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Kuhn v. Thompson (Mark E. Fuller, M.D. Ala. 2:03-cv-1136)
A 2003 complaint challenged the disciplinary removal of Alabama’s chief justice for his violating a federal order to remove a Ten Commandments monument from the court building’s rotunda. The district judge denied the plaintiffs immediate injunctive relief and granted the defendants’ motion to dismiss the complaint. (1) The defendants were entitled to Younger v. Harris abstention because the chief justice’s appeal to Alabama’s supreme court was still pending. (2) The defendants were entitled to judicial immunity. (3) The plaintiffs failed to state a valid claim because the right to elect the chief justice did not include a right to keep him in office for his whole term.
Topics: Matters for state courts; 42 U.S.C. § 1983; enforcing orders.

One of many Case Studies in Emergency Election Litigation.

In Print: Available for Distribution

The purpose of this guide is to help federal judges adjudicate civil cases alleging human rights violations under domestic and international law. This guide addresses cases with an international dimension brought in federal court pursuant to specific U.S. statutes that provide jurisdiction over such claims. These cases include rights-based legal disputes involving foreign plaintiffs or defendants, cases involving violations occurring abroad, and cases relying on international human rights law.

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Smith v. Husted (George C. Smith, S.D. Ohio 2:16-cv-212)
A federal complaint challenged the state secretary of state’s advisory that a law permitting 17-year-olds to vote in a primary election if they will be 18 by the time of the general election did not apply to a presidential primary election because voters in the state’s presidential primary election are not voting for a nomination but are voting for delegates to a convention. The federal judge abstained from a ruling on the merits because of pending state litigation over interpretation of the relevant statute. The state court ruled in favor of the federal plaintiffs’ position.
Topics: Primary election; matters for state courts; laches.

One of many Case Studies in Emergency Election Litigation.

Do the doctrines of abstention and removal apply to Hague Convention cases?

The International Child Abduction Remedies Act (ICARA), 22 U.S.C. §§ 9001 et seq., provides for original concurrent jurisdiction in both federal and state courts.1 Dual jurisdiction allows issues to be raised about the interface between federal and state courts, including abstention and removal.

Three types of abstention have been addressed in the cases:

  1. Younger abstention2
  2. Colorado River abstention3
  3. Rooker-Feldman doctrine4
Younger Abstention

Ordinarily, the fact that there is an ongoing state case does not provide a reason for a federal court to decline to exercise jurisdiction that has been established by statute. An exception to this rule is the Younger abstention, which applies when the district court’s acceptance of a case would disrupt an ongoing state criminal, civil, or administrative proceeding.5

There are prerequisites to invoking Younger abstention:

  1.  there must be an ongoing state judicial proceeding to which the federal plaintiff is a party and with which the  federal proceeding will interfere;
  2.  the state proceedings must implicate important state  interests; and
  3.  the state proceedings must afford an adequate opportunity  to raise the claims.

The Third Circuit’s decision in Yang v. Tsui,6  noted a pattern in abstention cases:

  • Where there is a state court custody proceeding pending, but the Hague issues have not been raised, or have been raised and not litigated, and a Hague petition is filed in federal court, courts have concluded that abstention is not appropriate.7
  • Where, however, the state court has litigated the Hague claim, then abstention is appropriate.8

Note that the Eighth Circuit does not favor abstention in Hague Convention cases:

As Silverman I and Silverman II made clear, the law in this circuit does not favor abstention in Hague Convention cases. See [Silverman v. Silverman,] 267 F.3d [788,] 792 [(8th Cir. 2001)]  (“[A]bstention principles do not permit an outright dismissal of a Hague petition.”); Silverman II, 338 F.3d at 891 (“[A]bstention does not apply *853 in Hague Convention cases.”); 42 U.S.C. § 11603(d) [now transferred to 22 U.S.C. § 9003(d)] (The court in which an action is brought under  [§ 11603(b)] shall decide the case in accordance with the Convention.”) (emphasis added).9

Colorado River Abstention 

Abstention is appropriate where there are parallel cases pending in state and federal courts. The Colorado River abstention requires that the same parties be involved, are litigating substantially identical claims, and are raising nearly identical allegations and issues.10

The Supreme Court11 has set forth six factors to be considered in determining if federal courts should abstain:

  1. whether one of the courts has assumed jurisdiction over any property in issue;
  2. the inconvenience of the federal forum;
  3. the potential for piecemeal litigation;
  4. the order in which the forums obtained jurisdiction;
  5. whether federal or state law will be applied; and
  6. the adequacy of each forum to protect the parties’ rights.

In Holder v. Holder12 the district court’s abstention from hearing a Hague case under Colorado River was reversed, because the pending state claim involved only custody issues, and no Hague claim was asserted in the state court.13

In Lops v. Lops,14 the Eleventh Circuit affirmed the district courts refusal to abstain under Colorado River on the basis, inter alia, that the district court was better positioned to determine the case on an expedited basis, because the state court postponed hearing of the merits of the case for approximately fifty days.

Rooker-Feldman Doctrine

The Rooker-Feldman doctrine stands for the proposition that the loser in a state court action may not invoke the jurisdiction of the United States courts to enforce what is perceived to be a federally protected right. Complaints that the state court has erroneously ruled on federal rights are tantamount to a request that the district court sit as court of appeal to state court decisions. Similarly, federal courts must abstain from re-litigating issues that are “inextricably intertwined” with a state court decision.

The narrow scope of the doctrine was reaffirmed by the Supreme Court in Exxon Mobil Corp. v. Saudi Basic Industries.15 The Court observed that the Rooker-Feldman doctrine is confined to “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting the district court review and rejection of those judgments.”

Typically, Rooker-Feldman applies when a party files a Hague petition for return in state court. Upon being denied relief in state court, the aggrieved parent then files a new application for return in federal court, alleging that the state court decided the case erroneously.16

In Altamiranda v. Vale,17 father filed a Hague Convention petition for the return of the children to Venezuela. The parties negotiated a settlement of the return case, a settlement reduced to a judgment in state court. The settlement provided that in the event mother failed in her obligations under the settlement agreement, father could revive his Hague Convention case in federal court.

When mother defaulted on her obligations regarding the children, father reinstated his Hague Convention case. The court rejected mother’s argument that Rooker-Feldman barred the federal court from proceeding with the case. Father showed that his consent to allow the children to remain in the U.S. was procured by fraud, and the state court judgment provided that the federal court could resume Hague Convention proceedings in the event of mother’s default on her obligations.

Removal 28 U.S.C. § 1441 

Removal has only been mentioned in a handful of cases. In In re Mahmoud,18 the district court accepted removal of an ongoing Hague case from state court. Ultimately the matter became moot, and the district court dismissed the case, but it noted that removal was appropriate in Hague cases. In Lops v. Lops,19 the Eleventh Circuit found that the district court properly refused to abstain under the Colorado River  criteria. The dissent in Lops argued that this was in direct contravention of the removal statutes, as there was a pending state proceeding ongoing.

The issue of removal can lead to time-consuming litigation.

As noted by a leading academic on the 1980 Convention:

Within the United States, the choice in the U.S. implementing legislation to provide for concurrent jurisdiction in both state and federal courts over Hague applications has given rise to its own set of unforeseen complexities. To the extent that ICARA provides a Hague applicant with the choice of pursuing an application for return in either state or federal court, its concomitant failure to limit a defendant-abductor's right to remove the case from state to federal court may have been an oversight. Thus, under existing law, an application for return brought in state court may be removed to federal court by the defendant, potentially creating delay in the purported “expeditious” Hague process.20

Editor’s comment: Removal should ordinarily not be used in a Hague case. ICARA assigns choice of forum to the petitioner. Absent compelling or extraordinary reasons, the parent responding to a petition should not be able to defeat the petitioner’s choice of forum.


1. “The courts of the States and the United States district courts shall have concurrent original jurisdiction of actions arising under the Convention.” 22 U.S.C. § 9003(a).

2. Younger v. Harris, 401 U.S. 37  (1971).

3. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).

4. Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983)

5. Moore v. Sims, 442 U.S. 415 (1979); Williams v. Red Bank Board of Education, 662 F.2d 1017 (3d Cir. 1981 (overruled on other grounds by Schall v. Joyce, 885 F.2d 101 (3d Cir. 1989)).

6. See Yang v. Tsui, 416 F.3d 199, 202–03 (3d Cir. 2005), for an excellent review of the cases dealing with Younger abstention, and some differences between federal circuits as to the criteria on which Younger abstention is based.

7. Karpenko v. Leendertz, 619 F.3d 259 (3d Cir. 2010) (abstention not appropriate where parties had the ability to raise Hague claims in a state court proceeding but failed to do so. Id. at 262 n.1. Accord Barzilay v. Barzilay, 536 F.3d 844, 852 (8th Cir. 2008); Silverman v. Silverman, 267 F.3d 788 (8th Cir. 2001) (state court informed of pending Hague Convention petition in federal court, but state court refused to stay its action and proceeded to a custody determination—held: abstention inappropriate where state failed to stay proceedings and entered custody decree).

8. Id. at 202.

9. Barzilay v. Barzilay, 536 F.3d 844, 852–53 (8th Cir. 2008).

10. Timoney v. Upper Merior Twp. 66 Fed. Appx. 403, 405 (3d Cir. 2003); New Beckley Mining Corp v. Int’l Union, 946 F.2d 1072, 1073 (4th Cir. 1991).

11. Moses H. Cone Mem. Hosp. v. Mercury Construction Co., 460 U.S. 1, 15–16, 23–27 (1983).  12. 305 F.3d 854 (9th Cir. 2002).

12. 305 F.3d 854 (9th Cir. 2002).

13. Accord Biel v. Bekmukhamedova, 964 F. Supp. 2d 631 (E.D. La. 2013)   (denying abstention on Younger and Colorado River grounds, based on the fact that a pending state custody action was not being used to adjudicate the Hague Convention claim).

14. 140 F.3d 927 (11th Cir. 1998).

15. 544 U.S. 280 (2005).

16. See Holder v. Holder, 305 F.3d 854 (9th Cir. 2002) (district court should proceed with hearing of Hague case even though pending state court case would resolve issues of custody; “federal courts must have the power to vacate state custody determinations and other state court orders that contravene the treaty” (citing Mozes v. Mozes 239 F.3d 1067 (9th Cir. 2001); see also Rigby v. Damant 486 F. Supp. 2d 222 (D. Mass. 2007) (district court could not enjoin state court from proceeding with custody determination during pendency of Hague case in the federal court—if the state court is required to stay its proceedings because of the pendency of the Hague petition in federal court, it must do so on its own). But see Doe v. Mann, 415 F.3d 1038 (9th Cir. 2005) (holding Rooker-Feldman inapplicable to district court that invalidated a state action that dealt with termination of mother’s parental rights under the Indian Child Welfare Act).

17. 538 F.3d 581 (7th Cir. 2008).

18. No. CV 96 4165 (RJD), 1997 WL 43524 (E.D.N.Y. 1997).

19. 140 F.3d 927 (11th Cir. 1998).

20. Linda Silberman, Patching up the Abduction Convention: A Call for a New International Protocol and a Suggestion for Amendments to ICARA, 38 Tex. Int’l L.J. 41 (2003) (footnotes omitted).

This document is part of The 1980 Hague Convention on International Child Abduction:  A Resource for Judges, a Special Topic Webpage.

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This is my first Hague Convention case. What do I do?

1. What amounts to a prima facie case for return?

The 1980 Hague Convention provides that the court shall order a child’s physical return to his or her habitual residence where a child 

    •   is under age of sixteen and
    •   has been wrongfully removed 
    •   from his or her habitual residence 
    •   in violation of the custody rights of the left-behind parent.

The burden of proof for the prima facie case is a preponderance of the evidence.

2. What are the defenses to the request for return of the child?

    •   Delay – 
           o   a petitioner has not filed the petition for return within one year of the                      time that the child was wrongfully removed or retained, and 
           o   the child has become settled in the new environment

    •   Custody Rights – the Petitioner is not actually exercising custody rights to                     the child

    •   Grave Risk – return would subject the child to a grave risk of physical or                          psychological harm or put the child in an intolerable situation

    •   Human Rights – return would be contrary to U.S. concepts of human rights                   or fundamental freedoms

    •   Objection by Child – a court has discretion not to order the return of a child                   of sufficient age and maturity who objects to return to the habitual                         residence

All defenses are subject to narrow interpretation, and the “grave risk” and “human rights” defenses must be proved by clear and convincing evidence. All other defenses are provable by a preponderance of the evidence.

3. Time considerations. Be aware of the very short time frame for the resolution of Hague Convention cases.

Six-week standard. There is an expectation built into the Convention that cases should be resolved within six weeks from the time of filing until the court makes a decision.

Article 11 provides

          The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.

If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay.

In addition, Article 2 provides that

Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.

Because of the requirement for expedited hearings, courts are given substantial discretion in managing Hague cases. This includes the authority to limit or eliminate discovery or allow discovery on an expedited basis, to employ summary proceedings to determine the adequacy of the prima facie case or the existence of a defense, and to decide whether the case requires a plenary evidentiary hearing or may be tried on the documents and affidavits submitted by the parties.

4. Remedy – the physical return of the child to his or her habitual residence.

One of the unique facets of the Hague Convention is that it empowers a court to order the physical return of a child back to his or her “habitual residence.” Where return is ordered, the court should fashion an order that clearly mandates the child’s return and authorizes state and federal law enforcement officials to assist, when necessary, the implementation of the order.

5. Does the Convention apply to this case? 

There are a few threshold issues:

a. Is the Convention in Force? Is the Convention in force between the United States and the country that the child was abducted from? You can check if the treaty was in force between the U.S. and the other country at the following websites:

U.S. State Department Website:

Hague Permanent Bureau Website:

b. Age. Is the child under the age of sixteen years? This is jurisdictional. If the child is sixteen or older, the court cannot order a return. Sometimes more than one child is abducted. Only those siblings that are under sixteen are subject to return under the Convention. 

c. Concurrent Jurisdiction. Congress conferred original jurisdiction on both state and federal courts to hear Hague Convention cases. Issues relating to removal or abstention may arise, depending on the facts of the case.

6. What is the law that applies to the case? Where do I find it?

a. The 1980 Hague Convention – A copy is available on this website. You may also find a copy at

  b. ICARA – International Child Abduction Remedies Act – is found at 22 U.S.C. §§ 9001 et. seq. This legislation was passed by Congress in 1988 and implemented the Convention in the United States. ICARA sets forth:

    •    the burdens of proof applicable to the various issues
    •    relaxed rules for the admissibility of documents
    •    guidelines for the award of fees and costs

c. Aids to interpretation:
  Peréz-Vera Report – The commentary of the official reporter of the sessions that led to the approval of the Convention by the Hague Conference. This report has been routinely cited by courts as an aid to interpreting the terms of the Convention. A copy is available on this website.

U.S. State Department Text & Legal Analysis – This document was drafted for consideration by the Senate during the process of ratification. It is given interpretative weight by courts. The Text & Legal Analysis can be found at 51 Fed. Reg. 10,494 et. seq. (March 26, 1986) and is also available on this website.

There is a substantial body of U.S. state and federal case law dealing with the Convention.

Foreign decisions can also form the basis for interpretative analysis. Major foreign decisions can be found in a searchable database maintained by the Hague Permanent Bureau at

7. Consider holding an early case management conference - Rule 16

The benefits of holding an early conference:

    •   Counsel are made aware of time constraints
    •   The court may want to require counsel to submit statements detailing 
           o   the proof underlying a prima facie case for return
           o   the proof underlying any defenses
           o   the affidavits and other documents supporting the parties’ respective                 claims
           o   the expected range of the evidence
           o   whether there are actual, material, and relevant factual disputes
           o   whether an evidentiary hearing will be necessary

    •   Parties can discuss the time necessary to conduct the trial and set a trial date
    •   The court may take measures to reduce the chance that the child will be          re-abducted pending further proceedings
    •   If appropriate, the court may 
           o   make orders for visits with the left-behind parent
           o   refer the parties to mediation to attempt a voluntary resolution (without                 extending the time for trial)
           o   consider appointment of counsel or guardian ad litem for child
    •   Determine whether interpreters are necessary
    •   Consider, sua sponte, setting a hearing date for a motion for summary          judgment

This document is part of The Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.

Lops v. Lops, 140 F.3d 927 (11th Cir. 1998)

Abstention | Child Well Settled | Equitable Estoppel | Delay

This case involves the lapse of a substantial period of time between the disappearance of the children and their discovery, and addresses the issue of active concealment by the abducting parent. Although the court did not specifically discuss the issue of equitable estoppel, return of the children was ordered due to father’s fraudulent conduct—conduct that negated a finding that the children were well settled.


Husband and wife lived in Germany with their two children. When their marriage ended, they participated in custody litigation in the family court in Germany. While the case was pending with temporary court orders, father fraudulently obtained passports for the children and absconded with them to Spain and then to the United States. Mother did not know the children’s whereabouts. Father stayed with the children’s paternal grandmother near Augusta, Georgia, and then moved with the children to a home purchased by the grandmother in nearby South Carolina. The home was purchased, but the ownership of the home was concealed due to grandmother’s agreement not to receive actual title to the home for twenty years.

Over the next two-and-one-half years, father transacted all business in cash, enrolled the children in a private school, drove a car registered to his mother, and only worked for his stepfather. Father reported no income and paid no taxes during 1996 and 1997. Meanwhile, mother obtained an award of custody of the children in Germany. Father filed for a divorce in South Carolina, but never served mother. He obtained an order from the South Carolina court granting him sole temporary custody of the children.

Mother enlisted the assistance of multiple state, national, and international agencies in an effort to locate her children. Finally, local law enforcement obtained permission to place a wiretap on the grandmother’s phone and through the wiretaps were able to locate the children. The children were detained by law enforcement, and mother immediately left Germany for the United States. Within a week of locating the children, mother commenced an action for the return of the children in state court. Due to the inability of local courts to hear the action on an expedited basis, mother filed an action in federal district court in Augusta.


Abstention. Father took the position that the federal court should abstain under the Colorado River doctrine;[1] however, the district court declined to abstain in favor of the South Carolina state court proceedings. The Eleventh Circuit noted that abstention is the exception rather than the rule, and found that as a practical matter, the South Carolina court was unable to proceed expeditiously, and the federal court was prepared to so proceed.[2]

Children Well Settled. Father also argued that due to the passage of one year from the time of wrongful removal until the filing of a petition, that the children were well settled in their new environment. The district court found that the one-year limitation in Article 12 had been “equitably tolled,” so that the defense did not apply. Although the Eleventh Circuit avoided the equitable tolling issue,[3] it found that the children were not well settled due to father’s active concealment of the children and other fraudulent activities, noting that he could face criminal prosecution for his conduct.

The court explained that the very act of concealing a child can contribute to a finding that the child is not well settled. As the Supreme Court observed in Lozano v. Montoya Alvarez,

[n]or is it true that an abducting parent who conceals a child’s whereabouts will necessarily profit by running out the clock on the 1-year period. American courts have found as a factual matter that steps taken to promote concealment can also prevent the stable attachments that make a child “settled.” See, e.g., Mendez Lynch v. Mendez Lynch, 220 F.Supp.2d [sic] 1347, 1363–1364 (M.D.Fla.2002) [sic] (children not settled when they “lived in seven different locations” in 18 months); Wigley v. Hares, 82 So.3d [sic] 932, 942 (Fla.App.2011) [sic] (“The mother purposely kept him out of all community activities, sports, and even church to avoid detection by the father”); In re Coffield, 96 Ohio App.3d [sic] 52, 58, 644 N.E.2d 662, 666 (1994) (child not settled when the abducting parent “was attempting to hide [child’s] identity” by withholding child from school and other organized activities). Other signatories to the Hague Convention have likewise recognized that concealment may be taken into account in the factual determination whether the child is settled. See, e.g., Cannon, [2005] 1 W.L.R., ¶¶ 52–61. See also Kubera, 3 B.C.L.R. (5th), ¶ 47, 317 D.L.R. (4th), ¶ 47; A.C. v. P.C., [2005] HKEC 839, ¶ 39, 2005 WL 836263, ¶ 39. Equitable tolling is therefore neither required by the Convention nor the only available means to advance its objectives.[4]


[1]. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).
[2]. “The district court, on the other hand, was prepared to, and did, expedite the ICARA petition as required by ICARA. The ICARA petition was filed in the district court on December 3. The district court conducted two full days of evidentiary hearings on December 12 and 19 and heard closing arguments on December 22, after which the district court immediately dictated comprehensive findings of fact and conclusions of law, covering sixty-four pages of transcript in the record, and entered final judgment. This is what ICARA contemplates.” Id. 943–944.
[3]. The issue was later resolved by Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014), wherein the Supreme Court held that the concept of equitable tolling was not available in Hague Convention cases.
[4]. Id. at 1236.


This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.

Barzilay v. Barzilay (Barzilay I), 536 F.3d 844 (8th Cir. 2008)
Barzilay v. Barzilay (Barzilay II), 600 F.3d 912 (8th Cir. 2010)

Abstention | Habitual Residence

Abstention is not appropriate in a Hague case if the prior proceeding did not include the opportunity to litigate the Hague Treaty issues. The Barzilay cases also explain that it is the actual circumstances of a child’s life that establish habitual residence, not the wishes of a party.

Barzilay I

Mother and father are Israeli citizens, as are their three children, although the younger two children are also American citizens. In 2001 the family moved from the Netherlands to Missouri. Mother and the children lived there since that time. In 2005 the parties obtained a divorce decree from a Missouri state court awarding the parties joint custody of the children. The divorce decree provided that in the event one of the parents repatriated to Israel, the other parent would “forthwith” relocate to Israel with the minor children. When father repatriated to Israel, mother remained in Missouri. In June 2006 mother took the children to Israel for a visit that was to end on July 9, 2006. After the children’s arrival, father filed a request with an Israeli court blocking the minor’s exit, alleging that mother had violated the divorce decree by refusing repatriation. Mother agreed to a consent decree providing that

  • Mother would repatriate with the children by August 1, 2009;
  • The agreement was irrevocable, and constituted the only authority regarding the child’s immigration, repatriation, and custody;
  • Mother would not file custody proceedings in any place other than Israel, and if she did, the action would be transferred to Israel;
  • If the children were not returned pursuant to the agreement, her actions would constitute abduction under the Hague Convention; and
  • Mother was to pay $200,000 to father, and post her home in Missouri as collateral for the payment.

Mother later filed an affidavit in district court indicating that she only signed the agreement so that she could leave Israel with the children, and that she had no intention of abiding by its terms.

In December 2006 father obtained a judgment In Israel finding mother in contempt for refusing to permit the children to visit Israel. The contempt judgment was affirmed on appeal. While the Israeli contempt proceedings were going on, mother filed a petition in Missouri state court to modify the prior divorce decree, seeking to restrict father’s visitation and prevent the enforcement of the Israeli consent decree. Father specially appeared in the Missouri action, but only for the purpose of challenging jurisdiction. He did not file a petition for return in the Missouri action. Father’s challenge to jurisdiction was denied.

Father then filed a petition in federal court for return of the children to Israel. The district court abstained from hearing the case, pursuant to Younger v. Harris,[1] on the basis that father had an adequate opportunity to raise his Hague Convention claims in state court.


Abstention. The Hague Convention requires that custody proceedings be stayed pending the determination of the issues in a Hague Convention case. The court acknowledged that the Hague Convention requires that custody proceedings be stayed pending the determination of the Hague Convention issues. As such, the existence of a pending state custody proceeding is not grounds for Younger abstention. This is especially so since both father and mother had obtained custody decrees from Israel and Missouri, respectively, thus positioning the court hearing the Hague case to decide what court was appropriate to hear and decide custody issues.

The court further noted that although the Hague Convention was mentioned during the course of both the Israeli and Missouri custody proceedings, neither party put before the respective courts a request for return of the children. As such, the existing Missouri court proceeding did not present an adequate opportunity to litigate the Hague issues, and abstention was inappropriate. The case was remanded to the district court to make a determination on the merits of the father’s Hague petition.

Barzilay II

Habitual Residence. On remand, the district court found that the United States was the children’s habitual residence and dismissed father’s petition requesting that the children be returned to Israel. Father appealed, principally raising the effect of the repatriation provisions of the Missouri decree and the Israeli consent decree, contending that those documents established conclusively that the children’s habitual residence was Israel.

The Eighth Circuit affirmed. The children had lived for approximately five years in Missouri prior to the time father alleged that they were wrongfully retained. Judgments of foreign courts are entitled to full faith and credit if the foreign court actually adjudicated a Hague claim in conformity with the requirements of the Hague Convention.[2]

Importantly, the Eighth Circuit ruled that habitual residence may not be determined by an agreement of the parties or “by wishful thinking alone”:[3] “The notion that parents can contractually determine their children’s habitual residence without regard to the actual circumstances of the children is thus entirely incompatible with our precedent.”[4]

Habitual residence determinations are factually intensive issues. It would be inappropriate to allow parental agreements to supplant the factual inquiry, notwithstanding that parental intent may be relevant to the issue of habitual residence.

Editor’s Note: The Eighth Circuit is one of the circuits that looks to both issues of parental intent and the circumstances surrounding the child. Circuits favoring this approach tend to follow a modified test first enunciated in the Sixth Circuit’s seminal case of Friedrich I, which calls for courts to direct focus on the “past experiences of the child, not the intentions of the parents.” Courts favoring the question of habitual residence from this “child-centered” approach emphasize the facts surrounding the child’s degree of settlement, and relegate the question of parental intent to a subordinate role.

Circuits following the Ninth Circuit’s Mozes rationale place initial focus on parental intent vis-à-vis the acquisition of a new habitual residence or the abandonment of the old habitual residence. Under this approach the first inquiry when deciding whether a new habitual residence has been acquired is, “Did the parents demonstrate a shared intention to abandon the former habitual residence?” The second question in the Mozes analysis is whether there has been a change in geography for an “appreciable period of time” that is “sufficient for acclimatization.”


[1]. Younger v. Harris, 401 U.S. 37 (1971).
[2]. Where a foreign court departs from the requirements of the Hague Convention, a Hague determination by that court is not entitled to full faith and credit. See, e.g., Carrascosa v. McGuire, 520 F.3d 249, 262–63 (3d Cir. 2008).
[3]. Citing to Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001).
[4]. Barzilay II, 600 F.3d at 920–921.

In Print: Available for Distribution

The 1980 Hague Convention on the Civil Aspects of International Child Abduction is a treaty that governs judicial proceedings that are brought seeking orders for the prompt physical return of children who have been wrongfully taken or kept away from their "habitual residence." The treaty is in force between the United States and seventy-three other countries. State and federal courts have original concurrent jurisdiction to hear cases under the 1980 Convention. This guide discusses the purposes behind the adoption of the Convention along with a detailed explanation of its key provisions.  The second edition focuses on both federal and state case law interpreting the Convention and federal statutes that govern the handling of the cases in both state and federal courts. The guide offers practical suggestions for judges handling litigation under the Convention.

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Browne v. Bayless (Robert C. Broomfield, D. Ariz. 2:00-cv-1774)
Rival factions of Arizona’s Libertarian Party named different presidential nominees for the 2000 election, and the national party’s nominee was not the one selected to represent the party on the Arizona ballot. After unsuccessful state court litigation, the national nominee filed an action in federal court, which the district judge dismissed one week later. The action was barred by (1) the Rooker-Feldman doctrine, which states that among federal courts only the Supreme Court has appellate jurisdiction over state court proceedings; (2) Younger abstention, which avoids undue interference in state functions; (3) the plaintiffs’ failure to name indispensable parties; and (4) laches.
Topics: Getting on the ballot; matters for state courts; laches; party procedures.

One of many Case Studies in Emergency Election Litigation.


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