Shrinking the Bench: Should United States' Federal Courts Have Exclusive or Any Jurisdiction to Adjudicate ICARA Cases?

Abstract

This article discusses whether the United States should follow the international trend and concentrate jurisdiction in a limited number of judges who would resolve disputes under the Hague Convention on the Civil Aspects of International Child Abduction. At present, both federal and state courts in the United States, and thousands of judges, are authorized to adjudicate Hague Abduction Convention disputes. The article discusses why concurrent jurisdiction exists and explores the debate that occurred about the jurisdictional options at the time Congress enacted the Convention’s implementing legislation, the International Child Abduction Remedies Act (ICARA). The article then examines the potential advantages of changing ICARA’s jurisdictional regime. In particular, the article delves into topics of judicial expertise, speed and efficiency, uniformity, party access to services such as interpreters and pro bono counsel, and the effectiveness of the Central Authority and liaison judges. It also explores some potential disadvantages of concentrating jurisdiction, including risking harmful amendments to ICARA, inconveniencing litigants, increasing the workload of the courts, and diluting the domestic relations exception to diversity jurisdiction. The examination suggests that while certain advantages might result from the consolidation of jurisdiction, many of them are overstated and would be offset by the advantages litigants gain from a choice of forum. Overall, this article concludes that the United States should maintain the status quo, that is, both the federal and state jurisdictional options. It also concludes that Congress is unlikely to eliminate federal court jurisdiction; consequently, opponents of substantive amendments to ICARA should not use the possibility of jurisdictional consolidation as an excuse to oppose needed substantive reform.