January 2002

Younger 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 applies.

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. O’Neill v. City of Philadelphia, 32 F.3d 785, 789 (3rd Cir.1994) (citing Middlesex County, 457 U.S. at 432).

Grieve v. Tamerin

In Grieve 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 jurisdiction.

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 State’s “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 Grieve’s action, again on Younger abstention grounds.

The Court of Appeals noted that Grieve’s claim implicates a “paramount federal interest in foreign relations and the enforcement of United States treaty obligations. Deference to a state court’s 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 (6^th 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 Grieve’s convention based claims.

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

In Silverman v. Silverman, 267 F.3d 788 (8^th 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 children’s home state. The federal court then granted the mother’s 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

In 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 children’s mother. The mother moved to abstain, stay or dismiss her husband’s Hague Convention petition. The mother’s 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 mother’s 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.

Conclusion

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.

Cases

Larrimore 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.

R.N. 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.

In re Kristine W., No. D038074 (California Court of Appeals, Fourth Appellate District, December 12, 2001): A juvenile court depedent, Kristine W., appealed the court’s 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.

In 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 court’s analysis must not end there. Third party visitation is a creature of statute and in derogation of a parent’s 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.

Atkinson v. Evans, 2001 Pa Super 344 (Pennsylvania Superior Court, December 5, 2001): Plaintiff sought damages for defendant’s affair with plaintiff’s wife. The plaintiff’s 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.

Periodicals

New Law Review Articles on Issues in Family Law

Symposia

32 Rutgers Law Journal Number 3 (Spring 2001)

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, p. 733

Sally F. Goldfarb, Visitation for Nonparents After Troxel v. Granville: Where Should States Draw the Line?, p. 783

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 2 (2001)

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: Minnesota’s Position on Multiethnic Adoptions, p. 553

Nancy K.D. Lemon, Statutes Creating Rebuttable Presumptions Against Custody to Batterers: How Effective Are They?, p. 601

The Honorable Gary L. Crippen, Sheila M. Stuhlman, Minnesota’s Alternatives to Primary Caretaker Placements: Too Much of a Good Thing?, p 677

Judith T. Younger, Antenuptial Agreements, p. 697

Robert E. Oliphant, Minnesota’s Custody Relocation Doctrine: Is There a Need For Change?, p. 723

Andrea Charlow, Race, Poverty, and Neglect, p. 763

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, p. 861

Len Biernat, Forces Changing Family Law in Minnesota, p. 873

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

Other Articles

Jennifer Marston, Yesterday, Today, and Tomorrow’s 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 95 (2001)

Comment, Edward S. Rue, Gender Equity and Procrustean Presumptions: A Comment on the Recent Changes in Wisconsin’s 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)