Sam F. Halabi
Volume 41 - Issue 4, Summer 2016, Page 692
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.
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).