Suarez v Castrillo, 2011 WL 2669198 (D.Colo.) [Venezuela] [Availability of Hague Convention as a Remedy]

In Suarez v Castrillo, 2011 WL 2669198 (D.Colo.) Petitioner and Respondent were the parents of three minor children. On or about June 29, 2011, Ms. Suarez filed a Petition For Enforcement of Child Custody Decree in the Colorado District Court for Arapahoe County. That Petition alleged that the parties were subject to a 2003 divorce and custody decree from a court in Venezuela that gave Ms. Suarez legal custody of the children. The Petition recited that the children resided with Ms. Suarez pursuant to that decree, first in Venezuela and, upon Ms. Suarez's move in September 2007, in Alberta, Canada. Ms. Suarez alleged that she and Mr. Castrillo reached an agreement by which the children would temporarily reside with Mr. Castrillo in Colorado for one school year, and then be returned to Canada. Ms. Suarez alleges that that agreement had now expired, but Mr. Castrillo refused to return the children to Canada.

The District Court observed that Ms. Suarez's proceeding in Arapahoe County invoked C.R.S.14-13-101 et seq., Colorado's implementation of the Uniform Child Custody Jurisdiction Enforcement Act. Part 3 of that Act incorporates the principles of the Hague Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980. The statute provides that Colorado courts "shall recognize and enforce a child-custody determination of a court of another state," including foreign nations, and allows those courts to "grant any relief normally available under the law of this state to enforce a registered child-custody determination made by a court of another state." Upon a properly-supported petition by a parent claiming custodial rights over a child, the state court is required to hold an expedited hearing and direct that the petitioning parent "take immediate physical custody of the child" unless the respondent parent demonstrates certain specific facts calling the validity of the custody order into question.

On July 5, 2011, Mr. Castrillo filed a Notice of Removal pursuant to 28 U.S.C. s 1446, removing the action from the Colorado District Court to this Court. Mr. Castrillo contended that this Court had original jurisdiction over the proceeding pursuant to 28 U.S.C. 1441, insofar as this action "involves a federal question," although Mr. Castrillo did not specifically identify the source of that question. He noted that Ms. Suarez's petition uses terms that are "used only in matters pursuant to the Hague Convention," that Ms. Suarez had previously filed a request with Canadian authorities under the Hague Convention, and thus, apparently concluded that this action "arises under the Hague Convention."

The District Court held that on its face, Ms. Suarez's petition did not invoke a federal question. Her claims arose exclusively under Colorado statutory law; she did not invoke any provisions of the federal International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. s 11601, either directly or inferentially. The fact that she used terminology consistent with the Hague Convention (and, for that matter, with ICARA) was of no significance, insofar as Colorado's UCCJEA is expressly cognizant of
the Hague Convention, and incorporates by reference certain aspects of that treaty. Ms. Suarez could have asserted a claim under ICARA either in lieu of or in addition to her claims under Colorado's UCCJEA, see 2 U.S.C. s 11603(a) (conferring concurrent jurisdiction on state and federal courts over ICARA claims), but for whatever reason, Ms. Suarez elected to pursue only those remedies that Colorado provides. Accordingly, the face of her pleading did not invoke any federal question. Mr. Castrillo's citation to Matter of Mahmoud, 1997 WL 43542 (E.D.N.Y.1997) (unpublished), was inapposite. There, the petitioning parent had filed an ICARA claim in state court, which the respondent parent sought to remove to federal court. Thus, the Court found that Ms. Suarez's claim arose purely under state law and was not preempted by federal law. Accordingly, Mr. Castrillo failed to carry his burden of demonstrating that the Court possessed subject-matter jurisdiction over the action and it was remanded to the Colorado District Court for Arapahoe County pursuant to 28 U.S.C. 1447(c).