USA – NC – WERNER V RICHARDSON – 2000

Warner v Richardson (EDNC 2000)No 5:00-CV-74-BO(3), Eastern Division of North Carolina
10 International Abduction (USA 2000)
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

No 5:00-CV-74-BO(3)
12 May 2000

IN THE MATTER OF SETH WARNER,
Infant

JEFFREY R. WARNER
Petitioner,

V.

TAMMY M. RICHARDSON
Respondent.

ORDER

001 This matter is before the Court on Petitioner’s
Motion to Remand the underlying action to Wake County
Superior Court pursuant to 28 U.S.C..  1447(c), or
alternatively to Abstain. Petitioner Jeffrey R. Warner
commenced this action in Wake County Superior Court,
requesting an “Article 15 Declaration” as to what custody
rights he possesses over his son, Seth, under the custody
agreement issued by a North Carolina court following
Petitioner’s divorce from Seth’s mother, Respondent Tammy M.
Richardson. Petitioner now seeks to remand the case to Wake
County. Upon consideration of the parties’ arguments,
Petitioner’s motion to remand will be granted. Petitioner’s
motion for attorney’s fees will be denied.

BACKGROUND

002 Petitioner and Respondent were married in 1992 and
separated in 1995. Their son, Seth, now six years old, was
born in 1994. Pursuant to a series of custody agreements
entered into in 1995 and afterwards, Respondent Tammy
Richardson retained primary custody while Petitioner Jeffrey
Warner held secondary custody of Seth. In 1997 Respondent
accepted a position wIth her employer requiring residency in
the United Kingdom for an unspecified period of time.
Custody remained unaltered, and the parties agreed to a
schedule for when Seth would visit his father in North
Carolina. Since then Respondent’s plans to marry a resident
of the United Kingdom, and arrangements she has made
regarding the renewal of Seth’s visa have raised
Petitioner’s concern that Respondent plans to settle with
Seth in the United Kingdom permanently, possibly violating
the parties’ custody agreement.

003 On November 2, 1999, Petitioner filed an action in
the High Court of Justice, Family Division in London,
England, seeking the return of his child pursuant to the
Hague Convention on the Civil Aspects of International Child
Abduction 1980 (“Hague Convention”). That court issued an
order on November 11, 1999, requesting that Petitioner seek
a “declaration” from a North Carolina Court as to whether
Seth was being wrongfully detained under North Carolina law.
FN01 On February 3 and February 4, 2000, Petitioner filed
suit in Wake County, North Carolina, seeking an “Article 15
declaration” pursuant to the Hague Convention and the
International Child Abduction Remedies Act (“ICARA”), 42
US~C.  11601 et seq., which codifies the Hague Convention
into U.S. law.

DISCUSSION

1. Petitioner’s Motion to Remand

004 Respondent argues that this case is properly
removable as it arises under ICARA, which provides for
concurrent state and federal jurisdiction. See 42 U.S.C. 
11603(a). Therefore, because the claim could have been filed
in federal court from inception, removal is authorized. See
14B Charles A. Wright & Arthur R. Miller, Federal Practice
and Procedure  3721 (1998). The issue, then, apparently
one of first impression, is whether a request for an Article
15 declaration actually arises under ICARA, or whether it is
a garden variety state action for declaratory relief. The
Court concludes that it is the latter.

005 The Hague Convention does not give any court
authority to require a party to seek another court’s custody
determination; a court’s Article 15 request is nonmandatory.
Certainly, neither the Hague Convention nor ICARA requires a
foreign court to make such a custody determination, either.
If the High Court of Justice in the United Kingdom is bound
to consider any custody determination provided by a United
States Court in this circumstance, it is bound under British
law, and not because a United States Court has authority of
its own to bind a foreign court. In other words, although
signatory parties to the Hague Convention pledge to apply
foreign law in particular circumstances, nothing in the
Hague Convention alters signatory parties’ essential
sovereignty, or acts to unite litigation commenced in one
nation with litigation commenced in another nation.
Respondents suggestion that this Wake County action is in
fact part of Petitioner’s British Hague Convention action
would require a reading of the Convention that has no
support in either the Convention or ICARA. Rather, the
instant action is entirely separate from Respondent’s
foreign lawsuit.

006 Nor does this separate action arise under ICARA and
the Hague Convention, as Respondent argues in the
alternative. ICARA, which sets forth what causes of action
arise under the Hague Convention, does not provide a cause
of action to be brought under Article 15. Section 4 of
ICARA, entitled “Judicial Remedies,” names only two causes
of action arising under the Act:

(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.

007 42 U.S.C.  11603(b). Thus, the sole causes of action
available under ICARA are a suit to enforce the return of a
child, and a suit to enforce visitation rights. FN02 ICARA
and the Hague Convention clearly state that it is the court
in the United Kingdom, not any court in the United States,
with whom enforcement rests. In this case, as Seth
currently resides in London, Petitioner does not seek
enforcement in the instant action. He seeks instead a
declaration as to his custody rights under North Carolina
law.

008 Consequently, as this action does not arise under
ICARA and the Hague Convention, the Court has no
jurisdiction to hear this matter. It is for the court in
Wake County to determine whether North Carolina law allows
this declaratory action to be heard. Petitioner’s motion is
granted, and this matter is remanded to the jurisdiction of
the Superior Court of Wake County.

009 The Court’s above reading of ICARA will not have the
effect of eviscerating federal courts’ concurrent
jurisdiction over international child abduction cases.
Whenever a suit is filed in the United States under ICARA
for the return of a child located in the United States, that
will generally be removable to a federal court. In passing
ICARA, however, Congress never intended to designate federal
courts as advisors to foreign courts on state family law.

2. Motion for Attorney’s Fees

010 This Court has the discretion to award costs and
expenses to a Petitioner upon remanding a case to state
court. 28 U.S.C  1447(c). Generally, this measure is
reserved for meritless, bad faith removals. Marler v. Amoco
Oil. Co., 793 F.Supp. 656 (E.D.N.C. 1992). In the instant
case, there has been no showing of bad faith, and
Respondent’s removal, though in error, was hardly frivolous,
as it was premised on what appears to be a novel issue of
law. The Court therefore sees no reason to exercise this
discretionary power in the instant case, and Petitioner’s
motion will be denied.

011 For the reasons stated above, Petitioner’s Motion to
Remand is hereby GRANTED, and Petitioner’s Motion for
Attorney’s Fees is DENIED. As the Court has determined that
it has no jurisdiction over this matter, Respondent’s Motion
to Strike is rendered MOOT.

SO ORDERED

This 10th day of May, 2000

/s/ Terrence W. Boyle
________________________
TERRENCE W. BOYLE
CHIEF UNITED STATES DISTRICT JUDGE

Footnotes
——————————
1. Article 15 of the Hague Convention authorizes a court
to make such a request, to which the requested party
may voluntarily agree. If a requested party refuses,
the court must do its best to apply foreign law to
determine whether a child has been wrongfully
retained by a parent. Hague Convention on the Civil
Aspects of International Child Abduction, done Oct.
25, 1980, art. 15.

2. This limitation on available relief is in keeping
with ICARA’S declaration that, “The Convention and
this Act empower courts in the United States to
determine only rights under the Convention and not
the merits of any underlying child custody claims. 42
U.S.C. 11601(b)(4). It is the major goal of the
Hague Convention to ensure that the custody and
visitation rights first established in the
jurisdiction of a child’s habitual residence are
enforced regardless of the child’s later location,
discouraging abduction into foreign jurisdictions.
Explanatory Report by E. Perez-Vera. Hague Conference
on Private International Law. Actes et documents de
la Quatorzierne session, vol III, 1980, p. 426, Part
1, B, para. 16.