Rana v Multani, Slip Copy, 2015 WL 2330163 (S.D.N.Y.) [Canada] [Federal & State Judicial Remedies]

                                                      

In Rana v Multani, Slip Copy, 2015 WL 2330163 (S.D.N.Y.) the district court dismissed the Hague Petition for lack of subject matter jurisdiction. The Petitioner alleged he and respondent were married on July 16, 2010, in New York City. Petitioner is a United States citizen, and respondent became a legal resident of the United States after the parties were married.   According to petitioner, in the fall of 2012, he and respondent were preparing for the birth of their first child. However, shortly before respondent was expected to give birth, she left the United States and journeyed to her parents' home in Ontario, Canada. On October 16, 2012, the parties' son, R.R., was born in Ontario. R.R. has lived in Canada with respondent since his birth.  Petitioner alleged respondent wrongfully removed R.R. from the United States, thereby breaching his custodial rights in violation of the Hague Convention, and asked the Court to enter an order permitting him rights of access, or rights of visitation, to R.R.

The Court observed that  ICARA § 9003(b) states: 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.   Thus, when a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must 'order the return of the child forthwith. Abbott v. Abbott, 560 U.S. 1, 9 (2010).   Petitioner sought an order  granting him visitation rights. However, petitioner alleged R.R. was abducted to Canada, where he was born and had since resided with respondent. As such, the Hague Convention and ICARA direct petitioner to commence his action in Canada. Hofmann v. Sender, 716 F.3d 282, 290 (2d Cir.2013) ("ICARA provides that any person seeking to initiate judicial proceedings under the Convention for ... securing the effective exercise of rights of access to a child may do so by commencing a civil action in a state or federal court in the place where the child is located at the time the petition is filed."

The district court observed that in Rein v. Rein, 1996 WL 273993 (S.D.N.Y. May 23, 1996), the court faced the same issue and found it lacked jurisdiction to hear the petitioner's claim. There, the petitioner alleged his daughter was a habitual resident of France wrongfully removed to England, and sought an order restoring his parental rights. The court found the petitioner had not alleged his daughter "was abducted to the United States," and therefore, she was not located in a place where it could "exercise jurisdiction over her." Because the petitioner's daughter was located in England, the court reasoned, any petition pursuant to the Hague Convention had to be brought there.  The same reasoning applied here. Petitioner did not allege R.R. was abducted to the United States. R.R. was allegedly being held in Canada. Accordingly, any petition pursuant to the Hague Convention had to be brought there. This Court held that it could not issue an order granting petitioner visitation rights because, R.R. was not in the United States. The Court expressed no opinion regarding an individual's right to bring  a Hague Convention petition when the child allegedly abducted was not yet born. Respondents request for an award of attorney's fees and costs pursuant  to ICARA § 9007 was denied as that statute only authorizes an award of attorney's fees and costs for a prevailing petitioner.