| In Suarez v Castrillo,
2011 WL 2669198 (D.Colo.) Petitioner and Respondent were the parents of
three minor children. On or about June 29, 2011, Ms. Suarez filed a
Petition For Enforcement of Child Custody Decree in the Colorado
District Court for Arapahoe County. That Petition alleged that the
parties were subject to a 2003 divorce and custody decree from a court
in Venezuela that gave Ms. Suarez legal custody of the children. The
Petition recited that the children resided with Ms. Suarez pursuant to
that decree, first in Venezuela and, upon Ms. Suarez's move in September
2007, in Alberta, Canada. Ms. Suarez alleged that she and Mr. Castrillo
reached an agreement by which the children would temporarily reside with
Mr. Castrillo in Colorado for one school year, and then be returned to
Canada. Ms. Suarez alleges that that agreement had now expired, but Mr.
Castrillo refused to return the children to Canada.
The District Court observed that Ms. Suarez's
proceeding in Arapahoe County invoked C.R.S.14-13-101 et seq.,
Colorado's implementation of the Uniform Child Custody Jurisdiction
Enforcement Act. Part 3 of that Act incorporates the principles of the
Hague Convention on the Civil Aspects of International Child Abduction,
done at the Hague on October 25, 1980. The statute provides that
Colorado courts "shall recognize and enforce a child-custody
determination of a court of another state," including foreign nations,
and allows those courts to "grant any relief normally available under
the law of this state to enforce a registered child-custody
determination made by a court of another state." Upon a
properly-supported petition by a parent claiming custodial rights over a
child, the state court is required to hold an expedited hearing and
direct that the petitioning parent "take immediate physical custody of
the child" unless the respondent parent demonstrates certain specific
facts calling the validity of the custody order into question.
On July 5, 2011, Mr. Castrillo filed a Notice
of Removal pursuant to 28 U.S.C. s 1446, removing the action from the
Colorado District Court to this Court. Mr. Castrillo contended that this
Court had original jurisdiction over the proceeding pursuant to 28 U.S.C.
1441, insofar as this action "involves a federal question," although Mr.
Castrillo did not specifically identify the source of that question. He
noted that Ms. Suarez's petition uses terms that are "used only in
matters pursuant to the Hague Convention," that Ms. Suarez had
previously filed a request with Canadian authorities under the Hague
Convention, and thus, apparently concluded that this action "arises
under the Hague Convention."
The District Court held that on its face, Ms.
Suarez's petition did not invoke a federal question. Her claims arose
exclusively under Colorado statutory law; she did not invoke any
provisions of the federal International Child Abduction Remedies Act ("ICARA"),
42 U.S.C. s 11601, either directly or inferentially. The fact that she
used terminology consistent with the Hague Convention (and, for that
matter, with ICARA) was of no significance, insofar as Colorado's UCCJEA
is expressly cognizant of the Hague Convention, and incorporates by
reference certain aspects of that treaty. Ms. Suarez could have asserted
a claim under ICARA either in lieu of or in addition to her claims under
Colorado's UCCJEA, see 2 U.S.C. s 11603(a) (conferring concurrent
jurisdiction on state and federal courts over ICARA claims), but for
whatever reason, Ms. Suarez elected to pursue only those remedies that
Colorado provides. Accordingly, the face of her pleading did not invoke
any federal question. Mr. Castrillo's citation to Matter of Mahmoud,
1997 WL 43542 (E.D.N.Y.1997) (unpublished), was inapposite. There, the
petitioning parent had filed an ICARA claim in state court, which the
respondent parent sought to remove to federal court. Thus, the Court
found that Ms. Suarez's claim arose purely under state law and was not
preempted by federal law. Accordingly, Mr. Castrillo failed to carry his
burden of demonstrating that the Court possessed subject-matter
jurisdiction over the action and it was remanded to the Colorado
District Court for Arapahoe County pursuant to 28 U.S.C. 1447(c).
|
