Sarah Claudia Aragon Cantor v. Andrew Cohen

442 F.3d 196, 2006 U.S. App. LEXIS 6915, 2006 WL 700926

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 21, 2006
• Docket: 05-1609
• Status: Published

Opinions

Affirmed by published opinion. Judge HARWELL wrote the majority opinion, in which Judge WIDENER joined. Judge TRAXLER wrote a dissenting opinion.

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 district 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 discussed 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 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. Cantor custody of the girls, A.C. and R.C., and granting Mr. Cohen custody of the boys, 1.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 September 2000).

On July 9, 2002, a third divorce decree was issued by the Rabbinical 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 “extended 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 situation 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.

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 continues 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 clarification 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 dismissing 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 decision 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 Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 10, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980); see also Braswell Shipyards, Inc. v. Beazer East, Inc., 2 F.3d 1331, 1339 (4th Cir.1993) (Luttig, J. dissenting) (“[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 Curtiss-Wright, 446 U.S. at 10, 100 S.Ct. ). We find the district court’s decision to enter judgment 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 federal courts are authorized to hear access claims under ICARA. ICARA is the federal legislation which implemented the Hague Convention on the Civil Aspects of International Child Abduction, October 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. Specifically, § 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 exercise 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. § 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 mention visitation rights or access rights until the last subsection, subsection 4, and then only mentions these rights in the context of the Convention. Specifically, the subsection describes that “[t]he Convention ... 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 Congress’ 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 Congress’ declarations, states that:

[t]he Convention and this chapter 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. § 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 peaceful enjoyment of access rights and the fulfillment of conditions to which the exercise of those rights may be subject. 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 intermediaries, may initiate or assist in the institution of proceedings 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 presentation 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:

[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 exercise 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 substantive 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 section 11603(b) of ICARA is consistent with the provisions of the Convention.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.... ”

New 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 F.Supp.2d 687, 689 (S.D.W.Va.2003); Neng Nhia 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 Remedies Act....”); Wiggill, 262 F.Supp.2d at 688 (“The Wiggell Petition 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 Fernandez, 121 F.Supp.2d at 1119 (“Petitioner ... filed a verified Petition for Access to Minor Children under the Hague Convention on the Civil Aspects of International Child Abduction ... and the International Child Abduction Remedies Act....”); Bromley, 30 F.Supp.2d at 858 (“Petitioner ... brought this action pursuant to Hague Convention 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 fo-cussed [sic] on judicial and administrative remedies for removal or retention of children in breach of custody rights. “Access rights,” which are synonymous with “visitation rights,” are also protected by 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 jurisdiction 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 consensus among several of the reported decisions of district courts referenced 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 materials we cite references procedures to implement the Hague Convention:

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 jurisdiction 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.

My amendment Fas 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 determine only rights under the convention and not the merits of any underlying child custody claims.” This language limits consideration to only those issues specifically contained 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 custodial 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).

Sen. Hatch from Utah spoke in response to the offer of the amendment 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 Administrative Practice of the Senate Judiciary Committee. In relation 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 Judicial 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 section 2 of article III of the Constitution. In the case at hand, we have a treaty with an underlying concern of child custody. Thus, the issues of treaty interpretation and child custody 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?

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 Convention and not the merits of any underlying child custody 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 system. On October 8, 1987, the Senate adopted the text of S. 1347 as an amendment to the State Department authorization bill, H.R. 1777. The Amendment was deleted in conference 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 proceedings arising under the Convention and this legislation.

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. 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 jurisdiction 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 relations litigation to federal courts.

IV.

The Appellant also cites this court’s decision in Katona v. Kovacs, 148 Fed.Appx. 158 (4th Cir.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 86(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 implementing legislation, the International Child Abduction Remedies Act. The court held in Kato-na that “[bjecause 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 159.

The court went on to make a distinction between the remedies available when considering rights of custody from the remedies available in cases concerning rights of access or visitation. The court explained that:

[wjhile 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 parent for expenses incurred in exercising his or her rights of access.”

Id. at 160 (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 161 (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:

[wjhile the Hague Convention provides remedies for a violation 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 Central 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. 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 applying this Convention.

Central Authorities and other public services of Contracting States shall not impose any charges in relation to applications 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 reservation 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 judicial 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 section of the Convention to permit administrative authorities [the Central Authorities] to direct the person who prevented the exercise of “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

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.

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.

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 Con-vention_” 42 U.S.C. § 11603(b) (emphasis added).

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 otherwise 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.

8 . We note that access rights, "include 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, 19 I.L.M. at 1501.

9 . As previously noted, the Convention only provides jurisdiction to "the Central Authorities” to remedy situations involving rights of access.