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Abstention

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February 10, 2017
Robert Timothy Reagan, Margaret S. Williams, Marie Leary, Catherine R. Borden, Jessica L. Snowden, Patricia D. Breen, Jason A. Cantone

Kuhn v. Thompson (Mark E. Fuller, M.D. Ala. 2:03-cv-1136)

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PDF icon Case Study 2 pages
December 30, 2016
David Nersessian

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.

June 14, 2016
Robert Timothy Reagan, Margaret S. Williams, Marie Leary, Catherine R. Borden, Jessica L. Snowden, Patricia D. Breen, Jason A. Cantone

Smith v. Husted (George C. Smith, S.D. Ohio 2:16-cv-212)

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PDF icon Case Study 1 page
March 9, 2016

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:

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February 25, 2016
James D. Garbolino

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.

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PDF icon First Case 4 pages
Microsoft Office document icon First Case 4 pages
January 20, 2016
James D. Garbolino

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.

January 19, 2016
James D. Garbolino

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.

December 15, 2015
James D. Garbolino

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.

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October 1, 2015
Robert Timothy Reagan, Margaret S. Williams, Marie Leary, Catherine R. Borden, Jessica L. Snowden, Patricia D. Breen, Jason A. Cantone

Browne v. Bayless (Robert C. Broomfield, D. Ariz. 2:00-cv-1774)

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PDF icon Case Study 2 pages
February 23, 2015
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