & CIA, S.A. v. Kimberly-Clark Corp., 232 F.3d
854, 859 (11th Cir. 2000). This presumption is no less compelling where the
legislation is foreign, as we assume that the same logical principles governing
10
If the realm of “decisions for the child in personal matters” in § 30 (granted parents with
joint parental responsibility) did not encompass the care of the child, then there would be no need
for § 35b to limit the rights of a parent with joint responsibility in the circumstances where the
child lives permanently with one parent with joint parental responsibility. This furthers our
conclusion that the right “to make decisions for the child in personal matters” encompasses
decision-making authority over the child’s care.
22
Congress also guide the Norwegian legislature. Indeed, no party in this case has
argued otherwise.
Because the language granting authority to Plaintiff Furnes in § 30 differs
from the limiting language of § 35, we must presume that the difference is
intentional rather than accidental. The Norwegian legislature easily could have
specified in § 35b that the other parent could not object to the parent with whom
the child lives making “decisions for the child in personal matters.” Had the
legislature elected to use the language of § 30 in § 35b, it would have entirely
negated Furnes’s right to make “decisions for the child in personal matters,” as his
child lives permanently with her mother. Because it did not, we conclude: (1) that
the parent with whom the child does not reside retains the joint right to make
certain “decisions for the child in personal matters”; (2) that the realm of “decisions
for the child in personal matters” in § 30 encompasses the child’s care and is
broader than and extends beyond those “concerning important aspects of the child’s
care” in § 35b; (3) that Furnes is therefore empowered by § 30 to make some
decisions that affect personal matters, including some decisions that affect the
child’s care, but do not concern “important aspects of the child’s care”; and (4) that
some of those retained “decisions for the child in personal matters” fall within the
23
ambit of decisions relating to the “care of the person of the child” within the
meaning of Article 5 of the Convention.11
Accordingly, we determine that § 30 alone may well grant Plaintiff Furnes a
“right of custody” as defined under the Convention. Our ultimate decision that
Plaintiff Furnes has such rights of custody, however, need not, and thus does not,
depend wholly on this determination. As explained below, Furnes’s ne exeat right
under § 43 of the Norwegian Children Act grants Furnes the substantive right
(albeit a joint right) to determine whether the child lives within or outside Norway,
and thus the right to determine jointly with Reeves the child’s place of residence.
We conclude that this ne exeat right in § 43, especially in the context of Furnes’s
retained rights under § 30, constitutes a “right of custody” as defined in the
Convention.
D. Furnes’s Ne Exeat Right Under § 43
Section 43 of the Norwegian Children Act provides that if both parents have
joint parental responsibility, both of them must consent to the child leaving Norway
and living abroad. We conclude that this ne exeat right grants Plaintiff Furnes a
11
Our analysis above is based on our view that “decisions for the child in personal
matters” encompass more than just the child’s care. However, even assuming that “decisions for
the child in personal matters” is the functional equivalent of decisions regarding “aspects of the
child’s care,” we note that § 35b excludes only “important aspects of the child’s care,” not all
aspects of the child’s care. Thus, Plaintiff Furnes would retain rights regarding some aspects of
the child’s care under either interpretation.
24
right of custody under the Hague Convention. Our conclusion turns on the
definition of “rights of custody” in the Convention, but it is further supported by
the history and purposes of the Convention and the decisions of courts in our sister
signatories.
Article 5 of the Hague Convention defines “rights of custody” to 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.” Convention, Art. 5. The question, then,
is whether the ne exeat right amounts to “the right to determine the child’s place of
residence.” We conclude that it does.
In analyzing whether a parent has custodial rights under the Hague
Convention, it is crucial to note that the violation of a single custody right suffices
to make removal of a child wrongful. That is, a parent need not have “custody” of
the child to be entitled to return of his child under the Convention; rather, he need
only have one right of custody. Further, he need not have a sole or even primary
right of custody. Article 3 of the Convention specifies that the removal or retention
of a child is wrongful if it is in breach of “rights of custody attributed to a person
. . . either jointly or alone.” Id. Art. 3(a) (emphasis added). Accordingly, if
Plaintiff Furnes shares with Defendant Reeves a joint right to determine Jessica’s
place of residence, he has a right of custody under the Hague Convention.
25
Under Norwegian law, the right to determine the child’s place of residence is
divided, with different rules governing the decision of where to live within Norway
on the one hand and the decision to live outside Norway on the other. Defendant
Reeves is entitled to decide where Jessica will live within the borders of Norway
and Plaintiff Furnes cannot object. Consequently, Furnes has no authority to
decide, for example, whether Jessica will live in the city or the country, in Bergen
or Oslo, with her mother alone or with her extended family, so long as Jessica
resides within Norway.
Plaintiff Furnes does, however, have the right to decide whether or not
Jessica can move outside Norway with her mother, and thereby has the joint right
to decide whether Jessica’s place of residence will be outside or within Norway.
The Convention does not explicitly define the term “place of residence.” In
light of the context of the Hague Convention, we believe that the right to determine
whether the child lives within or outside Norway constitutes a right to determine
the child’s place of residence. The Hague Convention was designed to provide a
remedy not for whether Jessica should live in Bergen or Oslo within Norway
(Reeves’s right), but for whether Reeves should be able to take Jessica across
international borders. Thus, in our view, the only logical construction of the term
“place of residence” in the Convention would necessarily encompass decisions
26
regarding whether Jessica may live outside of Norway. Therefore, what country a
child lives in, as opposed to what city or house within Norway, constitutes a right
to determine a child’s place of residence under Article 5 of the Convention and
thus a right of custody under the Convention. Given that the goal of the Hague
Convention is to deter international abduction, we readily interpret the ne exeat
right as including the right to determine the child’s place of residence because the
ne exeat right provides a parent with decision-making authority regarding the
child’s international relocation.
Moreover, even assuming that the child’s “place of residence” narrowly
refers to the particular house in which the child lives, Plaintiff Furnes nevertheless
shares with Defendant Reeves the right to determine Jessica’s place of residence
outside of Norway. Plaintiff Furnes enjoys the power not only to deny consent to
Jessica’s moving abroad, but also the power to grant consent subject to whatever
conditions he chooses. For example, Furnes could consent to Jessica’s removal
from Norway on the condition that he receive greater visitation rights, or that she
live in a particular city or near a particular airport, or even on the condition that she
live in a particular house in the United States. Thus, although § 43 of the Children
Act does not explicitly provide Furnes with the right to determine Jessica’s specific
place of residence, he effectively has that authority (jointly with Defendant Reeves)
27
where Reeves seeks to remove Jessica from Norway. Furnes’s right to determine
Jessica’s place of residence outside Norway is equal to that of Defendant Reeves.
Under these circumstances, we conclude that Norwegian law provides Furnes and
Reeves with a joint right to determine Jessica’s place of residence.
The fact that Plaintiff Furnes does not share in one aspect of that right (i.e.,
the right to determine Jessica’s place of residence within Norway) does not affect
this conclusion. Just as there is no requirement in the Convention that a custody
right be exercised exclusively by the parent seeking return, there is no requirement
that the right be exercised predominantly by that parent. Plaintiff Furnes maintains
under Norwegian law a right to determine the place of Jessica’s residence,
irrespective of whether he exercises that right to a greater, lesser, or equal extent as
does Defendant Reeves.
Further, even if Plaintiff Furnes’s ne exeat right is (we believe incorrectly)
viewed as a mere “veto right” or limitation on Defendant Reeves’s right to
determine Jessica’s place of residence, we nevertheless believe that the ne exeat
right under Norwegian law is a right of custody under the Convention. The right to
determine the place of the child’s residence is just one example of a custody right
under the Hague Convention. More generally, rights of custody include rights
“relating to the care of the person of the child.” Convention, Art. 5. The ne exeat
28
right under Norwegian law certainly establishes a right, no matter how minimally
or expansively that right is defined, to affect the child’s place of residence. As the
Convention’s definition of “rights of custody” implicitly acknowledges, the
determination of the child’s place of residence is a crucial aspect of the child’s
care. Thus, even assuming arguendo that Plaintiff Furnes does not have the right to
determine Jessica’s place of residence, he has at the very least a veto right relating
to the determination of her place of residence – that is, a right “relating to the care
of the person” of Jessica. Convention, Art. 5. As such, the ne exeat right in § 43
provides Furnes with a right of custody over Jessica as defined by the Hague
Convention.
Finally, Plaintiff Furnes’s ne exeat right endows him with significant
decision-making authority over the child’s care. By requiring that Jessica remain
in Norway, Furnes can ensure that Jessica will speak Norwegian, participate in
Norwegian culture, enroll in the Norwegian school system, and have Norwegian
friends. That is, Plaintiff Furnes effectively can decide that Jessica will be
Norwegian. The right to determine a child’s language, nationality, and cultural
identity is plainly a right “relating to the care of the person of the child” within the
meaning of the Convention.
E. Stated Purpose of Hague Convention
29
Our conclusion here is consistent with the history and stated purposes of the
Convention. As noted previously, the stated purpose of the Hague Convention is
“to protect children internationally from the harmful effects of their wrongful
removal or retention and to establish procedures to ensure their prompt return to
the State of their habitual residence, as well as to secure protection for their rights
of access.” Convention, intro. The Convention further states that its objects
include ensuring “that rights of custody and of access under the law of one
Contracting State are effectively respected in other Contracting States.”
Convention, Art. 1(b).12
This Court previously has emphasized that “[t]he Hague Convention is
intended to ‘restore the pre-abduction status quo and to deter parents from crossing
borders in search of a more sympathetic court.’” Lops, 140 F.3d at 936 (citing
Friedrich, 78 F.3d at 1064). In this case, the Convention’s purposes are served by
ordering return of Jessica to Norway. Plaintiff Furnes and Defendant Reeves
12
As the report containing the official history and commentary of the Convention states,
“the intention [of the Convention] is to protect all the ways in which custody of children can be
exercised,” and the Convention favors “a flexible interpretation of the terms used, which allows
the greatest possible number of cases to be brought into consideration.” Elisa Pérez-Vera,
Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents
of the Fourteenth Session (Child Abduction) 426, 446-47, ¶¶ 71, 67 (1981). These
considerations do not allow us to order return of a child simply for violations of access rights, no
matter how egregious. They do, however, militate in favor of a rule allowing for the most
appropriate and effective means of enforcement of existing rights of custody consistent with the
terms of the Hague Convention.
30
maintain “joint parental responsibility” under Norwegian law. While Defendant
Reeves has primary physical custody and more decision-making authority than
Furnes, Furnes nonetheless maintains joint parental rights under Norwegian law
with regard to the care of his child. Furnes even has the right to determine whether
Reeves can move Jessica’s residence from Norway to the United States. Under
these circumstances, sending the child back to Norway best respects the parties’
rights under Norwegian law and the Hague Convention.
A return order effectively maintains the status quo with regard to custody of
Jessica. A return order will not effect a change in custody (as Defendant Reeves
argues) because she is free to accompany her child back to Norway and retain
custody. Indeed, upon return to Norway, Defendant Reeves can seek a change in
the Agreement to allow her to move with Jessica to the United States. On the other
hand, the denial of Plaintiff Furnes’s ICARA petition would allow Defendant
Reeves to nullify the Agreement approved by the Norwegian Gulating Court of
Appeals and to usurp Furnes’s Norwegian law rights to care for his child. The
specific purpose of the Hague Convention was to deter and amend the exact type of
abduction in this case, not to bless it.
31
F. International Cases
The United States Supreme Court has established that in interpreting the
language of treaties, “we find the opinions of our sister signatories to be entitled to
considerable weight.” Air France v. Saks, 470 U.S. 392, 404, 105 S. Ct. 1338,
1345 (1985) (internal quotation marks and citations omitted). Although the
decisions of foreign courts are not essential to our analysis, our reasoning and
conclusions are in harmony with the majority of the courts of our sister signatories
that have addressed this treaty issue.
Specifically, courts in the United Kingdom, Australia, South Africa, and
Israel have adopted a broad view of “rights of custody,” and ordered return under
the Hague Convention where a child is removed in violation of a ne exeat right.
Those courts have stressed the need for enforcement of custody orders (including
ne exeat clauses), the spirit of the Convention, and the desirability of uniformity in
ordering the return of children removed in violation of a ne exeat provision. See C.
v. C., 1 W.L.R. 654, 658 (Eng. C.A. 1989) (holding that a ne exeat right provided
the father with a measure of control over the child’s place of residence sufficient to
create a right of custody under the Hague Convention); In the Marriage of: Jose
Garcia Resina Appellant/Husband and Muriel Ghislaine Henriette Resina
Respondent/Wife, [No. 52] (1991) (Austl. Fam.),¶ 26 (adopting the approach of C.
32
v. C. based on (1) the desirability of uniformity among common law countries, and
(2) its view that return of a child removed in violation of a ne exeat order is the
“result which is in conformity with the spirit of the Convention which is to ensure
that children who are taken from one country to another wrongfully, in the sense of
breach of court orders or understood legal rights, are promptly returned to their
country so that their future can properly be determined within that society”);
Sonderup v. Tondelli, 2000(1) Constitutional Court of South Africa 1171, ¶ 25
(CC) (holding that the mother, who had custody under a British Colombia order,
was effectively entitled to exercise her custody rights only in British Colombia
(save an authorized period), and her failure to return the child to British Colombia
as required under the order was a breach of the conditions of her custody as well as
the father’s rights); C.C. (T.A.) 2898/92, Foxman v. Foxman ,1992 (H.C.) (Isr.)
(concluding that the term “custodial rights” under the Hague Convention should be
broadly construed to include cases in which parental consent is required to remove
a child from the country of residence).
The English Court of Appeal has also suggested that under some
circumstances a court entering the custody order in the child’s country of habitual
residence may itself have custody rights that are violated by the removal of the
child without the court’s consent. B. v. B., 3 W.L.R. 865 (Eng. C.A. 1993). All
33
E.R. 144 (C.A.) (Eng.) (noting that under Article 3 an “institution or other body”
may hold custody rights, and determining that removal of the child from a court’s
jurisdiction could violate the court’s custody rights).
We acknowledge that foreign courts have not unanimously agreed with our
decision here. Canadian and French courts have taken the opposite position,
concluding that removal of a child in violation of a ne exeat right does not
constitute wrongful removal under the Hague Convention. However, the decisions
of the English, Australian, South African, and Israeli courts cited above resonate
more richly than those of the French and Canadian courts, due to their more
persuasive reasoning as well as their stronger numbers. Indeed, the Canadian
Supreme Court’s suggestion on two occasions that a ne exeat right falls short of a
custody right has been dicta both times. Thomson v. Thomson, [1994] 3 S.C.R.
551 (Can.) (ordering return of a child based on violation of a ne exeat clause in an
interim custody order to preserve jurisdiction in the Scottish court for a final
determination, but noting in dicta that the return remedy would be unavailable in
the context of a final order because the purpose of such an order was simply to
protect access rights); D.S. v. V.W. [1996] 2 S.C.R. 108 (Can.) (holding that a
return remedy was not available for violation of an implicit removal restriction, and
stating in dicta that such a violation would concern only access rights, not custody
34
rights). At least one French court has refused to order return of children to the
United Kingdom because it viewed the custody order requiring that the mother
raise her children in England and Wales as an impermissible restriction on the
mother’s right to expatriate. T.G.I. Periguex, Mar. 17, 1992, Ministere Public v.
Mme. Y., D.S. Jur. 1992 (Fr.). We view as misguided the French court’s focus on
the mother’s right to expatriate rather than the issues of custody set forth in the
Hague Convention.13
G. Other Circuits
Our conclusion today diverges from those of the Second, Fourth, and Ninth
Circuits. The seminal United States Circuit Court case on the issue is Croll v.
Croll, 229 F.3d 133 (2d Cir. 2000). The Fourth and Ninth Circuits essentially
adopted the Croll majority’s reasoning, as did the district court in this case. See
Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir. 2003), cert. denied 124 S.Ct.
13
We note that the French court’s decision has been correctly criticized by the dissent in
the Second Circuit case of Croll v. Croll, 229 F.3d 133 (2d Cir. 2000). As noted by the Croll
dissent,
[D]eciding a Hague Convention case on the ground that the custodial parent must
remain free to expatriate her child begs the crucial interpretative question of who, for
purposes of the Convention, are ‘custodial parents’ in the first place. Nothing in the
Convention suggests that one parent’s right to expatriate overrides another parent’s
rights of custody. On the contrary, the paramount importance the Convention places
on custodial rights suggests that where custodial rights and expatriation rights
conflict, the latter must yield to the former.
Id. at 152 (Sotomayor, J., dissenting).
35
805 (2003); Gonzalez v. Gutierrez, 311 F.3d 942, 954 (9th Cir. 2002). We,
however, join the powerful Croll dissent in disagreeing with the majority’s
conclusions.14 We first review the facts in Croll.
In Croll, Mrs. Croll removed her daughter Christina from Hong Kong to the
United States in violation of her custody agreement with Mr. Croll. Croll, 229 F.3d
at 135. Mr. Croll filed an ICARA petition seeking Christina’s return to Hong
Kong. Id. Under their agreement, Mrs. Croll maintained sole “custody, care, and
control” of Christina, and Mr. Croll had a right of “reasonable access.” Id. The
agreement also provided that Christina “not be removed from Hong Kong until she
attains the age of 18 years” without leave of court or consent of the other parent.
Id. The district court concluded that this ne exeat clause created rights of custody
under the Convention and granted Mr. Croll’s petition. Id. at 136.
In reversing, the Croll majority relied on three main conclusions: (1) that Mr.
Croll’s ne exeat right is not a right to determine the child’s place of residence, but
only a limitation on Mrs. Croll’s right to determine the child’s place of residence;
(2) that his ne exeat right could not be exercised absent removal; and (3) that the
history and drafters’ intent of the Hague Convention supported the view that a ne
14
At least one state court has determined, as we do, that custody rights are created by ne
exeat clauses. See Janakakis-Kostun v. Janakakis, 6 S.W.3d 843 (Ky. Ct. App. 1999), cert.
denied, 531 U.S. 811 (2000).
36
exeat right is not custodial. Id. at 137-143. Our case involves Norwegian law and
is different from Croll because Plaintiff Furnes’s ne exeat right must be considered
in the context of his additional decision-making rights by virtue of his joint
“parental responsibility” under Norwegian law. In any event, we believe the Croll
majority’s analysis of the ne exeat right is flawed for several reasons.
1. Ne Exeat Right Is Not A Mere Limitation
In reaching its view that the ne exeat right was only a limitation, the Croll
majority relied in part on how the particular agreement in Croll gave Mrs. Croll the
sole “custody, care, and control” of the child, and thus the sole right to determine
Christina’s place of residence within Hong Kong. Id. at 139-40. However, the
Convention specifically provides that a custody right may be exercised either
jointly or alone.
In this case, it is clear that Plaintiff Furnes did not have the right to
determine alone the place of Jessica’s residence. However, neither did Defendant
Reeves. Rather, Furnes and Reeves each possessed elements of that place-of-
residence right, which they exercised jointly. This fact is unchanged by the Croll
majority’s naked characterization of a ne exeat right as a “limitation” on the right
of the sole custodial parent rather than an independent right of the otherwise non-
custodial parent. Indeed, we could also characterize Defendant Reeves’s right to
37
determine the precise location of Jessica’s residence within Norway as a mere
“limitation” (albeit a more expansive one) on Plaintiff Furnes’s right to keep his
daughter near him. The more natural characterization, however, is that Defendant
Reeves and Plaintiff Furnes share a divided right to determine Jessica’s place of
residence, and that each of their rights serves as a limitation on the other’s. Stated
simply, they possess a joint right to determine Jessica’s place of residence.15 Our
analysis is also consistent with the concept of “joint parental responsibility”
recognized under Norwegian law. In contrast to the agreement in Croll, the
Agreement here granted Plaintiff Furnes joint parental responsibility, which under
the Norwegian Children Act granted Furnes the right to share decision-making
authority with Reeves. See Children Act, §§ 30, 35b, 43.
2. A Ne Exeat Right Can Be Exercised Without Wrongful Removal
The Croll majority’s conclusion was equally informed by its reasoning that
the ne exeat clause did not create a right that Mr. Croll could have exercised absent
15
As aptly stressed by the Croll dissent,
The Hague Convention provides a remedy not when a parent moves the child from
city to suburb or from home to boarding school, but when he or she transports the
child across national borders. In light of this international context, the term “place
of residence,” as used in the Convention, logically contemplates decisions regarding
international relocation. Accordingly, the right to choose the country in which a
child lives, like the authority over the child’s more specific living arrangements,
constitutes a “right to determine the child’s place of residence” under Article 5, and
thus a “right of custody” under the Convention.
Croll, 229 F.3d at 148 (Sotomayor, J., dissenting).
38
Christina’s removal, as required for return under Article 3 of the Convention.
Accordingly, the Croll majority concluded that the rights created by the ne exeat
clause could not constitute rights of custody under the Convention. Croll, 229 F.3d
at 140.
The problem with the majority’s reasoning, in our view, is that it incorrectly
assumes that a ne exeat right could be exercised only to prevent a wrongful
removal; it ignores the situation in which the custodial parent complies with the ne
exeat clause and requests the non-custodial parent’s consent to move abroad with
the child. Here, for example, if Defendant Reeves had sought Plaintiff Furnes’s
consent to Jessica’s moving abroad – as she was required by Norwegian law to do
prior to relocating – Furnes would have had the opportunity to exercise his ne exeat
right by granting or withholding consent. Accordingly, the ne exeat right is
capable of being exercised in the absence of wrongful removal. Indeed, it is likely
that Plaintiff Furnes would have exercised his ne exeat rights in the absence of the
wrongful removal.
3. Purpose and Drafters’ Intent
We also do not share the Croll majority’s concern that if a ne exeat clause
alone conferred “rights of custody” upon a parent, a court could be compelled to
return a child to a parent “who lacks the right or responsibility to give care or to
39
decide who should give it, or even to a parent with access who has been found unfit
to have custody.” Id. at 141. The custody order in Croll placed all burdens of care
and custody on Mrs. Croll, and the Croll majority feared that an order returning
Christina to Mr. Croll would effectively transfer custody of Christina to a parent
with no corresponding duty to provide for her. Id. The Croll majority stressed that
the Convention’s goal is to enforce custody rights – not to alter them by ordering
return of a child to a non-custodial parent. Id. On that basis, the majority
concluded that a rule requiring return for violation of a ne exeat clause would make
the Convention unworkable and could not accurately reflect the intent of the
drafters. Id. at 140-41.16
16
In further support of its conclusion with regard to the drafters’ intent, the Croll majority
noted that the chair of the Hague Conference Commission that drafted the Convention has
written that the right to veto relocation does not amount to the type of custody right contemplated
in Article 3, as follows:
[B]reach of a right simply to give or to withhold consent to changes in a place of
residence is not to be construed as a breach of rights of custody in the sense of Article
3. A suggestion that the definition of “abduction” should be widened to cover this
case was not pursued.
Id. at 141 (quoting A. E. Anton, The Hague Convention on International Child Abduction, 30
Int’l & Comp. L.Q. 537, 546 (1981)). However, as the Croll dissent correctly noted, the above
quote represents the view of Mr. Anton alone and not necessarily the approach of the
Convention.
We further point out that the legislative history and legal scholarship are divided and
none is authoritative. For example, during the debate on various proposals at the final diplomatic
conference on the Convention in October of 1980, the following hypothetical was proposed by
Mr. Allan Leal of Canada:
Custody is given to the mother, but the order provides that the child cannot go out of
the jurisdiction without the father’s consent. If the mother nevertheless leaves the
jurisdiction without such consent, that constitutes wrongful removal.
Silberman, Linda, Patching Up the Abduction Convention: A Call for a New International
40
We are unpersuaded by this analysis as well. First, this feared result can be
avoided by allowing a parent, such as Mrs. Croll, to return the child to her habitual
residence as opposed to relinquishing the child to Mr. Croll for return. Once back
in Hong Kong, Mrs. Croll then could petition the court there to remove the ne exeat
restriction in the custody agreement. Accordingly, our construction of the ne exeat
right does not alter the terms of the custody agreement. Rather, it simply would
inconvenience Mrs. Croll as the custodial parent by requiring that she comply with
its terms. The Convention’s purpose is to prevent the international abduction of
children and is thwarted, not satisfied, by the Croll majority’s construction of the
ne exeat right.
In any event, the particular fears expressed by the Croll majority – that a
child could be returned to a parent with no duty or ability to care for the child – are
Protocol and a Suggestion for Amendments to ICARA, 38 Tex. Int’l L.J.41, 46 n.34 (2003)
(quoting Hague Conference on Private International Law, Acts and Docu ments, III Actes et
Documents de la Quatorzieme Session, Oct. 6-25, 1980, AT 266 (1980)). Some scholars have
cited the above hypothetical and these statements in support of the view that ne exeat rights
clearly constitute rights of custody. The comments of other representatives at the Convention
have been cited in further support, as follows:
Mr. van Boeschoten of the Netherlands noted that under the present terms of the
Convention, the abducted child would have to be sent back immediately. Therefore,
Mr. van Boeschoten saw no need to revise the present Article 3 to deal more
expansively with rights of access. Mr. Eekelaar, observer for the Commonwealth
Secretariat, also expressed the view that a non-custodial parent with a right to be
consulted about relocation would be covered in the present definition under Article
5.
Id.
41
missing from this case. Plaintiff Furnes has ongoing duties under § 30 of the
Children Act, among others, to provide care and consideration to Jessica. Indeed,
the Bergen City Court determined that Furnes was better able than Reeves to
provide for and care for Jessica. The Croll majority’s fears are at best unique to the
particular facts in that case and not present here.
Further, the Hague Convention requires return of the child to a parent who
possesses a single right of custody – even a joint right – that is violated by the
child’s removal.17 The necessary implication of the Convention’s terms is that a
child may sometimes be returned to a parent who has not previously possessed
primary physical custody.18 We also note that the Convention provides an
17
As the Croll dissent notes,
[T]he majority contends that ‘rights of custody,’ as used in the Convention, refers to
a ‘bundle of rights’ of which a parent must possess a certain portion in order to be
protected by the Convention, and that possession of only one of those rights – in this
case, the ‘right to determine the child’s place of residence’ by exercising and
leveraging a veto power over the child’s international relocation – is insufficient to
confer custody on the party possessing that power. . . . The Convention contains no
indication that in such an arrangement, a parent must possess some minimum number
of rights of custody in order to qualify for protection.
Croll, 229 F.3d at 147 (Sotomayor, J., dissenting).
18
As pointed out in the Croll dissent,
[T]he majority’s characterization of a return remedy for violations of ne exeat rights
as unworkable fails to account for the Convention’s protection of any number of joint
custody arrangements in which the parents trade physical custody or in which one
parent possesses physical custody and the other parent contributes to decisions about
the child’s upbringing. By the majority’s reasoning, were the parent with physical
custody to remove the child from the country of habitual residence, the court would
have no power to return the child, because no adult would be required to care for him
or her upon return. Such a conclusion, however, would largely eviscerate the
42
exception to the mandatory-return rule where return would be particularly
damaging for any reason, including, presumably, the malfeasance or nonfeasance
of the parent seeking return. See Convention, Art. 13(b). Article 13(b) provides
that a court is not bound to order return of a child where “there is a grave risk that
his or her return would expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation.”19 Id. Thus, the Croll
majority’s concern is already taken into account by Article 13(b) of the Hague
Convention. There is no need to diminish the nature of the ne exeat right.
H. Rights That Were Actually Exercised Or Would Have Been Exercised
Having determined that Plaintiff Furnes has “rights of custody” under the
Hague Convention, we now examine whether Plaintiff Furnes has shown that his
rights were “actually exercised, either jointly or alone, or would have been so
exercised but for the removal or retention.” Convention, Art. 3(b). We conclude
that he has.
With regard to Plaintiff Furnes’s rights under § 30 of the Children Act, the
district court found that Furnes was exercising his rights of joint parental
Convention’s protection of joint custody rights.
Id. at 149 (Sotomayor, J., dissenting).
19
Defendant Reeves does not assert that there is a grave risk that Jessica’s return to
Norway would expose her to physical or psychological harm or otherwise place her in an
intolerable situation. See supra note 8.
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responsibility in Norway prior to Jessica’s removal to the United States. No
indication in the record suggests otherwise. On appeal, Defendant Reeves does not
assert that Plaintiff Furnes was not actually exercising his rights at the time of
Jessica’s removal from Norway.
Further, it is clear that Plaintiff Furnes would have exercised his custody
rights under the ne exeat clause in § 43 but for Jessica’s removal. Under
Norwegian law, Defendant Reeves was bound to seek Plaintiff Furnes’s consent
prior to relocating outside Norway with Jessica. Had Reeves complied with that
obligation, Furnes would have exercised his right by either consenting to the
relocation (with or without conditions) or withholding consent. Accordingly, we
conclude that Furnes would have exercised his rights under the ne exeat clause but
for the removal, as required by Article 3(b) of the Convention. We now turn to
Reeves’s two affirmative defenses.
I. One-Year Limitation Period
Reeves asserts that Plaintiff Furnes’s petition was not timely filed because it
was filed more than a year following Jessica’s removal from Norway. See
Convention, Art. 12; 42 U.S.C. § 11603(e)(2)(B). The district court, however, did
not err in concluding that Plaintiff Furnes’s petition was timely filed. Under
Article 12 of the Convention, a court is required to order return of a child who has
44
been wrongfully removed unless the respondent shows that the petition for return
of the child was filed more than one year from the date of the wrongful removal or
retention. Convention, Art. 12. Even if the petition has been filed more than one
year after the abduction, a court is required to order return unless the respondent
also shows that the child has become settled in his or her new environment.20 Id.
Here, Plaintiff Furnes filed his petition more than one year after Jessica’s
removal. Reeves moved to the United States with Jessica in the summer of 2001,
and Furnes did not file the petition until November of 2002. However, the district
court concluded that the limitation period was equitably tolled until Plaintiff Furnes
located Jessica, and determined that the petition was filed within one year of
Furnes’s locating Jessica. Accordingly, the district court concluded that the
petition was timely filed.
We agree with the district court that equitable tolling may apply to ICARA
petitions for the return of a child where the parent removing the child has secreted
the child from the parent seeking return. See Mendez Lynch v. Mendez Lynch, 220
F. Supp.2d 1347,1362-63 (M.D.Fla. 2002) (holding that equitable tolling applied to
ICARA petitions because otherwise “a parent who abducts and conceals children
20
Because the district court concluded that Furnes’s petition was timely filed, the district
court did not address the issue of whether Jessica was settled in her new environment.
45
for more than one year will be rewarded for the misconduct by creating eligibility
for an affirmative defense not otherwise available”); see also Ellis v. General
Motors Acceptance Corp., 160 F.3d 703, 706 (11th Cir. 1998) (“Unless Congress
states otherwise, equitable tolling should be read into every federal statute of
limitations.”); Young v. United States, 535 U.S. 43, 122 S. Ct. 1036, 1040 (2002)
(“It is hornbook law that limitations periods are customarily subject to equitable
tolling, unless tolling would be inconsistent with the text of the relevant statute.”)
(citations and internal quotation marks omitted). Accordingly, we conclude that
the one-year period of limitations began from the date that Plaintiff Furnes
confirmed Jessica’s location in the United States, in March 2002 at the earliest.
See Bocquet v. Ouzid, 225 F.Supp.2d 1337, 1348 (S.D. Fla. 2002) (concluding in
ICARA case that one-year limitation period did not begin until date petitioner
confirmed the child’s residence in the United States).
We also conclude that the district court did not err in applying equitable
tolling given the facts found by the district court in this case. For example, the
district court accepted Plaintiff Furnes’s testimony regarding Defendant Reeves’s
concealment of her location and his extensive efforts to locate Jessica. The district
court found that Furnes was a “credible and believable witness” and that the police
report filed by Furnes accurately summarized his efforts to locate his daughter.
46
The district court’s factual findings are not clearly erroneous.21 See Lops, 140 F.3d
at 935 n.6.
J. Consent or Acquiescence
As her second affirmative defense, Reeves contends that Furnes “consented
to or subsequently acquiesced” in Jessica’s removal from Norway. Convention,
Art. 13(a); 42 U.S.C. § 11603(e)(2)(B). The district court also did not clearly err in
its factual finding that Plaintiff Furnes did not acquiesce in Jessica’s relocation.
The district court accepted Plaintiff Furnes’s testimony that he took repeated and
extensive actions to locate his daughter. As noted by the district court, “[t]he
efforts that [Furnes] undertook to obtain legal assistance in Norway . . . are
completely inconsistent with any claim of acquiescence in the child being detained
permanently in the United States.”
21
We recognize that Reeves argues that she disclosed her and Jessica’s whereabouts, but
the district court accepted Furnes’s version of the facts, not hers. We will not disturb the district
court’s credibility determinations. See, e.g., United States v. McPhee, 336 F.3d 1269, 1275 (11th
Cir. 2003) (“[W]e allot substantial deference to the factfinder, in this case, the district court, in
reaching credibility determinations with respect to witness testimony” (internal quotation marks
and citations omitted)).
47
IV. CONCLUSION
We conclude that Jessica was wrongfully removed or retained from Norway
by Defendant Reeves in violation of Plaintiff Furnes’s rights of custody under the
Hague Convention; that Furnes was exercising those rights or would have
exercised them but for the removal or retention of Jessica; that Furnes’s ICARA
petition for return of Jessica was timely filed; that Furnes did not consent to or
acquiesce in Jessica’s removal or retention in the United States; and that the district
court erred in denying Furnes’s petition for the return of Jessica to Norway.
For the foregoing reasons, we reverse the district court’s denial of Plaintiff
Furnes’s ICARA petition and remand this case with instructions. On remand, the
district court shall grant Plaintiff Furnes’s ICARA petition, and order that
Defendant Reeves shall transport and return Jessica to Bergen, Norway no later
than 30 days following the issuance of the mandate of this Court. If Defendant
Reeves refuses to comply with the order, then Defendant Reeves shall relinquish
Jessica to Plaintiff Furnes at a time and at a location in the United States
Courthouse for the Northern District of Georgia, Atlanta, Georgia, to be determined
by the district court or at such other place as determined by the district court, and
Plaintiff Furnes may then transport and return Jessica to Bergen, Norway. Once
Jessica is returned to Bergen, Norway, the parties’ rights are governed under their
48
Agreement and Norwegian law. On remand, the district court shall promptly enter
a briefing schedule regarding the award of attorney’s fees and costs to Plaintiff
Furnes. 42 U.S.C. § 11607. We conclude the district court in the first instance
should determine the amount of attorney’s fees and costs.
REVERSED AND REMANDED.
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Tom A. Furnes v. Pamela Kay Reeves
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2004-03-10
Citations: 362 F.3d 702
Copy CitationsCombined Opinion