IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING
IN THE MATTER OF SARAH ISA MOHSEN, a minor.
ISA YOUSIF MOHSEN, Petitioner,
v.
LEANN FLEETWOOD MOHSEN, Respondent
Docket Number C89-0147J
ORDER DISMISSING PETITION
In this action under the International Child Abduction
Remedies Act, 42 U.S.C. Sec. 11601 et seq., the petitioner, Isa
Mohsen, seeks the return of his child, Sarah, who presently is in
the exclusive custody of her natural mother, Leann Fleetwood
Mohsen, the petitioner’s wife. Mr. Mohsen is a citizen of the
country of Bahrain. His wife is a citizen of the United States.
They were married in this country in 1987 and lived together in
Bahrain until May 22, 1989. Sarah Isa was born to the Mohsens in
Bahrain on October 29, 1997.
The Mohsens came to the United States on May 22, 1989,
evidently to visit Mrs. Mohsen’s parents, who reside in Rock
Springs, Wyoming. After arriving in this country, Mrs. Mohsen
informed her husband of her intention to divorce him. She has
since been residing with her parents and has refused to allow her
husband to visit their child.
In 1986 the United States ratified the Hague Convention on
the Civil Aspects of International Child Abduction. 1 The enabling
legislation giving force to this convention was enacted shortly
thereafter as the International Child Abduction Act, Pub.L. No.
100-300 Sec. 1, 102 Stat, 437 (1988) (codified at 42 U.S.C. Secs.
11601-11610). The Convention’s goal is to curb international
abductions of children by divorced or divorcing parents by
providing judicial remedies to those seeking the return of a
child who has been wrongfully removed or retained within the
meaning of the Convention. See Chap. I, Art. 1. Wrongful removal
or retention occurs where:
a. It is in breach of rights of custody attributed to a
person, an institution, or any other body, either jointly or
alone, under the law of the state in which their child was
habitually resident immediately before the removal or
retention; and
b. At the time of removal or retention those rights were
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1. Hague Conference on Private International Law, Final Act of the
Fourteenth Session, October 25, 1980. 51 Fed. Reg. 10498
actually exercised either jointly or alone or would have been
so exercised but for the removal or retention.
The rights of custody mentioned in subparagraph a. above, may
arise in particular by operation of law or by reason of a
judicial or administrative decision, or by reason of an
agreement having legal effect under the law of that state.
Chap. I, Art. 3. The petitioner now seeks the return of his
daughter under the Convention. He has filed his petition under 42
U.S.C. Sec. 11603(b) which, as part of the enabling legislation
ratifying the Hague Convention, provides as follows:
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.
The respondent has moved to dismiss the petition, arguing that the
petitioner has no rights under this statute because Bahrain is not
a signatory to the Convention. Alternatively, she argues that the
statute has no application because there has been no wrongful
removal or retention of her daughter. In response, the petitioner
asserts that he has rights under the International Child Abduction
Remedies Act because the act “stands alone from the Convention.”
Petitioner’s brief at 4.
The Convention, which is given force in this country by the
International Child Abduction Remedies Act, provides that lt
“shall apply to any child who was habitually resident in a
contracting state immediately before any breach of custody or
access rights. Chap. II, Art. 4 (emphasis added). “The convention
[also] . . . ceases to apply when the child attains the age of 16
years.” Id. All parties to this action agree that Sarah was
habitually resident in Bahrain immediately before coming to this
country. All parties further concede that Bahrain is a
nonsignatory, or a “noncontracting state” to the Hague Convention.
In light of the fact the petitioner’s daughter was last habitually
resident in Bahrain, a noncontracting state, the court concludes
that the petitioner has no rights under the Convention and is
therefore not entitled to seek redress under its remedial
provisions. As a nonsignatory to the Convention, Bahrain has no
obligation to reciprocate by affording similar rights to the
respondent, in the event she found herself in a Bahrainian court
trying to secure the return of Sarah from that country. 2 By
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2. Counsel for neither party provided the court with the child custody laws
of Bahrain. The court, however, was given an inkling of the nature of those
laws when counsel for the petitioner informed the court that his client has
obtained an order from a court in Bahrain allegedly awarding the petitioner
providing rights only when a child was habitually resident in a
contracting state, the Convention creates an incentive for all
nations to become signatories.
The petitioner, however, argues that the Act implementing the
Convention actually stands alone. The court disagrees. The court
finds that the Act in itself provides no substantive rights.
The Act plainly states that it “empower[s] courts in the United
States to determine only rights under the Convention . . . “42
U.S.C. Sec 11601(b)(4). 3 Thus, the Act is a procedural mechanism
allowing a petitioner access to those remedies provided under the
Convention. Although it is true that the Act allows a petitioner
to seek remedies available under other laws or international
agreements, aside from the Convention, this is not the same as
saying the Act gives rights under the Convention to those seeking
the return of a child who is habitually resident in a
noncontracting state prior to that child’s abduction. At a
minimum, a petitioner may seek remedies under the Convention where
the requirements of Chapter I, Article 3 have been satisfied.
Because the court finds that the petitioner has no rights under
the Act, the court need not address what it perceives are
evidentiary issues related to alleged wrongful removal or
retention.
NOW THEREFORE IT IS ORDERED that the petition be, and the
same hereby is, DISMISSED.
Dated this 6th day of July, 1989.
/s/ (Illegible)
________________________________
UNITED STATES DISTRICT JUDGE
Entered on the docket July 7, 1989. William C. Beaman, Clerk,
Betty Green, Deputy Clerk.
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custody of his daughter. Evidently this was done without a hearing and
without notice being provided to the respondent.
3. Under the Act, the court has power to fashion provisional remedies. 42
U.S.C. Sec. 11604(a). However, these remedies are provisional and are only
for the purpose of effectuating or fashioning a remedy under the
Convention.