     11-3546
     Radu v. Toader


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 22nd day of February, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                GUIDO CALABRESI,
 9                ROSEMARY S. POOLER,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13      IULIAN CRISTIAN RADU, In the Matter of
14      L.D.R., an infant under the age of 16,
15
16                    Plaintiff-Appellant,
17
18                    -v.-                                              11-3546
19
20      PETRUTA TOADER, AKA Petruta Nicolaie,
21      FKA Petruta Radu,
22
23                    Defendant-Appellee.
24
25
26      - - - - - - - - - - - - - - - - - - - -X
27


                                                 1
 1   FOR APPELLANT:             Charles I. Poret (Scott C.
 2                              Kessenick, on the brief)
 3                              Dechert LLP
 4                              New York, NY
 5
 6
 7   FOR APPELLEE:              Alyssa B. Cohen (Douglas F.
 8                              Broder, on the brief)
 9                              K&L Gates LLP
10                              New York, NY
11
12        Appeal from a judgment of the United States District
13   Court for the Eastern District of New York (Azrak, M.J.).
14
15        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16   AND DECREED that the district court’s judgment is AFFIRMED.
17
18        Petitioner Iulian Cristian Radu appeals from the August
19   3, 2011 memorandum and order of the United States District
20   Court for the Eastern District of New York denying his
21   petition to compel the return of his son, L.R., to Romania
22   pursuant to the Hague Convention on the Civil Aspects of
23   International Child Abduction, Oct. 24, 1980, T.I.A.S. No.
24   11670, S. Treaty Doc. No. 99-11 (the “Convention” or the
25   “Hague Convention”), and the International Child Abduction
26   Remedies Act (“ICARA”) implementing the Convention in the
27   United States. See 42 U.S.C. § 1163. We assume the
28   parties’ familiarity with the underlying facts, the
29   procedural history, and the issues presented for review.
30
31        Radu argues that his ex-wife, respondent Petruta
32   Toader, wrongfully moved L.R. from Romania to the United
33   States in violation of Radu’s “rights of custody” under the
34   Hague Convention. We review a district court’s factual
35   determinations in cases arising under the Hague Convention
36   for clear error and its legal conclusions de novo. See
37   Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir. 2001).
38
39        The Convention defines “rights of custody” to include
40   “rights relating to the care of the person of the child and,
41   in particular, the right to determine the child’s place of
42   residence.” Hague Convention, art. 5. The Convention
43   distinguishes between rights of custody and rights of
44   access. The latter is also a defined term under the

                                  2
 1   Convention and means “the right to take a child for a
 2   limited period of time to a place other than the child’s
 3   habitual residence.” Id. ICARA similarly defines “rights
 4   of access” to mean “visitation rights.” 42 U.S.C.
 5   § 11602(7). A parent has a “right of custody” if his or her
 6   consent is legally required before the other parent may move
 7   the child to another country (a “ne exeat” right), and a
 8   breach of such right gives rise to a return remedy under the
 9   Convention. See Abbott v. Abbott, 130 S. Ct. 1983, 1992
10   (2010). By contrast, “[t]he Convention provides no return
11   remedy when a parent removes a child in violation of a right
12   of access.” Id.
13
14        Radu has no ne exeat right. Under Romanian law, a
15   child’s domicile is established as the domicile of the
16   parent to whom the child was entrusted by a final and
17   irrevocable court decision. Decision No. 922/2009. If
18   parents do not share the same domicile, then the child’s
19   domicile is established by common agreement of the parents,
20   or, absent such agreement, by a court. But that provision
21   does not govern a situation in which sole custody of the
22   child has been granted to one parent. Because the divorce
23   decree entrusted sole custody of L.R. to Toader, giving Radu
24   only a right of visitation, Toader did not need Radu’s
25   consent to change L.R.’s domicile. While L.R.’s removal may
26   have violated Radu’s rights of access, it did not violate
27   any rights of custody for purposes of the Convention. This
28   interpretation of Romanian law is reinforced by the April
29   2011 decision of a Romanian court, which denied Radu’s
30   efforts to compel the return of L.R. and noted that Radu
31   could not seek L.R.’s return because custody of the child
32   had been entrusted to Toader. See Diorinou v. Mezitis, 237
33   F.3d 133, 142 (2d Cir. 2001) (“American courts will normally
34   accord considerable deference to foreign adjudications as a
35   matter of comity. In particular, we have observed that
36   comity is at the heart of the Hague Convention.” (internal
37   quotation marks, citations, and alteration omitted)).
38
39
40
41
42
43
44

                                  3
1        We have considered Radu’s remaining arguments and find
2   them to be without merit. For the foregoing reasons, the
3   judgment of the district court is hereby AFFIRMED.
4
5
6
7                              FOR THE COURT:
8                              CATHERINE O’HAGAN WOLFE, CLERK
9




                                 4
