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Wednesday, May 9, 2018

Done v Pichardo, 2018 WL 1930081(N.D. Georgia, 2018) [Dominican Republic] [Rights of Access] [Petition denied]

In Done v Pichardo, 2018 WL 1930081(N.D. Georgia, 2018) Petitioner, Maireni Cabral Done, and Respondent, Noemi Antonia Matos Pichardo, had two minor children while living in the Dominican Republic: L.M., who was born in 2006, and J.M., who was born in 2012. Petitioner was listed as the Children’s biological father on their birth certificates.  In 2016, Respondent decided to move to the United States and to take the Children with her. Before they left, on April 29, 2016, the Parties entered into a private agreement regarding custody and visitation in which they agreed that the Children would live with Respondent in the United States, while Petitioner would have visitation rights during summers and Christmas. In May 2016, Respondent and the Children moved to Lawrenceville, Georgia, where they resided.

          On February 22, 2018, Petitioner filed an action pursuant to the Hague Convention and ICARA, requesting that the Court enter a final judgment securing his rights of access to the children.  The district court observed that the Convention also protects a parents’ “rights of access”–or, colloquially, their visitation rights. 22 U.S.C. § 9002(7). Specifically, § 9003(b) provides: 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.

         It noted that Courts are divided on whether ICARA confers jurisdiction upon federal courts to hear access claims. According to the Fourth Circuit, it does not. Cantor v. Cohen, 442. F.3d 196 (4th Cir. 2006). Most pertinent to this case, the Fourth Circuit found persuasive “the long established precedent that federal courts are courts of limited jurisdiction and generally abstain from hearing child custody matters.”
In contrast the Second Circuit has held that ICARA does create a federal cause of action to secure parents’ exercise of their visitation rights. Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir. 2013). Ozaltin involved a father who sought the return of his children to Turkey from their mother’s care in the United States, as well as an order enforcing the visitation rights granted to him by a Turkish family court. On appeal, the Second Circuit concluded that the district court had jurisdiction under § 9003(b) to consider the father’s access claims and that the mother had to comply with the Turkish court’s visitation order. In reaching this conclusion, the court criticized the Fourth Circuit’s reasoning in Cantor, admonishing that Article 21 states that efforts to secure rights of access “may” be initiated through an application to the Central Authority, not that they “may only” be pursued that way. Id. at 373; see also id. (reading Article 29 to mean that applying to the State Department is a nonexclusive remedy for enforcing access rights). Thus, the Second Circuit concluded, “even though not required under Article 21, federal law in the United States provides an avenue for aggrieved parties to seek judicial relief directly in a federal district court or an appropriate state court.”
The district court found that the Second Circuit held, at most, that a right of access is judicially enforceable under the Convention and ICARA and includes, as a general matter, enforcement of visitation orders from foreign courts. In other words, the Second Circuit found that federal courts have jurisdiction to consider and, where appropriate, give effect to orders entered in foreign states regarding a parent’s rights of access. And it is there that this case fundamentally differs. Petitioner had no order from a Dominican Republic court granting him parenting time. Instead, Petitioner and Respondent entered into a private agreement regarding custody and visitation that both Parties agreed was unenforceable under the laws of the Dominican Republic.

          The Court found the Fourth Circuit’s decision in Cantor to be more persuasive. There, much of the court’s reasoning focused on the longstanding presumption that federal courts do not and should not engage in child custody matters. Here, Petitioner was asking the Court to create such rights. As in Cantor, the Court declined to do so. The Court held that absent a valid order from a foreign state, it lacked jurisdiction to establish, in the first instance, the Parties’ respective parental rights. The petition was dismissed without prejudice.