Abstention, Parity, and Treaty Rights: How Federal Courts Regulate Jurisdiction under the Hague Convention on the Civil Aspects of International Child Abduction

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While Article VI of the US Constitution establishes treaties as supreme federal law, scholars and lawmakers have historically doubted that state judges will enforce the United State’s international obligations when they conflict with important state interests. The Hague Convention on the Civil Aspects of International Child Abduction, codified in US law as the International Child Abduction Remedies Act (ICARA), is the first major family law treaty ratified by the United States. Its provisions are regularly enforced by both federal and state courts. Notwithstanding the relationship of the treaty to important state interests like the integrity of family court systems, financial and social support for families and minors, and the substantive law of marriage and divorce, there is general convergence between federal and state judges on the applicability of the convention and certain exceptions authorized by the treaty. Several federal district courts, acknowledging these state and federal interests in efficacious adjudication of treaty claims, have abstained from hearing ICARA applications in favor of state proceedings. Federal appellate courts, however, have been overwhelmingly hostile to these abstention decisions, citing the role of federal courts in upholding the United State’s international commitments. The Article argues that federal appellate courts have largely ignored the jurisdictional plan designed by Congress in favor of an implied Article III power to enforce treaties, and recommends changes for both ICARA and additional family law treaties the United States is now preparing to join.

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