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In Taveras v. Taveras. 397 F. Supp. 908, (S.D. Ohio, 2005),
plaintiff asked the Court to declare that the children were being
unlawfully withheld from the country of their habitual residence, to
order the children to be returned to the Santo Domingo Court for a
determination of their guardianship, and to place the children in
Plaintiff's custody for the express purpose of assuring their return to
the Santo Domingo Court.
Defendant moved to dismiss, asserting that the Dominican Republic was
not a signatory to the Hague Convention, thus leaving the Court without
jurisdiction. Plaintiff argued that the Dominican Republic is a
signatory to the Hague Convention.
Defendant argued that the Court had no jurisdiction under 42 U.S.C.
11603, which states: "The courts of the States and the United States
district courts shall have concurrent original jurisdiction of actions
arising under the Convention." Because the Dominican Republic is not a
party to the Hague Convention, Defendant argued that this Court is
without jurisdiction.
Plaintiff argued that the Dominican Republic acceded to the Hague
Convention on August 11, 2004 and its provisions went into effect there
on November 1, 2005. Plaintiff conceded that Article 38 requires these
new signatories to request acceptance from each contracting state.
The accession will have effect only as regards the relations between
the acceding State and such Contracting States as will have declared
their acceptance of the accession. Such a declaration will also have to
be made by any Member State ratifying, accepting or approving the
Convention after an accession.
* * *
The Convention will enter into force as between the acceding State
and the State that has declared its acceptance of the accession on the
first day of the third calendar month after the deposit of the
declaration of acceptance. Hague Convention, Article 38. It was
undisputed that the United States and the Dominican Republic have not
entered into the negotiations required by Article 38. Consequently, the
Convention's administrative and judicial mechanisms are not yet
applicable with regard to relations between the two countries. See
Gonzalez v. Gutierrez, 311 F.3d 942, 945 (9th Cir.2002). Under Article
38 the Convention is open to accession by non-member States, but enters
into force only between those States and member Contracting States which
specifically accept their accession to the Convention.
The Court held that the Hague Convention's scope is a limited one: "A
threshold inquiry, therefore, is whether the child who has been abducted
or retained is subject to the Convention's provisions. Only if the child
falls within the scope of the Convention will the administrative and
judicial mechanisms of the Convention apply." 51 Fed. Reg. 10,494,
10,504.
The plain text of Article 29 indicates that the Convention cannot
preclude a court from hearing the case provided that the court has
another basis for jurisdiction. Article 29 is not in and of itself a
jurisdictional grant.
Although 42 U.S.C. 11603 allow any person to initiate judicial
proceedings, the statute, read in full, requires that the proceeding be
held "in any court which has jurisdiction of such action. This statute
is not a jurisdictional grant allowing any person into court; rather,
11603 requires the court to have jurisdiction under the Convention. The
statute contains a section specifically stating as such: "The courts of
the States and the United States district courts shall have concurrent
original jurisdiction of actions arising under the Convention."
11603(a).
When a child is taken from a non-signatory country and is retained in
a signatory country, it is well-settled law that there is no remedy
because the terms of the Convention are only applicable to those
countries who signed the Convention and thereby agreed to abide by its
terms. Because the United States has not declared its acceptance of the
Dominican Republic's accession, the Court did not have jurisdiction
under the Hague Convention.
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