This article explores the discrepancy in the law of federal jurisdiction as it has developed under the Hague Child Abduction Convention. In contrast to return claims where the remedy is discrete, finite, and closely tied to fundamental international obligations under the treaty, orders to enforce access rights are, or would be, amorphous, ongoing, and subject to other administrative structures codified in the convention as well as, in the U.S. system, adding responsibilities for federal judges more generally associated with those undertaken by state judges. Even in the one federal appellate decision that explicitly acknowledged a judicially enforceable right to ensure access, the court fashioned the remedy toward return, ultimately rendering that part of the decision dicta. In any case, federal courts have overwhelmingly rejected jurisdiction over access claims, emphasizing state courts' role in making child custody determinations and alternative treaty mechanisms like cooperation between executive branch officials. Ultimately, this article argues that there is little if any support in the language of the Hague Child Abduction Convention or in its implementing statute, the International Child Abduction Remedies Act, to justify federal courts' refusal to hear access claims. Rather, the rationales adopted by federal courts in allocating access cases to state courts resurrects a long-standing problem in the law of federal jurisdiction: Is the exception to federal jurisdiction for matters relating to divorce, maintenance, and child custody based on courts' interpretation of jurisdictional statutes or did Article III's jurisdictional grant to "cases" or "controversies" always exclude matters traditionally handled by ecclesiastical courts in 1787 Britain? While this article takes no position on that problem directly, it does suggest that federal courts have appropriated to themselves authority to determine jurisdiction based on their own assessment of state courts' competencies, what is called here a "latent" domestic relations exception to federal question jurisdiction.
Sam Halabi, The Hague Convention on the Civil Aspects of International Child Abduction and the Latent Domestic Relations Exeption to Federal Question Jurisdiction, 41 N.C. J. Int'l L. 691 (2016).