Case Update (23 February 2024): Saydlin v. Ashby; Voluntary Return Order and Subject Matter Jurisdiction to Enforce its Terms
On June 28, 2022, the parties, Petitioner and Respondents filed a notice of settlement, resolving the Petitioner Mother’s request to return the parents’ minor child to Israel. The parties agreed to a voluntary return of the child to Israel, and their agreement, incorporated into a Consent Order by the district court, also ordered, “the terms of the parties’ agreement with respect to the child.. . shall be mirrored forthwith in the appropriate family courts in Israel and Pennsylvania. All parties shall fully cooperate with the mirroring process in Israel and Pennsylvania.” On August 1, 2022, “the parties filed a joint motion for a mirror order in Israeli court.” A few weeks later, Petitioner “filed a brief with the Israeli court in which she asserted that there were problems with the translation of the proposed mirror order and also disputed the legal basis for the mirror order.” She argued that, “(1) the mirror order was procedurally and substantively faulty and had no basis in Israeli law; (2) the correct procedure would have been through an enforcement of foreign judgment; and (3) she did not believe the proposed order would satisfy the requirements for such enforcement under Israeli law.” On September 15, 2022, Respondents filed a letter motion with the district court in Pennsylvania notifying the court that Petitioner “had argued against the mirroring of terms of the Consent Order [in Israel].” In November 2022, Petitioner “filed a motion in Israeli court for sole decision-making authority” (the agreement in the Abduction Convention case was for the parties to share joint legal custody). On March 16, 2023, “Respondents filed a motion asking the court to find [Petitioner] in contempt of the Consent Order.” On July 4, 2023, “an Israeli court issued a judgment granting custody to [Petitioner].” She filed a motion to dismiss in the district court. On February 23, 2024, the court dismissed the case due to a lack of subject matter jurisdiction.
The burden to prove subject matter jurisdiction lies with the party who invokes it, which, here, was the Respondents. The Respondents argued that there was still a live dispute because the terms of the Consent Order were never mirrored in Israel. Secondly, Respondents argued that the existence of the Israeli custody order was irrelevant with respect to whether the district court has jurisdiction, because the Hague Abduction Convention is not a treaty to enforce foreign custody orders.
The Court concluded that, unlike Chafin v. Chafin, where a U.S. court retains jurisdiction where a party appeals a district court’s determination of an underlying prima facie element of a return petition, even after the subject child has been returned, this case is different. The parties “agreed that [Petitioner] and the subject child would return to Israel and Israel would have jurisdiction over the custody matter.” The court further rejected the Respondents’ second argument because the parties, in their Consent Order, had agreed that Israel was the minor child’s habitual residence. The Court ultimately concluded that “the power to enforce a custody agreement is not one provided by the Hague Convention and enabled by the ICARA. And, aside from the Hague Convention and enabling statute, the court has no source of subject matter jurisdiction over this dispute.”
Compare this case with Colchester v. Lazaro, where the minor child had been returned to Spain, with a provision for virtual access between the U.S.-based parent and child, and that parent’s request to enforce those provisions in the U.S. district court. Also compare this case with In the Interest of AHS and AYS where the Texas state court concluded it had jurisdiction to enforce its own order to re-return a child that had been returned to Israel in error.
