Refusal to return children to the mother after a visit

Facts

In this case, the California court had awarded sole custody of the minor children to the mother in divorce proceedings. The father subsequently obtained limited visitation rights, but after a visit, he did not return the children to their mother as scheduled. Instead, he took the children to Switzerland, refusing to return them to their mother. The cantonal court of Basel-Landschaft convicted the father of abduction and retention of a minor. The father appealed against this decision.

Considerations

The SCC dismissed the appeal. It considered that even if the California decision awarding sole custody to the mother could pose problems of recognition in Switzerland for public policy reasons, this was not relevant in this case. Indeed, the father had himself requested and obtained limited visitation rights from the California court, which obliged him to return the children to their mother after the visit. By failing to do so, he violated this court decision and was therefore guilty of retention of a minor within the meaning of Art. 220 SCC, even though he was one of the parents.

The Court also rejected the father's argument that he had merely taken the children to Switzerland for a vacation, without violating the visitation decision. It considered that the…