On August 5, 2021, the U.S. Court of Appeals for the Fourth Circuit affirmed the Eastern District of Virginia in the case of Aluker v. Yan. This was an unpublished, non-binding, opinion.

The parties and their two children had resided in Portugal since 2017, they separated shortly after arriving in Portugal, and in November 2018, they signed a Separation and Property Settlement Agreement, to be construed under the laws of Virginia, that Ms. Yan would have “sole legal and primary physical custody” of their children with “liberal and reasonable visitation” for Mr. Aluker. This agreement was never incorporated into any court order.

In May 2019, Mr. Aluker initiated custody proceedings in Portugal. On October 3, 2019, before the Portuguese courts took any action, Ms. Yan emailed Mr. Aluker saying she would be taking the children to the U.S. to live. They traveled that same day to Virginia. In September 2020, Mr. Aluker filed a petition in the EDVA seeking the return of his children to Portugal under the Hague Abduction Convention.

After Ms. Yan requested a judgment on partial findings under FRCP 52(c), the EDVA concluded that the parties’ agreement was “valid,” it established that Ms. Yan “had legal custody,” and therefore, without Mr. Aluker having rights of custody, Ms. Yan’s removal of the children from Portugal was not wrongful. Mr. Aluker appealed to the U.S. Court of Appeals for the Fourth Circuit.

As a reminder, a parent’s rights of custody are determined under the law of the habitual residence. The court looked at Portuguese law. Portuguese choice of law rules would require the court apply U.S. law to determine if Mr. Aluker would have rights of custody. The Portuguese civil code directs that the applicable law is: (1) the “common national law” of the parents, or, failing that, then (2) the law of the parents’ “common habitual residence,” or, failing that, then (3) the law of the “child’s country of origin.” Both Mr. Aluker and Ms. Yan are U.S. nationals. Neither are Portuguese nationals. The Court concluded, therefore, that U.S. law dictates Mr. Aluker’s rights of custody, per Portuguese choice of law rules.

Mr. Aluker also argued that, if Virginia law applied, Virginia courts have the power to modify any private custody agreement and therefore, a custody agreement has no “legal effect” until made part of a court order, but the EDVA determined that nonetheless, “parents still may enter into such custody agreements and courts may rely on them in making custody determinations.” “At the time the children were removed from Portugal, no court had altered the terms of the [Agreement] or had adjudicated the issue of the children’s custody.”

Article 3 of the treaty says that custody rights can be determined by “an agreement having legal effect” under the law of the child’s habitual residence. According to the Explanatory Report, this can include “simple private transactions” between the parents.