Most practitioners focus heavily on the language in the Hague Abduction Convention that relates to returning a wrongfully removed or retained child to that child’s habitual residence. Very rarely do we see Article 1(b) of the Hague Abduction Convention invoked in U.S. courts. This article states that a second objective of the Convention is to “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” More colloquially, this is called a “Hague Access case.” Article 21 of the Convention says, “An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. …” In reality, U.S. federal courts, which are the usual venue for most Hague Abduction litigation in the United States, have determined that access claims (essentially the schedule on which a child sees a noncustodial parent) is better addressed by the appropriate family court. The Fourth Circuit specifically ruled that neither the Hague Abduction Convention nor its implementing legislation provides any authority for federal courts to exercise jurisdiction over access claims (Cantor v. Cohen, 442 F.3d 196 (2006)). ICARA, the U.S. federal implementing legislation specifically states that a parent may initiate a civil action in any court with jurisdiction to secure the effective exercise of access rights (sec. 9003). But, given the stance by federal courts that apparently see diving into access rights as treading into a custody case, these matters are often punted to family courts. This is the situation in which Mr. Dawson found himself in Colorado.
Mr. Dawson and Ms. Dylla are parents to a minor child, Rory, who was born in the United Kingdom. A few years after her birth, Ms. Dylla was granted permission by a Manchester Family Court to relocate to the United States with Rory. The court issued a custody order giving Mr. Dawson certain access rights with Rory. The family, post-relocation, continued litigating in earnest in Manchester’s and in Colorado’s family courts, with both courts issuing subsequent orders, to some extent, related to Rory. Mr. Dawson, with a warrant issued in the Colorado family court for his failure to appear for a hearing, filed a Hague Access claim before the Colorado federal court, asking for the federal court to enforce his access to Rory under the Manchester parenting order.
The federal court concluded that there was no abduction, and so it had no authority to do anything under the Hague Abduction Convention, and it denied Mr. Dawson’s claim. It suggested that the appropriate venue to recognize and enforce access rights was the Colorado Family Court or the Manchester Family Court.