Couple's Child Abduction Spat Will Go to Trial
BOSTON (CN) - An incomplete birth certificate cannot diminish the custody rights of a father whose wife absconded to Puerto Rico with their daughter, the 1st Circuit ruled.
It is undisputed that Lisandro Patrick fathered the L.N.R. who was born in 2009 to Noelia Rivera-Lopez, but the girl's Puerto Rican birth certificate does not list a father, according to the ruling.
Patrick and Rivera married in Puerto Rico several months later and agreed that Patrick would move to the United Kingdom to make a home for the family, which included Rivera's child from a previous relationship.
Rivera and the children arrived in 2011 and settled in with Patrick.
The court notes that L.N.R. "made friends and attended various play groups" in the United Kingdom, and that "the family received medical care from England's National Health Service, as well as other public benefits," including a residence card.
Then, in March 2012, Rivera-Lopez took off with both kids. After tracking Rivera to Puerto Rico and discovering that she would not return to the United Kingdom, Patrick filed a petition in Puerto Rico for his child's return under the Hague Convention on the Civil Aspects of Child Abduction.
Though Patrick is unemployed and using pro bono legal assistance, the court ordered Patrick to post a $10,000 bond, which it later reduced to $500.
The court appointed counsel for Rivera and ordered her to stay in Puerto Rico pending a nonjury trial set for Oct. 12, 2012.
On the eve of those proceedings, Rivera moved to dismiss and claimed that Patrick lacks custody rights under the Hague Convention since he is not named on L.N.R.'s birth certificate.
Patrick had an affidavit of paternity, and no one disputed his claim, but a magistrate judge said he should have presented this affidavit to Puerto Rico's Vital Statistics Registry long ago.
Last week, a three-judge appellate panel in Boston revived Patrick's petition, vacated his bond and ordered the District Court "to conduct a trial as soon as possible."
Despite his absence from the birth certificate and his failure to register the affidavit, Patrick's paternity was "legitimated under Puerto Rico law by virtue of Patrick's marriage to Rivera," Judge Jeffrey Howard wrote for the panel.
The convention, adopted in 1980, holds that U.K. law must govern Patrick's rights of custody because L.N.R.'s habitual residence was there before her abduction.
Under U.K. law, "where the parents of an illegitimate person marry one another and the father of the illegitimate person is not at the time of the marriage domiciled in England and Wales but is domiciled in a country by the law of which the illegitimate person became legitimated by virtue of such subsequent marriage, that person, if living, shall in England and Wales be recognised as having been so legitimated from the date of the marriage," according to the ruling.
Rivera also failed to show that Patrick is not L.N.R.'s legitimate father under Puerto Rico Law, which states that "the legitimation of children had out of wedlock shall be accomplished by the subsequent reciprocal marriage of the parents."
The ruling further cites an absence of legal precedent to support that finding that the filing of an affidavit legitimates a child.
Puerto Rico abolished the distinction between legitimate and illegitimate children in 1952, but that change "has not abolished the concept of legitimacy," Howard added.
"Puerto Rico has never repealed the statute that provides for legitimation of children by the subsequent marriage of their parents, and the statute has been cited ... both in federal court and the Supreme Court of Puerto Rico," he added.
L.N.R. is legitimate "as long as the child is acknowledged in a public instrument," and Patrick's affidavit, registered or not, qualifies, according to the ruling.