Cantor v. Cohen ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SARAH CLAUDIA ARAGON CANTOR, 
Petitioner-Appellant,
v.  No. 05-1609
ANDREW COHEN,
Respondent-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-04-3428-AW)
Argued: September 20, 2005
Decided: March 21, 2006
Before WIDENER and TRAXLER, Circuit Judges, and
R. Bryan HARWELL, United States District Judge for the
District of South Carolina, sitting by designation.
Affirmed by published opinion. Judge Harwell wrote the majority
opinion, in which Judge Widener joined. Judge Traxler wrote a dis-
senting opinion.
COUNSEL
ARGUED: Stephen John Cullen, MILES & STOCKBRIDGE, P.C.,
Towson, Maryland, for Appellant. Patricia Emily Apy, PARAS, APY
& REISS, Red Bank, New Jersey, for Appellee. ON BRIEF: Darragh
L. Inman, MILES & STOCKBRIDGE, P.C., Baltimore, Maryland,
for Appellant.
2 CANTOR v. COHEN
OPINION
HARWELL, District Judge:
This appeal presents the question of whether the International
Child Abduction Remedies Act ("ICARA"), 42 U.S.C. §§ 11601-
11610, confers jurisdiction upon federal courts to hear access claims.1
Petitioner-Appellant, Sarah Claudia Aragon Cantor, appeals the dis-
trict court’s order of April 18, 2005, dismissing her access claims. On
May 23, 2005, the district court granted Ms. Cantor’s motion for final
judgment pursuant to Fed.R.Civ.P. 54(b) on the access claims and for
clarification of ruling on the alternative access claim for one of her
children referred to herein as A.C. Specifically, when dismissing the
access claims, the district court held that it did not have jurisdiction
to hear access claims under ICARA. For the following reasons, we
affirm the decision of the district court.
I.
Ms. Cantor and Mr. Cohen married in April 1990. At the time of
the marriage, Ms. Cantor and Mr. Cohen resided in Israel. During the
marriage the couple had four children, R.C., A.C. (the girls), I.C., and
Y.C. (the boys), the latter three of whom are the subject of this appeal.2
On July 16, 1998, the couple divorced in an Israeli Rabbinical Court
and a divorce decree was issued. The divorce decree provided that
Mr. Cohen would receive custody of A.C. and I.C., the two oldest
children, and Ms. Cantor would retain custody of Y.C. and R.C., the
two younger children. The divorce decree also granted visitation
rights to Ms. Cantor.
Subsequent to the divorce decree, Ms. Cantor and Mr. Cohen dis-
cussed the possibility of the girls being placed with their mother and
the boys with their father. Pursuant to this discussion, on September
7, 1998, Ms. Cantor relinquished custody of Y.C. to Mr. Cohen and
1
Under ICARA, the term "rights of access" means visitation rights. 42
U.S.C. § 11602(7).
2
A review of the background information in this matter reveals no less
than three orders issued by the Israeli Rabbinical Court which involve
the children.
CANTOR v. COHEN 3
took custody of A.C. In June 1999, Ms. Cantor filed suit in the Israeli
Rabbinical Court, seeking changes to the first divorce decree. In July
1999, Mr. Cohen was ordained as a Rabbi and joined the United
States Air Force Chaplaincy. Mr. Cohen was scheduled to attend
training school in the United States. On January 2, 2000, a second
divorce decree was issued by the Rabbinical Court. The second
divorce decree formalized the living situation of the children that Ms.
Cantor and Mr. Cohen had earlier agreed upon by granting Ms. Can-
tor custody of the girls, A.C. and R.C., and granting Mr. Cohen cus-
tody of the boys, I.C. and Y.C. The decree provided that Ms. Cantor
would have temporary custody of the two boys while Mr. Cohen
attended training school (from approximately January 2000 until Sep-
tember 2000).
On July 9, 2002, a third divorce decree was issued by the Rabbini-
cal Court. The third divorce decree provided that Ms. Cantor would
retain custody over the two girls, and that Mr. Cohen would retain
custody over the two boys. The third divorce decree also provided
that the two boys and A.C. would live with Mr. Cohen in Germany,
where he was stationed with the United States Air Force at the time.
The third divorce decree refers to A.C.’s stay in Germany as an "ex-
tended visit." The third divorce decree also obligates Mr. Cohen to
finance half of the cost of Ms. Cantor’s visits to Y.C., I.C., and A.C.
in Germany, which were to occur every two months. It also instructed
Mr. Cohen to enable the children to call Ms. Cantor three times a
week, and to bring the children to Israel to visit Ms. Cantor at least
twice a year. This divorce decree attributes the changed custody situa-
tion to the security issues in Israel, the educational needs of A.C., and
the neurological and the psychological needs of Y.C. However, the
decree does not surrender custody of A.C. to Mr. Cohen, nor does it
provide a date for A.C.’s permanent return to Israel.
In December 2002, Ms. Cantor and Mr. Cohen had discussions
about R.C.’s situation in Israel. Specifically, Ms. Cantor told Mr.
Cohen that R.C. missed her siblings and that neither R.C. nor Ms.
Cantor liked the school R.C. was attending. As a result, Ms. Cantor
and Mr. Cohen agreed that R.C. would move to Germany to live with
Mr. Cohen. There is a disagreement among the parties as to when
R.C. was to return to Israel.
4 CANTOR v. COHEN
On March 2, 2004, Mr. Cohen was assigned a brief duty in Qatar
and was told to report to the United States upon completion of this
duty. On April 17, 2004, Mr. Cohen completed his duty and reported
to the United States. Mr. Cohen initially resided with his four children
in Pittsburgh, Pennsylvania. On July 11, 2004, all four children
moved with Mr. Cohen to Silver Spring, Maryland. Ms. Cantor con-
tinues to live in Israel.
On October 22, 2004, Ms. Cantor filed a verified petition in the
United States District Court for the District of Maryland for return of
the children and access to the children. On November 12, 2004, Mr.
Cohen filed a motion to dismiss. On April 18, 2005, the district court
found that it lacked jurisdiction to hear Ms. Cantor’s access claims
and dismissed the complaint insofar as it requests access to I.C. and
Y.C. On April 26, 2005, Ms. Cantor filed a motion for final judgment
pursuant to Fed.R.Civ.P. 54(b) on the access claims and for clarifica-
tion of the district court’s ruling on the access claim for A.C. On May
18, 2005, Ms. Cantor timely appealed the district court’s decision dis-
missing the access claims. On May 23, 2005, the district court granted
Ms. Cantor’s motion and certified that its decision dismissing all of
the access claims, including the access claim as to A.C., was a final
judgment.
II.
The district court found as a matter of law that it lacked jurisdiction
to hear the access claims and dismissed those claims. Regardless of
whether the dismissal is considered to have been entered under
Fed.R.Civ.P. 12(b)(6) or Fed.R.Civ.P. 12(b)(1), we review the deci-
sion de novo. Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.
1997).
The district court’s Fed.R.Civ.P. 54(b) certification is subject to an
abuse of discretion standard. See Curtis-Wright Corp. v. General
Elec. Co., 446 U.S. 1, 10 (1980); see also Braswell Shipyards, Inc.
v. Beazer East, Inc., 2 F.3d 1331, 1339 (4th Cir. 1993) (Luttig, J. dis-
senting) ("[w]e may disturb a trial court’s decision to enter judgment
under Federal Rule of Civil Procedure 54(b) ‘only if [we] can say that
its conclusion was clearly unreasonable.’") (quoting Curtis-Wright,
446 U.S. at 10). We find the district court’s decision to enter judg-
CANTOR v. COHEN 5
ment under Fed.R.Civ.P. 54(b) in this case was reasonable and not an
abuse of discretion. Accordingly, we possess jurisdiction and will
review the Appellant’s claims on the merits.
As stated above, this appeal presents the question of whether fed-
eral courts are authorized to hear access claims under ICARA.
ICARA is the federal legislation which implemented the Hague Con-
vention on the Civil Aspects of International Child Abduction, Octo-
ber 25, 1980, 19 I.L.M. 1501 (1980) (the "Hague Convention" or
"Convention") in the United States.
The Appellant argues the plain language of § 11603(b) of ICARA
confers jurisdiction to federal courts to hear access claims. Specifi-
cally, § 11603(b) states:
[a]ny 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 relief sought in any court which has
jurisdiction of such action and which is authorized to exer-
cise its jurisdiction in the place where the child is located at
the time the petition is filed.
42 U.S.C. § 11603(b).
The Appellant argues this section of the statute unambiguously
allows "judicial proceedings" to secure the "effective exercise of
rights of access to a child" through "a civil action." Id. In support of
this argument, the Appellant points out that 42 U.S.C. § 11603(e)
establishes a burden of proof with regard to rights of access. The
Appellant also notes that 42 U.S.C. § 11603(a) states that the "courts
of the States and United States district courts shall have concurrent
original jurisdiction of actions arising under the Convention."
To resolve the issue presented in this appeal we find that we must
begin by looking at the implementing language in ICARA, 42 U.S.C.
§ 11601, et seq. We believe the analysis does not begin at 42 U.S.C.
§ 11603, as suggested by the Appellant, but instead at 42 U.S.C.
6 CANTOR v. COHEN
§ 11601. In the initial findings under § 11601(a) particular emphasis
is drawn to Congressional concern regarding international abduction
or wrongful retention of children. Notably, this section does not men-
tion visitation rights or access rights until the last subsection, subsec-
tion 4, and then only mentions these rights in the context of the
Convention. Specifically, the subsection describes that "[t]he Con-
vention . . . establishes legal rights and procedures for the prompt
return of the children who have been wrongfully removed or retained,
as well as for securing the exercise of visitation rights." 42 U.S.C.
§ 11601(a)(4) (emphasis added).
Furthermore, subsection (b)(1) of § 11601, which is part of Con-
gress’ declarations, states that "[i]t is the purpose of this chapter to
establish procedures for the implementation of the Convention in
the United States." 42 U.S.C. § 11601(b)(1) (emphasis added). More
importantly, subsection (b)(4) of § 11601, which is also part of Con-
gress’ declarations, states that:
[t]he Convention and this chapter empower courts in the
United States to determine only rights under the Conven-
tion and not the merits of any underlying child custody
claims.
42 U.S.C. § 11601(b)(4) (emphasis added).
Turning to the language of the Hague Convention itself, the legal
rights and procedures contained therein addressing applications for
the organization or establishment of rights of visitation are found at
Chapter IV entitled "Rights of Access." The Convention sets forth in
Article 21:
An application to make arrangements for organizing 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.
The Central Authorities are bound by the obligations of
co-operation which are set forth in Article 7 to promote the
CANTOR v. COHEN 7
peaceful enjoyment of access rights and the fulfillment of
conditions to which the exercise of those rights may be sub-
ject. The Central Authorities shall take steps to remove, as
far as possible, all obstacles to exercise of such rights.
The Central Authorities, either directly or through inter-
mediaries, may initiate or assist in the institution of pro-
ceedings with a view to organizing or protecting these rights
and securing respect for the conditions to which the exercise
of those rights may be subject.
Hague Convention, art. 21, 19 I.L.M. at 1503 (emphasis added).
Article 21 states that an application may be presented to the Central
Authorities for securing the effective exercise of access rights. The
Central Authority in the United States is the Department of State.3
Notably, Article 21 of the Convention does not provide for presenta-
tion to a judicial authority.4 This is in sharp contrast to Article 12 of
the Convention, which addresses wrongful removal or return claims,
and specifically refers to the initiation of judicial proceedings and
grants judicial authority to provide expedited relief in the case of the
wrongful removal or retention of children.5
It is in that context that we find that 42 U.S.C. § 11603 must be
read, which provides in subsection (b) that:
3
42 U.S.C. § 11606(a) states that "[t]he President shall designate a
Federal agency to serve as the Central Authority for the United States
under the Convention." President Reagan, by Executive Order No.
12648, 53 Fed.Reg. 30637, designated the Department of State as the
Central Authority. The Department of State then promulgated regulations
designating the National Center for Missing and Exploited Children as
the organization to perform the operational functions with respect to
applications under the Convention. See 22 C.F.R. § 94.6.
4
Article 21 does leave open the possibility that Central Authorities
"may initiate or assist in the institution of proceedings."
5
Article 12 provides that removal claims can also be presented to the
administrative (Central) authorities.
8 CANTOR v. COHEN
[a]ny 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 relief sought in any court which has
jurisdiction of such action and which is authorized to exer-
cise its jurisdiction in the place where the child is located at
the time the petition is filed.
42 U.S.C. § 11603(b) (emphasis added).
As noted above, under the Convention, the Appellant has no right
to initiate judicial proceedings for access claims and the federal courts
are not authorized to exercise jurisdiction over the access claims
brought by the Appellant. It is on this premise that we find, and the
district court found, that the courts of the United States lack a sub-
stantive basis for the resolution of the access claims asserted by the
Appellant.
As additional support of her argument that 42 U.S.C. § 11603(b)
confers federal courts jurisdiction to hear access claims, the Appellant
cites to 42 U.S.C. § 11601(b)(2) which states that "[t]he provisions of
this chapter are in addition to and not in lieu of the provisions of the
Convention." However, as discussed above, our interpretation of sec-
tion 11603(b) of ICARA is consistent with the provisions of the Conven-
tion.6 We also refer once more to 42 U.S.C. § 11601(b)(4) which
states that "[t]he Convention and this chapter empower courts in the
United States to determine only rights under the Convention . . . ."
Few federal courts have had the occasion to examine the question
presented in this case. Indeed, the district court’s decision in this case
is consistent with the reported decisions of five district courts that
have so interpreted the federal courts lacking jurisdiction to resolve
access claims. See In re Application of Adams ex. rel. Naik v. Naik,
363 F. Supp. 2d 1025, 1030 (N.D. Ill. 2005); Wiggill v. Janicki, 262
6
Again, the subsection of ICARA upon which the Appellant argues
confers jurisdiction to federal courts to hear access claims begins with
the language that "[a]ny person seeking to initiate judicial proceedings
under the Convention . . . ." 42 U.S.C. § 11603(b) (emphasis added).
CANTOR v. COHEN 9
F. Supp. 2d 687, 689 (S.D. W. Va. 2003); Yi Ly v. Heu, 296 F. Supp.
2d 1009, 1011 (D. Minn. 2003); Teijeiro Fernandez v. Yeager, 121
F. Supp. 2d 1118, 1125 (W.D. Mich. 2000); Bromley v. Bromley, 30
F. Supp. 2d 857, 860-61 (E.D. Pa. 1998).
The Appellant acknowledges the decision of these courts, however,
she attempts to distinguish this case by arguing that in all of the above
cases the petitions for access were only brought and considered under
the Convention, and not under ICARA. Yet, this argument is flawed
because in all but one of the above cases, the petitions were brought
under both. See Naik, 363 F. Supp. 2d at 1027 ("Petitioner also claims
rights under provisions of the International Child Abduction Reme-
dies Act . . . ."); Wiggill, 262 F. Supp. 2d at 688 ("The Wiggell Peti-
tion is brought under the Hague Convention and requests rights of
access pursuant to Article 21 of the Convention on the Civil Aspects
of International Child Abduction . . . as adopted by the International
Child Abduction Remedies Act . . . ."); Id. at 690 ("While federal
courts undoubtedly have jurisdiction under the Convention and
ICARA to act where children have been wrongfully removed from
their country of habitual residence, that jurisdiction does not extend
to access issues and alleged breaches of access rights."); Teijeiro Fer-
nandez, 121 F. Supp. 2d at 1119 ("Petitioner . . . filed a verified Peti-
tion for Access to Minor Children under the Hague Convention on the
Civil Aspects of International Child Abduction . . . and the Interna-
tional Child Abduction Remedies Act . . . ."); Bromley, 30 F. Supp.
2d at 858 ("Petitioner . . . brought this action pursuant to Hague Con-
vention on the Civil Aspects of International Child Abduction of
October 25, 1980, and the United States Congress in the International
Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11610.").
We also note that in Bromley, the Court found additional support
of its holding that it did not have jurisdiction over access claims in
the State Department’s own legal analysis of the Convention and the
remedies provided therein for breach of access rights. The State
Department found that:
[u]p to this point this analysis has focussed [sic] on judicial
and administrative remedies for removal or retention of chil-
dren in breach of custody rights. "Access rights," which are
synonymous with "visitation rights," are also protected by
10 CANTOR v. COHEN
the Convention, but to a lesser extent than custody rights.
While the Convention preamble and Article 1(b) articulate
the Convention objective of ensuring that rights of access
under the law of one state are respected in other Contracting
States, the remedies for breach of access rights are those
enumerated in Article 21 . . . .
State Department, 51 Fed.Reg. 10,494, 10,513.
III.
We find additional support for our decision in this case in the long
established precedent that federal courts are courts of limited jurisdic-
tion and generally abstain from hearing child custody matters. See
Cole v. Cole, 633 F.2d 1083, 1087 (4th Cir. 1980). With the exception
of the limited matters of international child abduction or wrongful
removal claims, which is expressly addressed by the Convention and
ICARA, other child custody matters, including access claims, would
be better handled by the state courts which have the experience to
deal with this specific area of the law. This also appears to be the con-
sensus among several of the reported decisions of district courts refer-
enced above. See Wiggill, 262 F. Supp. 2d at 690; Teijeiro Fernandez,
121 F. Supp. 2d at 1126; Bromley, 30 F. Supp. 2d at 862.
With that in mind, we also find it helpful to briefly examine some
of ICARA’s legislative history. The portion of the legislative materi-
als we cite references procedures to implement the Hague Conven-
tion:
Mr. DIXON. The language of the House version of the
bill grants original jurisdiction to the courts of the States. At
the same time, it states that Federal courts shall "have juris-
diction to the extent authorized by chapter 85 of title 28,
United States Code."
In practice, all actions arising under the convention
involve interpretation of the Hague Convention Treaty and
therefore could be removed to the Federal courts. Therefore,
petitions for return under the convention could be heard in
either State or Federal courts.
CANTOR v. COHEN 11
My amendment has the same result by simply granting
concurrent original jurisdiction.
The reason that the House constructed this approach was
out of concern that these cases would embroil the Federal
courts in deciding child custody matters. I must say that I
understand this concern, and that none of the proponents
of this bill, or my amendment, want to see the Federal
courts to be involved in deciding the underlying custody
disputes. This bill has been carefully drafted to avoid this
possibility. Section 2(b)(4) provides that "the convention
and this act empower courts in the United States to deter-
mine only rights under the convention and not the merits
of any underlying child custody claims." This language
limits consideration to only those issues specifically con-
tained in the Hague Convention, and not to child custody
in general.
The reason I believe it is important to amend the House
language regarding jurisdiction is that the complexity of the
House language could very likely result in an endless series
of litigation regarding whether the Federal court can hear
each specific case. One of the primary purposes of this
implementing legislation is to define a clear and consistent
set of procedures for upholding our obligations under the
Hague Convention. I believe that the goal would be better
served through clear language on this sensitive matter of
jurisdiction. This point was most recently clarified in the
Supreme Court’s decision of Thompson versus Thompson
issued January 12, 1988. That case underscores the value of
expressly providing the intent of Congress. My amendment
would have the same practical effect as the house language,
however, it is clearer and would avoid needless litigation
which could delay the rightful return of a child to its custo-
dial parent.
Procedures to Implement the Convention on the Civil Aspects of
International Child Abduction, 134 Cong. Rec. S3839, 3839-40 (daily
ed. April 12, 1988) (statement of Sen. Dixon) (emphasis added).
12 CANTOR v. COHEN
Sen. Hatch from Utah spoke in response to the offer of the amend-
ment to express concerns with respect to the language:
Mr. Hatch. This is a measure that has previously passed
the Senate and in this Congress there is a companion bill
currently before the Subcommittee on Courts and Adminis-
trative Practice of the Senate Judiciary Committee. In rela-
tion to the committee’s consideration of this issue, I recently
received communications from Conference of Chief Justices
and the Department of Justice that they, along with the Judi-
cial Conference of the United States, believe that "State
courts should have exclusive jurisdiction in all legal actions
under the convention."
The concern raised by these organizations is based on the
fact that child custody matters have traditionally been issues
handled exclusively by State courts and not within the
expertise of the Federal courts. Given their concerns, I
decided to closely examine the issue. Quite frankly, it is a
close call. While child custody has traditionally been a State
court matter, the interpretation of treaties with foreign
countries is a responsibility of the Federal courts under sec-
tion 2 of article III of the Constitution. In the case at hand,
we have a treaty with an underlying concern of child cus-
tody. Thus, the issues of treaty interpretation and child cus-
tody are inseparable [sic] combined.
Mr. President, it is my understanding that the sponsors of
this bill are aware of these concerns, and that they have
attempted to address them in a responsible manner in the
language of the bill. At this time I would like to pose a few
questions to my distinguished colleague from Illinois in
order to help clarify the matter.
Am I correct in my understanding that the bill has
been drafted so as to limit consideration by the courts to
only those issues specifically contained in the Hague
Convention on the Civil Aspects of International Child
Abduction, and not to child custody in general?
CANTOR v. COHEN 13
Mr. DIXON. Yes. Section 2(b)(4) of H.R. 3971 provides
that "the Convention and this Act empower courts in the
United States to determine only rights under the Con-
vention and not the merits of any underlying child cus-
tody claims."
Id. at 3841 (statements of Sen. Hatch and Sen. Dixon) (emphasis
added).
Finally, written comments submitted by Sen. Simon, provide in
pertinent part:
Mr. Simon. This is the third time the Senate has taken up
the matter of the Hague Convention and has addressed the
problem of the abduction, or wrongful retention, of children
overseas in custody related disputes. On October 9, 1986,
the Senate voted unanimously to give its advice and consent
to ratification of the Convention. In June 1987, I introduced
S. 1347, a bill drafted by the Administration to implement
the Convention. The enactment of this legislation is the last
remaining barrier to ratification by the United States. It will
insure that the provisions of the Convention are carried
out in a manner that is consistent with the intent of the
Convention’s negotiators in the context of our legal sys-
tem. On October 8, 1987, the Senate adopted the text of S.
1347 as an amendment to the State Department authoriza-
tion bill, H.R. 1777. The Amendment was deleted in confer-
ence at the request of the Chairman of the House Judiciary
Committee that they be given an opportunity to consider the
legislation in hearings before that Committee.
Both the House and the Senate have now held hearings on
this measure, and technical clarifications have been made to
the language of S. 1347 through H.R. 3971. In only one area
— that of original court jurisdiction — is there a substantial
need to clarify the language of H.R. 3971 to conform to the
intent of the sponsors of the Senate bill, and my colleague
from Illinois is offering that needed amendment. The
Amendment will restore the language of S. 1347 calling for
concurrent jurisdiction in State and Federal Courts to hear
14 CANTOR v. COHEN
proceedings arising under the Convention and this legisla-
tion.
The language of this amendment should not raise a
concern to Federal Judges that they will be moving into
child custody matters traditionally in the jurisdiction of
State Courts.
Id. at 3841-42 (statement of Sen. Simon) (emphasis added).
We note that in this legislative history there is no mention of any
separate rights apart from those set forth in the Hague Convention.
This court also finds that a common sense approach to the issue at
hand provides us guidance. We point out that § 11603(e)(2) of
ICARA and Articles 12, 13, and 20 of the Convention provide for
several affirmative defenses a court can consider when dealing with
wrongful removal claims.7 However, there are no provisions in either
ICARA or the Convention which provide defenses to access claims.
7
If a Respondent can prove any of the following affirmative defenses
a court can refuse to order the return of a child:
that there is a grave risk that returning the child to the petitioner
would expose the child to physical or psychological harm or oth-
erwise place the child in an intolerable situation;
that returning the child to the petitioner would not be permitted
by the fundamental principals of the United States relating to the
protection of human rights and fundamental freedom;
that the petitioner’s action for return was not commenced within
one year of the wrongful retention and that the child is well-
settled in the United States;
that the petitioner was not actually exercising the custody rights
at the time of retention or had consented to or subsequently
acquiesced in the retention; or
that the child objects to being returned and has attained an age
and degree of maturity at which it is appropriate to take account
of his or her views.
See 42 U.S.C. § 11603(e)(2); Hague Convention, arts. 12, 13, and 20, 19
I.L.M. at 1502-03.
CANTOR v. COHEN 15
It is difficult to believe that federal courts could entertain access
claims, yet would be left powerless to consider any defenses which
concern the safety or the best interests of a child. For example, how
would a federal court deal with a situation where it exercised jurisdic-
tion over an access claim, yet the court could not consider the fact that
a child’s life may be in danger by the enforcement of an access right?8
For this reason as well, we find federal courts lack jurisdiction to hear
access claims. By contrast, a state court would have the ability to
weigh the children’s interests, the parent’s interests, and other familial
considerations. Therefore, we find it best not to move domestic rela-
tions litigation to federal courts.
IV.
The Appellant also cites this court’s decision in Katona v. Kovacs,
No. 04-2040 (4th Cir. Aug. 31, 2005), in support of her argument that
federal courts have jurisdiction to hear access claims. We initially
note that Katona is an unpublished case and pursuant to Local Rule
36(c) unpublished opinions are not binding precedent in this circuit.
However, the issue presented in this case is not the same as the one
presented to the court in Katona. In Katona, the question presented
was whether the district court erred in denying a petition for the
return of children pursuant to the Hague Convention and its imple-
menting legislation, the International Child Abduction Remedies Act.
The court held in Katona that "[b]ecause the record before this court
fails to demonstrate whether Katona established a wrongful removal
or whether his former wife, Magdonla Kovacs, has an adequate
defense to the petition, we vacate the judgment and remand for further
proceedings." Id. at 2.
The court went on to make a distinction between the remedies
available when considering rights of custody from the remedies avail-
able in cases concerning rights of access or visitation. The court
explained that:
8
We note that access rights, "include the right to take a child for a lim-
ited period of time to a place other than the child’s habitual residence."
Hague Convention, art. 5, 19 I.L.M. at 1501.
16 CANTOR v. COHEN
[w]hile the remedy for violating rights of custody requires
the child’s return to the country of habitual residence, the
remedies for violating rights of access are less drastic, such
as "ordering that the custodial parent who removed the child
from the child’s habitual residence reimburse the other par-
ent for expenses incurred in exercising his or her rights of
access."
Id. at 4 (quoting Whallon v. Lynn, 230 F.3d 450, 455 n. 3 (1st Cir.
2000)). The court held that should the district court determine on
remand "from the evidence that Katona has only a right of access, it
should craft a remedy within the context of the Convention to
ensure Katona can exercise that right." Id. at 5 (emphasis added).9
We note that the Whallon case cited by the court in Katona, is a
case which only addressed a wrongful removal claim. The court in
Whallon stated the following in a footnote:
[w]hile the Hague Convention provides remedies for a vio-
lation of access rights, see id., art. 21, 19 I.L.M. at 1503,
such remedies do not include an order of return to the place
of habitual residence. Rather such remedies include, inter
alia, ordering that the custodial parent who removed the
child from the child’s habitual residence reimburse the other
parent for expenses incurred in exercising his or her rights
of access. Id. art. 26, 19 I.L.M. at 1503-04.
Whallon, 230 F.3d at 455 n. 3. Notably, the court in Whallon first
cites to Article 21 of the Convention when referring to remedies for
a violation of access rights. As discussed above, Article 21 provides
that an application to make arrangements for organizing or securing
the effective exercise of rights of access may be presented to the Cen-
tral Authorities. Article 21 does not provide for a judicial remedy.
The court in Whallon next cites to Article 26 of the Convention
when referring to a remedy of requiring reimbursement of expenses.
9
As previously noted, the Convention only provides jurisdiction to "the
Central Authorities" to remedy situations involving rights of access.
CANTOR v. COHEN 17
Article 26 of the Convention is found at Chapter V entitled "General
Provisions." Article 26 sets forth:
Each Central Authority shall bear its own costs in apply-
ing this Convention.
Central Authorities and other public services of Contract-
ing States shall not impose any charges in relation to appli-
cations submitted under this Convention. In particular, they
may not require any payment from the applicant towards the
costs and expenses of the proceedings or, where applicable,
those arising from the participation of legal counsel or
advisers. However, they may require the payment of
expenses incurred or to be incurred in implementing the
return of a child.
However, a Contracting state may, by making a reserva-
tion in accordance with Article 42, declare that it shall not
be bound to assume any costs referred to in the preceding
paragraph resulting from the participation of legal counsel
or advisers or from court proceedings, except insofar as
those costs may be covered by its system of legal aid and
advise.
Upon ordering the return of a child or issuing an order
concerning rights of access under this Convention, the judi-
cial or administrative authorities may, where appropriate,
direct the person who removed or retained the child, or who
prevented the exercise of rights of access, to pay necessary
expenses incurred by or on behalf of the applicant, including
travel expenses, any costs incurred or payments made for
locating the child, the costs of legal representation of the
applicant, and those of returning the child.
Hague Convention, art. 26, 19 I.L.M at 1503-04 (emphasis added).
In order to find consistency with Article 21, we interpret this sec-
tion of the Convention to permit administrative authorities [the Cen-
tral Authorities] to direct the person who prevented the exercise of
18 CANTOR v. COHEN
"rights of access" to pay necessary expenses. Also, consistent with
Article 12, judicial or administrative authorities are permitted under
this section to direct the person who "removed or retained" a child to
pay necessary expenses.
V.
We note that our decision does not leave the Appellant without a
remedy for the exercise of her access rights. The Convention does not
prevent the Appellant from filing a claim for visitation in state court
under the state’s visitation law. See Hague Convention, arts. 29 & 34,
19 I.L.M. at 1504; see also Wiggill, 262 F. Supp. 2d at 690; Teijeiro
Fernandez, 121 F. Supp. 2d at 1126; Bromley, 30 F. Supp. 2d at 862.
Additionally, as discussed above, the Appellant may file a petition
with the Central Authorities pursuant to the Convention in order to
address her access claims.
For the reasons stated herein, the district court is affirmed. To hold
otherwise would be contrary to Congress’ declaration that ICARA is
intended to "empower courts in the United States to determine only
rights under the Convention . . . ." 42 U.S.C. § 11601(b)(4).
AFFIRMED
TRAXLER, Circuit Judge, dissenting:
For the reasons set forth below, I would hold that the district court
has jurisdiction and I would remand this case for further proceedings.
I.
Cantor brought this action under the International Child Abduction
Remedies Act ("ICARA"), 42 U.S.C.A. §§ 11601-11611 (West
2005), which is the implementing legislation for the Hague Conven-
tion on the Civil Aspects of International Child Abduction ("Hague
Convention" or "Convention"), Oct. 25, 1980, T.I.A.S. No. 11,670, 19
I.L.M. 1501. Article 1 of the Hague Convention posits two fundamen-
tal objectives: (1) "to secure the prompt return of children wrongfully
removed to or retained in any Contracting State"; and (2) "to ensure
CANTOR v. COHEN 19
that rights of custody and of access under the law of one Contracting
State are effectively respected in other Contracting States." As we
explained in Miller v. Miller, 240 F.3d 392 (4th Cir. 2001):
In adopting the Hague Convention, the signatory nations
sought to protect children internationally from the harmful
effects of their wrongful removal or retention and to estab-
lish procedures to ensure their prompt return to the State of
their habitual residence, as well as to secure protection for
rights of access. That is, the primary purpose of the Hague
Convention is to preserve the status quo and to deter parents
from crossing international boundaries in search of a more
sympathetic court.
Id. at 398 (internal citations and quotation marks omitted). The Hague
Convention aims to have judicial authorities decide whether a child
has been wrongfully removed or retained in violation of existing cus-
tody rights, or whether existing access rights are being violated, not
whether the petitioning parent is better suited to serve as custodian.
See, e.g., Yang v. Tsui, 416 F.3d 199, 203 (3d Cir. 2005) (explaining
the "adjudication of a Hague Convention Petition" is distinct from
"[c]ustody litigation in state court [that] revolves around findings
regarding the best interest of the child"), petition for cert. filed, 74
U.S.L.W. 3337 (U.S. Nov. 29, 2005) (No. 05-697). The Hague Con-
vention limits judicial authorities to considering claims for return of
a child or to secure the exercise of access rights and forbids courts to
revisit the merits of the underlying custody decision. See Hague Con-
vention, art. 16, 19 I.L.M. at 1503; cf. Miller, 240 F.3d at 398(explaining that "[t]he merits of any underlying custody case are not
at issue" in an action brought under the Hague Convention) (internal
quotation marks omitted).
For purposes of this case, the significance of the Hague Conven-
tion’s purpose, as reflected in the Preamble and Article 1, is that the
Contracting States sought to protect and foster respect for two catego-
ries of legal rights — rights of custody and rights of access. The Con-
vention defines "rights of custody" as "rights relating to the care of
the person of the child and, in particular, the right to determine the
child’s place of residence." Hague Convention, art. 5(a), I.L.M. at
1501. "Rights of access" are essentially visitation rights enjoyed by
20 CANTOR v. COHEN
the non-custodial parent, specifically including "the right to take a
child for a limited period of time to a place other than the child’s
habitual residence." Hague Convention, art. 5(b), 19 I.L.M. at 1501.
By enacting ICARA, Congress implemented the Hague Conven-
tion, giving it the force of law in the United States.1 Congress incor-
porated into ICARA the primary objectives of the Hague Convention
with respect to both classes of rights, finding that the Convention "es-
tablishes legal rights and procedures for the prompt return of children
who have been wrongfully removed or retained, as well as for secur-
ing the exercise of visitation rights." 42 U.S.C.A. § 11601(a)(4). The
express purpose of ICARA is "to establish procedures for the imple-
mentation of the Convention in the United States." 42 U.S.C.A.
§ 11601(b)(4). ICARA "empower[s] 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.A. § 11601(b)(4). On its
face, the unqualified phrase "rights under the Convention" encom-
passes "rights of access" as well as "rights of custody."
Under ICARA’s "Judicial remedies" provision, federal courts enjoy
concurrent original jurisdiction with the state courts over "actions
arising under the Convention." 42 U.S.C.A. § 11603(a). Section
11603 expressly contemplates that such actions may include not only
claims for the return of a child being held in violation of custody
rights, but also claims "for organizing or securing the effective exer-
cise of rights of access." 42 U.S.C.A. § 11603(b). A straightforward
1
"International treaties are not presumed to create rights that are pri-
vately enforceable" without enabling legislation from Congress. Goldstar
(Panama) S.A. v. United States, 967 F.2d 965, 968 (4th Cir. 1992); see
Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252
(1984). "An international agreement of the United States is ‘non-self-
executing’ . . . if the agreement manifests an intention that it shall not
become effective as domestic law without the enactment of implement-
ing legislation." Restatement (Third) of Foreign Relations Law
§ 111(4)(a). Article 2 of the Hague Convention directs "Contracting
States [to] take all appropriate measures to secure within their territories
the implementation of the objects of the Convention." Such language
does not evidence an intent that the agreement be self-executing; con-
gressional action was thus necessary. See Auguste v. Ridge, 395 F.3d
123, 132 n.7 (3d Cir. 2005).
CANTOR v. COHEN 21
reading of this provision suggests that ICARA affords aggrieved par-
ents a judicial forum for resolving claims that involve either custody
rights or access rights:
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.
42 U.S.C.A. § 11603(b). ICARA establishes a preponderance of the
evidence standard of proof for petitions filed under section 11603(b),
regardless of whether the petition is for the return of a child or for
securing the exercise of access rights. See 42 U.S.C.A. § 11603(e)(1).
The statute, however, makes a distinction between these two types of
claims with respect to petitioner’s prima facie case. When the petition
seeks the return of a child, the petitioner must prove by a preponder-
ance of evidence that "the child has been wrongfully removed or
retained within the meaning of the Convention." 42 U.S.C.A.
§ 11603(e)(1)(A).2 When the petition seeks to secure "the effective
exercise of rights of access," the petitioner must prove by a prepon-
derance of evidence simply that he "has such rights." 42 U.S.C.A.
§ 11603(e)(1)(B).
Cantor commenced this action under ICARA asserting both types
of claims. She alleged her daughters were removed or retained in con-
travention of her custody rights and sought the return of the girls to
Israel. She did not assert custody rights as to her two sons, but she
alleged that she was being denied the effective exercise of her rights
2
In order to demonstrate wrongful removal or retention within the
meaning of Article 3 of the Hague Convention, the petitioner must prove
that the children were "‘habitually resident’" in the country from which
they were removed, that "the removal was in breach of [the petitioner’s]
custody rights," and that the petitioner "had been exercising those rights
at the time of removal." Miller, 240 F.3d at 398; see Hague Convention,
art. 3, 19 I.L.M. at 1501 (defining "wrongful" removal).
22 CANTOR v. COHEN
of access to the boys. For purposes of this appeal, however, we are
concerned only with the petition as it relates to Cantor’s access rights.
The district court dismissed Cantor’s petition to the extent that it
sought enforcement of her alleged access rights, concluding that fed-
eral courts do not have jurisdiction to adjudicate such a claim because
the Hague Convention "provides for no . . . recourse to judicial
authority" for claims involving access rights. J.A. 28. The district
court concluded that, under Article 21 of the Hague Convention, the
non-custodial parent’s only recourse for an alleged breach of access
rights is to file an application with the Central Authority of the coun-
try in which the child is located. By contrast, the district court noted,
the Hague Convention establishes "action by the ‘judicial or adminis-
trative authority’" as the standard "remedy" for a claim of wrongful
removal in breach of custody rights. J.A. 28. The district court limited
its analysis to the language of the Hague Convention and did not
address the effect, if any, of ICARA. Having concluded that there is
no judicial forum in which Cantor can raise her denial of access rights
claim, the district court dismissed for lack of jurisdiction.
The result reached by the district court is consistent with a substan-
tial line of district court decisions holding that federal courts have no
jurisdiction to adjudicate claims involving access rights. See, e.g., Ly
v. Heu, 296 F. Supp. 2d 1009, 1010-11 (D. Minn. 2003); Wiggill v.
Janicki, 262 F. Supp. 2d 687, 689 (S.D.W. Va. 2003); Fernandez v.
Yeager, 121 F. Supp. 2d 1118, 1125-26 (W.D. Mich. 2000); Bromley
v. Bromley, 30 F. Supp. 2d 857, 860 (E.D. Pa. 1998). These decisions
answer the jurisdictional question solely by reference to the text of the
Hague Convention rather than the implementing statute, often relying
upon ICARA’s language that federal courts have "jurisdiction of
actions arising under the Convention," 42 U.S.C.A. § 11603(a)
(emphasis added), and that ICARA’s provisions "are in addition to
and not in lieu of the provisions of the Convention." 42 U.S.C.A.
§ 11601(b)(2). In turn, the lower courts uniformly have concluded,
based on a comparison of Article 12 (addressing the return of a
wrongfully removed child) and Article 21 (addressing rights of
access), that the Hague Convention does not provide either (1) a judi-
cial forum to resolve disputes regarding access rights or (2) a substan-
tive remedy for the denial of access rights. See, e.g., Ly, 296 F. Supp.
2d at 1011 (noting "[t]he lack of parallelism between Article 12 and
Article 21 has led the district courts that have considered the issue to
CANTOR v. COHEN 23
conclude that the Convention creates no judicial power to enforce
rights of access"). As stated in Ly, which is fairly representative of
this line of decisions,
[t]here is . . . reason to doubt that the Convention provides
a judicial remedy for violations of a parent’s visitation
rights. Article 12 of the Convention, which addresses proce-
dures to effectuate the return of a wrongfully removed child,
specifically refers to action by the "judicial or administrative
authority" of a member nation. See Hague Convention, art.
12. In contrast, Article 21 of the Convention, which deals
with "organizing or securing the effective exercise of rights
of access" to a child, makes no mention of recourse to a
judicial authority. Hague Convention, art. 21. Rather, a par-
ent must apply to the "Central Authorit[y]" of a nation to
secure enforcement of his or her rights of access.
Id. at 1010-11. This view of Article 21 is consistent with scholarly
commentary criticizing the failure of the Hague Convention to pro-
vide a clear substantive remedy for non-custodial parents who are
being denied their rights of access under the Hague Convention. See,
e.g., Linda Silberman, Patching Up the Abduction Convention: A Call
for a New International Protocol and a Suggestion for Amendments
to ICARA, 38 Tx. Int’l L. J. 41, 48-49 (2003) (explaining that "en-
forcement of access rights" is "a serious deficiency in the Conven-
tion"); Note, Croll v. Croll and the Unfortunate Irony of the Hague
Convention on the Civil Aspects of International Child Abduction:
Parents with "Rights of Access" Get No Rights to Access Courts, 30
Brook. J. Int’l L. 641 (2005). See also Bromely, 30 F. Supp. 2d at 861
n.5 (collecting articles).
II.
Despite the weight of authority, I am unconvinced, based on the
language of ICARA, that federal courts lack jurisdiction to adjudicate
Cantor’s claim. In my view, even assuming for analytical purposes
that the Hague Convention itself does not afford the non-custodial
parent a judicial forum to enforce his rights to access, Congress nev-
ertheless has done so.
24 CANTOR v. COHEN
In determining whether a judicial forum exists for the enforcement
of access rights, I would not relegate the analysis solely to the text of
the Hague Convention but instead would begin with the language of
ICARA’s judicial remedies provision and refer to the language of the
Convention to inform my understanding of ICARA. The Convention
is not self-executing and therefore "do[es] not create judicially-
enforceable rights unless . . . first given effect by implementing legis-
lation." Ridge, 395 F.3d at 132 n.7; see Restatement (Third) of For-
eign Relations Law § 111(3) ("Courts in the United States are bound
to give effect to . . . international agreements of the United States,
except that a ‘non-self-executing’ agreement will not be given effect
as law in the absence of necessary implementation."). Congress gave
the Convention domestic legal effect through ICARA, requiring the
primary focus for purposes of jurisdiction to be on the statutory lan-
guage:
The issue in any legal action concerning a statute imple-
menting a treaty is the intended meaning of the terms of the
statute. The treaty has no independent significance in resolv-
ing such issues, but is relevant insofar as it may aid in the
proper construction of the statute. Thus, where courts have
been persuaded as to the proper interpretation of an imple-
menting statute, that judgment has not been affected by the
claim that the reading given the statute was inconsistent
with the intent of the parties to the treaty.
Hopson v. Kreps, 622 F.2d 1375, 1380 (9th Cir. 1980); see Restate-
ment (Third) of Foreign Relations Law § 111 comment h (explaining
that "it is the implementing legislation, rather than the agreement
itself, that is given effect as law in the United States"). If a preexisting
treaty and a subsequent act of Congress cannot be construed consis-
tently, allowing both to remain valid law, "the statute to the extent of
conflict renders the treaty null" in the domestic context. Breard v.
Greene, 523 U.S. 371, 376 (1998) (per curiam) (internal quotation
marks omitted).
As I noted previously, section 11603(b) unquestionably permits —
in straightforward and unambiguous language — judicial proceedings
alleging the wrongful removal of a child in violation of custody rights
or the denial of the non-custodial parent’s rights of access to the
CANTOR v. COHEN 25
child, or both. See 42 U.S.C.A. § 11603(b). ICARA directs a 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 "commenc[e] a civil action
. . . in any court which has jurisdiction of such action." Id. (emphasis
added). I cannot find anything in the statutory text or its structure that
would permit me to excise petitions to secure the effective exercise
of access rights from the scope of the judicial remedies provision.
This conclusion is underscored, in my view, by the creation of sepa-
rate proof requirements for custody rights and access rights "in an
action brought under subsection (b) of [the Judicial remedies] sec-
tion." 42 U.S.C.A. § 11603(e)(1).3 The unambiguous language of this
section does not mandate that a claim for access rights be pursued
administratively via the Central Authority. Rather, it clearly provides
a judicial forum for such a claim, and "when the terms of a statute are
clear and unambiguous, [a court’s] inquiry ends," leaving only a "duty
of enforcing the terms of the statute as Congress has drafted it." Sig-
mon Coal Co. v. Apfel, 226 F.3d 291, 305 (4th Cir. 2000), aff’d sub
nom. Barnhart v. Sigmon Coal Co., 534 U.S. 438 (2002).
Despite the foregoing, Cohen would look solely to the Convention
to determine whether a judicial forum is available to Cantor. Cohen
argues that ICARA does not add to the remedies set forth in the
Hague Convention any additional means by which an aggrieved par-
ent can enforce existing access rights. He relies on the preamble to
ICARA which declares that the purpose of ICARA is "to establish
procedures for the implementation of the Convention in the United
3
Subsection (e) provides in relevant part:
(e) Burdens of proof
(1) A petitioner in an action brought under [section
11603(b)] shall establish by a preponderance of the evidence—
(A) in the case of an action for the return of a child, that the
child has been wrongfully removed or retained . . . ; and
(B) in the case of an action for arrangements for organizing
or securing the effective exercise of rights of access, that the
petitioner has such rights.
42 U.S.C.A. § 11603(e)(1) (emphasis added).
26 CANTOR v. COHEN
States" and that "[t]he Convention and [ICARA] 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.A.
§ 11601(b)(1) and (4). Because ICARA authorizes courts to adjudi-
cate "only rights under the Convention," Cohen argues, we must refer
to the language of the Convention to determine whether jurisdiction
exists to adjudicate this claim. In turn, Article 21 makes no provision
for the initiation of judicial proceedings to determine rights of access.
I cannot subscribe to Cohen’s argument. First, it runs contrary to
settled principles of statutory construction by elevating a general pol-
icy statement in the preamble over the operative portions of ICARA.
"[P]reambles in statutes . . . are to be looked at at best only when . . .
the enacting language is unclear or ambiguous." White v. Investors
Mgm’t Corp., 888 F.2d 1036, 1042 (4th Cir. 1989). If "the enacting
or operative parts of a statute are unambiguous, the meaning of the
statute cannot be controlled by language in the preamble." Id. (quot-
ing Jurgensen v. Fairfax County, Va., 745 F.2d 868, 885 (4th Cir.
1984)); see Wyoming Outdoor Council v. United States Forest Serv.,
165 F.3d 43, 53 (D.C. Cir. 1999). The language in ICARA’s Judicial
remedies section is unambiguous and cannot be altered by the general
policy pronouncements in the preamble.
Furthermore, the language of the preamble in any case does not
preclude a judicial remedy. ICARA declares that courts are empow-
ered "to determine only rights under the Convention." The Conven-
tion, however, identifies only two classes of substantive rights —
custody rights and access rights. ICARA does not create new rights
or expand these rights as they are defined in Article 5 of the Conven-
tion, which is made clear by the preamble’s reference to the policy
against disturbing the merits of an underlying order. See 42 U.S.C.A.
§ 11601(b)(4). Distinct from these substantive rights under the Con-
vention are the judicial or administrative proceedings used to secure
these rights. Congress did not, in its policy declaration upon which
Cohen relies, declare that the "proceedings" or "procedures" provided
by the Convention would determine whether courts have jurisdiction
to adjudicate claims based on rights under the Convention. In my
view, therefore, the creation of a judicial forum under ICARA for the
securing of access rights is not inconsistent with the congressional
declarations of purpose in the preamble. Indeed, the preamble
CANTOR v. COHEN 27
declares that "[t]he provisions of [ICARA] are in addition to and not
in lieu of the provisions of the Convention." 42 U.S.C.A. 11601(b)(2).
Finally, Cohen argues that the unambiguous language of section
11603(b) does not permit an action in federal court because there is
no substantive remedy even if a court were to determine that rights
of access were being denied. Even though ICARA grants concurrent
state and federal jurisdiction, see 42 U.S.C.A. § 11603(a), Cohen sug-
gests that the language indicating a petition may be filed "in any court
which has jurisdiction of such action" refers only to remedies and pro-
cedures available in family court, which is historically the appropriate
forum for visitation matters to be decided. See Bromley, 30 F. Supp.
2d at 862; Wiggill, 262 F. Supp. 2d at 690. According to Bromley,
federal courts lack jurisdiction because there is no substantive remedy
under the Convention; "the proper jurisdiction for [such an] action is
a state court that has the full authority to enforce and modify the orig-
inal . . . decree." 30 F. Supp. 2d at 861.
The first problem with this view of section 11603(b) is that it con-
tradicts Cohen’s argument that the Convention does not afford a judi-
cial forum to ensure the exercise of access rights. He concedes, as he
must, that the language set forth in ICARA does indeed provide a
judicial forum. But ICARA draws absolutely no distinction between
state and federal courts in this regard. Moreover, contrary to the
assumption that an action to secure access rights will force federal
courts into the business of domestic law, the inquiry called for under
section 11603(e) is very limited — the court need only decide
whether "the petitioner has such rights" of access. 42 U.S.C.A.
§ 11603(e)(1)(B). Where Congress has clearly established a cause of
action, the district court has the power to fashion an appropriate order
that returns the parties to the status quo according to the existing
rights of the parties. See Barnes v. Gorman, 536 U.S. 181, 189 (2002)
("[W]here legal rights have been invaded, and a federal statute pro-
vides for a general right to sue for such invasion, federal courts may
use any available remedy to make good the wrong done.") (internal
quotation marks omitted). This limited inquiry does not require fed-
eral courts to plumb the depths of family law; in fact, it requires no
greater degree of entanglement with family law than does the determi-
nation of whether a child has been removed in violation of existing
custody rights. Such a limited inquiry is consistent with Convention
28 CANTOR v. COHEN
policy goals that the status quo be returned rapidly, without regard to
the underlying merits, and enforced until a court of competent juris-
diction revisits the merits.
III.
For these reasons, I would conclude that our jurisdictional inquiry
is governed by the unambiguous terms of ICARA, and that under
ICARA federal courts may adjudicate claims to secure the exercise of
access rights. Accordingly, I respectfully dissent.