See In re Application of Adams ex. rel. Naik v. Naik, 363 F.Supp.2d 1025, 1030 (N.D.Ill. 2005); Wiggill v. Janicki, 262 F.Supp.2d 687, 689 (S.D.W.Va. 2003); Neng Nhia Yi Ly v. Heu, 296 F.Supp.2d 1009, 1011 (D.Minn. 2003); Teijeiro Fernandez v. Yeager, 121 F.Supp.2d 1118, 1125 (W.D.Mich. 2000); Bromley v. Bromley, 30 F.Supp.2d 857, 860-61 (E.D.Pa. 1998). The Appellant acknowledges the decision of these courts, however, she attempts to distinguish this case by arguing that in all of the above cases the petitions for access were only brought and considered under the Convention, and not under ICARA.
The State Department is the Central Authority for the United States. See Exec. Order No. 12,648, 53 Fed. Reg. 30,637 (Aug. 11, 1988), reprinted in 42 U.S.C. § 11606 (1994). 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. Review of the Convention and particularly Article 21 showed it provided no remedy for obstacles to rights of access absent a "wrongful" removal of a child. Id. at 860; see also Teijeiro Fernandez v. Yeager, 121 F. Supp.2d 1118, 1123 (W.D.Mich.
In response, the Yi Ly court concluded that, although "[f]ew federal courts have had occasion to examine the question whether federal jurisdiction over proceedings under the Hague Convention includes power to issue orders to secure access rights . . ., [t]he consensus among those that have considered the issue is that such jurisdiction does not exist." Id. citing Wiggill v. Janicki, 262 F. Supp. 2d 687 (S.D.W. Va. 2003); Fernandez v. Yeager, 121 F. Supp. 2d 1118 (W.D. Mich. 2000); Bromley v. Bromley, 30 F. Supp. 2d 857 (E.D. Pa. 1998). Admittedly, however, the cases cited in Yi Ly are distinguishable from the facts of this case, which arguably weakens its precedential value here.
The Court first addressed this issue in its March 15, 2000, Order denying Petitioner's request to stay the State Proceedings. In that Order, the Court cited Bromley v. Bromley, 30 F. Supp.2d 857 (E.D.Pa. 1998), as indicating that the Court lacks jurisdiction to enforce Petitioner's rights of access under the Convention. After discussing Bromley, this Court stated that it found the Bromley court's reasoning persuasive but deferred ruling on the issue of jurisdiction to allow further briefing of the issue.
With regard to the right of access claim, the Mother argues, as she did before the District Court, that “federal courts lack subject matter jurisdiction over claims seeking to enforce rights of access.” Appellant's Br. 26 (citing Wiezel v. Wiezel–Tyrnauer, 388 F.Supp.2d 206, 211 (S.D.N.Y.2005); Bromley v. Bromley, 30 F.Supp.2d 857, 860 (E.D.Pa.1998)). The relevant provision of the Hague Convention—Article 21, see note 7, ante—does not mention judicial remedies for enforcing access rights, the Mother argues, and therefore such remedies cannot be available under ICARA.
In support of this contention, Respondent cites two cases— Wiezel v. Wiezel–Tyrnauer, 388 F.Supp.2d 206 (S.D.N.Y.2005) and Bromley v. Bromley, 30 F.Supp.2d 857 (E.D.Pa.1998), In Wiezel, the court considered whether it “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.”
Few federal courts have had occasion to examine the question whether federal jurisdiction over proceedings under the Hague Convention includes power to issue orders to secure access rights. The consensus among those that have considered the issue is that such jurisdiction does not exist.See Wiggill v. Janicki, 262 F. Supp.2d 687 (S.D. W. Va. 2003);Fernandez v. Yeager, 121 F. Supp.2d 1118 (W.D. Mich. 2000); Bromley v. Bromley, 30 F. Supp.2d 857 (E.D.Pa. 1998). ICARA provides that "the United States shall have concurrent original jurisdiction of actions arising under the Convention."
In addition, the Convention does not preclude a person claiming a breach of custody or access rights from directly applying to the judicial authorities for relief under other applicable laws. Hague Convention, arts. 18, 29, 34, 51 Fed. Reg. at 10,499-501; State Department Legal Analysis of Convention (State Department), 51 Fed. Reg. 10,514. In Bromley v. Bromley, 30 F. Supp.2d 857 (E.D. Penn.) the district court dismissed a petition seeking access rights, finding that it did not have subject matter jurisdiction over claims for right of access. After reviewing Article 21 of the Convention, the court found that the Convention did not provide a remedy for obstacles to rights of access absent a "wrongful" removal of a child. Bromley, 30 F. Supp.2d at 860.
Croll v. Croll, 229 F.3d 133, 137-38 (2d Cir. 2000), cert. denied, 122 S.Ct. 342 (2001); Teijeiro-Fernandez v. Yeager, 121 F. Supp.2d 1118, 1125 (W.D.Mich. 2000); Bromley v. Bromley, 30 F. Supp.2d 857, 861 (E.D.Pa. 1998); Viragh v. Foldes, 612 N.E.2d 241, 246-50 (Mass. 1993). The applicant bears the burden to prove rights of custody and wrongful removal.
Whether a judicial remedy is available to parents possessing only access rights is an unresolved issue in American courts. Compare 42 U.S.C. § 11603(b) (suggesting that non-custodial parent may petition court to secure access rights) with Fernandez v. Yeager, 121 F.Supp.2d 1118, 1124-25 (W.D.Mich. 2000) (holding that federal courts lack jurisdiction to enforce rights of access under Convention) and Bromley v. Bromley, 30 F.Supp.2d 857, 860 (E.D.Pa. 1998) (holding that "plain language of Convention does not provide federal courts with jurisdiction over access rights."). Here, Arce argues that he has custodial rights under the Convention because the ne exeat clause of the divorce agreement constitutes "the right to determine [his children's] place of residence."