The European Court of Human Rights, in its Chamber judgment, held unanimously in Rouiller v. Switzerland that there was no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. The case concerned the removal of two children from France to Switzerland by their mother.
The Court ruled that because of the short distance between France to Switzerland there was no real “international abduction” for the purposes of the Hague Convention. Despite one of the child’s desire to live in Switzerland, the Court, like the Cantonal and Federal Courts, found that the children’s removal was a “wrongful removal” and that the Hague Convention did not grant a child the freedom to choose where he or she wished to live. The wish to continue to live in Switzerland did not satisfy the Hague Convention exceptions to return the child.
The parents of the children, Rejane Rouiller (a Swiss national) and their father (a French national) lived in Saint-Louis, France, near the Swiss border. They had two children, F. and M, born in 1993 and 1999. The parents divorced in 2000 and share what we, in America, would call joint custody. Thus, each parent has authority to make decisions with respect to the children. On the other hand, the mother would have what we would call physical or residential custody and the father would have the right to access or visitation.
In May 2007, the father applied to the court for the return of his children to France, invoking the Hague Convention. In June 2007, the Arlesheim District Court in Switzerland dismissed the application for their return to France. The court ruled that this was not a child abduction under the Hague Convention. The father appealed to the Cantonal Court of Basle-Rural in September 2007. The court ordered the return of the children to France. Ms. Rouiller appealed to the Federal Court and argued that it was in the children’s best interest for them to remain in Switzerland. The Court dismissed the appeal and ordered the children’s return to France. Ms. Rouiller lived in Saint-Louis until July 2009 following the judgment of the Mulhouse tribunal de grande instance, which decided the children should go to school in Switzerland.
The applicant complained that the return of her children to France, as ordered by the Swiss courts, constituted a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. Her children had lived with her in Switzerland for almost two years and she claimed that the Swiss courts had been wrong to apply the Hague Convention on the Civil Aspects of International Child Abduction in ordering their return to France. She added that the children’s opinion had not been sufficiently taken into account.
The Court found, like the Cantonal and Federal Courts, that the children’s removal by their mother to Switzerland was indeed an “wrongful removal” and that the Hague Convention did not grant a child the freedom to choose where he or she wished to live. The Chamber held there was no violation of Article 8 of the Convention.
Do you feel that parents should be able to relocate with their children at all? What about in a situation like this case where the two cities are so close? Should children have a right to determine where they live and which parent they live with? What about in cases of domestic violence? Could custody be used as a tactic to maintain control over the abused parent?
In New York, when reviewing a custodial parent’s request to relocate, the court’s primary focus must be on the best interests of the child. The factors to be considered include: each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. Matter of Tropea v. Tropea, 87 N.Y.2d 727, 739, 642 N.Y.S.2d 575, 665 N.E.2d 145 (1996). The petitioner bears the burden of establishing, by a preponderance of the evidence, that the move is in the child’s best interest. Matter of Groover v. Potter, 17 A.D.3d 718, 792 N.Y.S.2d 693 (3 Dep’t 2005). In interstate custody disputes the Uniform Child Custody and Enforcement Act comes into play, and the child’s home state (the state in which the child has resided for at least six months since the commencement of the hearing) retains jurisdiction and usually has the final decision making power in cases where relocation is contemplated. I believe that the best interests of the child standard and the factors mentioned above should apply in international cases as well where relocation is sought. Parents should not have to be confined to one country if the cities are so close like they are in this case and the visitation between the non custodial parent may still take place.
The relocation of a parent and their children away from their other parent can be harmful or beneficial to the family and all facts surrounding the move should be considered. In this particular case, while the move may not have been very far, it was across country borders, thus creating a European issue. The actual distance should be considered more so than the actual crossing of the border. This case serves as interesting precedent regarding the issue of cases involving domestic violence, as Ms. Schramek points out. One would hope that such circumstances would be taken into consideration in child custody cases.
I believe when a child reaches a certain age they should have the ability to decide which parent they want to live with, regardless of the location. They may enjoy the schooling in a particular location more so than the other. These desires, paired with the best interest of the child should be considered by the court in their decision making.