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Pfeiffer v. Bachotet

United States Court of Appeals, Eleventh Circuit

January 15, 2019

MARCELLINUS PFEIFFER, Petitioner-Appellant,
v.
RACHEL BACHOTET, Respondent- Appellee.

          Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:18-cv-03446-RWS

          Before TJOFLAT, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.

          PER CURIAM.

         This case arises under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, also publ'd at https://www.hcch.net/en/instruments/conventions/full-text/?cid=24 (last visited Dec. 18, 2018). Plaintiff-Petitioner Marcellinus Pfeiffer, a German citizen, seeks the return of his children N.A.R. and R.H.E. from the United States to Switzerland. His ex-wife, Respondent Rachel Bachotet, a French citizen who moved with the children from Switzerland to Georgia in June 2018, opposes the children's return. Following briefing and two hearings, the district court denied Pfeiffer's petition. After careful consideration, we now affirm the district court's decision for the reasons we explain below.

         I.

         Pfeiffer and Bachotet were married in France in 2010. Two years later, in 2012, they moved to Switzerland. Pfeiffer and Bachotet have two children: N.A.R., a nine-year-old daughter, and R.H.E., an eight-year-old son. Until June 17, 2018, both children had lived continuously in Switzerland since 2012.

         In June 2017, Pfeiffer and Bachotet obtained a divorce when the District Court of Meilen, under the Canton of Zurich, Switzerland, issued a Sentence and Decree of Divorce (the "Divorce Judgment"). Among other provisions, this Divorce Judgment provided for the two children to "remain under shared custody of both parents." It further "require[d] both parents' consent [to relocate the children] if the new place of residence is located abroad or if relocation has some impact on the exercise of parental custody or visitation rights of either parent." Nonetheless, section 3.2.a) of the Divorce Judgment expressly specified that Pfeiffer "does not object to the mother's taking residence abroad (US or France) at/after[[1] the end of the school term 2016/2017."

         Other parts of the Divorce Judgment also indicated that it anticipated Bachotet would relocate with the children outside of Switzerland. Paragraph 3.2.c)aa provided, "Until [Bachotet] relocates with the children abroad (see section [3.]2.a[)], last paragraph above), the children's father is entitled and obliged to exercise his obligation of care towards the children as follows . . . ." Similarly, paragraph 3.2.c)bb stated, "As from relocation of [Bachotet] and the children abroad (see section [3.]2.a[)] last paragraph) the following visitation regime shall be effective . . . . Once per year, [Bachotet] shall pay for travelling costs (round trip), when the children visit their father. Any other visitation-related costs shall be borne by the father."

         Until Bachotet relocated, however, the Divorce Judgment awarded Pfeiffer parenting time with the children every other weekend, with additional time for holidays and during the summer. In 2018, the guardian appointed to oversee the custodial arrangement between the parties modified the parents' custodial agreement so that Pfeiffer and Bachotet had equal time with the children. But while she entered a new parenting plan, under Swiss law, she lacked the authority to modify the Divorce Judgment. Therefore, the Divorce Judgment remained unchanged.

         Meanwhile, according to Bachotet's counsel's undisputed proffer, on June 28, 2017, at the end of the children's 2016-17 school term, Bachotet began the relocation process by applying for a K-1 (fiancé) Visa for herself and K-2 Visas for the children to emigrate from Switzerland to the United States. Bachotet first received notice that the United States had authorized the Visas on May 17, 2018. Under the terms of the Visas, they were valid until July 6, 2018.

         On June 9, a letter from Pfeiffer dated June 7 was delivered to Bachotet. In that letter, Pfeiffer wrote that he "revoke[d] [his] consent to [Bachotet's] relocation with [the] children . . . abroad, in the U.S. or in France, as expressed in the [Divorce Judgment] in 2017." That same afternoon, Bachotet booked plane tickets for herself and her children to the United States for June 17, 2018.

         On June 15, 2018, Pfeiffer sent a letter to the District Court of Meilen, which had jurisdiction over the Divorce Judgment. In that letter, Pfeiffer stated that he "revoke[d] [his] consent to the relocation of [the] children . . . to the United States of America." He requested that the court "immediately impose a travel ban . . . without consultation with . . . Bachotet, in order to keep her from leaving [Switzerland] with the children." The record contains no subsequent order from the Swiss court acting on Pfeiffer's request.

         On about June 17, 2018, Bachotet left Switzerland with the children for the United States. The three currently reside in Marietta, Georgia, with Bachotet's American fiancé.

         A month after Bachotet left Switzerland with the children, on July 17, 2018, Pfeiffer filed this litigation seeking return of the children to Switzerland under the Hague Convention. The district court held a hearing on the merits of Pfeiffer's petition on August 24, 2018. Following the hearing, on August 29, 2018, the district court issued an order denying Pfeiffer's petition. The court reasoned that Pfeiffer had failed to satisfy his burden to show that Bachotet's removal of the children from Switzerland violated Pfeiffer's rights of custody, in light of the Divorce Judgment's provision awarding Bachotet "the exclusive right to determine whether the children would remain in Switzerland or move to the United States or France at the end of the 2016/2017 school year." Doc. 31 at 7-8.

         Pfeiffer now appeals.

         II.

         Whether the Convention requires the return of the children to Switzerland or their continued residence in the United States presents a mixed question of law and fact. See Ruiz v. Tenorio, 392 F.3d 1247, 1251 (11th Cir. 2004). We review the district court's findings of fact for clear error and review de novo its legal determinations and application of the law to the facts. Id.

         This matter also raises questions of foreign law, in addition to issues of treaty interpretation and of construction of United States law. Rule 44.1, Fed. R. Civ. P., governs our review of questions of foreign law. See Fed. R. Civ. P. 44.1; O ...


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