USA – FEDERAL – BROMLEY – 1998(Petition denied) (Access) BROMLEY v BROMLEY. The father petitions for relief concerning his right of visitation and custody of the children. The court finds that they do not have jurisdiction over the relief requested by the father.
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Bromley v Bromley (E.D. Pa. 1998)30 F.Supp.2d 857
22 International Abduction [US 1998]
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Civ. No. 98-MC-0180
15 Dec 1998
ROBERT PAUL BROMLEY :
Petitioner, :
:
v. :
:
CHRISTINE FRANCES :
BROMLEY :
:
Respondent. :
<* page 858>
OPINION
Van Antwerpen, District Judge
I. INTRODUCTION
001 Petitioner, Robert Paul Bromley resides in England and
has brought this action pursuant to the Hague Convention on
the Civil Aspects of International Child Abduction of
October 25, 1980, and the United States Congress in the
International Child Abduction Remedies Act, 42 U.S.C.
11601-11610. Petitioner now asks this court for various
forms of relief concerning his rights of visitation and
custody of his children who reside with the Respondent,
Christine Frances Bromley, in the United States. We held
oral argument with both counsel present on December 7, 1998.
We issued an order following oral argument which dismissed
this action. This opinion explains the basis for our
issuance of that order. For the reasons set forth below, we
find that this court lacks jurisdiction over the relief
requested and we dismiss Petitioner’s claim without
prejudice.
II. FACTS
002 Petitioner and Respondent were married on September
25, 1985, and divorced on May 7, 1991. Petitioner is the
father of two children, Lynn Kathryn Bromley (born 10/21/87)
and Harrison Alexander Paul Bromley (born 10/8/89).
According to the divorce decree, Respondent has legal
custody of the children, while Petitioner has visitation
rights during weekends, summers and holidays. See Peti-
<* page 859>
tioner’s Ex. A at 4. At oral argument, both counsel conceded
that the Respondent has sole custody of the children. At
some point after the divorce, the Petitioner moved to
England and the Respondent moved to Pennsylvania.
003 The rest of the facts in the record are in dispute.
According to the Petitioner, he has repeatedly been denied
access to his children, including by telephone. Pet. at 7-8,
11-13, 17-18, 20, 25-29. FN01 Respondent has also allegedly
failed to provide Petitioner with her current address,
telephone number and school information relating to the
children. Id. Respondent denies the majority of the
allegations made by the Petitioner. See Resp’t Answer. FN02
Respondent asserts that she has not created obstacles to
Petitioner’s rights of access to custody. Id. at 7-8.
Respondent also claims that Petitioner has always had the
current address and telephone number for the children. Id.
at 12.
004 Petitioner has attempted to locate his children
through the National Center for Missing and Exploited
Children (“NCMEC”), which acts as the Central Authority for
locating children within the United States. FN03 See Pet. at
16-19; Petitioner’s Exs. B and D. However, the
communications made through the NCMEC and discussion between
the counsel of both parties have apparently led nowhere in
resolving this dispute.
III. DISCUSSION
005 The Hague Convention on the Civil Aspects of
International Child Abduction of October 25, 1980, S. Treaty
Doc. No. 99-11 (1985) (“the Convention”), reflects a concern
over international parental child abduction. Congress
promulgated the International Child Abduction Remedies Act
(“ICARA”), in order to implement the provisions of the
Convention in the United States. See 42 U.S.C. 11601-11610.
Congress made it clear that the provisions of ICARA are “in
addition to and not in lieu of the provisions of the
Convention.” 42 U.S.C. 11601(b)(2).
006 The Convention’s goals, set forth in Article 1, are
“to secure the prompt return of children who have been
wrongfully removed or retained in any Contracting State,”
and “to ensure that rights of custody and of access under
the law of one Contracting State are effectively respected
in other Contracting States.” The Convention is designed to
protect the legal custody rights of the non-abducting parent
by restoring the status quo ante and returning the child to
the country of his or her habitual residence. Under Article
12 of the Convention, judicial and administrative
authorities are given the power to order such a return only
when the removal of the child has been “wrongful.” Article
3(a) has defined “wrongful” as a removal or retention that
is in breach or violation of parental custody rights.
007 Pursuant to ICARA, federal courts have original
jurisdiction over matters arising under the Convention
according to 42 U.S.C. 11603(a): “[t]he courts of the States
and the United States district courts shall have concurrent
original jurisdiction of actions arising under the
Convention.” A number of federal courts have exercised their
jurisdiction to implement the cornerstone of the Convention
which “is the mandated return of the child to his or her
circumstances prior to the abduction if one parent’s removal
of the child from or retention in a Contracting State has
violated the custody rights of the other, and is, therefore,
‘wrongful.'” See, e.g., Feder v. Evans-Feder, 63 F.3d 217,
221 (3d Cir. 1995); Friedrich v. Friedrich, 78 F.3d 1060,
1064 (6th Cir. 1996); Ohlander v. Larson, 114
<* page 860>
F.3d 1531, 1534 (10th Cir. 1997). A review of case law
reveals, however, that no federal court has yet addressed
the right of access to children under the Convention as
contrasted with ordering the return of children.
008 The issue before us is whether this court has the
authority to enforce the rights of access of the Petitioner
under the Convention. Petitioner argues that his access and
visitation rights to his children may be addressed by this
court pursuant to Article 21 of the Convention:
An application to make arrangements for
organizing or securing the effective exercise of
rights of access may be presented to the Central
Authorities of the Contracting States in the
same way as an application for the return of a
child.
The Central Authorities are bound by the
obligations of co-operation which are set forth
in Article 7 to promote the peaceful enjoyment
of access rights and the fulfillment of any
conditions to which the exercise of such rights
may be subject. The Central Authorities shall
take steps to remove, as far as possible, all
obstacles to the exercise of such rights. The
Central Authorities, either directly or through
intermediaries, may initiate or assist in the
institution of proceedings with a view to
organizing or protecting these rights and
securing respect for the conditions to which the
exercise of these rights may be subject.
009 Petitioner requests that this court enforce the terms
of his divorce decree which spell out his original access
and visitation rights with respect to his children. See
Petitioner’s Ex. A.
010 We believe the rights of the Petitioner may not be
addressed by this court because there is no remedy under the
Convention for obstacles to rights of access absent a
“wrongful” removal of a child. Article 21 simply states that
the promotion of effective rights of access may be
effectuated by application to the “Central Authorities,” but
does not provide the courts with independent authority to
remedy such a situation.
011 When interpreting a treaty, we begin with the text of
the treaty and the context in which the written words are
used. Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 534-35
(1997); Volkswagenwerk Aktiengesellschaft v. Schlunk, 486
U.S. 694, 699-700 (1988). Other rules of construction may be
used on difficult or ambiguous passages. Id. But where the
text is clear, as it is here with Article 21, courts have no
power to insert an amendment. Chan v. Korean Air Lines,
Ltd., 490 U.S. 122, 134-35 (1989). Moreover, the silence of
the Convention as to any remedy for access rights is in
sharp contrast to Article 12 which clearly provides
authority for judicial authorities to order the return of a
child “wrongfully” removed. We believe, therefore, that the
plain language of the Convention does not provide federal
courts with jurisdiction over access rights. FN04
012 We find additional support for such an interpretation
from several sources. In Viragh v. Foldes, the court stated
that “the Convention does not mandate any specific remedy
when a noncustodial parent has established interference with
rights of access.” 612 N.E.2d 241, 247 (Mass. 1993). Without
a breach of custody rights, the Convention cannot be invoked
because removal cannot be considered “wrongful.” Id.; see
also Ivaldi v. Ivaldi, 672 A.2d 1226, 1232 (N.J. Super.
Ct.), rev’d on other grounds, 685 A.2d 1319 (N.J. 1996).
Indeed, in the United Kingdom, Article 21 has been described
as toothless because it fails to confer jurisdiction on the
British courts to determine matters relating to access. See
Re G, 3 All E.R. 657 (C.A. 1993). Moreover, many commenta-
<* page 861>
tors have criticized the failure of Article 21 to provide a
remedy concerning the access rights of parents. FN05
013 We also note that at oral argument, Petitioner’s
counsel presented us with three cases which counsel claimed
supported Petitioner’s contention that this court has
jurisdiction over a claim of access rights under the
Convention. We find that two of these cases do not, in fact,
support Petitioner’s contention. FN06 The third case
presented by the Petitioner is Costa v. Costa. 1 F.L.R. 163
(High Ct. Fam. Div. 1992). The High Court of Justice in
England expansively discussed Article 7(f) of the Convention
as permitting judicial authorities to make arrangements for
the exercise of a parent’s rights to access. Even if we were
to accept this case as auhtoritative, we would choose not to
agree with this interpretation, because it is against the
weight of auhtority and it diverges from the plain language
of Article 7(f), which clearly states that the “Central
Authorities” are given the authority “to make arrangements
for organizing or securing the effective exercise of rights
of access.” Moreover, the mother in Costa had custody of the
children and had “wrongfully” removed them from New York to
England, subsequently impeding the father’s access rights.
In the present situation, however, the Petitioner is the
party who has voluntarily left the country where his
children reside. Even if we were to follow Costa and equate
access rights with custody rights, the Petitioner would be
unable to show that his children had been wrongfully removed
within the meaning of Article 3. FN07
014 We find, therefore, since the Respondent already has
legal custody of the children and has neither “wrongfully”
removed nor retained them from the country of their habitual
residence, there is no cause of action under the Convention.
The proper jurisdiction for this action is a state court
that has the full authority to enforce and modify the
original Texas divorce decree.
015 Moreover, this court clearly lacks jurisdiction over
any other relief requested by the Petitioner. At oral
argument, Petitioner’s counsel claimed that the present
action merely seeks enforcement of the original divorce
decree. We note, however, that in the wherefore clause of
the Petition, Petitioner seeks far broader forms of relief,
including “partial custody.” We agree with Respondent’s
counsel that this type of relief requested by the Petitioner
would require modification of existing custody rights.
Courts examining international abduction under the
Convention have steadfastly refused to consider the merits
of any underlying child custody claims in accordance with 42
U.S.C. 11601(b)(4). See, e.g., Friedrich, 78 F.3d at
1063-64; Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995);
Feder, 63 F.3d at 221 n.5.
016 From a policy perspective, the refusal of federal
courts to hear child custody mat-
<* page 862>
ters makes sense. This court finds that the arena of child
custody matters, except for the limited matters of
international abduction expressly addressed by the
Convention, would better be handled by the state courts
which are more numerous and have both the experience and
resources to deal with this special area of the law. There
is a growing trend towards establishing specialized state
family courts which avoid a piecemeal approach to domestic
relations matters and which instead deal with overall
domestic relations problems. Such courts can address not
only child custody and visitation, but also important
related issues such as child support. We are a court of
limited jurisdiction and we traditionally lack jurisdiction
over domestic relation matters. See Solomon v. Solomon, 516
F.2d 1018, 1021-24 (3d Cir. 1975); Gill v. Gill, 412 F.
Supp. 1153, 1156-57 (E.D. Pa. 1976). The rationale
underlying this domestic relations exception is a
historically ingrained limitation because “domestic
relations of husband and wife and parent and child were
matters reserved to the States.” Solomon, 516 F.2d at 1023
(quoting Ohio ex rel. Popovici v. Agler, 280 U.S. 379,
383-84 (1930)). We find no reason to deviate from this
history and move domestic relations litigation to federal
court.
017 This court, therefore, lacks jurisdiction over the
grievances brought by the Petitioner. We have dismissed this
action without prejudice, however, so that the parties may
proceed in an appropriate state court.
ADOPTED BY THE COURT:
____________________________
F.S. Van Antwerpen, U.S.D.J.
Footnotes
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1. Petition for Access under Article Twenty One Hague
Convention filed on November 23, 1998, is hereinafter
referred to as “Pet. at __.”
2. Respondent’s Answer with Affirmative Defenses and New
Matter to Petition for Access under Article 21 Hague
Convention filed on December 4, 1998, is hereinafter
referred to as “Resp’t Answer at __.”
3. 42 U.S.C. 11606(a) provides that: “[t]he President shall
designate a Federal agency to serve as the Central Authority
for the United States under the Convention.” President
Reagan, by Executive Order No. 12648, 53 Fed. Reg. 30637,
designated the Department of State as the Central Authority.
The Department of State subsequently promulgated regulations
designating the NCMEC as the organization to perform the
operational functions with respect to applications under the
Convention. See 22 C.F.R. 94.6.
4. The United States’ Department of State has expressed in
its legal analysis of the Convention that access rights “are
also protected by the Convention, but to a lesser extent
than custody rights.” 51 Fed. Reg. 10494, 10513.
“Procedurally Article 21 authorizes a person complaining of,
or seeking to prevent, a breach of access rights to apply to
the CA [Central Authority] of a Contracting State.” Id.
Article 21 leaves open the possibility that Central
Authorities “may initiate or assist in the institution of
proceedings.” In the present case, the Petitioner had
applied to the NCMEC, which is acting as the Central
Authority in the United States. Pet. at 14.
5. See, e.g., Linda Silberman, Hague Convention on
International Child Abduction: A Brief Overview and Case Law
Analysis, 28 Fam. L.Q. 9, 31 (1994); Martha Bailey, “Rights
of Custody” under the Hague Convention, 11 B.Y.U. J. Pub. L.
33, 35 (1997); Hague Conference on Private International
Law: Report of the Second Special Commission Meeting to
Review the Operation of the Hague Convention on the Civil
Aspects of International Child Abduction, Jan. 18-21, 1993,
reprinted in 33 I.L.M. 225, 244 (1994); Note, Access Rights:
A Necessary Corollary to Custody Rights under the Hague
Convention on the Civil Aspects of International Child
Abduction, 21 Fordham Int’l L.J. 308, 331-347 (1997); Note,
The Hague Convention on the Civil Aspects of International
Child Abduction: An Analysis of Tahan and Viragh and their
Impact on its Efficacy, 33 U. Louisville J. Fam. L. 125, 127
(1995); Note, The Hague Convention on the Civil Aspects of
International Child Abduction: Are the Convention’s Goals
Being Achieved? 2 Ind. J. Global Legal Stud. 553, 558
(1995).
6. The Navarro v. Bullock case is inapposite to Petitioner’s
argument because it involved a mother who had abducted her
children from Spain to California, in breach of the father’s
rights under a joint custody agreement. 15 Fam. L. Rep.
(BNA) 1576 (Cal. App. Dep’t Super. Ct. 1989). The second
case, Re G, supports this court’s decision as discussed
above.
7. The present case is also distinguished from the line of
cases, cited by the Costa court, that have addressed access
rights under the Convention for situations in which a child
is removed by the custodial parent in violation of a court
order. See, e.g., C v. C, 1 W.L.R. 654 (C.A. 1989); Re H, 2
F.L.R. 439 (Fam. 1990). These courts have held that an order
of non-removal is a form of custody rights belonging to the
access parent. No court order of non-removal exists in the
present case.
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Note by Wm. M. Hilton
The Court, cites 42 U.S.C. 11603(a) (Jurisdiction of the
Court) but neglects to cite 42 U.S.C. 11603(b):
(b) PETITIONS.-Any person seeking to initiate
judicial proceedings under the Convention for
the return of a child or for arrangements for
organizing or securing the effective exercise of
rights of access to a child may do so by
commencing a civil action by filing a petition
for the relief sought in any court which has
jurisdiction of such action and which is
authorized to exercise its jurisdiction in the
place where the child is located at the time the
petition is filed.
Here a Federal Statute specifically states that a Federal
Court has the jurisdiction to secure ” . . . effective
exercise of rights of access to a child . . .”.
The court simply does not want to become involved in family
law, holding itself aloof from such mundane affairs.
This, while predictable, is unfortunate, since it is common
ground that good access to a child is known to be one of the
best tools to prevent abduction of a child.
I would also differ in the court’s argument that there is no
authority under The Convention to implement access.
One starts by reading the language of the following articles
in conjunction with one another:
Art. 7: Central Authorities shall co-operate
with each other and promote co-operation amongst
the competent authorities in their respective
States to secure the prompt return of children
and to achieve the other object’s of this
Convention. * * * (f) to initiate or facilitate
the institution of judicial or administrative
proceedings with a view to obtaining the return
of the child and, in a proper case, to make
arrangements for organizing or securing the
effective exercise of rights of access[.] * * *
Art. 21: An application to make arrangements
for organizing or, securing the effective
exercise of rights of access may be presented to
the Central Authorities of the Contracting
States in the same way as an application for the
return of a child.
The Central Authorities are bound by the
obligations of co-operation which are set forth
in Article 7 to promote the peaceful enjoyment
of access rights and the fulfillment of any
conditions to which the exercise of those rights
may be subject. The Central Authorities shall
take steps to remove, as far as possible, all
obstacles to the exercise of such rights. The
Central Authorities, either directly or through
intermediaries, may initiate or assist in the
institution of proceedings with a view to
organizing or protecting these rights and
securing respect for the conditions to which the
exercise of these rights may be subject.
The plain language of The Convention states that steps shall
be taken to “. . . make arrangements for organizing or
securing the effective exercise of rights of access . . .”
and that the Central Authority shall ” . . . take steps to
remove, as far as possible, all obstacles to the exercise of
such rights [and] either directly or through intermediaries,
may initiate or assist in the institution of proceedings
with a view to organizing or protecting these rights.”
The authority therefore exists in both The Convention and
ICARA to implement access arrangements.