Warner v Richardson (EDNC 2000) No 5:00-CV-74-BO(3), Eastern Division of North Carolina 10 International Abduction (USA 2000) =========================================================== IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION No 5:00-CV-74-BO(3) 12 May 2000 IN THE MATTER OF SETH WARNER, Infant JEFFREY R. WARNER Petitioner, V. TAMMY M. RICHARDSON Respondent. ORDER 001 This matter is before the Court on Petitioner's Motion to Remand the underlying action to Wake County Superior Court pursuant to 28 U.S.C..  1447(c), or alternatively to Abstain. Petitioner Jeffrey R. Warner commenced this action in Wake County Superior Court, requesting an "Article 15 Declaration" as to what custody rights he possesses over his son, Seth, under the custody agreement issued by a North Carolina court following Petitioner's divorce from Seth's mother, Respondent Tammy M. Richardson. Petitioner now seeks to remand the case to Wake County. Upon consideration of the parties' arguments, Petitioner's motion to remand will be granted. Petitioner's motion for attorney's fees will be denied. BACKGROUND 002 Petitioner and Respondent were married in 1992 and separated in 1995. Their son, Seth, now six years old, was born in 1994. Pursuant to a series of custody agreements entered into in 1995 and afterwards, Respondent Tammy Richardson retained primary custody while Petitioner Jeffrey Warner held secondary custody of Seth. In 1997 Respondent accepted a position wIth her employer requiring residency in the United Kingdom for an unspecified period of time. Custody remained unaltered, and the parties agreed to a schedule for when Seth would visit his father in North Carolina. Since then Respondent's plans to marry a resident of the United Kingdom, and arrangements she has made regarding the renewal of Seth's visa have raised Petitioner's concern that Respondent plans to settle with Seth in the United Kingdom permanently, possibly violating the parties' custody agreement. 003 On November 2, 1999, Petitioner filed an action in the High Court of Justice, Family Division in London, England, seeking the return of his child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980 ("Hague Convention"). That court issued an order on November 11, 1999, requesting that Petitioner seek a "declaration" from a North Carolina Court as to whether Seth was being wrongfully detained under North Carolina law. FN01 On February 3 and February 4, 2000, Petitioner filed suit in Wake County, North Carolina, seeking an "Article 15 declaration" pursuant to the Hague Convention and the International Child Abduction Remedies Act ("ICARA"), 42 US~C.  11601 et seq., which codifies the Hague Convention into U.S. law. DISCUSSION 1. Petitioner's Motion to Remand 004 Respondent argues that this case is properly removable as it arises under ICARA, which provides for concurrent state and federal jurisdiction. See 42 U.S.C.  11603(a). Therefore, because the claim could have been filed in federal court from inception, removal is authorized. See 14B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure  3721 (1998). The issue, then, apparently one of first impression, is whether a request for an Article 15 declaration actually arises under ICARA, or whether it is a garden variety state action for declaratory relief. The Court concludes that it is the latter. 005 The Hague Convention does not give any court authority to require a party to seek another court's custody determination; a court's Article 15 request is nonmandatory. Certainly, neither the Hague Convention nor ICARA requires a foreign court to make such a custody determination, either. If the High Court of Justice in the United Kingdom is bound to consider any custody determination provided by a United States Court in this circumstance, it is bound under British law, and not because a United States Court has authority of its own to bind a foreign court. In other words, although signatory parties to the Hague Convention pledge to apply foreign law in particular circumstances, nothing in the Hague Convention alters signatory parties' essential sovereignty, or acts to unite litigation commenced in one nation with litigation commenced in another nation. Respondents suggestion that this Wake County action is in fact part of Petitioner's British Hague Convention action would require a reading of the Convention that has no support in either the Convention or ICARA. Rather, the instant action is entirely separate from Respondent's foreign lawsuit. 006 Nor does this separate action arise under ICARA and the Hague Convention, as Respondent argues in the alternative. ICARA, which sets forth what causes of action arise under the Hague Convention, does not provide a cause of action to be brought under Article 15. Section 4 of ICARA, entitled "Judicial Remedies," names only two causes of action arising under the Act: (b) PETITIONS. -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. 007 42 U.S.C.  11603(b). Thus, the sole causes of action available under ICARA are a suit to enforce the return of a child, and a suit to enforce visitation rights. FN02 ICARA and the Hague Convention clearly state that it is the court in the United Kingdom, not any court in the United States, with whom enforcement rests. In this case, as Seth currently resides in London, Petitioner does not seek enforcement in the instant action. He seeks instead a declaration as to his custody rights under North Carolina law. 008 Consequently, as this action does not arise under ICARA and the Hague Convention, the Court has no jurisdiction to hear this matter. It is for the court in Wake County to determine whether North Carolina law allows this declaratory action to be heard. Petitioner's motion is granted, and this matter is remanded to the jurisdiction of the Superior Court of Wake County. 009 The Court's above reading of ICARA will not have the effect of eviscerating federal courts' concurrent jurisdiction over international child abduction cases. Whenever a suit is filed in the United States under ICARA for the return of a child located in the United States, that will generally be removable to a federal court. In passing ICARA, however, Congress never intended to designate federal courts as advisors to foreign courts on state family law. 2. Motion for Attorney's Fees 010 This Court has the discretion to award costs and expenses to a Petitioner upon remanding a case to state court. 28 U.S.C  1447(c). Generally, this measure is reserved for meritless, bad faith removals. Marler v. Amoco Oil. Co., 793 F.Supp. 656 (E.D.N.C. 1992). In the instant case, there has been no showing of bad faith, and Respondent's removal, though in error, was hardly frivolous, as it was premised on what appears to be a novel issue of law. The Court therefore sees no reason to exercise this discretionary power in the instant case, and Petitioner's motion will be denied. 011 For the reasons stated above, Petitioner's Motion to Remand is hereby GRANTED, and Petitioner's Motion for Attorney's Fees is DENIED. As the Court has determined that it has no jurisdiction over this matter, Respondent's Motion to Strike is rendered MOOT. SO ORDERED This 10th day of May, 2000 /s/ Terrence W. Boyle ________________________ TERRENCE W. BOYLE CHIEF UNITED STATES DISTRICT JUDGE Footnotes ------------------------------ 1. Article 15 of the Hague Convention authorizes a court to make such a request, to which the requested party may voluntarily agree. If a requested party refuses, the court must do its best to apply foreign law to determine whether a child has been wrongfully retained by a parent. Hague Convention on the Civil Aspects of International Child Abduction, done Oct. 25, 1980, art. 15. 2. This limitation on available relief is in keeping with ICARA'S declaration that, "The Convention and this Act empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims. 42 U.S.C. 11601(b)(4). It is the major goal of the Hague Convention to ensure that the custody and visitation rights first established in the jurisdiction of a child's habitual residence are enforced regardless of the child's later location, discouraging abduction into foreign jurisdictions. Explanatory Report by E. Perez-Vera. Hague Conference on Private International Law. Actes et documents de la Quatorzierne session, vol III, 1980, p. 426, Part 1, B, para. 16.