Gonzalez v. Gutierrez

• Decision Date: 20 November 2002
• Docket Number: No. 02-55079.,No. 02-55120.,02-55079.,02-55120.
• Citation: 311 F.3d 942
• Parties: Eduardo Arce GONZALEZ, Plaintiff-Appellee, v. Rosa Teresa GUTIERREZ, Defendant-Appellant. Eduardo Arce Gonzalez, Plaintiff-Appellant, v. Rosa Teresa Gutierrez, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 942

311 F.3d 942

Eduardo Arce GONZALEZ, Plaintiff-Appellee, v. Rosa Teresa GUTIERREZ, Defendant-Appellant.

Eduardo Arce Gonzalez, Plaintiff-Appellant, v. Rosa Teresa Gutierrez, Defendant-Appellee.

No. 02-55079.

No. 02-55120.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 7, 2002.

Filed November 20, 2002.

COPYRIGHT MATERIAL OMITTED

Rose M. Kasusky, Casa Cornelia Law Center, Peter H. Benzian and Tulin D. Acikalin, Latham & Watkins, San Diego, CA, for the appellant-cross-appellee.

Victor Mordey, Chula Vista, CA, for the appellee-cross-appellant.

Appeal from the United States District Court for the Southern District of California, M. James Lorenz, District Judge, Presiding. D.C. Nos. CV-01-01956-MJL/NLS, CV-01-01936-MJL(NLS).

Before: REINHARDT, TROTT and TASHIMA, Circuit Judges.

OPINION

REINHARDT, Circuit Judge.

The advent of private international law has presented difficult problems of interpretation for federal courts. Here, in order to determine a question that would be, but for the crossing of international borders, a wholly domestic matter for another sovereign nation, we must elicit the meaning of treaty provisions agreed upon by several countries with both common law and civil law traditions.

In this case of first impression, we determine whether a ne exeat clause contained in a foreign custody agreement constitutes "rights of custody" under the Hague Convention on the Civil Aspects of International Child Abduction. We hold that it does not, and reverse the judgment of the district court. In doing so, we follow the approach taken by the Second Circuit in Croll v. Croll, 229 F.3d 133 (2d Cir.2000), the only other Circuit to have addressed this question.

I. BACKGROUND

A. The Hague Convention on the Civil Aspects of International Child Abduction

The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty among the United States and fifty other countries.¹ Hague Convention on the Civil Aspects of International Child Abduction, opened for signature October 25, 1980, T.I.A.S. 11,670, reprinted in 51 Fed.Reg. 10,494 (March 26, 1986). Despite the forceful connotation of words like "abduction" that are employed in the treaty, the Convention's drafters were concerned primarily with securing international cooperation regarding the return of children wrongfully taken by a parent from one country to another, often in the hope of obtaining a more favorable custody decision in the second country. Mozes v. Mozes, 239 F.3d 1067, 1069 (9th Cir.2001). The Convention only applies when both countries are parties to it.² Convention, art. 35. Under the Convention each country must designate a Central Authority responsible for overseeing the implementation of a country's obligations.³ 42 U.S.C. § 11606(a). Within the state of California, the California Attorney General's Office acts as the Central Authority.⁴ Under U.S. law, the Convention is implemented by the International Child Abduction Remedies Act ("ICARA"). 42 U.S.C. §§ 11601-11610.

A Convention proceeding is a civil action brought in the country to which the child was wrongfully removed. Wrongful removal means that a parent has taken a child out of a country in violation of the other parent's custody rights. ICARA actions may be brought in state or federal court. The conclusion that a child has been wrongfully removed under the Convention obligates a court to order him returned to the country from which he was taken. A parent who opposes the return of his child may, however, raise four affirmative defenses. Hague Convention, art. 12, 13, 30; 42 U.S.C. § 11603(e)(2). Unless these defenses are raised successfully, the court must order a wrongfully-removed child returned; a judicial proceeding under the Convention is not meant, however, to inquire into the merits of any custody dispute underlying the petition for return. Convention, art. 19; Shalit v. Coppe, 182 F.3d 1124, 1128 (9th Cir.1999). Of paramount importance to the case before us, the Convention provides the remedy of return only for a parent who has "rights of custody." Convention, art. 12.⁵ A parent possessing only access rights is not entitled to that remedy. Instead, a parent with access rights is permitted to submit an "application to make arrangements for organizing or securing the effective exercise of [such] rights" to the Central Authority of the country to which the child has been removed. Convention, art. 21.

B. Factual Background

Rosa Teresa Gutierrez and Eduardo Arce Gonzalez, both Mexican citizens, were married in Guadalajara, Mexico on December 18, 1992. Arce is a self-employed finance broker; Gutierrez, a stay-at-home mother. Gutierrez and Arce had two children from their marriage: Maria Teresa Arce Gutierrez, born in 1993, and Eduardo Antonio Arce Gutierrez, born in 1997. All members of the family lived in Mexico until February of 2001.

The unhappy marriage that resulted from their union inflicted its miseries on the entire family.⁶ Arce physically and verbally abused Gutierrez, sometimes in front of Maria and Eduardo. At the evidentiary hearing conducted by the district court, Gutierrez testified that "[d]uring my whole marriage it was a very bad relationship. I suffered abuse physically, emotional, sexual, economical [sic], which continued even after we separated and even after the divorce." Susana Galarza, Gutierrez's sister, testified that during a period of four years in which she and the Arce Gutierrez family shared a house in Mexico, Arce would frequently come home drunk and behave in an aggressive manner toward the family. The couple finally separated in November 1998.⁷ During the separation and after the couple's eventual divorce, the children always lived with Gutierrez.

Gutierrez's troubles were not over, however. Arce's physical and verbal abuse continued. In July 1999, Gutierrez approached the Human Rights Office in Mexico, but was told that the Office only assisted people who had been mistreated by the government. One day in January 2000, Arce physically assaulted Gutierrez, by hitting her, throwing her to the ground, and yelling profanities at her, all in the presence of Eduardo, then almost three years old. After this incident, Gutierrez, at the advice of her attorney, sought the help of the local police, who insisted that she first obtain a medical report documenting her injuries. Gutierrez and her attorney went to the Red Cross, only to be turned away because Gutierrez was not bleeding and did not yet exhibit visible bruises. A few days later, when her bruises did appear, Gutierrez was refused a second time by the Red Cross, which declined to prepare a report for her because she lacked proof that it was Arce who was responsible.

Shortly before this incident, Gutierrez had filed for a fault-based divorce, based on Arce's spousal abuse. Eventually, however, Arce and Gutierrez filed a mutual consent divorce petition. Gutierrez testified that she agreed to the mutual consent divorce because it offered "immediate protection," and that she was told a fault-based divorce might have taken three to five years to resolve. In August 2000, a Jalisco family court granted the divorce. Because the appeal taken here focuses on the nature of Arce's parental rights, we quote at length from the official translation of their divorce agreement:

I. During the divorce proceedings and once the divorce settlement has been reached, our minor children, MARIA TERESA AND EDUARDO ANTONIO, whose last names are ARCE GUTIERREZ will remain under the custody and care of their Mother ROSA TERESA DEL RAYO GUTIERREZ, at the property located on Francia Street number 1635-b, Colonia Moderna, in this City of Guadalajara, Jalisco.

The father, EDUARDO ARCE GONZALEZ will be able to visit his minor children on Monday, Wednesday and Friday from 14:00 to 17:00 hours every week. The father will also be able to take the children with him for the weekend every other week, and take them on vacation 2 weeks per year, as long as this does not interfere with the health and education of the minors.

EDUARDO ARCE GONZALEZ must grant full authorization according to law, until they reach adult age, on every occasion that his minor children MARIA TERESA AND EDUARDO ANTONIO whose last names are ARCE GONZALEZ, seek to leave the country accompanied by their mother MARIA TERESA RAYO GUTIERREZ ACEVES or any other person.

The third and final paragraph comprises the "ne exeat" clause critical to our decision in this case.⁸ The parties agree that the paragraph is to be construed as prohibiting Gutierrez from taking the children out of the country without Arce's permission.

The divorce did not abate Arce's physical or emotional abuse. Gutierrez testified that, in one instance, Arce shoved her, and in another, left a note containing profanity at her home. Her continued victimization may have led to the events that followed. On February 28, 2001, Gutierrez informed Arce that she planned to take the children on a one week vacation in Mexico. On March 8, the day the children were to return, Arce was unable to locate them, and eventually determined that Gutierrez had taken the children to the United States, to the home of Ms. Galarza, Gutierrez's sister, and now a permanent U.S. resident living in San Diego.⁹

C. Procedural History

On October 18, 2001, the District Attorney's Office of San Diego County, acting on behalf of the California Attorney General's Office,¹⁰ filed a Petition for the Return of Children to Mexico in San Diego Superior Court. The petition sought the return of Maria and Eduardo to Mexico under the International Child Abduction Remedies Act. 42 U.S.C. §§ 11601-11610. On October 25, Gutierrez removed the action to federal district court.

After conducting an evidentiary hearing, the district court issued its Findings of Fact and Conclusions of Law on December 6, 2001. The district court concluded that the children had been...