Child Abduction

• Pages: 127-128

Page 127

In 1999, Jose Gregorio Altamiranda Vale (Petitioner) and Maria Jose Figuera Avila (Respondent) got married in Venezuela . Respondent gave birth to twins a year later. Six years later, Respondent met an American man on the Internet and divorced Petitioner pursuant to a mutual agreement. The court awarded physical custody of the children to Respondent, but granted both parents rights of patria potestas or "paternal power." Under Venezuelan law, this term includes all the parental duties and rights as to their children's care, development and education.

Respondent obtained Petitioner's consent in 2006 ostensibly to take the twins to Florida to attend a wedding. Respondent, however, took them to Peoria, Illinois where she married the man she had met on the Internet. As part of the ongoing dispute, an Illinois state court issued an uncontested judgment declaring that the children were now habitual residents of Illinois.

Petitioner filed a petition in Illinois federal court for the return of the children under the Hague Convention on the Civil Aspects of International Child Abduction (Convention), T. I. A. S. No. 11,670, 1343 U. N. T. S. 89 (in force for U.S. July 1, 1988) and its implementing U.S. statute: the International Child Abduction Remedies Act (ICARA), 42 U.S.C. §§ 11601 et. seq. The parties later settled and dismissed the litigation by Agreement.

Respondent, however, failed to abide by the Agreement. Petitioner fi led his Hague Convention petition and moved to set aside the judgment dismissing his suit, alleging that the Respondent had obtained that judgment by fraud. The districtPage 128 court set aside the judgment, citing evidence that Respondent had lied about fi nancing the children's travel and about the children's ability to travel. Ruling that removal of the children had violated Petitioner's rights of custody, the court ordered the children returned to Venezuela. Respondent appealed. The Seventh Circuit affirms.

The Court dismissed Respondent's objection that the district court lacked the power to reopen the proceeding. The Court explains that: "The settlement agreement itself authorizes Petitioner to resume his Convention suit if Respondent violated it, and she did - and the Agreement is part of the state court judgment. ... [T]he reopening of the judgment was lawful... [as was] the judgment rendered by the district court after the reopening, since implicit in the state court judgment authorizing the reopening was...