Kovacic v. Harris
1:17-cv-00044
D. MarylandJun 23, 2017Background
- Plaintiff Ivica Kovačić and Defendant Danijela Harris are divorced parents of N.K., born and habitually resident in Sisak, Croatia; a 2009 Croatian judgment provided that N.K. would live with the mother while "parental care remain[ed] shared."
- In December 2015 Harris took N.K. to the United States for a holiday trip with Plaintiff’s consent to return after vacation; in January 2016 Harris informed Kovačić she would remain in the U.S. with N.K. and later married Christopher Harris in Maryland.
- Kovačić filed an ICARA (Hague Convention) action in federal court seeking return of N.K. to Croatia as a wrongful retention from her habitual residence, claiming he holds custody rights under Croatian law and the divorce judgment.
- Harris moved to dismiss under Rule 12(b)(6) arguing Kovačić only has access/visitation rights (not custody) and under Rule 12(b)(1) arguing federal courts lack jurisdiction over mere access claims (pointing to Cantor v. Cohen).
- Plaintiff submitted a Croatian government declaration (Sunčica Lončar) explaining Croatian law distinguishes legal and physical custody and that the divorce order preserved Kovačić’s custody rights; the court accepted this foreign-law evidence.
- The district court denied Harris’s motion to dismiss (both 12(b)(6) and 12(b)(1)), finding Kovačić pleaded a prima facie wrongful removal and that subject-matter jurisdiction exists because he alleges custody rights supported by foreign-law evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether complaint states prima facie Hague/ICARA claim (wrongful removal from habitual residence) | Kovačić: N.K. was habitually resident in Croatia; Croatian judgment preserved his custody rights; retention in U.S. is wrongful | Harris: Croatian judgment gives mother sole physical custody; Kovačić has only access/visitation, so no Hague claim | Denied dismissal — court finds plaintiff sufficiently pleaded wrongful removal and custody rights to survive 12(b)(6) |
| Whether Kovačić has "rights of custody" vs mere "access" under Convention | Kovačić: "parental care remain[ed] shared" and Croatian law preserves legal custody and decision-making rights | Harris: Judgment places child with mother and entrusts care/upbringing to her; analogous to visitation-only holdings | Court treated factual dispute as one for merits; plaintiff’s allegations and foreign-law declaration suffice to allege custody rights for jurisdictional/pleading purposes |
| Whether federal courts lack jurisdiction over "access" claims under ICARA | Kovačić: He asserts custody rights (not merely access); therefore ICARA jurisdiction applies | Harris: If plaintiff only seeks enforcement of access/visitation, federal courts lack jurisdiction (Cantor controlling) | Court found plaintiff presented evidence (foreign-law declaration) that he has custody rights and thus federal jurisdiction exists; 12(b)(1) dismissal denied |
| Admissibility/weight of foreign-law evidence on jurisdiction/merits | Kovačić: Central Authority/declaration and expert statements may establish foreign law and custody status | Harris: Did not challenge authenticity/admissibility of the Croatian government declaration | Court accepted the declaration as appropriate proof of foreign law and relied on it to find plaintiff met preponderance standard for jurisdiction |
Key Cases Cited
- Abbott v. Abbott, 560 U.S. 1 (Sup. Ct. 2010) (parent with travel-consent/visitation rights held to have custody right where national law gave power to prevent foreign removal)
- White v. White, 718 F.3d 300 (4th Cir. 2013) (distinguishing parental-authority-only rights from Convention custody where no ne exeat or equivalent prevented removal)
- Cantor v. Cohen, 442 F.3d 196 (4th Cir. 2006) (ICARA does not create federal jurisdiction to enforce mere access/visitation rights)
- Padilla v. Troxell, 850 F.3d 168 (4th Cir. 2017) (summary of Hague Convention/ICARA framework for wrongful removal claims)
- Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (Sup. Ct. 2014) (Hague Convention requires return of child wrongfully removed unless narrow exceptions apply)