Categories: Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction and the Latent Domestic Relations Exception to Federal Question Jurisdiction

Sam F. Halabi

Volume 41 - Issue 4, Summer 2016, Page 692

Abstract
Ultimately, this article argues that there is little if any support in the language of the Hague Child Abduction Convention or in its implementing statute, the International Child Abduction Remedies Act, to justify federal courts’ refusal to hear access claims. Rather, the rationales adopted by federal courts in allocating access cases to state courts resurrects a long-standing problem in the law of federal jurisdiction: Is the exception to federal jurisdiction for matters relating to divorce, maintenance, and child custody based on courts’ interpretation of jurisdictional statutes or did Article III’s jurisdictional grant to “cases” or “controversies” always exclude matters traditionally handled by ecclesiastical courts in 1787 Britain? While this article takes no position on that problem directly, it does suggest that federal courts have appropriated to themselves authority to determine jurisdiction based on their own assessment of state courts’ competencies, what is called here a “latent” domestic relations exception to federal question jurisdiction.

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Cite as: Sam F. Halabi, The Hague Convention on the Civil Aspects of International Child Abduction and the Latent Domestic Relations Exception to Federal Question Jurisdiction, 41 N.C. J. Int'l L. 692 (2016).

The Hague Child Abduction Convention and the International Child Abduction Remedies Act: Comments for U.S. Practice

George K. Walker

Volume 41 - Issue 4, Summer 2016, Page 744

Abstract
This article’s basic premise is that “there is little if any support” in the Convention or ICARA to justify federal courts’ refusal to hear access claims. Walker inquires into “the [domestic relations] exception to federal jurisdiction for matters relating to divorce, maintenance, and child custody,” suggesting that “federal courts have appropriated to themselves authority to determine jurisdiction based on their own assessment of state courts’ competencies, what is called . . . a ‘latent’ domestic relations exception to federal question jurisdiction.” The following discussion deals only with “ICARA jurisdiction" and the comments that follow focus on four issues: (1) original and supplemental jurisdiction in the federal courts; (2) venue, venue transfer and choice of law, and choice of forum clause problems; (3) court management advantages for litigants who file under ICARA and also assert state law-based claims; and (4) the resolution of service of process and factual issues in the federal courts.

Full Article Text PDF PDF

Cite as: George K. Walker, The Hague Child Abduction Convention and the International Child Abduction Remedies Act: Comments for U.S. Practice, 41 N.C. J. Int'l L. 744 (2016).

Foreign Fathers, Japanese Mothers, and the Hague Abduction Convention: Spirited Away

Barbara Stark

Volume 41 - Issue 4, Summer 2016, Page 762

Abstract
While The Hague Convention on the Civil Aspects of Child Abduction (the “Abduction Convention”)3 was drafted to facilitate this process, its application in cases involving Japanese nationals is problematic, especially in cases where the mother is Japanese. This Article explains why this is so, and why it is so hard to harmonize the family laws of different countries. It also describes the real risks that a child, or a parent, may be ‘spirited away,’ with no chance of actual contact, for far too long.

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Cite as: Barbara Stark, Foreign Fathers, Japanese Mothers, and the Hague Abduction Convention: Spirited Away, 41 N.C. J. Int'l L. 762 (2016).

Protecting Child Welfare in Abduction and Asylum Proceeding

Ann Laquer Estin

Volume 41 - Issue 4, Summer 2016, Page 793

Abstract
Sanchez v. RGL illustrates the importance of understanding children as uniquely vulnerable actors in a global setting, with interests that include both protection for family ties and protection from family violence. Beyond the importance of listening to children and parents in these cases, advocates and decision makers should be careful to recognize those exceptional circumstances where the interests of children and their parents are not the same. Part II of this paper reviews the process that governs children’s claims for asylum, with a particular focus on cases in which children and their parents disagree. Part III considers the application of the Abduction Convention in cases such as Sanchez in which there are child welfare concerns or no effective response to the return petition. Part IV addresses the interaction of three bodies of law governing asylum or other immigration relief, international child abduction, and child welfare. The paper concludes with recommendations for authorities in the United States and other countries toward the goal of reading these principles together.

Full Article Text PDF PDF

Cite as: Ann Laquer Estin, Protecting Child Welfare in Abduction and Asylum Proceeding, 41 N.C. J. Int'l L. 792 (2016).

Blog Posts

Prof. Ann Estin on child welfare in abduction and asylum proceedings

Numbers of unaccompanied minors taken into custody at the United States's southern border have nearly doubled in the last year. The dramatic increase has strained U.S. courts, particularly where international legal obligations are involved. University of Iowa law Prof. Ann Estin argues that U.S. courts are up to the challenge.

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No Comments | Posted by Elizabeth M. Hutchens on Mon. August 1, 2016 8:00 AM
Categories: Children's rights, Conflict of Laws, Hague Convention, Refugees/Asylum, Symposium

Exploring the Hague Abduction Convention Through Halabi’s Lens

In an article published in the North Carolina Journal of International Law’s symposium issue, Sam F. Halabi 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. Ultimately, Halabi contends that neither the treaty nor the statute justifies the federal courts’ refusal to hear access claims.

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No Comments | Posted by Margaret D. Petersen on Fri. July 29, 2016 8:00 AM
Categories: Children's rights, Hague Convention, Symposium

The Hague Abduction Convention and Japan's nebulous family law

Japan's uniquely vague body of family law was a key reason why it didn't ratify the 1980 Hague Convention on the Civil Aspects of International Child Abduction until 2014, more than a decade after most other developed democracies. In a forthcoming ILJ article, Hofstra University law Prof. Barbara Stark argues that Japanese society's preference for sole maternal custody is likely to become clearer as its courts apply the Convention.

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No Comments | Posted by Jennie L. Cunningham on Thu. May 12, 2016 1:56 PM
Categories: Children's rights, Hague Convention, Japan
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