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In re Application of Done

United States District Court, N.D. Georgia, Atlanta Division

April 24, 2018



          RICHARD W. STORY United States District Judge.

         This case comes before the Court for jurisdictional determination. It was brought pursuant to the Hague Convention on Civil Aspects of International Child Abduction (“Hague Convention”), as implemented by the International Child Abduction Remedies Act, 22 U.S.C. § 9001, et seq., (“ICARA”). Petitioner, a citizen of the Dominican Republic, filed the action on February 22, 2018, seeking to enforce his rights of access to his two minor children who live with Respondent, their mother, in the State of Georgia. The Court held an initial show cause and scheduling hearing on March 8, 2018. Afterwards, Respondent indicated that she intended to challenge the Petitioner's rights of access to the children and responded to the Petition. (Dkt. [12].) The Parties then filed briefs analyzing various issues raised in this matter, including the scope of the Court's jurisdiction. (Dkt. [13, 14].) After reviewing the record and considering the Parties' arguments in their briefs, the Court concludes that it does not have jurisdiction to proceed with the case, and so it must be dismissed.


         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.[2] (Verified Pet. For Right Of Access Under The Convention On The Civil Aspects Of International Child Abduction (“Verified Pet.”), Dkt. [1] ¶¶ 6-8; Resp't Br. Analyzing The Ct.'s Jurisdiction (“Resp't Br.”), Dkt. [14] at 1.) Although the Parties never married, Petitioner is listed as the Children's biological father on their birth certificates. (Ex. C, Verified Pet., Dkt. [7].)

         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. (Verified Pet., Dkt. [1] ¶¶ 9-11.) In it, they agreed that the Children would live with Respondent in the United States, while Petitioner would have visitation rights during summers and Christmas. (See Ex. D, Verified Pet., Dkt. [7-1].) This agreement was never approved by a court in the Dominican Republic. (Resp't Br., Dkt. [14] at 2; Pet'r's Br., Dkt. [13] at 3, 5.)[3]

         In May 2016, Respondent and the Children moved to Lawrenceville, Georgia, where they currently reside. (Verified Pet., Dkt. [1] ¶ 12.) According to Petitioner, he has seen the Children only once since they left the Dominican Republic-on Christmas of 2016 when he came to Georgia to visit. Respondent did not send the Children to him during the summer of 2016 or Christmas of 2017. (Id.)

         On February 22, 2018, Petitioner filed the present action pursuant to the Hague Convention and ICARA. Petitioner does not object to the Children living with Respondent in Georgia. Instead, he requests, among other things, that the Court enter a final judgment securing his rights of access to the children. (Verified Pet., Dkt. [1] at 5.) Now, the Court must decide whether it has jurisdiction to do so.


         This case requires the Court to determine whether it has jurisdiction to evaluate and make a determination on Petitioner's rights of access to the Children. Though they differ on some points, both Parties agree that the answer is yes. But the Court is not convinced.

         The Hague Convention was created with two stated purposes: “to secure the prompt return of children wrongfully removed to or retained in any Contracting State, ” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Art. 1, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11, at 7. After the United States ratified the Hague Convention in 1988, Congress implemented it through ICARA, 22 U.S.C. § 9001, et seq. ICARA instructs courts to “decide the case in accordance with the Convention.” § 9003(d).

         Typically, cases brought under the Hague Convention involve “a child who was ‘wrongfully removed' from his place of habitual residence in violation of a person's custody rights, ” in which case the child “must be returned to that place unless certain ‘narrow exceptions' apply.” Padilla v. Troxell, 850 F.3d 168, 175 (4th Cir. 2017) (emphasis added). But 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.

22 U.S.C. § 9003(b) (emphasis added).

         This case involves an access claim. Petitioner does not seek return of the Children to the Dominican Republic, but rather an order for the Court ...

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