Malcolm White v. Soudabeh White
2013 U.S. App. LEXIS 10531
4th Cir.2013Background
- Ms. White removed her son from Switzerland to the United States in April 2011; Mr. White filed a Hague Convention petition alleging wrongful removal.
- The October 2010 Geneva custody order awarded custody of the child to Ms. White with Mr. White only a right of visitation.
- Swiss psychologists in July 2011 suggested Ms. White’s psychological problems and the possibility of transferring custody if not improved.
- Swiss court history: September 2011 emergency ruling prohibited removal; December 2011 and February 2012 rulings held lack of jurisdiction but acknowledged Ms. White’s sole custody and removal right.
- District court in the Eastern District of Virginia denied the Hague petition on June 7, 2012; the Court of Appeals then reviewed the March 2013 Geneva order cited after briefing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal violated rights of custody under Article 3(a) | White argues removal breached custody rights retained by him. | White contends removal did not breach custody rights under Swiss law. | No violation; removal did not breach rights of custody at the time. |
| Whether removal constitutes abuse of rights under Swiss law | White asserts removal was an abuse of rights intended to undermine the father–child relationship. | White had legitimate reasons (medical treatment, sister visit) and the timing did not show abuse. | No abuse of rights; district court credibility determinations about motives were upheld. |
| Whether post-removal custody orders affect the wrongful-removal analysis | White argues later custody orders show ongoing custody dispute and should impact wrongfulness. | Wrongfulness depends on rights at time of removal; post-removal orders cannot retroactively change that. | Wrongfulness assessed at time of removal; ex post custody order does not retroactively affect the claim. |
Key Cases Cited
- Abbott v. Abbott, 130 S. Ct. 1983 (2010) (text interpretation of treaty; ne exeat and custody rights framework)
- Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) (right of custody includes extenuated rights; ne exeat context)
- Hanley v. Roy, 485 F.3d 641 (11th Cir. 2007) (rights of custody at time of removal rather than after)
- Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000) (rights of custody at time of removal; ex post custody orders not controlling)
- Jenkins v. Jenkins, 569 F.3d 549 (6th Cir. 2009) (distinguishes rights of custody versus access rights)
- Bader v. Kramer, 445 F.3d 346 (4th Cir. 2006) (existing custodial rights; removal context)
- Shealy v. Shealy, 295 F.3d 1117 (10th Cir. 2002) (custody rights and removal under Hague)