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In Wiezel v. Wiezel-Tyranauer,
385 F.Supp.2d 240 (S. D. N. Y., 2005),
the Court held that its jurisdiction did not extend to deciding the
degree or contours of access rights and lacked jurisdiction to order the
relief requested.
In November 2002, his efforts to negotiate the return to Israel of his
children failed, the Petitioner filed an application for the return of
the children pursuant to CARA and The Hague on October 25, 1980
Convention. Petitioner filed his action with Israel's central authority
which transmitted Petitioner's application to the United States central
authority.
On January 28, 2005, the Petitioner filed a petition in the District
Court pursuant to Article 12 of the Convention, which provides "Where a
child has been wrongfully removed or retained...the judicial or
administrative authority of the Contracting State where the child
is...shall order the return of the child forthwith." Even though
Petitioner claimed to be a
custodial parent of the Children, the Petition did not seek the
permanent return of the Children to Israel. Rather, Petitioner was
seeking court-ordered visitation or access rights, specifically an order
directing the Mother to arrange, at her expense, for the children to
visit their Father in Israel twice per calendar year, and to allow the
Father to have at least four unsupervised visits per year with the
Children in the United States.
Respondent filed a motion to dismiss for lack of subject matter
jurisdiction and for failure to state a claim. Respondent argued that
the court had no subject matter jurisdiction because the Father's
Petition sought rights of access, rather than custody.
Assuming that Petitioner had custody rights, Respondent argued that the
court
had no jurisdiction to adjudicate a petition, that sought only rights of
access, such as periodic visitations. Respondent cited Croll v. Croll,
229 F.3d 133 (2d Cir.2000), for the proposition that district courts
lack subject matter jurisdiction to provide or enforce 'rights of
access' of the kind that Petitioner was seeking. The Court held that
Respondent's argument misconstrued Croll, which confirms merely that
district courts have jurisdiction to order the return of children only
to a parent who has custody rights, and holds that rights of access do
not constitute rights of custody within the meaning of the Hague
Convention, even when coupled with a ne exeat clause that entitles a
non-custodial parent the right to prevent the custodial parent from
taking the child to a new country of residence.
The Court found that the Petitioner's request for visitation rights,
rather than
return of the Children, precluded this court from asserting subject
matter jurisdiction over the case. Article 12 compels the court to order
a single remedy--return of the child--upon a finding of a wrongful
removal. The use of the word 'shall' in Article 12 leaves any court no
choice but to order return upon finding a wrongful removal, and does not
leave the court any discretion to grant any other remedy. The Convention
does not permit the court to order the relief that Petitioner is
seeking.
The Convention sets forth separate procedures by which signatory nations
may enforce access rights of petitioning parents, and those procedures
do not involve the federal courts. Article 21 concerns "organizing or
securing the effective exercise of rights of access" to a child. Article
21 makes no mention of recourse to a judicial authority. Instead, a
parent must apply to the "Central Authority" of a nation to secure
enforcement of his or her rights of access, and the "central authority"
for the United States is the Department of State.
There is language in Croll that could be construed as indicating that
some American courts also have jurisdiction to enforce access rights.
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