Exploring the Hague Abduction Convention Through Halabi’s Lens

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In an article published in the North Carolina Journal of International Law’s symposium issue, Issue 4, Sam F. Halabi[1] explores why federal courts decline to assert subject-matter jurisdiction over enforcement of visitation rights under the International Child Abduction Remedies Act (ICARA), despite asserting jurisdiction over another remedy: return of a child to his or her habitual residence.[2] Ultimately, Halabi contends that neither the treaty nor the statute justifies the federal courts’ refusal to hear access claims.[3] Instead, as Halabi suggests, the statutory language suggests that federal courts granted themselves the authority to determine jurisdiction based on their own evaluations of the competency of state courts.[4]

The Hague Convention on the Civil Aspects of International Child Abduction, codified in federal law as ICARA, became the first family-law treaty ratified by the United States.[5] The treaty aims to address the growing international concern over a parent taking a child across international borders to realize more favorable custody determinations; the solution being to withhold visitation and custody rights from parents who abduct their children.[6] The United States became a state party to ICARA in 1981,[7] and in 1988 Congress passed ICARA as the implementing statute.[8] ICARA gives federal and state courts concurrent original jurisdiction over treaty claims.[9] The courts’ judgments are to be mutually respected.[10]

As can be the case with treaties, however, the Hague Convention’s ratification and subsequent codification have produced unexpected challenges.[11] Its codification granted federal and state courts original jurisdiction over two remedies that the ICARA authorizes: the enforcement of visitation rights and the return of a child to his or her habitual residence.[12] “Despite the ICARA’s clear language,” federal courts frequently reject parental requests seeking enforcement of visitation rights.[13] On the other hand, federal courts “aggressively assert … their jurisdiction” over returning a child to his or her habitual residence.[14]

The U.S. Supreme Court has occasionally allowed treaties to impinge on legislative prerogatives historically reserved for the states. Most recently in the treaty-making context, in American Insurance Association v. Garamendi,[15] the Court indicated that Congress has the broad authority to invade the province of state regulation when adopting implementing legislation for a treaty, so long as Congress’ invasion is explicit.[16] As indicated by Halabi, family law is historically reserved for the states,[17] but in the last three decades the federal government has expanded its jurisdiction over family law.[18]

States’ abuse of their authority to prioritize state law over international treaties became one of the leading causes of federal encroachment into the family sphere.[19] In fact, in response to the relationship between delinquent family maintenance obligations and federal assistance, Congress enacted a statute requiring states to actively pursue individuals who are delinquent on custody payments.[20] Congress also passed the Parental Kidnapping Prevention Act, requiring judges to defer to the continuing jurisdiction of any decree issued by a previous state judge with jurisdiction over the case.[21] This is achieved, in part, by making the Federal Parent Locator Service available in all custody cases, as well as making the federal Fugitive Felony Act applicable to interstate child abductions.[22] The Act does not, however, provide mechanisms for enforcement.[23]

As previously described, the Hague Child Abduction Convention is aimed at custodial remedies without allowing the court to determine the merits of the underlying custody claim.[24] ICARA allows any person seeking the return of a child to commence a civil action by filing a petition in a state or federal court or with the U.S. Department of State.[25] It also allows judges to refuse to order the return of a child if: (1) a child’s removal from a contracting state is wrongful and (2) the removal breaches custody rights.[26] Thus, if a taking parent travels with a child in accordance with a custody agreement, the left-behind parent would not be able to have the child returned. Because the “taking” would be pursuant to a custody agreement, it would not be considered wrongful.[27]

As Halabi explains, however, ICARA’s language “invites jurisdictional tensions” between state and federal courts.[28] Claims brought in state court are typically brought in conjunction with divorce and/or custody claims.[29] In federal courts, state-court defendants may bring actions as federal plaintiffs.[30] These litigants, as Halabi explains, use federal courts to re-litigate unfavorable state court orders.[31] When these treaty claims appear in state courts, federal district courts have aggressively pursued various methods to determine whether to exercise jurisdiction.[32]

The federal courts, however, frequently abstain in efforts to safeguard the state’s interest in the family sphere despite the Convention’s barring of final decisions on the merits of custody disputes until the removal claim is resolved.[33] In other words, just because the custody dispute is a fact-specific inquiry typically to be decided in state court, federal courts have jurisdiction to hear the removal claim, and the removal claim should be solved before the custody claim.[34] Although the states have jurisdiction to hear the removal claims, if the claim is brought in federal court, it should be solved in federal court according to the treaty terms rather than remanded to states to be decided in conjunction with custody rights claims.[35] ICARA grants congruent jurisdiction, not mutually exclusive jurisdiction.

In abstaining from the cases or remanding them to state courts, the federal courts argue that they are giving full faith and credit to the state courts, respecting concurrent jurisdiction.[36] Halabi contends, though, that full faith and credit should not undermine ICARA’s intent for federal courts to exercise jurisdiction over Hague Child Abduction Convention claims brought in state courts up to the point that the trial court grants or denies a petition.[37] Although the states have interest under the treaty and in family law, the federal interests under the treaty require that “wrongful removal claims be adjudicated expeditiously.”[38] The United States’ handling of these claims, though, has characterized it as one of the slowest contracting states with respect to the resolution of claims.[39] In fact, a recent Supreme Court case, Ankenbrandt v. Richards,[40] appears to have inadvertently delayed resolution of the federal abstention by considering abstention useful for a “case involving elements of the domestic relationship even when the parties do not seek divorce, alimony, or child custody.”[41]

The “historical divisions between state and federal judicial competencies”[42] are generating expansive complications in granting remedies afforded by ICARA.[43] Rather than assuming their role in granting remedies for removal claims, federal courts are relying on judicial history and tradition of reserving family-law issues for the states.[44] The harm in this is that the treaty specifically provides that the removal claims should be decided separately from the claims brought in the state action.[45] By circumscribing the treaty and statutory language, the federal courts are failing to assume a responsibility delegated to them, thereby compromising U.S. commitments to family law.[46] Were the federal courts to honor their obligations under the treaty, its codification in the United States could “be viewed … as a victory for bicameral international lawmaking.”[47]



[1] Associate Professor, The University of Tulsa College of Law. JD Harvard, MPhil (International Relations) Oxford, BA, BS, Kansas State University.

[2] Sam F. Halabi, The Hague Convention on the Civil Aspects of International Child Abduction and the Latent Domestic Relations Exception to Federal Question Jurisdiction 1–42 (Mar. 2016).

[3] Halabi, supra note 2, at 3.

[4] Halabi, supra note 2, at 3.

[5] Halabi, supra note 2, at 1.

[6] Halabi, supra note 2, at 23.

[7] Halabi, supra note 2, at 2

[8] Pub. L. 100-300, Apr. 29, 1988, 102 Stat. 437, now codified at 22 U.S.C. § 9001 et seq. (2012); Halabi, supra note 2, at 2.

[9] Halabi, supra note 2, at 23.

[10] Halabi, supra note 2, at 23.

[11] Halabi, supra note 2.

[12] Halabi, supra note 2, at 22.

[13] Halabi, supra note 2, at 1.

[14] Halabi, supra note 2, at 1.

[15] 539 U.S. 396 (2003); see Halabi, supra note 2, at 7–8.

[16] Halabi, supra note 2, at 7–8.

[17] Halabi, supra note 2, at 8.

[18] Halabi, supra note 2, at 9.

[19] Halabi, supra note 2, at 9.

[20] Halabi, supra note 2, at 9.

[21] Halabi, supra note 2, at 10.

[22] § 1738A; 42 U.S.C. § 653 (2016) (establishing the Federal Parent Locator Service (FPLS)); Caroline LeGette, International Child Abduction and the Hague Convention: Emerging Practice and Interpretation of the Discretionary Exception, 25 Tex. Int’l. L. J. 287, 292–93 (1990) (describing Department of Health and Human Services’s use of FPLS).

[23] Halabi, supra note 2, at 10.

[24] Hague Child Abduction Convention, supra note 8, art. 8, art. 16; 22 U.S.C. § 9001(a)(4); Halabi, supra note 2, at 12.

[25] Halabi, supra note 2, at 15.

[26] Hague Child Abduction Convention, supra note 1, art. 3; Halabi, supra note 2, at 14–6.

[27] See Mozes v. Mozes, 239 F.3d 1067, 1073 (9th Cir. 2001) (outlining inquiries a court should undertake when determining whether a removal is wrongful).

[28] Halabi, supra note 2, at 17.

[29] Halabi, supra note 2, at 17.

[30] Halabi, supra note 2, at 17.

[31] Halabi, supra note 2, at 17.

[32] Halabi, supra note 2, at 1.

[33] Halabi, supra note 2, at 24.

[34] Halabi, supra note 2, at 24.

[35] Halabi, supra note 2, at 24; see, e.g., March v. Levine, 249 F.3d 462 (6th Cir. 2001); In re S.L.M., 207 S.W.3d 288 (Tenn. Ct. App. 2006) (detailing how after murdering his wife and fleeing to Mexico to escape civil liability and criminal prosecution, Perry March used the Convention to have his children returned to Mexico despite losing liability custody battles with the maternal grandparents in Illinois and Tennessee courts.); Bromley v. Bromley, 30 F. Supp. 2d 857, 860 (E.D. Pa. 1998) (“[N]o federal court has yet addressed the right of access to children under the Convention as contrasted with ordering the return of children.”)

[36] Halabi, supra note 2, at 33.

[37] Halabi, supra note 2, at 33.

[38] Halabi, supra note 2, at 32.

[39] Halabi, supra note 2, at 32.

[40] 504 U.S. 689 (1992).

[41 Halabi, supra note 2, at 35–37.

[42] Halabi, supra note 2, at 39.

[43] Halabi, supra note 2, at 39.

[44] Halabi, supra note 2, at 34.

[45] See Halabi, supra note 2, at 38–41.

[46] See Halabi, supra note 2, at 38-41

[47] Halabi, supra note 2, at 38.



Posted by Margaret D. Petersen on Fri. July 29, 2016 8:00 AM
Categories: Children's rights, Hague Convention, Symposium

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