_____ * SUPERIOR COURT
Plaintiff * J.D. OF TOLLAND v. * AT ROCKVILLE
_____ *
Defendant * Case No.: XXXX
* * * * * * * * * * * * *
EMERGENCY MOTION TO STAY STATE COURT PROCEEDINGS AND NOTICE OF WRONGFUL REMOVAL AND WRONGFUL RETENTION
The Convention on the Civil Aspects of International Child Abduction, done at the Hague On October 25, 1980; International Child Abduction Remedies Act, 42 U.S.C. 11601 et seq.
This Emergency Motion to Stay State Proceedings is filed by Defendant _____ for the limited purpose of staying the above-referenced state action and without submitting to the general jurisdiction of this Court. As grounds for this Motion, Defendant states as follows:
1. The named Defendant in this state action, _____, is the Petitioner in a Petition for
Return of Child (the “Petition”), filed in the United States District Court District of Connecticut, before the Honorable _____. The Petition, filed on May 24, 2002, is entitled _____v._____, Civil
Action No.: _____ . A copy of the Petition, together with its exhibits, is attached as Exhibit 1.
2. The Petition is filed pursuant to the Convention on the Civil Aspects of International
Child Abduction, done at the Hague on October 25, 1980 (hereinafter “the Convention”) and the
International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. § 11601 et seq. The
Convention came into effect in the United States of America on July 1, 1988, and was also ratified by the United States of America and Switzerland on July 1, 1988. The objects of the Convention are as follows: (1) to secure the immediate return of children wrongfully removed or wrongfully retained in any Contracting State; and (2) to ensure that rights of custody and of access under the law of one
TOWS01:7072730|000001-#BRCH3 Contracting State are effectively respected in other Contracting States. See Article 1, Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980, attached hereto as part of Exhibit 1.
3. The Petition relates to the wrongful removal and wrongful retention of _____, date of birth December 14, 1994, from Switzerland by _____.
4. The child is currently being retained outside his habitual residence by Plaintiff,
_____. _____ current location is _____ .
5. Pursuant to Article 16 of the Convention, a copy of which is attached as part of
Exhibit 1, counsel for the Defendant hereby requests that the action now pending before this Court be immediately stayed, pending the determination of the Petition. Article 16 dictates, in pertinent part, that:
After receiving notice of a wrongful removal or retention of children in the sense of Article 2, the judicial or administrative authorities of the Contracting State [the United States] to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the children are not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of this notice.
See Article 16, Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980, attached hereto as part of Exhibit 1 (emphasis added).
6. In accordance with Article 16 of the Hague Convention, this Court has been given notice of _____ Petition, filed in federal court on May 24, 2002, and accordingly of _____ wrongful removal and wrongful retention of the child. The merits of the Hague case have not yet been heard and thus there has been no determination.
7. Accordingly, pursuant to the plain language of the Hague Convention (an international treaty to which the United States is a signatory) this Court shall not decide on the merits of rights of custody because all of the elements of Article 16 have been satisfied, as follows:
(i) this Court has received notice regarding the wrongful removal and retention of the child; and (ii) there has been no determination made regarding whether the child should be returned.
8. The United States Constitution, Article 6, Clause 2 states the following:
Supreme Law of Land This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States; shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
USCA CONST Art. VI cl. 2. (emphasis added). The Hague Convention, has the status of a treaty and consequently is the supreme law of the land.
9. Under well-settled principles of law, this Court is bound by Article 16 of the Hague
Convention and accordingly is barred from deciding on the merits of any custody proceedings until it has been determined that the child is not to be returned to Switzerland. No circumstances exist that would allow this Court to proceed with the custody proceedings.
10. In addition to the fact that the Supremacy Clause of the United States Constitution mandates that this Court comply with Article 16 of the Hague Convention, staying the custody proceedings also promotes judicial economy.
11. Pursuant to Article 16 of the Hague Convention and the Supremacy Clause of the
United States Constitution, the Defendant respectfully requests that this Court stay the custody proceedings until the Hague issues are resolved.
WHEREFORE, Defendant, _____, for the limited purpose of moving to stay these proceedings, hereby requests the entry of an order STAYING this action pending the determination of the Petition, and granting such other and further relief as justice and its cause may require. For the
Court’s convenience, a proposed order is attached.
______, Esquire
Attorney for Defendant, ______* SUPERIOR COURT
Plaintiff * J.D. OF TOLLAND v. * AT ROCKVILLE
_____ *
Defendant * Case No.: XXXX
* * * * * * * * * * * * *
ORDER
Upon consideration of the Emergency Motion to Stay State Proceedings filed by Defendant,
_____, it is this _____ day of ______, 2002, hereby:
ORDERED that any and all proceedings in the above-referenced action are STAYED pending resolution of the Petition for Return of Child to Defendant, Case Number 302 CV 983, currently pending in the United States District Court for the District of Connecticut.
______Judge