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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.

Facts 

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.

Discussion

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.

Discussion

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.

Smedley v. Smedley, 772 F.3d 184 (4th Cir. 2014)

Comity

Facts

Father, a member of the U.S. military was sta­tion­ed in Germany from 2000 to 2010. He and his wife had two children, born in 2000 and 2005. Aside from a one-year stay in Tennessee, the fam­ily spent the remainder of their time in Ger­ma­ny. In 2010 father was transferred to North Ca­rolina, so the family moved to the United States. Mother took the children back to Ger­ma­ny in mid-July of 2011 with father’s permission. Father purchased roundtrip tickets with a return date for August 11, 2011. Mother refused to re­turn from Germany, alleging that father con­sent­ed to her and the children remaining in Germany if she chose to stay, and he would attempt to re­lo­cate back to Germany. Father contended that the trip was a one-month vacation and that he did not consent to a permanent move.

First Hague Convention Proceeding: Germany, 2011. Father petitioned in a German court for return of the children. The trial court denied father’s petition for return on the ba­sis that he had abused one of the children, sustaining mother’s 13(b) defense. On fa­ther’s appeal to a higher court, the appellate court denied the petition on the grounds that father had consented to the removal of the children to Germany, thus upholding mo­ther’s “consent” defense.

The children remained with mother in Germany over the next two years. In August 2013, mother allowed the children to travel to the United States for a vacation. Father signed a document promising to return the children on or about August 26, 2013. Father did not send the children back as promised, citing concerns over the children’s dental care and their schooling. He enrolled the children in school in North Carolina.

Second Hague Convention Proceeding: United States, 2013. Mother filed an action for return of the children in district court. The district court found that mother did not wrong­fully remove the children to Germany, and gave comity to the German decision. The district court further found that the children had acclimatized to life in Germany dur­ing their stay from 2011 to 2013, and found that the children’s habitual residence was in Germany. Father’s petition was denied. The Fourth Circuit affirmed.

Discussion

Comity. The Fourth Circuit affirmed the district court’s extension of comity to the 2011 Ger­man decision denying the children’s return to the United States. The court adopted the Ninth Circuit’s test for analyzing the question of extending comity as stated in As­vesta v. Petroutsas[1]:

[W]e may properly decline to extend comity to the [foreign] court’s determination if it clearly misinterprets the Hague Convention, contravenes the Convention’s fun­damental premises or objectives, or fails to meet a minimum standard of reasonableness.

Standard of Review. The Fourth Circuit did not decide whether the standard for review for granting comity to a foreign decision was a de novo review or abuse of discretion, as the German decision would have passed a review on either grounds. The court fur­ther acknowledged that the Second Circuit, in Diorinou v. Mezitis,[2] held that when ac­cept­ing the ruling of a foreign court, the standard of review is de novo.[3] The court al­so acknowledged the Ninth Circuit’s holding in Asvesta[4] that previous case law in that cir­cuit suggested an “abuse of discrtetion” approach. The court in Asvesta, however, was not required to decide the issue, based upon its review that comity under either the de novo or abuse of discretion standard should not be granted to the Greek judgment be­fore it.

Failure to Make Finding on Habitual Residence. Father contended that in the 2011 proceedings, the German court failed to make a finding that Germany was the chil­dren’s habitual residence. The Fourth Circuit disposed of this argument, holding that a habitual residence determination was not critical since the German court found that fa­ther had consented to the children’s relocation to Germany. Whether the children’s ha­bitual residence was in the United States or in Germany would not have had bearing on the issue of whether father consented to the removal of the children. The court found no­thing in the law that required a finding of habitual residence before proceeding on to de­cide the case on a defense that did not depend on a finding of habitual residence.[5]

Sufficiency of the Evidence. Father argued that the German findings were un­reason­able and unsupported by the evidence. The Fourth Circuit held to the contrary, finding that there was sufficient evidence to show that father had consented to the children’s un­conditional removal to Germany, and that given the state of the evidence, “the Ger­man court’s decision was at least minimally reasonable.”[6]

 

[1]. 580 F.3d 1000 (9th Cir. 2009).
[2]. 237 F.3d 133 (2nd Cir. 2001).
[3]. Id. at 139–140.
[4]. See generally 580 F.3d 1000.
[5]. The court distinguished the instant fact situation from that in Asvesta, where the Greek court denied a return petition on the basis that the petitioner in that action was not exercising his custody rights at the time of removal. Because the interpretation of custodial rights depends upon the law of the habitual residence, a decision lacking reference to the law of the habitual residence would have been flawed. Smedley v. Smedley, 772 F.3d 184, 189–190.
[6]. Id. at 190.

 

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

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.

Available Online Only

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.

Available Online Only

Published by the Press of the People's Court (Beijing)

Translator: Maggie Shen

Acknowledges the Federal Judicial Center as publisher of the original work. The Federal Judicial Center cannot vouch for the accuracy of the translation.

Article title: not provided

Journal title: not provided

Date: PDF created 2/5/2015. Cover dated January 2014-1.

Archival Copy on File

Section 1983 Litigation (Third Edition) analyzes the large number of recurring issues that arise in litigation under 42 U.S.C. § 1983. This monograph contains new sections on discovery, Bivens claims, new material on stops and searches, and model jury instructions. It includes case law from the October 2013 Supreme Court term ending June 30, 2014, and major courts of appeals and select district court decisions reported through June 30, 2014.

Out-of-print September 2016; no future editions of this title are currently planned.

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A clearinghouse for information on the coordination and management of related cases that are pending simultaneously in both state and federal courts. The website provides useful tips for initiating contact with judges in other jurisdictions regarding related cases, for coordinating discovery across jurisdictional lines, and for managing attorney disputes. It also includes links to a large number of model orders on these and other subjects. This internet site is a joint project by the National Center for State Courts, the U.S. Judicial Panel on Multidistrict Litigation, and the Federal Judicial Center.

Available Online Only

A joint project by the National Center for State Courts, the United States Judicial Panel on Multidistrict Litigation, and the Federal Judicial Center, this pocket guide provides information on the coordination and management of related cases that are pending simultaneously in both state and federal courts. The guide provides useful tips for initiating contact with judges in other jurisdictions regarding related cases, for coordinating discovery across jurisdictional lines, and for managing attorney disputes.

This document is part of Federal and State Court Cooperation, a Special Topics Webpage. 

For additional information, including examples and model orders, visit the Multijurisdiction Litigation website.

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