Monday, May 23, 2016
Rein v Rein, 1996 WL 273993 (S.D.N.Y., 1996)[PETITION DISMISSED] PETITIONER CANNOT INVOKE HAGUE CONVENTION UNLESS CHILD IS “HABITUALLY RESIDENT” IN A STATE SIGNATORY AND HAS BEEN REMOVED TO OR RETAINED IN A DIFFERENT SIGNATORY STATE.]
In Rein v Rein, 1996 WL 273993 (S.D.N.Y., 1996) Plaintiff Stewart Rein, brought an action on his own behalf and purported to do so as well on behalf of his nine year old daughter Lindsey Rein. The Court held , inter alia, that it lacked jurisdiction to hear plaintiff's claims brought pursuant to ICARA. The remedy available under ICARA is an order that the child be returned from the jurisdiction of his or her wrongful removal or retention, and an adjudication of any custody dispute by the jurisdiction where the child “habitually resided” prior to the wrongful removal or retention. Plaintiff alleged in his amended complaint that Lindsey was a habitual resident of France who was wrongfully removed to England. Even assuming that Lindsey was in fact a habitual resident of France -- a question which was disputed -- it was clear that plaintiff could not bring this action in this jurisdiction seeking relief under ICARA. Pursuant to that statute, a person seeking the return of a child may commence an action “in any court which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.” 42 U.S.C. § 11603 (b) . Plaintiff did not allege that Lindsey was abducted to the United States (let alone New York) and she was not located in a place where the Court could exercise jurisdiction over her; instead, she was allegedly being improperly held in England. Any petition pursuant to the Hague Convention must be brought there. Accordingly, plaintiff's claims based on the Hague Convention and ICARA were dismissed against all defendants for lack of subject matter jurisdiction.