|
In Wiggill v Janicki, 262 F.Supp.2d 687 ( S.D. West Virginia, 2003)
the mother who , who resided in England, petitioned for summer
visitation with her son living with his father in West Virginia,
requesting that the father pay for transportation. The father responded
that he had obtained tickets for his son, but requested that the mother
provide $75 for his son's passport. The District Court held that court
did not have jurisdiction to enforce parental rights of access. The
court pointed out that in Bromley v. Bromley, 30 F.Supp.2d 857
(E.D.Pa.1998), the district court thoroughly analyzed the issue whether
it had subject matter jurisdiction over claims for right of access and
concluded from a review of the Convention and particularly Article 21
that it provided no remedy for obstacles to rights of access absent a
"wrongful" removal of a child. The Bromley court cited the State
Department's legal analysis of the Convention addressing remedies for
breach of access rights. The State Department found: "Access rights,"
which are synonymous with "visitation rights", are also protected by the
Convention, but to a lesser extent than custody rights. While the
Convention preamble and Article 1(b) articulate the Convention objective
of ensuring that rights of access under the law of one State are
respected in other Contracting States, the remedies for breach of access
rights are those enunciated in Article 21 and do not include the return
remedy provided by Article 21. Article 21 states that a petition to
enforce access rights is to be presented to the Central Authority, but
does not provide for presentation to the judicial authority as found in
Article 12. While federal courts undoubtedly have jurisdiction under the
Convention and ICARA to act where children have been wrongfully removed
from their country of habitual residence, that jurisdiction does not
extend to access issues and alleged breaches of access rights. These
issues are best left to the state courts that traditionally deal with
this special area of the law. The Court dismissed the Petition for lack
of jurisdiction. |
