UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-1279

SERGE MATTHEW ALUKER,

Petitioner - Appellant,

v.

SIMIN YAN, a/k/a Simin Aluker,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at 

Alexandria. Liam O’Grady, Senior District Judge. (1:20−cv−01117−LO−IDD)

Submitted: June 25, 2021 Decided: August 5, 2021

Before MOTZ, KEENAN, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Stephen J. Cullen, Kelly A. Powers, MILES & STOCKBRIDGE P.C., Washington, D.C., 

for Appellant. Maya Eckstein, Richmond, Virginia, Kelly R. Oeltjenbruns, HUNTON 

ANDREWS KURTH LLP, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

In this appeal, we consider whether the district court erred in concluding that Serge 

Aluker, the father of two minor children, did not have custody rights recognized by the 

Hague Convention and, therefore, failed to prove that the children’s mother, Simin Yan, 

wrongfully removed the children from Portugal to the United States. For the reasons stated 

below, we affirm the district court’s judgment. 

I.

Aluker is a United States citizen, a Russian citizen, and a legal resident of Portugal. 

Yan is a United States citizen who presently resides in Virginia. In 2006, Aluker and Yan

were married in China, and they moved to the United States in 2008. While living in the 

United States, Aluker and Yan had two children. The family moved to Spain in 2015, and 

to Portugal in 2017. 

Shortly after their move to Portugal, Aluker and Yan separated. Initially, they 

shared parental responsibilities. However, in November 2018, Aluker and Yan executed a 

Separation and Property Settlement Agreement (PSA), which stated in relevant part: 

The parties desire to settle and determine their mutual obligations and all of 

their property rights, as well as the maintenance and support of each of the 

parties, by the other, and all rights, claims, relationships or obligations 

between them arising out of their marriage or otherwise. 

. . . 

In full and final settlement of the matters at issue between them, and in 

consideration of the mutual promises and covenants contained herein, and 

for other good and valuable consideration, receipt and sufficiency of which 

is hereby acknowledged, the parties agree as follows: 

. . . 
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[Yan] shall have sole legal and primary physical custody of [the two 

children]. [Aluker] shall be entitled liberal and reasonable visitation with the 

children.

. . . 

The parties acknowledge that this Agreement is a full and final settlement 

that contains the entire understanding of the parties, and there are no 

representations, warranties, covenants, or undertakings other than those 

expressly set forth herein.

. . . 

This Agreement shall be construed in accordance with the law of the 

Commonwealth of Virginia.

Aluker also agreed in the PSA that Yan would have sole ownership of their house 

in Falls Church, Virginia. The parties further stipulated therein that each had “the right to 

reside at any place . . . without the consent of the other party.” The PSA was not 

incorporated into any court order. 

Several months after the PSA was executed, Aluker initiated proceedings in May 

2019 in a Portuguese court seeking an adjudication of child custody rights. The Portuguese 

court had not taken any action when, on October 3, 2019, Yan sent Aluker an e-mail stating

that she was taking the children to the United States to live. Yan and the children traveled 

to the United States on the same day. 

Almost a year later, in September 2020, Aluker filed a petition in the district court

under the Hague Convention. In his “verified petition of return of children to Portugal,” 

Aluker contended that the children were wrongfully removed from Portugal. On the day 

of a scheduled bench trial, Yan requested a judgment on partial findings under Federal Rule 

of Civil Procedure 52(c). The court conducted a brief evidentiary hearing, allowed Aluker 

to file a response memorandum, and later granted Yan’s motion. The court concluded that 

the PSA was a valid agreement, which established that Yan had legal custody of the 
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children at the time she removed the children from Portugal. Accordingly, the court held 

that Yan’s status as legal custodian of the children defeated Aluker’s claim of wrongful 

removal. Aluker appeals. 

II.

In cases involving claims brought under the Hague Convention, we review a district 

court’s findings of fact for clear error and its conclusions of law de novo. Bader v. Kramer, 

484 F.3d 666, 669 (4th Cir. 2007). Our determination is limited to the merits of the 

wrongful removal claim, without consideration of any underlying custody dispute. Miller 

v. Miller, 240 F.3d 392, 398 (4th Cir. 2001).

The Hague Convention was adopted to help “secure the prompt return of children 

wrongfully removed to or retained in any Contracting State.” Convention on Civil Aspects 

of International Child Abduction (“Hague Convention”) art. 1, Oct. 25, 1980, T.I.A.S. No. 

11,670, 19 I.L.M. 1501. Article 3 of the Hague Convention provides:

The removal or the retention of a child is to be considered wrongful where . . 

. it is in breach of rights of custody attributed to a person . . . under the law 

of the State in which the child was habitually resident immediately before 

the removal or retention . . .

The rights of custody mentioned . . . above, may arise in particular by 

operation of law or by reason of a judicial or administrative decision, or by 

reason of an agreement having legal effect under the law of that State.

Hague Convention, art. 3. To establish a claim of wrongful removal under the Hague 

Convention, a petitioner must show that: (1) the children habitually resided in “the 

petitioner’s country of residence at the time of removal;” (2) the removal breached “the 
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petitioner’s custody rights under the law of his home state;” and (3) the petitioner was 

actually exercising his custody rights at the time of removal. Bader, 484 F.3d at 668; see 

also Hague Convention, art. 3. 

Aluker argues on appeal that the children were habitual residents of Portugal at the 

time of their removal and that, under Portuguese law, he maintains rights of custody 

recognized by the Hague Convention. He also contends that the PSA lacks any “legal 

effect” under the Hague Convention and that, therefore, Yan cannot rely on the PSA to 

defeat his wrongful removal claim. We disagree with Aluker’s position.

Irrespective whether the children were habitual residents of Portugal at the time of 

their removal, Aluker’s wrongful removal claim fails because he did not establish the other 

two requirements for proving his claim, namely, that when the children were taken to the 

United States, he had custody rights under Portuguese law and he was actually exercising 

those rights. See Bader, 484 F.3d at 668; Hague Convention, art. 3. At the time the children 

were removed from Portugal, no court had awarded custody rights to Aluker, and the 

parties had not entered into any written agreement providing Aluker with such rights. 

When the children were removed from Portugal, Yan had sole legal custody of the children, 

as agreed by the parties in the PSA.

Contrary to Aluker’s assertion, Portuguese choice of law rules require that we apply 

United States law in this case. Article 57 of the Portuguese Civil Code directs that 

“[r]elationships between parents and children are regulated by the common national law of 

the parents, and in the lack thereof, by the law of their common habitual residence; if the 

parents habitually reside in different countries, the law of the child’s country of origin shall 
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apply.” In applying Portugal’s choice of law provision to this case, the “common national 

law of the parents” is the United States, because both Aluker and Yan are United States 

citizens. Accordingly, United States law, here, the law of Virginia, applies to resolve this 

matter. 

Aluker has failed to prove under Virginia law that he had any custody rights at the 

time the children were removed from Portugal. As noted above, the PSA unambiguously 

provided that Yan “shall have sole legal and primary physical custody” of the two children. 

Although Virginia courts have the power to modify any private custody agreement that 

parents execute, parents still may enter into such custody agreements and courts may rely 

on them in making custody determinations. See Shoup v. Shoup, 556 S.E.2d 783, 787-89 

(Va. Ct. App. 2001) (“Divorcing parents may and, indeed, are encouraged under Virginia 

public policy, to reach agreement respecting the care and support of their minor children.”);

Va. Code Ann. § 20-109.1 (“Any court may affirm . . . any valid agreement between the 

parties . . . concerning the . . . care, custody and maintenance of their minor children.”). At 

the time the children were removed from Portugal, no court had altered the terms of the 

PSA or had adjudicated the issue of the children’s custody. 

The terms of the Hague Convention also support the district court’s conclusion that 

the PSA was a valid agreement addressing custody rights. Under the Hague Convention, 

custody rights can be determined by “an agreement having legal effect under the law of the 

[state of the child’s habitual residence].” Hague Convention, art. 3. An agreement having 

“legal effect” under the Hague Convention can include “simple private transactions 

between the parties concerning the custody of their children.” Elisa Pérez-Vera, 
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Explanatory Report on the 1980 HCCH Child Abduction Convention, in 3 Actes et 

Documents de la Quatorziéme Session – Child Abduction, at 426, 447, ¶ 70 (1980). 

Accordingly, we conclude that the district court did not err in holding that the PSA had 

“legal effect” within the meaning of the Hague Convention, and that Aluker failed to prove 

his claim of wrongful removal.∗

III.

For these reasons, we affirm the district court’s judgment.

AFFIRMED

∗ We reject Aluker’s assertion that he was not “fully heard” in accordance with Rule 

52(c), because the court did not receive testimonial evidence from Aluker’s expert witness 

on Portuguese law. In considering the legal issue regarding the effect of Portuguese law 

on the parties’ custody rights, the district court received two affidavits from Aluker’s expert 

witness and one from Yan’s expert witness on this topic. Rule 52(c) did not require an 

evidentiary hearing on this legal issue. Accordingly, we conclude that Aluker was “fully 

heard” on the dispositive issues before the district court.