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Case Commentary: Dawson v. Dylla, No. 21-1225, 2021 WL 5232251 (10th Cir. Nov. 10, 2021)

James D. Garbolino
November 16, 2022

Younger Abstention

A parent sought an order compelling a federal court to modify and enforce the custody decision of a state court.


The district court erred in hearing the case on the merits of access issues. It should have abstained under Younger v. Harris.[1]


The parties’ child was born in the United Kingdom in 2013. When the child was two years old the parents separated. A family court in Manchester, England, reviewed custody issues and issued an order granting the mother the right to relocate with the child to the United States. The English court also entered orders addressing parenting time in the United States and England. In 2016, the English order was registered in Colorado state court. The father filed a petition to modify the English parenting time order. In 2017, the Colorado state court made minor modifications to the English parenting time order. In 2019 the mother filed an action in the Colorado state court. The father failed to appear, resulting in a bench warrant for his arrest and temporary modification to the custody order. The father subsequently filed a motion in state court to order enforcement of the English order; this motion was denied pending the father’s surrender on the bench warrant. The court later ordered both parties to set the matter for a status conference, but neither party complied. The court closed the case.

The father later filed a petition under the 1980 Hague Convention in federal district court in Colorado seeking an order for the enforcement of his visitation rights under the English court order. The father did not request that the child be returned to England.

The district court conducted a telephonic status conference and dismissed the father’s petition, with prejudice. In its ruling, the court noted that it could not sit as an appellate court to consider custody orders issued by England and the Colorado state court.

The Tenth Circuit reversed, remanding the matter to the district court to dismiss the father’s petition without prejudice.


The Tenth Circuit ruled that rather than hearing the merits of the father’s petition, the district court should have abstained from hearing the case under Younger. The case met all three of the Younger requirements of (1) an ongoing proceeding, (2) an adequate form to hear the claims raised in federal court, and (3) the state proceedings involve important state interests.

Because abstention was warranted, the Tenth Circuit declined to address the issue whether federal courts could decide issues relating to the enforcement of “access” rights (visitation, parenting). The court acknowledged the circuit split on the issue of enforcement of access rights under the Convention, noting that the Second Circuit finding that federal courts had the jurisdiction to hear access claims,[2] and the Fourth Circuit concluding the opposite.[3]

[1]. 401 U.S. 37 (1971).
[2]. Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir. 2013).
[3]. Cantor v. Cohen, 442 F.3d 196 (4th Cir. 2006).