Marcelllinus Pfeiffer v. Rachel Bachotet
913 F.3d 1018
11th Cir.2019Background
- Parents (Pfeiffer, German; Bachotet, French) divorced in Switzerland in 2017; Divorce Judgment awarded shared custody but expressly permitted Bachotet to relocate the children to the U.S. or France at/after the end of the 2016–2017 school year.
- The children lived continuously in Switzerland from 2012 until June 17, 2018 (ages seven and nine at removal).
- Bachotet applied for K-1/K-2 visas beginning June 2017; visas approved May 17, 2018; she relocated with the children to Georgia around June 17, 2018.
- Pfeiffer sent letters revoking consent and asked the Swiss court to impose a travel ban in June 2018; there is no record the Swiss court acted before the move.
- Pfeiffer filed a Hague Convention petition in U.S. district court (July 2018) seeking return; district court denied relief, concluding Pfeiffer failed to show breach of custody rights under Swiss law.
- Eleventh Circuit affirmed, holding (1) Switzerland was the children’s habitual residence at removal and (2) the Divorce Judgment granted Bachotet the right to determine the children’s residence, so removal was not wrongful under the Convention.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Habitual residence at time of removal | Children had been in Switzerland; but parents had intent to relocate earlier (relevant in Ruiz) | Children had not lived in U.S.; no acclimatization occurred | Switzerland was the habitual residence on June 17, 2018 |
| Whether removal breached petitioner’s "rights of custody" under Swiss law | Pfeiffer: post-judgment events (guardian’s new plan, his revocation letters) restored his right to veto relocation | Bachotet: Divorce Judgment—a Swiss court order—expressly authorized her to move children to U.S./France; guardian’s modification did not alter the court order | Removal did not breach Pfeiffer’s custody rights because the Divorce Judgment gave Bachotet authority to relocate |
| Effect of guardian’s amended custodial agreement on Divorce Judgment | Pfeiffer: guardian’s plan and parents’ agreement reallocated custody/visitation and thus revoked Bachotet’s ne exeat | Bachotet: only Swiss court could amend the Divorce Judgment; no court order modified it | Guardian’s amendment did not alter the court’s Divorce Judgment and therefore did not change custody rights under Swiss law |
| Applicability of Karkkainen precedent | Pfeiffer: Karkkainen supports that parental actions/agreements can alter relocation consent informally | Bachotet: Karkkainen concerned parents’ shared intent for habitual residence, not alteration of a binding court order | Karkkainen is distinguishable; informal agreements cannot override a binding court order establishing custody rights |
Key Cases Cited
- Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir.) (habitual-residence framework requiring shared parental intent and acclimatization)
- Lozano v. Montoya Alvarez, 572 U.S. 1 (2014) (ICARA implements the Hague Convention)
- Baran v. Beaty, 526 F.3d 1340 (11th Cir.) (courts decide only Convention rights, not custody merits)
- Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir.) (determine substance of parental rights by reference to laws/decisions of habitual-residence state)
- Abbott v. Abbott, 560 U.S. 1 (2010) (Convention’s definitions of custody vs access control return remedy vs access enforcement)
- Chafin v. Chafin, 742 F.3d 934 (11th Cir.) (burden of proof and standards under ICARA)
- Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir.) (distinguishing informal custody stipulations from binding court orders in habitual-residence/intent analysis)
- Santovincenzo v. Egan, 284 U.S. 30 (1931) (interpretation of "habitual residence" in international context)