Newsroom

By Lawrence Kootnikoff
Daily Journal Staff Writer

LOS ANGELES - An allegedly abusive father in Mexico who has visitation rights to his children cannot force his former wife to return them from San Diego, the 9th U.S. Circuit Court of Appeals ruled Wednesday.

The court made the finding even though the man's Mexican divorce agreement forbade the children's removal from Mexico without his permission. Arce v. Gutierrez 02-55079 (9th Cir. Nov. 20, 2002).

Under international law, the court found, the parent seeking return of an expatriated child must have "custody" rights. Here, the father had only "access" or visitation rights.

The 9th Circuit's decision reversed the San Diego Superior Court, which on Dec. 6, 2001, had ordered the children returned to Mexico.

Eduardo Arce Gonzalez's San Diego attorney had asked U.S. courts to enforce his divorce agreement under the Hague Convention on the Civil Aspects of International Child Abduction.

Arce argued he had custodial rights under the convention because of the divorce's ne exeat, clause which forbids the person to whom it is addressed from leaving the court's jurisdiction.

"We reject the argument," Justice Stephen Reinhardt wrote for the court.

"We hold that a ne exeat clause intended to benefit a non-custodial parent who possesses access or visitation rights does not afford 'rights of custody' to that parent under the Hague Convention on the Civil Aspects of International Child Abduction," Reinhardt wrote.

The court also rejected Arce's argument in his cross-appeal that the Mexican law also conferred on him rights of custody.

"Accordingly, we hold that the remedy of return is not available to a parent who possesses only access rights, even if he also benefits from the inclusion of a ne exeat clause in the relevant custody agreement," Reinhardt wrote. "Arce] cannot, however, direct with any specificity where the children will reside either within the borders of Mexico or within any other country. This, in our view, hardly amounts to a right of custody, in the plainest sense of the term."

Arce and his former wife, Rosa Teresa Gutierrez, both Mexican citizens, were married in 1992 and had two children. All lived in Mexico until February 2001.

After Gutierrez endured years of physical and verbal abuse by Arce, often in the presence of the children, the couple separated in 1998, according to the opinion.

Gutierrez divorced her husband in August 2001, with the court granting her custody and Arce visitation rights. The court also said that Arce must give his permission if Gutierrez wanted to take the children out of Mexico.

But Arce continued his assaults on his wife, who was unable to obtain protection from authorities, the opinion said. In March 2001, Gutierrez fled with her children to San Diego and moved in with her sister.


Rose Kasusky, Executive Director

"We're ecstatic," said Rose Kasusky of the Casa Cornelia Law Center, the San Diego nonprofit that represented Gutierrez.

Kasusky noted that the court adopted Croll v. Croll, 229 F.3d 133 (2nd Cir. 2000), in which the court held that rights of access do not constitute rights of custody within the meaning of the Hague Convention even when they are coupled with a ne exeat clause.

"It sends the right message out," Kasusky said, "because it keeps the distinction between 'custody' and 'access.'"

"Arce tried to] elevate his access rights into more than they were," the attorney said.

Calls to Arce attorney Victor Mordey were not returned. Kasusky said she did not know whether he planned to appeal.

Gutierrez was granted asylum in June on the basis of her status as a victim of domestic violence. The Immigration and Naturalization Service is appealing, according to the appeals decision. She and her children remain in San Diego.

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