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In Wiezel v Wiezel-Tyrnauer C
F.Supp.2d ----, 2005 WL 22850 (S. D. N. Y.) the father filed an application
for the return of his children to Israel pursuant to the International
Child Abduction Remedies Act and the Hague Convention on the Civil
Aspects of International Child Abduction. His Petition was made 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." Although he claimed to be a custodial
parent of the Children, he did not seek the permanent return of the
Children to Israel. Instead he sought 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. The
District Court granted the mother=
s motion to dismiss the petition because the father did not seek the
permanent return of the children to Israel. The jurisdictional issue was
whether the court had jurisdiction over an Article 12 claim by a
petitioning parent who claims to have custody rights but is seeking as,
a remedy, only visitation and other access rights. Petitioner was
seeking to have the court enforce his custody rights by ordering
visitation rights. The Court noted that Article 12 directs the court to
order a single remedy, the return of the child, upon a finding of a
wrongful removal. The Convention does not permit the court to order the
relief that Petitioner was seeking. Moreover, 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. While Article 12 addresses procedures to effectuate the return
of a wrongfully removed child, Article 21 concerns "organizing or
securing the effective exercise of rights of access" to a child.
Although Article 12 specifically refers to action by the "judicial or
administrative authority" of a member nation, 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. The court found that it lacked
jurisdiction to issue orders to create and secure access rights. Lacking
the authority to order the relief requested, the court found that the
action had to be dismissed |
