(Oct. 2, 2008) On July 18, 2008, the United States Court of Appeals for the Second Circuit affirmed a final judgment of the U.S. District Court for the Southern District of New York, dismissing for lack of jurisdiction the motion of a Chilean citizen for the return of his daughter to Chile. The child was removed from Chile pursuant to a Chilean court order authorizing the child's mother to travel to the United States with the child for three months. The authorization period expired in 2005, and the mother and child, both of whom are Chilean citizens as well, have since stayed in the United States in violation of the Chilean court order.
The Second Circuit held that the appellant, the child's biological father, did not have rights of custody under Chilean law, the Hague Convention on the Civil Aspects of International Child Abduction (to which both the United States and Chile are parties), or the International Child Abduction Remedies Act (ICARA). Citing its decision in Croll v. Croll, 229 F.3d 133 (2d Cir. 2000), the Second Circuit concluded that the appellant's “bundle of rights,” including his right to control the child's departure from the country under Chilean law, merely amounted to a right of access and was insufficient to create custody rights within the meaning of the Hague Convention. Considering that the district court therefore lacked jurisdiction to order the return of the child to Chile, the Second Circuit affirmed the earlier decision and dismissed the appellant's petition for the return of the child to Chile. Dissenting, Judge Richard C. Wesley argued that the majority did not cite any authority when it held that the Appellant had only visitation and no custody rights over the child, and that it failed to give any deference to an affidavit provided by a qualified agency of the Chilean government, which had concluded that the appellant had custody rights. Judge Wesley also mentioned the principle of reciprocity as a basis for his dissent. (Villegas Duran v. Arribada Beaumont, 534 F.3d 142 (2d Cir. 2008), available at http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNc