Case Update (2021): Aluker v. Yan; right of custody pursuant to a Property Settlement Agreement, Article 3 "legal effect"

On March 4, 2021, Judge Liam O'Grady of the U.S. District Court of the EDVa, entered an order in the case of Aluker v. Yan, granting Respondent's motion for judgment on partial findings.  Petitioner has appealed.

In September 2017, the Aluker-Yan family moved from the United States to Portugal, where they initially resided together, but separated thereafter.  On November 9, 2018, the parties executed a Separation and Property Settlement Agreement (PSA).  The pertinent language from that PSA says, "[Yan] shall have sole legal and primary physical custody of [both children]. [Aluker] shall be entitled liberal and reasonable visitation with the children."  The agreement also had a clause construing the provisions therein according to the law of Virginia, where Ms. Yan presently resides with the children.

In May 2019, Mr. Aluker filed proceedings in the Portuguese family court.  The PSA was not introduced into those proceedings.  On October 3, 2019, Ms. Yan informed Mr. Aluker, by email that she was taking the children to the U.S. to live, and they flew to the U.S. that same day.  On September 24, 2020, Mr. Aluker filed the instant petition under the Hague Abduction Convention.  After attempts to settle, the court scheduled a bench trial for February 3, 2021.  On that morning, Ms. Yan filed a Motion for Judgment on Partial Findings.  The court conducted a brief evidentiary hearing and inquired about the validity of the parties' prior PSA in open court.  The judge continued the trial to permit Mr. Aluker to file an opposition, to which Ms. Yan submitted a rebuttal. 

The Court found that the PSA was valid, after Mr. Aluker stipulated so.  The court then concluded that the PSA established "full custody rights over the children" to Ms. Yan, and thereby withdrew Mr. Aluker's custody rights, which made Ms. Yan's removal of the children from Portugal lawful.  Whether Mr. Aluker has a "right of custody" is to be determined "under the law of the state of the children's habitual residence immediately prior to their removal." The court states that, "Aluker recognizes, after some equivocation, that Virginia law governs whether the PSA has 'legal effect' and furnishes Yan with full custody rights under Article 3 due to Portuguese choice of law principles." "However, he contends that the PSA has no 'legal effect' under Virginia law because it has no 'significance or force.'"  The Court, citing to the Perez-Vera Explanatory Report says that "the PSA can have 'legal effect' under Article 3 so long as it (1) is not prohibited by law, and (2) provides a basis for presenting a legal claim to the competent authorities."  "Both these conditions are satisfied in the instant case."  Mr. Aluker's argument was "that a PSA is subject to Court approval in Virginia." "Though Aluker's relinquishment of his custody rights via the PSA may be subject to final judicial approval under Virginia law, the language in the Parties' PSA deprives Aluker from now asserting wrongful removal under Article 3 of the Hague Convention because it gives rise to Yan's complete custody rights under the treaty's legal regime."