| Availability of Hague Convention
as a Remedy
In Mezo v. Elmergawi, 855 F. Supp. 59 (E.D.N.Y. 1994)
the Mothers action to obtain an injunction ordering the Secretary of
State to perform his duties under the Hague Convention on Civil Aspects
of International Child Abduction, was dismissed, where the childrens
father took the children, who were in the mothers custody, from the
United States to Egypt because while the United States was a signatory
to the Hague Convention Egypt and Libya were not. The remedy is
available under 42 USC 11601-11610 and the Hague Convention only when a
child is wrongfully removed from a signatory country and retained in
another signatory country.
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In Matter of Mohsen, 715 F. Supp. 1063 (D. Wyo. 1989) the petition of a
Citizen of Bahrain, filed under 42 USC 11603(b) the International Child
Abduction Remedies Act, seeking return of his daughter residing with her
U.S. citizen mother in Wyoming was dismissed. The father has no rights
under Hague Convention on Civil Aspects of International Child Abduction
to seek redress for his child who was a habitual resident of Bahrain
immediately before going to United States because Bahrain is a
nonsignatory or noncontracting state to Hague Convention.
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In Wiezel v. Wiezel-Tyranauer, ___ F.Supp.2d ____, 2005 WL 22850 (S.D.N.Y.),
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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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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