In Duhart v Kristan, 2023 WL 79277779 N.D. Georgia, 2023) the court denied the petition and dismissed the case upon a 28 U.S.C. § 1915(e)(2)(B) frivolity review of pro se Petitioner’s Complaint and Verified Petition for Return of a Child under the Hague Convention.
Petitioner, Jovan Duhart, was the father of minor A.D. He contended that he and the child’s mother, Taylor Kristan, share joint legal and physical custody of A.D. According to Duhart, as of June 4, 2023, the child has been wrongfully detained by Kristan in Stuttgart, Germany. Duhart filed his Petition on September 1, 2023 requesting a preliminary injunction hearing in an effort to obtain an order from this Court directing that A.D. be returned to the State of Georgia.
The Court observed that an in forma pauperis (IFP) complaint such as this one must be dismissed “if the court determines that ... the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The International Child Abduction Remedies Act (ICARA), establishes procedures for requesting return of a child wrongfully removed to or retained in the United States. 22 U.S.C. § 9003. The Act authorizes “[a]ny person” seeking return of a child under the Convention to file a petition in state or federal court. Id. The petition must be filed “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.” Id. See also Friedrich v. Friedrich, 78 F.3d 1060, 1063 (6th Cir. 1996) (Under the Hague Convention, “a court in the abducted-to nation has jurisdiction to decide the merits” of an ICARA petition); Yang v. Tsui, 416 F.3d 199, 201 (3d Cir. 2005) (“The District Court had jurisdiction pursuant to ICARA.... At the time [petitioner’s] Petition was filed in the District Court, the child was located in Pittsburgh, Pennsylvania.”); Lops v. Lops, 140 F.3d 927, 936 (11th Cir. 1998) (jurisdiction over petition in Georgia was proper where children were located in Georgia, because ICARA jurisdiction is based on children’s location, not traditional residency). The child was allegedly being wrongfully retained in Germany on September 1, 2023, the date Duhart filed this Petition. Accordingly, this Court had no jurisdiction over Duhart’s claims. Duhart’s assertion that venue was proper based on Kristan’s federal employment had no bearing on the jurisdictional analysis under ICARA.
