Croll v. Croll
| Decision Date | 01 August 1999 |
| Docket Number | Docket No. 99-9341 |
| Citation | 229 F.3d 133 |
| Parties | (2nd Cir. 2000) STEPHEN HALLADAY CROLL, Petitioner-Appellee, v. MEI YEE CROLL, Respondent-Appellant |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from a final judgment of the United States District Court for the Southern District of New York (Sidney H. Stein, Judge), denying appellant's motion to dismiss appellee's petition for return of the parties' minor child to Hong Kong under the Convention on the Civil Aspects of International Child Abduction, and granting appellee's application for an order of return.
Reversed and Remanded.
ROBERT D. ARENSTEIN, New York, NY, for petitioner-appellee.
LEA HABER KUCK, New York, NY, for respondent-appellant.
Before: JACOBS, SOTOMAYOR, and MICHEL,* Circuit Judges.
Petitioner-appellee Stephen Halladay Croll seeks an order compelling his wife, respondent-appellant Mei Yee Croll, to return their minor child, Christina Croll, to Hong Kong under the Hague Convention on the Civil Aspects of International Child Abduction, done Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10,494 (1986) ("Hague Convention" or "Convention"), implemented by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. (1995). A custody decree issued in Hong Kong (a) confers the sole "custody, care and control" of Christina Croll on her mother, (b) confers "rights of access" on her father, and (c) bars the removal of the child from Hong Kong without the consent of the other parent or the court. The United States District Court for the Southern District of New York (Stein, J.) granted Mr. Croll's petition for an order of return subject to certain conditions, finding that Mrs. Croll had wrongfully removed Christina from Hong Kong in violation of the Convention. See Croll v. Croll, 66 F. Supp. 2d 554, 562-63 (S.D.N.Y. 1999).
We hold that rights of access do not constitute rights of custody within the meaning of the Hague Convention, even when coupled with a ne exeat clause. Because courts in the United States have jurisdiction to enforce the Convention by ordering a child's return to her habitual residence only if the child has been removed in breach of a petitioning parent's custodial rights, the district court lacked jurisdiction to order return in this case.
Stephen and Mei Yee Croll, both United States citizens, were married in Hong Kong in 1982. Their daughter Christina was born in Hong Kong in 1990 and lived with both of her parents until they separated in 1998. While the separated couple remained in Hong Kong, Christina lived with her mother, and was regularly visited by her father.
At some point in 1998, Mr. Croll commenced divorce proceedings in the District Court of the Hong Kong Special Administrative Region, Matrimonial Causes. The custody order issued by the Hong Kong court--the only custody order applicable to this case--grants Mrs. Croll sole "custody, care and control" of Chistina and grants Mr. Croll a right of "reasonable access." Croll v. Chiu, No. 7211 of 1998, Order at 1 (Dist. Ct. H.K. Spec. Admin. Reg., Feb. 23, 1999). To aid the parties' rights under the Custody Order (Mrs. Croll's custody and Mr. Croll's access), a separate paragraph directs 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. Mr. Croll contends that this ne exeat clause (set out in full in the margin 1), which grants a veto power over any place of residence outside Hong Kong, gives him rights of custody within the meaning of the Convention.
Mrs. Croll brought Christina to New York on April 2, 1999, intending (she says) that Christina would interview at schools in New York City, attend school for a few weeks, and then return to Hong Kong for the summer. But (Mrs. Croll admits) "[i]n the back of her mind" she intended to remain in the United States permanently. On April 8, 1999, Mrs. Croll filed an action in Family Court in New York County seeking custody, child support, and an order of protection. Those proceedings have been stayed pending the outcome of this federal action.
When Mr. Croll returned to Hong Kong from a business trip on April 7, 1999, he learned that his wife had gone with Christina to the United States. On April 22, 1999, Mr. Croll filed a missing persons report with the police in Hong Kong, and on May 14, 1999, he filed this petition in the Southern District of New York seeking Christina's return to Hong Kong pursuant to the Hague Convention.
Mr. and Mrs. Croll do not dispute that Christina, who lived in Hong Kong from her birth until arriving in New York in 1999, was "habitually resident" in Hong Kong within the meaning of Article 3 of the Convention. In addition, Mrs. Croll does not claim on appeal that any of the Convention's recognized exceptions to the petitioning parent's right of return apply here. The question in this case therefore is whether Mr. Croll held and actively exercised "rights of custody"--within the meaning of the Convention--when Christina was taken from Hong Kong.
Mrs. Croll moved in the Southern District to dismiss the petition on the ground that Mr. Croll could not claim "custody" of Christina and that therefore (a) the court lacked subject matter jurisdiction and (b) the petition failed to state a claim upon which relief could be granted. The court denied the motion to dismiss, granted Mr. Croll's petition, and ordered that Christina be returned to Hong Kong. The court reasoned that
the Hong Kong order dated February 23, 1999 provides that Christina may not be removed from Hong Kong before her 18th birthday without either leave of court or both parents' consent. Accordingly, . . . Mr. Croll had a right, along with respondent, to determine Christina's place of residence and he had a corresponding right of custody within the meaning of the Convention. Christina's removal from Hong Kong--her habitual residence--was in violation of her father's right of custody and was, therefore, wrongful pursuant to the Convention.
Croll, 66 F. Supp. 2d at 559. The court granted Mrs. Croll's motion to stay its order of return pending expedited appeal to this Court. See Croll v. Croll, No. 99-3566 (S.D.N.Y. Oct. 29, 1999).
At issue on this appeal are two sets of rights recognized in the Convention to be distinct: rights of custody and rights of access. If Mr. Croll has custody rights, courts in the United States have jurisdiction to order return of Christina to Hong Kong, as the district court has done, and the duty to do so. If, however, Mr. Croll has the lesser rights of access, jurisdiction is lacking and Mr. Croll must rely on other remedies.
The proper interpretation of the Hague Convention is an issue of law, which we review de novo. See Klos v. Polskie Linie Lotnicze, 133 F.3d 164, 167 (2d Cir. 1997).
"In construing a treaty, as in construing a statute, we first look to its terms to determine its meaning." United States v. Alvarez-Machain, 504 U.S. 655, 663 (1992) (); see also Kahn Lucas Lancaster, Inc. v. Lark Int'l Ltd., 186 F.3d 210, 215 (2d Cir. 1999) () (citing Alvarez-Machain, 504 U.S. at 663)). The text of the treaty must be interpreted "in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose." Vienna Convention on the Law of Treaties, done May 23, 1969, art. 31.1, 1155 U.N.T.S. 331 (emphasis added). Where the text--read in the context of its structure and purpose--is ambiguous, we may resort to extraneous tools of interpretation such as a treaty's ratification history and subsequent operation. See Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180 (1982) () (internal quotation marks and citations omitted)); cf. Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134 n.5 (1989) ().
So far as we can tell, we and the district court in this case are the only courts in the United States to consider whether rights of access coupled with a ne exeat clause confer "custodial rights" on a non-custodial parent within the meaning of the Hague Convention. We therefore start from scratch, and consult (A) the purpose and design of the Convention, (B) its wording, (C) the intent of its drafters, and (D) caselaw in other signatory states.
The Hague Convention, to which the United States and Hong Kong are signatories,2 was adopted as an effort "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." Hague Convention, Preamble, 51 Fed. Reg. at 10,498. The Convention rests on the principle that a child's country of "habitual residence" is "best placed to decide upon questions of custody and access." Elisa Perez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session (Child Abduction) 426, 434-35, ¶ 34 (1980) ("Perez-Vera Report").3
In order to "preserve the status quo and to deter parents from crossing international boundaries" to secure a more favorable forum for the adjudication of...
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