SUPREME COURT OF THE UNITED STATES

NO. ALB-15-01

FRANK OVERWOOD,

PETITIONER

v.

CLAIRE OVERWOOD,

RESPONDENT

On Writ of Certiorari to the

United States Court of Appeals for the Fourteenth Circuit

BRIEF FOR RESPONDENT

ALB-15-01-R1

ii

QUESTIONS PRESENTED

I. Whether the Court of Appeals correctly affirmed the District Court’s holding that a subjective parental intent standard for determining habitual residence best furthers the goals of the Hague Convention and therefore that Peter’s habitual residence remained in the United States.

II. Whether the Court of Appeals correctly affirmed the District Court’s decision to dismiss an international access rights claim for lack of subject matter jurisdiction when the Hague Convention does not proscribe judicial enforcement for access rights and when conferring federal jurisdiction would both contravene the Convention’s historical purpose and violate the principles of federalism.

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TABLE OF CONTENTS

Questions Presented . . . . . . . . . . . . . . . . . . . . . i

Table of Contents . . . . . . . . . . . . . . . . . . . . . . ii

Table of Authorities . . . . . . . . . . . . . . . . . . . . iv

Proceedings Below . . . . . . . . . . . . . . . . . . . . . . 1

Statutory Provisions . . . . . . . . . . . . . . . . . . . . . 2

Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statement of the Facts . . . . . . . . . . . . . . . . . . . . 5

Summary of the Argument . . . . . . . . . . . . . . . . . . . 7

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

I. THE COURT OF APPEALS CORRECTLY AFFIRMED THE DISTRICT COURT’S HOLDINGS THAT A SUBJECTIVE PARENTAL INTENT STANDARD FOR DETERMINING HABITUAL RESIDENCE IS MOST CONSISTENT WITH THE GOALS OF THE HAGUE CONVENTION AND THEREFORE THAT PETER’S HABITUAL RESIDENCE REMAINED IN THE UNITED STATES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. Although a few Circuits continue to apply a habitual residence analysis that focuses primarily on the child’s perception, the vast majority of courts hold that the parents’ last shared intent should govern absent overwhelming evidence of acclimatization. . . 9

B. A subjective parental intent standard best furthers the primary goals of the Hague Convention. . . . . 14

1. A subjective parental intent standard best furthers the Convention’s goal of deterring parents from unilaterally removing children in order to seek more favorable forums for custody disputes. . . . . . . . . . . . . . . . . . . 14

2. A subjective parental intent standard contains sufficient protections to ensure that a child will not be harmed by being taken out of the environment that he regards as his home. . . . 16

3. A subjective parental intent standard will lead to more consistent and predictable application of the Convention, while also remaining flexible enough

ii

to account for all factual situations. . . . . . . . . . . . . . . . . . 17

C. Under either a parental intent standard or a child-centric standard, Peter’s habitual residence never changed to Albers based on his parent’s consistent representations to him that the move was temporary. . . . . . . . . . . . . . . . . . . . . 18

II. THE COURT OF APPEALS CORRECTLY AFFIRMED THE DISTRICT COURT’S FINDING THAT FEDERAL COURTS LACK SUBJECT MATTER JURISDICTION TO HEAR ACCESS RIGHTS CLAIMS BECAUSE THE HAGUE CONVENTION NEITHER PROVIDES FOR NOR INTENDED ANY JUDICIAL REMEDY FOR SUCH CLAIMS. . . . . . . . . . . . . . . . . 23

A. The Convention does not create a judicial remedy for an interference with the exercise of access rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

1. Article 21 does not address judicial action. . . . . . . . . . . . . . . . . . . . . . . . . . 24

2. The Convention does provide a judicial remedy for wrongful removal claims. . . . . . . . . . . . 27

B. The purpose and legislative history of the Convention supports the contention that federal courts do not have jurisdiction to hear access rights claims. . . 30

C. Federal courts must remain courts of limited jurisdiction. . . . . . . . . . . . . . . . . . . . 32

1. Family law matters are traditionally reserved for state courts. . . . . . . . . . . . . . . . . 33

2. Allowing jurisdiction amounts to an impermissible decision on the merits of the claim. . . . . . 33

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . 36

iii

TABLE OF AUTHORITIES

United States Supreme Court Cases

Air France v. Saks, 470 U.S. 392 (1985). . . . . . . . . . . 25

Chan v. Korean Air Lines, Ltd., 490 U.S. 122 (1989). . . . . 25

Choctaw Nation of Indians v. United States, 318 U.S. 423, (1943). . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Other Federal Cases

Bromley v. Bromley, 30 F.Supp.2d 856 (E.D. Pa. 1998). . . . . . . . . . . . . . . . . . . . . . . . 27, 32, 33

Cantor v. Cohen, 442 F.3d 196 (4th Cir. 2006). . 23, 24, 26, 31

Darin v. Olivero-Huffman, 746 F.3d 1 (1st Cir. 2014). . . . . 13

Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995). . . . . 12, 20

Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 19, 21

Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005). . . . 14, 15, 17

Guzzo v. Cristofano, 719 F.3d 100 (2d Cir 2013). . . . . 13, 18

Holder v. Holder, 392 F.3d 1009 (9th Cir.

2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . 14, 16, 17, 18

Ibarra v. United States, 120 F.3d 472 (4th Cir. 1997). . . . 23

Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15, 18, 22

Koch v. Koch, 450 F.3d 703 (7th Cir. 2006). . . . . . . . . . 14

Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012). . . . . . 14, 16

Ly v. Heu, 296 F. Supp. 2d 1009 (D. Minn. 2003). . . . . . . 29

Maxwell v. Maxwell, 588 F.3d 245 (4th Cir. 2009). . . . . . 14

iv

Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012). . . . . . . . 30

Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). . . . . . passim

Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir. 2013). . . . . . . 23

Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013). . . . . . . 11

Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007). . . . . . 20, 22

Rulz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004). . . . . . . 14

Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003). . . 9, 20

Teijeiro Fernandez v. Yeager, 121 F. Supp. 2d 1118 (W.D. Mich. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . 28, 34 Whiting v. Krassner, 391 F.3d 540 (3d Cir. 2004). . . . . 15, 17

Wiggill v. Janicki, 262 F. Supp. 2d 687 (S.D. W. Va. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

State Cases

Viragh v. Foldes, 612 N.E.2d 241 (Mass. 1993). . . . . . . . 25

International Cases

Re G, 3 All E.R. 657 (C.A. 1993). . . . . . . . . . . . . . . 29

Federal Statutory Provisions

Federal Rule of Civil Procedure 12(b)(1). . . . . . . . . . . 23

22 U.S.C. § 9001(b). . . . . . . . . . . . . . . . . . . passim

22 U.S.C. § 9003(a). . . . . . . . . . . . . . . . . . . . . 24

Treaties

Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89. . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

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Legislative Materials

Elisa Perez-Vera, Explanatory Report ¶ 1, in 3 Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session, Child Abduction 426 (1982). . . . . . passim

134 Cong. Rec. S3839-02 (1988). . . . . . . . . . . . . . . . 32

Secondary Sources

J.H.C. Morris, Dicey and Morris on the Conflict of Laws 144 (10th ed. 1980). . . . . . . . . . . . . . . . . . . . . . . 10

vi

PROCEEDINGS BELOW

In March 2012, Petitioner, Frank Overwood, and Respondent,

Claire Overwood, obtained a divorce and mutually agreed to a

custody arrangement for their two children. [R. 8]. In January

2013, the Petitioner filed a Petition for Return of Child

pursuant to Article 12 of the Hague Convention on the Civil

Aspects of Child Abduction in the District Court for the Southern

District of Homer. Id. at 1. Petitioner also alleged

impermissible interference of access rights pursuant to the

International Child Abduction Remedies Act. Id. at 1.

The District Court denied the Petitioner’s wrongful removal

petition, adopting the “parental intent” test and concluding that

Peter’s habitual residence was in the United States rather than

in Albers. Id. at 1, 18. The District Court also dismissed the

access rights claim on the grounds that the ICARA does not grant

federal courts subject matter jurisdiction to consider violations

of access rights. Id. at 1, 24. On appeal, the Court of Appeals

for the Fourteenth Circuit affirmed, finding the District Court

properly denied the Petition for Return of Child and

appropriately dismissed the access rights claim. Id. at 2.

On January 27, 2015, the Supreme Court of the United States

granted the Petitioner’s Petition for Writ of Certiorari to

consider all issues raised in the court below. Id. at 26.

vii

STATUTORY PROVISIONS

Federal Rule of Civil Procedure 12(b)(1)(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction;

22 U.S.C. § 9001(b)(b) DeclarationsThe Congress makes the following declarations:

(1) It is the purpose of this chapter to establish procedures for the implementation of the Convention

in the United States.(2) The provisions of this chapter are in addition to and not in lieu of the provisions of the Convention.(3) In enacting this chapter the Congress recognizes --

(A) the international character of the Convention; and(B) the need for uniform international interpretation

of the Convention.(4) The 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.

22 U.S.C. § 9003(a) and 22 U.S.C. § 9003(d) (2012)(a) Jurisdiction of courts

The courts of the States and the United States district courts shall have concurrent original jurisdiction of actions arising under the Convention.

. . .

(d) Determination of caseThe court in which an action is brought under subsection (b) of this section shall decide the case in accordance with the Convention.

viii

TREATIES

Hague Convention on the Civil Aspects of International Child AbductionArticle 1The objects of the present Convention are –

a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State;and

b) to ensure that rights of custody and of access under the law of one Contracting State areeffectively respected in the other Contracting States.

Article 12Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

Article 21An 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 any 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 the 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 these rights may be subject.

ix

Article 29This Convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention.

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STATEMENT OF THE FACTS

In 1985, Frank Underwood, a citizen of Albers studying in

the United States, met Claire, a United States citizen. [R. 2].

The couple eventually married and had two children, Peter and

Zoe. Id. at 3. In July of 2009, Frank’s company, RMW, offered him

a position as the head of a new office in Albers based on his

familiarity with the country. Despite marital difficulties based

on Frank’s previous infidelities, Claire and Frank both agreed to

move the family to Albers temporarily so that Frank could take

the position. Id. They sold their home in Albers but rented a

smaller house, where they left the majority of their belongings.

Id. at 4. They also maintained a joint U.S. bank account and

arranged to have their mail forwarded to their home in Albers.

Id. at 5. Before leaving, Claire and Frank explained to Peter,

who was eight at the time, that the move to Albers was only

temporary. Id.

After moving to Albers in December of 2009, both children

excelled in school and extracurricular activities. Id. For

example, Peter made a close friend, began to learn French (the

official language of Albers), and performed in drama productions

and piano recitals. Id. at 5-6. During the three years the family

lived in Albers, Claire and the children returned home to Homer

twice each year for extended visits. Id. at 6. Claire made it a

point to have the children visit with her parents during these

xi

trips, and Peter reconnected with his American friends on the

first trip home. Id. at 6-7. During subsequent trips, he chose to

play video games with a friend in Albers, and he gradually moved

most of his belongings from the United States to Albers. Id. at

7.

Out of necessity, Claire stepped back from her job with a

U.S. company, CWI. However, she remained on the Board and

frequently travelled to the United States and elsewhere for

meetings and events. Id. In March 2012, unsatisfied with her life

in Albers and angered at Frank’s newest affair, Claire filed for

divorce. Id. at 8. An Albers court awarded custody of Zoe to

Claire and custody of Peter to Frank, with access rights to each

non-custodial parent. Id. Claire continued to live in Albers for

the time being, but, after CWI offered her a full-time position

in October, she opened a bank account and leased an apartment in

Homer. Id. at 8-9. In December, Claire represented to Frank that

she would be taking Peter and Zoe on their usual winter vacation

to Homer. Id. at 9. Once in the U.S., Claire moved all of their

belongings into her Homer apartment and changed her phone number.

Id. She did not allow the children to contact Frank, nor did she

inform him of her apartment’s location. Id. Frank then flew to

Homer and, failing to locate or contact Claire and the children,

filed the Petition that is the subject of this litigation. Id. at

10.

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SUMMARY OF THE ARGUMENT

This Court should affirm the Court of Appeals’ holding that

a subjective shared parental intent approach is the proper

standard for determining habitual residence of a child under the

Hague Convention. The Court of Appeals correctly adopted the

Ninth Circuit’s Mozes standard and further correctly held that

Peter’s habitual residence is the United States.

The majority of federal courts that have considered the

issue of habitual residence have followed the Mozes approach

because it best furthers the goals of the Convention: deterring

parents from unilateral removal of their children for the purpose

of forum-shopping, ensuring that children are not taken out of

the environments in which their lives have developed, and

allowing uniform application of the Convention while still

providing sufficient flexibility for case-by-case analysis.

Under the Mozes approach, a child’s habitual residence is

governed by his parents’ last shared intent absent evidence of

acclimatization that unequivocally demonstrates a new habitual

residence. Because such evidence does not exist in this case,

Peter’s habitual residence is the United States. Furthermore,

even under the Feder standard, Peter’s habitual residence

remained in the United States because he was fully aware that his

parents intended their stay in Albers to be temporary.

xiii

The Court should also affirm the Court of Appeals’ finding

that federal courts lack subject matter jurisdiction to hear

access rights claims. The ICARA, which implements the Hague

Convention in the United States, effectuates procedures

consistent with those rights granted by the Convention. Although

the ICARA creates concurrent jurisdiction for federal and state

courts, subject matter jurisdiction over access rights does not

exist because no judicial remedy is expressly provided in the

Convention.

First, the Convention only mandates that access rights be

“effectively respected.” Article 21 provides that a non-custodial

parent may petition the Central Authority, but does not describe

any type of judicial proceeding. In contrast, the Convention does

include a judicial remedy for wrongful removal actions. Further,

the legislative history of the Convention reveals that a judicial

remedy was deliberately not included in Article 21 because access

rights are meant to be secondary to wrongful removal concerns.

Finally, federal courts are courts of limited jurisdiction. State

courts traditionally hear family law issues, and the state court

is the appropriate forum for ensuring that access rights are

“effectively respected” and that federal courts avoid making any

decision on the merits of the underlying custody claim.

xiv

ARGUMENT

I. THE COURT OF APPEALS CORRECTLY AFFIRMED THE DISTRICT COURT’S HOLDINGS THAT A SUBJECTIVE PARENTAL INTENT STANDARD FOR DETERMINING HABITUAL RESIDENCE IS MOST CONSISTENT WITH THE GOALS OF THE HAGUE CONVENTION AND THEREFORE THAT PETER’S HABITUAL RESIDENCE REMAINED IN THE UNITED STATES.

The Court of Appeals correctly affirmed the District Court’s

denial of Petitioner’s petition for wrongful removal based on its

finding that Peter’s habitual residence under the Hague

Convention was the United States, not Albers. Both the District

Court and the Court of Appeals applied a habitual residence test

that focuses primarily on the parents’ last shared intent and

concluded, despite some evidence of Peter’s acclimatization in

Albers, that his habitual residence remained in the United

States. [R. 19]. “Habitual residence determinations raise mixed

questions of law and fact and therefore should be reviewed de

novo.” Silverman v. Silverman , 338 F.3d 886, 896 (8th Cir. 2003).

Thus, while a reviewing court should defer to a lower court’s

unchallenged factual findings absent evidence of clear error, it

reviews de novo the lower court’s application of the Convention

to the facts on the record. Id. at 897.

A. Although a few Circuits continue to apply a habitual residence analysis that focuses primarily on the child’s perception, the vast majority of courts hold that the parents’ last shared intent should govern absent overwhelming evidence of acclimatization.

The Hague Convention on the Civil Aspects of Child

Abduction, which was adopted by unanimous vote during the

xv

Fourteenth Session of the Hague Conference on private

international law, was enacted in order to protect children “from

the harmful effects of their wrongful removal or retention and to

establish procedures to ensure their prompt return to the State

of their habitual residence.” Hague Convention on the Civil

Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S.

No. 11,670, 1343 U.N.T.S. 89 (“the Convention”); Elisa Perez-

Vera, Explanatory Report ¶ 1, in 3 Hague Conference on Private

International Law, Acts and Documents of the Fourteenth Session,

Child Abduction 426 (1982) (“Perez-Vera Report”). The Convention

intentionally left the crucial phrase “habitual residence”

undefined in order to “leave the notion free from technical rules

which can produce rigidity and inconsistencies between different

legal systems.” J.H.C. Morris, Dicey and Morris on the Conflict

of Laws 144 (10th ed. 1980).

The Convention is implemented in the United States by the

International Child Abduction Remedies Act (“the ICARA”). 22

U.S.C. § 9001. In order to exercise this return remedy, a

petitioner must first prove that the child’s removal to, or

retention in, one signatory country was wrongful because the

child was habitually resident in another signatory country at the

time. Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3d Cir. 2006).

Unexpectedly, courts in the United States are split in their

interpretations of the phrase “habitual residence.” “In

xvi

substance, all circuits . . . consider both parental intent and

the child’s acclimatization, differing only in their emphasis.

The crux of disagreement is how much weight to give one or the

other, especially where the evidence conflicts.” Redmond v.

Redmond, 724 F.3d 729, 746 (7th Cir. 2013) (emphasis in

original).

Courts have developed three main approaches to this

balancing exercise. The Sixth Circuit, in the first United States

case to consider the problem of habitual residence, held that the

court must focus exclusively on the child’s experiences.

Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993). As

case law about habitual residence under the Convention developed,

this exclusively child-centered approach did not prove popular

among other circuits. None adopted the Friedrich standard and,

indeed, the Sixth Circuit tempered its own holding in Robert v.

Tesson, writing that “our holding in Friedrich I should be

refined to incorporate some of the wisdom of our sister circuits,

without disturbing Friedrich I’s core holding that habitual

residence under the Hague Convention is determined by the child’s

experience, not by the parents’ subjective intent.” 507 F.3d 981,

998 (6th Cir. 2007).

The Sixth Circuit went on to expressly adopt the Feder test,

a standard that had been developed by the Third and Eighth

Circuits in the years since the Friedrich decision. Id. at 993.

xvii

In those jurisdictions, “a child’s habitual residence is the

place where he or she has been physically present for an amount

of time sufficient for acclimatization and which has a degree of

settled purpose from the child’s perspective.” Feder v. Evans-

Feder, 63 F.3d 217, 224 (3d Cir. 1995)(internal quotation marks

omitted). However, these courts also acknowledge that it would be

“unrealistic” to exclude the parents’ shared intentions from the

analysis completely as these intentions most likely affect the

child’s perception of his circumstances and the time necessary to

acclimate to new surroundings. Id. at 223. Thus, a court applying

this approach prioritizes the child’s experiences but also

considers the parents’ present, shared intentions. Id. at 224.

Although the Feder test (now used in the Third, Eighth, and

Sixth Circuits) provides a more practical approach to determining

habitual residence than did the Friedrich test, any analysis that

gives more weight to the child’s experiences than to the parents’

shared intent is problematic. As the Ninth Circuit has noted,

“[c]hildren can be remarkably adaptable and form intense

attachments even in short periods of time - yet this does not

necessarily mean that the child expects or intends those

relationships to be long-lived.” Mozes v. Mozes, 239 F.3d 1067,

1079 (9th Cir. 2001). Given a child’s limited psychological

development, determining habitual residence based exclusively on

xviii

a showing of that child’s acclimatization would be “an exercise

fraught with difficulty.” Id.

For those reasons, the majority of circuits in the United

States have adopted a third approach, first explained by the

Ninth Circuit in Mozes. Under the Mozes test, “the first step

toward acquiring a new habitual residence is forming a settled

intention to abandon the one left behind.” 239 F.3d at 1075.

Citing the fact that many children “normally lack the material

and psychological wherewithal to decide where they reside,” the

court further concluded that the intention to be considered is

that of the “person or persons entitled to fix the place of the

child’s residence.” Id. at 1076. If a court concludes that the

parents did not intend to change a child's habitual residence,

however, it must then assess “whether the evidence unequivocally

points to the conclusion that the child has acclimated to the new

location, notwithstanding the parents' intentions.” Guzzo v.

Cristofano, 719 F.3d 100, 104 (2d Cir 2013). Since 2001, the

majority of courts that have considered the issue of habitual

residence under the Convention have either adopted the Mozes test

in cases of first impression or reaffirmed its application in

subsequent decisions. See, e.g., Darin v. Olivero-Huffman, 746

F.3d 1 (1st Cir. 2014); Larbie v. Larbie, 690 F.3d 295 (5th Cir.

2012); Maxwell v. Maxwell, 588 F.3d 245 (4th Cir. 2009); Koch v.

Koch, 450 F.3d 703 (7th Cir. 2006); Gitter v. Gitter, 396 F.3d

xix

124 (2d Cir. 2005); Holder v. Holder, 392 F.3d 1009 (9th Cir.

2004); Rulz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004).

B. A subjective parental intent standard best furthers the primary goals of the Hague Convention.

The Mozes approach, which prioritizes the last shared

parental intent about habitual residence while still considering

the child’s level of acclimatization, is most consistent with the

primary goals of the Convention: namely, to prevent unilateral

removal by one parent by deterring forum-shopping; to prevent a

child from being wrongfully removed from the social environment

in which he has grown up; and to provide uniform interpretation

of the Convention combined with flexible, fact-intensive

determinations. Perez-Vera Report, supra, at ¶ 12 and ¶ 14; 22

U.S.C. § 9001(b)(3)(B).

1. A subjective parental intent standard best furthers the Convention’s goal of deterring parents from unilaterally removing children in order to seek more favorable forums for custody disputes.

The primary object of the Convention is to deter a parent,

in anticipation of a custody dispute, from using a temporary

visit to a favorable forum in order to obtain a judicial

determination that legalizes the child’s long-term presence in

that forum. Perez-Vera Report, supra, at ¶ 14. As the Ninth

Circuit has noted, “[t]he greater the ease with which habitual

residence may be shifted without the consent of both parents, the

xx

greater the incentive to try.” Mozes, 239 F.3d at 1079. The

improper incentives to engage in unilateral removal are therefore

greatly reduced by an approach, such as Mozes, which gives some

independent weight to the parents’ shared intent.

An alternate approach that relies on the child’s

acclimatization to determine habitual residence could “open

children to harmful manipulation when one parent seeks to foster

residential attachments during what was intended to be a

temporary visit.” Gitter, 396 F.3d at 134 (quoting Mozes, 239

F.3d at 1079). In cases involving young children, this also

provides “a perverse incentive to any parent contemplating an

abduction to take the child as early as possible in a new

environment.” Whiting v. Krassner, 391 F.3d 540, 551 (3d Cir.

2004). Furthermore, focusing exclusively on the child’s

perceptions without regard to the parents’ intent fails to

consider whether or not one parent was acting unilaterally.

Karkkainen, 445 F.3d at 296. In addition to being difficult to

apply, such an approach runs contrary to the Convention because

“[w]hen a removal or retention is in accordance with the shared

intent of both parents, there is no unilateral action, and

therefore no harm for a court to remedy under the Hague

Convention.” Id. at 297.

2. A subjective parental intent standard contains sufficient protections to ensure that a child will not be harmed by being taken out of the

xxi

environment that he regards as his home.

Under the Mozes approach, shared parental intent as to

habitual residence is presumed to act as a surrogate decision for

children who are not yet old enough to make autonomous residence

determinations. Holder, 392 F.3d at 1017. However, shared

parental intent alone cannot change or maintain habitual

residence in every situation. The Mozes test also requires “an

actual change in geography and the passage of a sufficient length

of time for the child to have become acclimatized.” Mozes, 239

F.3d at 1078. If a court applying that approach is confident that

the child’s allegiance between the two States has shifted so

dramatically that removing him would be tantamount to taking the

child out of the environment in which his life developed, the

Court will not order such removal. Id. at 1081.

An approach prioritizing shared parental intent does not

ignore the child’s preference, but instead gives greater weight

to the parent’s intent in situations where the child is too young

to rationally determine his own residence. Larbie, 690 F.3d at

310. In fact, the Convention does not apply to children over the

age of 16, thus ensuring that young adults will still have some

level of control over their habitual residence. Holder, 392 F.3d

at 1017. Indeed, courts that have adopted a parental intent

standard recognize the possibility of situations when evidence of

an older child’s acclimatization can point “unequivocally” to a

xxii

new habitual residence and therefore overcome an express, shared

parental intent. See Gitter, 396 F.3d at 124 (noting that “a

child who has spent fifteen years abroad, for example, would

predictably suffer severe harm if returned to the state he had

experienced only at birth.”). Thus, the Mozes approach provides

sufficient deference to the child’s perceptions of his situation

and his level of acclimatization in the new environment such that

he will not suffer harm under application of that standard.

3. A subjective parental intent standard will lead to more consistent and predictable application of the Convention, while also remaining flexible enough to account for all factual situations.

Consistent with the Convention’s goals of avoiding rigid,

technical definitions, an assessment of habitual residence “is a

fact-intensive determination that necessarily varies with the

circumstances of each case.” Whiting, 391 F.3d at 546. However,

families who must rely on judicial determinations of habitual

residence in order to enforce custody rights across national

borders need “intelligibility and consistency” in the

Convention’s application so that they will be able to make

informed decisions about where their children reside. Mozes, 239

F.3d at 1073. Thus, the ideal habitual residence standard must

provide for uniform application while still remaining flexible

enough to account for the wide variation of family situations

that may arise.

xxiii

The Mozes approach strikes this balance well. It promotes

consistent application of the Convention because a court will

primarily rely on the parents’ intent; it will only declare a

contrary habitual residence when it can “say with confidence”

that the child has acclimated completely to his new environment.

Mozes, 239 F.3d at 1081. Yet courts applying the Mozes test also

consider the unique circumstances of each case. Holder, 392 F.3d

at 1016. For example, “the age of the child and the time spent in

the respective countries can affect how much weight a court

should place on parental intent.” Guzzo, 719 F.3d at 108. Thus,

the Mozes approach best balances the Convention’s dual goals of

uniform application and flexible, case-by-case analysis.

C. Under either a parental intent standard or a child-centric standard, Peter’s habitual residence never changed to Albers based on his parent’s consistent representations to him that the move was temporary.

Both parties in this case agree that their last shared

intent was that the move to Albers be of unspecified duration,

yet unequivocally temporary. [R. 4]. Under the Mozes approach,

evidence of acclimatization can overcome this shared intent only

if the court finds that “requiring return to the original forum

would now be tantamount to taking the child ‘out of the family

and social environment where its life has developed.’” Mozes, 239

F.3d at 1081 (quoting Perez-Vera Report, supra, at ¶ 11). In the

case at hand, allowing Peter to return to the United States would

xxiv

not result in the kind of harm contemplated by the Mozes court.

Although he made at least one very close friend and thrived in

school during his stay in Albers, Peter also maintained his

contacts with his American friends and family during his trips

home. There has been no evidence presented which suggests that

returning there will affect him negatively. If anything, Peter’s

apparent ability to acclimate so quickly to a new environment

should allow him to transition seamlessly back into his life in

the United States.

Furthermore, the leading cases in jurisdictions that have

adopted a child-centered approach have presented drastically

simpler fact patterns than the one at issue here. In the Sixth

Circuit Friedrich case, for example, a mother attempted to show

that her son was a habitual resident of the United States based

on her future intention to move him there once she was discharged

from the military. Friedrich, 983 F.2d at 1401. In that case, the

boy had lived exclusively in Germany before the petition was

filed. Id. Furthermore, his mother removed him without informing

his father or seeking his permission, leading the court to remark

that “[t]his is a simple case.” Id. In a more recent Sixth

Circuit case, the court declined to hold that two boys’ habitual

residence had shifted to France following a three-week visit

there with their father. Tesson, 507 F.3d 981. The court noted

that the boys had previously “celebrated holidays and birthdays

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almost exclusively with the American side of their family.” Id.

at 997. Furthermore, they had packed only enough clothes for two

seasons, indicating that they viewed their stay in France as

temporary. Id.

The leading cases from the Third and Eighth Circuits are

also instructive in demonstrating the particular situations in

which courts applying the Feder test have been willing to find

habitual residence based on the child’s perception. See Feder, 63

F.3d 217 (3d Cir. 1995) (finding habitual residence in Australia

after the petitioning mother had applied to have the child

enrolled in a private Australian school seven years in the

future); Silverman, 338 F.3d at 886 (finding children’s habitual

residence to be in Israel rather than the United States when the

petitioning mother had previously intended to move permanently to

Israel and then changed her mind); Karkkainen, 445 F.3d 280

(finding habitual residence in the United States, despite little

evidence of acclimatization, after a thirteen-year-old’s parents

had given her permission to choose whether she wanted to live in

the U.S. or Finland).

Thus, the cases that have established habitual residence

balancing tests which favor the child’s perception over the

parent’s shared intent have been based on unique and often

extreme factual situations. The Mozes court also cautioned the

fact-specific nature of habitual residence determinations, noting

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that the facts of the Friedrich case were taken out of context by

later courts and, in fact, “[provide] no legitimate occasion for

a broad pronouncement that parental intent is irrelevant to the

question of habitual residence.” 239 F.3d at 1080.

In this case, Peter had lived his entire life in the United

States before moving to Albers. His parents consistently

represented to him that the move would be temporary at the time,

and Claire, unlike the mother in Feder, never waivered in her

intention to return to the United States. On the contrary, Claire

continued to work for a company based in the United States while

the family lived in Albers, and she made sure that Peter

maintained a healthy relationship with his American family. [R.

6-7].

Although there can be no doubt that Peter excelled in

school, social life, and extracurricular activities during his

time in Albers, he also knew that his parents intended the move

to be temporary. The current case thus demonstrates the reversal

of the situation in Karkkainen. In that case, the court was

willing to give greater weight to the child’s experience of

visiting the United States, despite limited evidence of

acclimatization, and held that the United States was her habitual

residence based on her understanding of her parents’ intentions

to allow her to choose her home. Karkkainen, 445 F.3d at 294.

Here, although Peter acclimated exceptionally well to his new

xxvii

environment, his knowledge of his parents’ intentions to

eventually return to the United States affected his perception of

his life in Albers. Because “the intentions of a child’s parents

may affect the length of time necessary for a child to become

habitually resident,” Peter’s awareness of the impermanence of

his environment counteracted the fact that he lived in Albers for

nearly three years. Mozes, 239 F.3d at 1079-80; see also Tesson,

507 F.3d at 997 (noting “volumes of evidence suggesting that the

boys would have perceived their stay in France to be merely a

temporary journey”) (emphasis added). Thus, even under a child-

centric approach to determining habitual residence, Peter’s own

understanding was that his home (and thus his habitual residence)

was the United States. Seen in this light, his somewhat

superficial decisions to remain in contact with his friend in

Albers during visits to the United States or to transfer his

belongings from one home to another do not overcome Peter’s

awareness of his parents’ eventual intention to return the family

to the United States.

For the foregoing reasons, Respondent urges this Court to

affirm the Fourteenth Circuit’s holding that the Mozes approach

to determining habitual residence best furthers the goals of the

Hague Convention and that, given the specific facts of this case,

Peter’s habitual residence remained in the United States

throughout his stay in Albers.

xxviii

II. THE COURT OF APPEALS CORRECTLY AFFIRMED THE DISTRICT COURT’S FINDING THAT FEDERAL COURTS LACK SUBJECT MATTER JURISDICTION TO HEAR ACCESS RIGHTS CLAIMS BECAUSE THE HAGUE CONVENTION NEITHER PROVIDES FOR NOR INTENDED ANY JUDICIAL REMEDY FOR SUCH CLAIMS.

The Court of Appeals for the Fourteenth Circuit found as a

matter of law that it lacked jurisdiction to hear Petitioner’s

access right claim. Pursuant to Federal Rule of Civil Procedure

12(b)(1), the Fourteenth Circuit dismissed the claim. Review of

the lower court’s decision is de novo. Ibarra v. United States,

120 F.3d 472, 474 (4th Cir. 1997).

Only two other circuit courts have reviewed the question at

hand, and these courts came to conflicting conclusions. See

Cantor v. Cohen, 442 F.3d 196, 201 (4th Cir. 2006) (finding no

jurisdiction); Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir. 2013)

(finding jurisdiction). Respondent contends that a plain reading

of the Convention and the ICARA, the legislative history behind

both texts, and the traditional limitations of federal

jurisdiction all indicate that federal courts do not possess

jurisdiction to hear Petitioner’s claims. Respondent asks this

Court to affirm the Fourteenth Circuit and find federal courts

lack subject matter jurisdiction over enforcement of access

rights.

A. The Convention does not create a judicial remedy for an interference with the exercise of access rights.

1. Article 21 does not address judicial action.

xxix

The International Child Abduction Remedies Act was passed to

procedurally implement and enforce the Hague Convention on the

Civil Aspects of International Child Abduction in the United

States. Cantor, 442 F.3d at 199. Although § 9003 of the ICARA

addresses the judiciary’s role in implementing the Convention,

this Court must begin by looking at § 9001, which enumerates the

purpose and scope of the ICARA. See 22 U.S.C. § 9003(a) (2012)

(“The courts of the States and the United States district courts

shall have concurrent original jurisdiction of actions arising

under the Convention.”); see also Cantor, 442 F.3d at 199 (“To

resolve the issue presented in this appeal we find that we must

begin by looking at the implementing language in ICARA.”). In §

9001 Congress declared, “[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.” 22 U.S.C. § 9001(b)(4). The Court must read the

rest of the ICARA’s provisions in light of this overarching goal.

An appropriate inquiry, therefore, begins with an analysis

of the Convention itself, and the rights granted therein. See Air

France v. Saks, 470 U.S. 392, 396-97 (1985) (“The analysis must

begin, however, with the text of the treaty and the context in

which the written words are used.”). When the text is clear and

unambiguous, the courts must give effect to the express intent.

See Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134 (1989)

xxx

(holding the court may not “insert an amendment” when the text of

the treaty is clear).

The Convention addresses access rights, more commonly known

as visitation rights, in Article 21. In this article, the

Convention simply mandates that the Contracting State’s “Central

Authority” must try “to remove, as far as possible, all obstacles

to the exercise of such [access rights].” art. 21, 1343 U.N.T.S.

89. However, Article 21 does not provide any judicial remedy for

removing the obstacles that may interfere with visitation rights.

See Viragh v. Foldes, 612 N.E.2d 241, 247 (Mass. 1993) (finding

Article 21 “does not mandate any specific remedy when a

noncustodial parent has established interference with rights of

access.”). Instead, the Convention rather vaguely mandates that

access rights must be “effectively respected.” art. 1, 1343

U.N.T.S. 89. Encouraging this “respect” for non-custodial

visitation rights requires “cooperation among Central

Authorities,” not judicial review. See Perez-Vera Report, supra,

at ¶ 126 (finding cooperation was “regarded as the best means of

ensuring respect for the conditions imposed upon the exercise of

access rights.”).

With this specific provision of the Convention in mind, the

Court may turn its attention to the ICARA. This statute plainly

states that its provisions are “not in lieu of the provisions of

the Convention,” and that the statute “empowers courts to

xxxi

determine only rights under the Convention.” 22 U.S.C. §§ 9001(b)

(2), 9001(b)(4). Thus, the ICARA cannot allow courts to consider

enforcement of access rights because such a judicial right

plainly does not exist in Article 21. See Cantor, 442 F.3d at

200.

Further, even if § 9003 allowed federal courts to entertain

access rights claims, they would be precluded from considering

any defenses because the Convention does not create a defense for

alleged infringement of visitation rights. Cantor, 442 F.3d at

204. Extending § 9003’s grant of concurrent jurisdiction to

access rights claims would then generate unintended consequences.

Id. (“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 instance, “the court could not consider the fact

that a child's life may be in danger by the enforcement of an

access right.” Id. The Convention does not create any judicial

remedy for violations of access rights, neither in terms of

enforcement, nor in terms of defenses. Therefore, the ICARA

cannot impart subject matter jurisdiction to enforce access

rights because no specific judicial enforcement exists under the

Convention.

2. The Convention does provide a judicial remedy for wrongful removal claims.

xxxii

The Convention’s silence regarding remedies for access

rights may be interpreted as a gap left for the ICARA to fill,

but Article 12 of the Convention suggests otherwise. When

addressing wrongful removal, the Convention made a deliberate

choice to include a remedy that could be enforced by the judicial

system of a Contracting State. art. 12, 1343 U.N.T.S. 89 (“Where

a child has been wrongfully removed or retained . . . the

authority concerned shall order the return of the child

forthwith.”). However, the Convention failed to impart a similar

judicial remedy for enforcing access rights under Article 21. See

Bromley v. Bromley, 30 F. Supp. 2d 856, 860 (E.D. Pa. 1998)

(“[T]he silence of the Convention as to any remedy for access

rights is in sharp contrast to Article 12 which clearly provides

authority for judicial authorities to order the return of a child

‘wrongfully’ removed.”). In addition, Article 12 also provides a

limited defense to a wrongful removal petition by allowing courts

to consider if the child is “settled in its new environment”.

art. 12, 1343 U.N.T.S. 89.

Article 21 can be further distinguished because it provides

for presentation to the “Central Authority” whereas Article 12

explicitly allows for presentation to a judicial authority. arts.

12, 21, 1343 U.N.T.S. 89. United States courts have interpreted

this variation as a clear limitation on Article 21 enforcement

that precludes independent judicial authority. See Teijeiro

xxxiii

Fernandez v. Yeager, 121 F. Supp. 2d 1118, 1125 (W.D. Mich.

2000). Because presentation to a judicial authority is not

included under Article 21, the Convention plainly does not create

a right of judicial review. See Wiggill v. Janicki, 262 F. Supp.

2d 687, 689 (S.D. W. Va. 2003).

In § 9003, the ICARA grants concurrent jurisdiction to both

federal and state courts, but this is only insofar as the issues

before the courts correspond to the rights expressed in the

Convention. See Teijeiro Fernandez, 121 F. Supp. 2d at 1126

(finding federal courts “undoubtedly have jurisdiction under the

Convention and ICARA to act in cases where children have been

wrongfully removed.”). The key drafting differences between

Article 12 and Article 21 suggests that § 9003 should be read to

confer jurisdiction to federal courts only for wrongful removal

claims because judicial procedures are provided in the

Convention. See id. (“[F]ederal courts undoubtedly have

jurisdiction under the Convention and ICARA to act in cases where

children have been wrongfully removed.”). Absent similar drafting

in Article 21, § 9003’s concurrent jurisdiction provision does

not appropriately apply to access claims. See Ly v. Heu, 296

F.Supp.2d 1009, 1011 (D. Minn. 2003) (concluding the “lack of

parallelism between Article 12 and Article 21 . . . creates no

judicial power to enforce rights of access.”).

xxxiv

In addition, this narrow reading of § 9003 is consistent

with other Member Nations’ interpretation of Article 21. See Re

G, 3 All E.R. 657 (C.A. 1993) (finding Article 21 “toothless”

because it fails to grant jurisdiction to the British courts for

access rights claims). Although other interpretations are not

binding on this Court, they are worth noting as the need for a

“uniform international interpretation of the Convention” is

explicitly noted as one of the ICARA’s goals. 22 U.S.C. § 9001(b)

(3)(B).

Ultimately, the ICARA establishes procedures to implement

those rights granted by the Convention, and only grants

concurrent jurisdiction for cases decided “in accordance with the

Convention”. 22 U.S.C. §§ 9001(b)(1), (d). Article 21 does not

reference any judicial remedies or defenses, but instead

authorizes merely petitioning the “Central Authority.” Whereas

wrongful removal claims can seek judicial orders for return of

the child and consider defenses for wrongful removal claims,

access rights receive no such protection. Therefore neither text

confers subject matter jurisdiction over access rights claims to

the federal courts.

B. The purpose and legislative history of the Convention supports the contention that federal courts do not have jurisdiction to hear access rights claims.

In the alternative, the Court may find the Convention’s

silence represents an ambiguity. If so, the Court may look beyond

xxxv

the text. See Choctaw Nation of Indians v. United States, 318

U.S. 423, 431-32, (1943) (“[T]reaties are construed more

liberally than private agreements, and to ascertain their meaning

we may look beyond the written words to the history of the

treaty, the negotiations, and the practical construction adopted

by the parties.”). With regard to visitation rights, the purpose

of the Convention and its legislative history support the

District Court’s conclusion that federal courts lack

jurisdiction.

The Convention’s main purpose is to effectuate the return of

abducted children. See Mota v. Castillo, 692 F.3d 108, 112 (2d

Cir. 2012). However, the drafters were also afraid of the

potential to encourage forum shopping. Id. (“The Convention's

drafters were particularly concerned by the practice in which a

family member would remove a child to jurisdictions more

favorable to his or her custody claims.”). To assuage these

concerns, the Convention provides a clear judicial remedy for the

wrongful removal of a child. Id. This way, a non-custodial

parent gains no advantage by removing a child from their habitual

residence.

With this larger issue in mind, access rights became a

secondary concern for the drafters. See Perez-Vera Report, supra,

at ¶ 125 (finding the Commission spent a “particularly short

amount of time” discussing access rights as compared to wrongful

xxxvi

removal). Therefore, the Convention uses weaker language and

provides no judicial enforcement mechanism for exercising

visitation rights. See Cantor, 442 F.3d at 199. The official

legislative history behind the Convention also indicates that the

drafters did not include judicial enforcement in Article 21

because they did not want courts to have difficulty making

decisions if a custodial parent’s wrongful removal claim were on

par with a non-custodial parent’s access right claim. See Perez-

Vera Report, supra, at ¶ 65.

Although the ICARA grants concurrent jurisdiction to both

federal and state courts for wrongful removal claims, allowing

federal jurisdiction over access rights claims would contradict

both the purpose and the legislative history behind the

Convention. In passing the ICARA, Congress expressed concern that

courts might interpret the statute to expand jurisdiction beyond

those rights specifically contained in the Convention. See 134

Cong. Rec. S3839-02. However, Congress believed the final version

of the ICARA was precisely drafted to “insure that the provisions

of the Convention are carried out in a manner that is consistent

with the intent of the Convention's negotiators.” 134 Cong. Rec.

S3839-02 (1988) (statement of Sen. Simon). Thus, the ICARA does

not allow federal jurisdiction over access rights issues because

Congress intended that the ICARA would cohere with the

Convention’s purpose and goals.

xxxvii

C. Federal courts must remain courts of limited jurisdiction.

1. Family law matters are traditionally reserved for state courts.

Federal courts are courts of limited jurisdiction. Cantor,

442 F.3d at 202. As such, they “traditionally lack jurisdiction

over domestic relation matters.” See Bromley, F. Supp. 2d at 862.

Instead, state courts have a long history of adjudicating family

law matters because state court judges, unlike their federal

counterparts, possess the requisite knowledge and experience to

make informed decisions regarding visitation claims. Id. at 862.

While the Convention does not “preclude any person, institution

or body who claims that there has been a breach of custody or

access rights within the meaning of Article 3 or 21 from applying

directly to the judicial or administrative authorities of a

Contracting State,” the appropriate judicial authorities to

enforce access rights are the state courts. art. 29, 1343

U.N.T.S. 89; see also Perez-Vera Report at ¶ 44 (emphasis added)

(“[I]t is for the appropriate authorities within each State to

decide questions of . . . the exercise of access rights.”).

In this case, the Petitioner is not without due recourse. He

has the option of brining his claim in either the Homer Court or

by petitioning the State Department, both of which possess the

requisite resources to appropriately address the Petitioner’s

claim. Although the Petitioner may claim it is more efficient to

xxxviii

bring both wrongful removal and access rights claims together,

this efficiency would quickly be overshadowed by a federal judge

wasting the Court’s limited time and resources becoming

acquainted with the nuances of access rights. See Bromley, F.

Supp. 2d at 860 (finding state courts “are more numerous and have

both the experience and resources to deal with this special area

of the law.”). Further, if the Petitioner were truly concerned

with administrative efficiency, he could remove both claims to

the Homer State Court, pursuant to § 9003’s grant of concurrent

jurisdiction. 22 U.S.C. § 9003(a).

2. Allowing jurisdiction amounts to an impermissible decision on the merits of the claim.

Regardless of the traditional separations between federal

and state courts, allowing federal courts to enforce access

rights in this instance is plainly violative of the ICARA. The

ICARA explicitly states that courts may not determine “the merits

of any underlying child custody claims.” 22 U.S.C. § 9001(b)(4).

But what is the practical difference between enforcement and a

decision on the merits in the case at hand? As discussed above,

the Convention does not create specific remedies for access

rights violations, so upon hearing Petitioner’s claim, the Court

would be forced to decide how to ensure Petitioner’s exercise of

visitation. This decision involves considering whether to remove

the child to Albers or allow visitation within the United States,

xxxix

as well as what constitutes the child’s best interest. See

Teijeiro Fernandez, 121 F. Supp. 2d at 1126 (finding access

claims require the court to consider “the children's interests,

the parents' interests, and other familial considerations.”).

These decisions are typically made during the original

custody agreement, and therefore amount to a decision on the

merits of the previous custody agreement. Although enforcement

actions can sometimes be distinguished from a decision on the

underlying merits, that is not the case here. Federal

jurisdiction of this matter would essentially result in an

amendment of the underlying custody claim. Not only would such a

decision violate the traditional principles of federalism, but

the ICARA strictly prohibits any decisions based on merit. 22

U.S.C. § 9001(b)(4).

For these reasons, this Court must affirm the Fourteenth

Circuit’s holding and dismiss the Petitioner’s claim based on a

finding that federal courts do not have subject matter

jurisdiction to hear access rights claims.

xl

CONCLUSION

For the foregoing reasons, Respondent respectfully requests

that this Court AFFIRM the judgment of the Court Of Appeals for

the Fourteenth Circuit.

Respectfully Submitted,

Claire Overwood

By her attorneys

________________________

Attorney 1

________________________

Attorney 2

xli