Abstention and the Hague Convention on the Civil Aspects
of International Child Abduction
Laura W. Morgan
In September 2001, this column discussed three recent cases
interpreting the Hague Convention on the Civil Aspects of
International Child Abduction. Since that time, three cases
were decided that brought up a unique issue under the Hague
Convention: whether the doctrine of Younger abstention
The Hague Convention on the Civil Aspects of International
Child Abduction (Hague Convention), T.I.A.S. No. 11,670, 1343
U.N.T.S. 89, 51 Fed. Reg. 10, 493 (app. B), and its implementing
legislation, the International Child Abduction Remedies Act
(ICARA), 42 U.S.C. §§ 11601-11610 (2000), were adopted
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 habitual residence,
as well ast o secure protection for rights of access.
Hague Convention, preamble. Sometimes, an abducting parent
will take a child to the United States from another country
and here file child custody proceedings in state court. The
left-behind parent will then file a Hague petition in federal
court. The question then arises whether the principles of
federal abstention enunciated in Younger v. Harris,
401 U.S. 37 (1971), apply.
Briefly, the doctrine of Younger abstention provides
that a federal court may abstain under certain circumstances
from decided a case or controversy when a state judicial proceeding
is pending. Philip Morris, Inc. v. Blumenthal, 123
F.3d 103, 105 (2nd Cir.1997). However, when all of the requirements
of Younger are present, the federal court must abstain, absent
a showing of bad faith, harassment or other extraordinary
circumstances. Middlesex County Ethics Comm. v.
Garden State Bar Assn., 457 U.S. 423, 435 (1982). There
are three requirements for Younger abstention to
apply: (1) pending or on-going state proceedings which are
judicial in nature; (2) the state proceedings must implicate
an important state interest; and (3) the state proceedings
must afford an adequate opportunity to raise any constitutional
issues. ONeill v. City of Philadelphia, 32
F.3d 785, 789 (3rd Cir.1994) (citing Middlesex County,
457 U.S. at 432).
Grieve v. Tamerin
v. Tamerin, 269 F.3d 149 (2d Cir. Nov. 2, 2001),
the husband Gad Grieve and his wife Elisheva Tamerin were
married in Israel in 1995 and divorced there in 1997. There
was one child of the marriage, Simcha, born in 1996. In the
divorce, Grieve was granted primary custody, while Tamerin
had visitation rights.
In 1999, Grieve took Simcha with him to England and then
to New York. In 2000, Tamerin traveled to New York and initiated
a habeus corpus proceeding in New York Supreme Court, Kings
County, seeking custody of Simcha. On March 29, 2000, the
court awarded Tamerin termporary custody pending its final
resulting of the dispute. Grieve appealed the temporary custody
order to the New York State Supreme Court Appellate Division
on the ground that the Supreme Court, Kings Country, lacked
In June 2000, Grieve initiated a separate action in the United
States District Court for the Eastern District of New York.
Invoking the Hague Convention and ICARA, Grieve sought custody
of Simcha and a stay of the state court proceedings. Tamerin
then moved to dismiss the action on the grounds of Younger
abstention. The district court concluded that abstention was
proper, because New York States strong interest
in domestic relations matters generally and child custody
questions in particular, and because Grieve could fully
litigate his federal claims under the Hague Convention and
ICARA in state court.
Grieve then filed a new action in United States District
Court of the Southern District of New York, seeking substantially
the same relief, but this time in the form of a writ of habeus
corpus. Tamerin again moved to dismiss on grounds of Younger
abstention. Meanwhile, the state court held the Hague Convention
inapplicable where the noncustodial parent had not removed
the child from his habitual place of residence nor retained
him illegally in a foreign jurisdiction. The federal court
then dismissed Grieves action, again on Younger
The Court of Appeals noted that Grieves claim implicates
a paramount federal interest in foreign relations and
the enforcement of United States treaty obligations. Deference
to a state courts interest in the outcome of a child
custody dispute would be particularly problematic in the context
of a Hague Convention claims inasmuch as the Convention divest
the state of jurisdiction over these custody issues until
the merits of the Hague Convention claim have been resolved.
42 U.S.C. § 11601(b)(4); see also March
v. Levine, 249 F.3d 462, 468 (6th Cir. 2001).
Nonetheless, the court affirmed the judgment of the district
court, holding that since the Hague Convention claim had been
raised in the state court litigation, Younger required
the court from further adjudicating Grieves convention
Grieve v. Tamerin is thus a collateral estoppel
case: because Grieve had raised the Hague Convention claims
in state court and lost, he could not relitigate the same
claims in federal court.
Silverman v. Silverman
v. Silverman, 267 F.3d 788 (8th Cir. October
3, 2001), Robert Silverman and Julie Silverman were married
in 1989. In 1999, they moved to Israel. In June 2000, Julie
left Israel with the children, and before she was set to return,
she filed a petition in Minnesota state court seeking a legal
separation from Robert and custody of the children.
Robert filed a Request for Return of Abducted Children
with the National Center for Missing and Exploited Children
in August 2000. Robert then filed a Hague petition in federal
district court seeking the return of the children, and he
filed a motion with the Minnesota court seeking either dismissal
of the custody proceedings for lack of subject matter jurisdiction
in light of the Hague Convention, or a stay of the custody
proceedings pending his NCMEC request.
In state court, the referee issued an order granting the
mother temporary sole legal custody and temporary sole physical
custody of the children, granting the father visitation, and
appointing a guardian ad litem. The court found jurisdiction
under the UCCJA, holding that Minnesota was the childrens
home state. The federal court then granted the mothers
motion to dismiss, concluding that Younger abstention
was appropriate since the father had failed to show that the
state courts will not afford him an adequate opportunity to
litigate his Petition under the Hague Convention.
The Court of Appeals held that Younger abstention
was inappropriate in a Hague case.
In Quackenbush v. Allstate Insurance Co., 517 U.S.
706, 707 (1996), the Supreme Court made clear that federal
courts have the power to dismiss or remand based on abstention
principles only where the relief sought is equitable or otherwise
discretionary. That is not the sort of remedy here.
The Hague Convention mandates that a court that receives a
valid Hague petition must determine whether the child has,
in fact, been wrongfully removed[.] . . . In the absence of
discretion with respect to relief, abstention principles do
not permit an outright dismissal or a Hague petition.
Thus, even when a custody petition is pending in state court,
because Hague petitions do not address the underlying custody
dispute, a federal court should not dismiss the action in
Younger abstention grounds.
Bouvagnet v. Bouvagnet
v. Bouvagnet, 2001 WL 1263497 (N.D. Ill. Oct 22,
2001), the father brought an action under the Hague Convention,
seeking the return of his children from his wife, the childrens
mother. The mother moved to abstain, stay or dismiss her husbands
Hague Convention petition. The mothers motion was granted
and the court abstained.
The father argued that the court that the court should not
abstain, as he was not asking the federal court to enjoin
or dismiss the state proceedings. The court disagreed, holding
that an order directing the return of the children to a foreign
country would have the effect of enjoining the state custody
proceeding. The father also argued that the court would be
awarding the mother for forum shopping if it chooses to abstain.
However, the court refused to see the mothers actions
as forum shopping, since the French divorce proceeding had
been dismissed for want of prosecution and the mother had
been living in Chicago for more than a year prior to filing
the state court action at issue. The fact that the mother
was willing to adjudicate her dissolution in France and the
proceedings in Cook County were not filed until after the
French court proceedings were dismissed for want of prosecution
militates against an inference of forum shopping.
Finally, although the father acknowledged that the scope
of the Younger doctrine expanded over the years,
he argued that it does not apply to Hague Convention cases,
as this doctrine is typically applied when a plaintiff files
in federal court requesting the court to enjoin or dismiss
a pending state criminal action on the grounds that the statute
under which he is being prosecuted is unconstitutional. The
court did not find this argument to be persuasive, and held
that Younger abstention principles were not so restrictive.
The father has appealed to the Seventh Circuit Court of Appeals,
and a decision is expected in early 2002.
The Hague Convention was adopted to prevent noncustodial
parents from removing children in violation of the custodial
parents rights. ICARA gives the federal courts jurisdiction
over to hear these important cases. Younger abstention
should not be used to prevent the federal court from hearing
these cases by the maneuvering of an abducting parent.
v. Dubose, No. 1000828 (Alabama Supreme Court,
December 7, 2001): An interesting little case that held that
a spouse of a person accused of adultery in a divorce pleading
by another person does not have a cause of action for defamation.
In other words, an allegation of adultery by one spouse does
not defame the other spouse.
v. J.M. and B.M., No. 01-174 (Arkansas Supreme
Court, December 6, 2001): In this case, the petitioner appealed
the denial of his petition to establish paternity of a minor
child who was born to the respondent during her marriage to
the co-respondent. The questions presented was whether the
petitioner lacked standing to bring this petition because
the child, born during a still intact marriage, was presumed
to be legitimate, and whether the court had the discretion
to consider the best interests of the child. The court held
that the petitioner had standing, and the trial court had
the discretion to order paternity tests.
re Kristine W., No. D038074 (California Court
of Appeals, Fourth Appellate District, December 12, 2001):
A juvenile court depedent, Kristine W., appealed the courts
order permitting the San Diego Health and Human Services Agency
to receive information from her therapist regarding her therapy.
She contended the court was not allowed to ignore her invocation
of the therapist-patient privilege. The court of appeals disagreed,
and held that disclosure was necessary to determine whether
she should remain a dependent.
re Interest of T.A., No. 86,550 (Kansas Court
of Appeals, December 21, 2001): The appellate court reversed
the decision of the trial court granting the paternal grandparents
visitation on a schedule other than that offered by the mother.
Citing Troxel v. Granville, 530 U.S. 57, 147 L. Ed.
2d 49, 120 S. Ct. 2054 (2000), and Kansas Dept. of SRS
v. Paillet, 270 Kan. 646, 16 P.3d 962 (2001), the appellate
court held that the trial court could not decide visitation
on a best interests standard, but rather,
In granting grandparent visitation, K.S.A. 38-129 requires
a finding of both the best interests of the child and that
a substantial relationship has been established between the
child and the grandparents. The burden of proof is upon the
grandparents to prove these elements. The trial court must
make both of these findings before grandparent visitation
may be granted. Santaniello v. Santaniello, 18 Kan. App. 2d
112, 114-15, 850 P.2d 269 (1992). But, the trial courts
analysis must not end there. Third party visitation is a creature
of statute and in derogation of a parents constitutional
right to direct the up bringing of his or her children. Third
party visitation statutes must, therefore, be strictly construed.
A constitutional application of K.S.A. 38-129 requires the
trial court to give material weight and deference to the position
of a fit parent. Paillet, 270 Kan. at 658-59.
Because no weight had been given to parental preference,
the visitation was reversed.
v. Evans, 2001 Pa Super 344 (Pennsylvania Superior
Court, December 5, 2001): Plaintiff sought damages for defendants
affair with plaintiffs wife. The plaintiffs cause
of action was styled as one for intentional interference
with a contractual relationship. The court held that
this cause of action was foreclosed by the abolition of the
torts of criminal conversation and alienation of affections,
and the dismissal was affirmed.
New Law Review Articles on
Issues in Family Law
32 Rutgers Law Journal Number 3 (Spring
Symposium: Who Gets the Children? Parental Rights after
Troxel v. Granville
Earl M. Maltz, The Trouble With Troxel, p. 695
David D. Meyer, Constitutional Pragmatism for a Changing
American Family, p. 711
Margaret F. Brinig, Troxel and the Limits of Community,
Sally F. Goldfarb, Visitation for Nonparents After
Troxel v. Granville: Where Should States Draw the Line?,
Nancy D. Polikoff, The Impact of Troxel v. Granville
on Lesbian and Gay Parents, p. 825
Barbara Bennett Woodhouse, Troxel v. Granville: Implications
for at Risk Children and the Amicus Curiae Role of University-Based
Interdisciplinary Centers for Children, p. 857
Volume 28 William Mitchell Law Review Number
Symposium: A Minnesota Comparative Family Law Symposium
Linda D. Elrod, Reforming the System to Protect Children
in High Conflict Custody Cases, p. 495
Margaret F. Brinig, Moving Toward a First-Best World:
Minnesotas Position on Multiethnic Adoptions,
Nancy K.D. Lemon, Statutes Creating Rebuttable Presumptions
Against Custody to Batterers: How Effective Are They?,
The Honorable Gary L. Crippen, Sheila M. Stuhlman, Minnesotas
Alternatives to Primary Caretaker Placements: Too Much of
a Good Thing?, p 677
Judith T. Younger, Antenuptial Agreements, p.
Robert E. Oliphant, Minnesotas Custody Relocation
Doctrine: Is There a Need For Change?, p. 723
Andrea Charlow, Race, Poverty, and Neglect, p.
Jo Michelle Beld, Improving Child Support Guidelines
In Minnesota: The Shared Responsibility Model
for the Determination of Child Support, p. 791
Larry R. Spain, The Elimination of Marital Fault in
Awarding Spousal Support: The Minnesota Experience,
Len Biernat, Forces Changing Family Law in Minnesota,
Solveig Erickson, Nancy Ver Steegh, Mandatory Divorce
Education Classes: What do the Parents Say?, p. 889
Terrie Lewis, Fifty Ways to Exploit Your Grandmother:
The Status of Financial Abuse of the Elderly, p. 911
Jennifer Marston, Yesterday, Today, and Tomorrows
Approaches to Resolving Child Custody Jurisdiction in Oregon,
80 Oregon Law Review 301 (Spring 2001)
Leonard D. Pertnoy, Post-Judgment Relief in Domestic
Relations Cases: Does the Process Ever End?, 25 American
Journal of Trial Advocacy 69 (Summer 2001)
René L. Rimelspach, Mediating Family Disputes
in a World with Domestic Violence: How To
Devise a Safe and Effective Court-Connected Mediation
Program, 17 Ohio State Journal on Dispute Resolution
Comment, Edward S. Rue, Gender Equity and Procrustean
Presumptions: A Comment on the Recent Changes in Wisconsins
Law Regarding Child Custody and Placement, 2001 Wisconsin
Law Review 1177 (2001)
Scott C. Seufert, Going Dutch?: A Comparison of the Vermont
Civil Union Law to The Same-Sex Marriage Law of the Netherlands,
19 Dickinson Journal of International Law
447 (Spring 2001)
Barbara Stark, Marriage Proposals: From One-Size-Fits-All
to Postmodern Marriage Law, 89 California Law
Review 1479 (October 2001)
Kyle C. Velte, Towards Constitutional Recognition of
the Lesbian-Parented Family, 26 New York University
Review of Law & Social Change 245 (2001)