In Tucker v Ellenby, 2011 WL 5361154 (S.D.Fla.) Petitioner claimed that Respondent wrongfully removed their two-year old son, Mateo Robinson Tucker, from his habitual residence of Belize and was wrongfully retaining the child in the United States, without his consent and in violation of his custody rights over the child. Prior to the filing of the Petition, on March 29, 2011, Respondent filed a petition for dissolution of marriage in the Circuit Court of the 11th Judicial Circuit in Miami-Dade County, Florida, seeking in part sole parental custody of the child. The case was pending until very recently. Parental time-sharing was ordered but final determinations on dissolution and custody have not yet been made. It was undisputed that Petitioner did not ask the state court to order that the child be returned to Belize based on allegations of wrongful removal and retention pursuant to the Hague Convention and ICARA or on any other basis.
Respondent argued that the District Court should abstain from deciding the Petition and allow the issues raised therein to be decided in the state custody proceeding pursuant to the Younger and Colorado River abstention doctrines. The District Court rejected her argument. It observed that Federal courts have a "virtually unflagging obligation ... to exercise the jurisdiction given them." 31 Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir.2003) (citing Colorado River, 424 U.S. at 817)). "Virtually" is not "absolutely," however, and in exceptional cases federal courts may and should withhold equitablerelief to avoid interference in state proceedings. "The Younger doctrine, which counsels federal-court abstention when there is a pending state proceeding, reflects a strong policy against federal intervention in state judicial processes in the absence of great and immediate irreparable injury to the federal plaintiff." Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). This doctrine is an exception to the general rule of nonabstention and derives from "the vital consideration of comity between the state and national governments." 31 Foster Children, 329 F.3d at 1274 (internal citation omitted). Under Younger, abstention is warranted when (1) there is an ongoing state judicial proceeding with which the federal proceeding would interfere; (2) the state court proceeding implicates important state court interests; and (3) the state court proceeding provides the petitioner with an adequate opportunity to raise his claims. Yang v. Tsui, 416 F.3d 199, 202 (3d Cir.2005).
The District Court concluded that Respondent failed to demonstrate that its adjudication of the Hague Convention claim would interfere with the ongoing state custody proceeding, an essential showing under the first Younger factor. In deciding this issue, it looked to the relief requested and the effect it would have on the state proceeding. The adjudication of the issues raised in the Petition--whether the child's removal from Belize and his retention in this country were wrongful and, if so, whether he should be returned to Belize--would not affect the custody determination that would be made in state court pursuant to state family law. In Yang, because the Hague Convention had not been raised in the state custody proceeding, the court concluded that the federal court's adjudication of a Hague Convention petition would not interfere with the state action. As in Yang, in this case the Hague Convention was not raised in the state proceeding. Because there was no Hague Convention claim pending in the state proceeding, the adjudication of the Petition would not interfere with the state proceeding. If a custody proceeding does not have a Hague Convention claim before it, an adjudication of such a claim by the federal court would not constitute interference." The second Younger factor, whether the state proceeding implicates important state court interests, likewise did not support abstention. It could not be disputed that the
State of Florida has a strong interest in domestic relations and custody matters, but
they are not issues in the case. The Petition sought the return of the child "under the
Hague Convention and ICARA, which is a federal statutory matter." If a federal court abstained from adjudicating a Hague Convention petition simply because child custody was being disputed in state court, the Hague Convention and ICARA would be rendered meaningless. Finally, Respondent failed to establish the third Younger factor for abstention. Although the state court has jurisdiction to entertain a Hague Convention petition, Petitioner did not raise such a claim in the state proceeding. He chose instead to file the Petition in federal court. It was unlikely, therefore, that Petitioner would have an adequate opportunity to raise his Hague Convention claims in the state forum. Because Respondent failed to meet the Younger requirements for abstention, the court denied her motion on that ground.
Respondent also asked the Court to abstain from adjudicating the merits of the Petition under the Colorado River abstention doctrine. This doctrine allows abstention by a federal court in favor of a parallel state proceeding based on "considerations of '(w)ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.' " Colorado River, 424 U.S. at 817. Abstention from federal jurisdiction is the exception, however, not the rule. Lops, 140 F.3d at 942. When a parallel state court proceeding exists, the Supreme Court has outlined six factors to consider in determining whether to abstain and dismiss a federal action: (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. No one factor is per se determinative; how each factor is weighed depends on the facts of each case. When on balance the factors weigh against abstention, the federal court should
proceed notwithstanding the existence of the a parallel state proceeding. The Court first had to determine whether the concurrent state and federal cases were in fact
parallel proceedings. The cases need not involve identical parties, issues, and requests
for relief. Ambrosia Coal & Constr. Co. v. Pages Morales, 368 F.3d 1320, 1329-30
(11th Cir.2004). Rather, they must "involve substantially the same parties and
substantially the same issues." If the cases are not parallel, the Colorado
River doctrine does not apply. The Court found that this threshold test had not been met. Arguably the parties were not substantially the same. Petitioner was asserting a wrongful retention claim against the Ellenbys in federal court whereas neither of the Ellenbys was a party to the divorce and custody proceeding in state court. Although the relief requested in federal court was the return of the child to Belize, which based on the facts of the case was directed more toward Respondent than her parents who allegedly were assisting in the wrongful retention of the child, the Ellenbys were nevertheless subject to this Court's jurisdiction, once properly invoked, under the Hague Convention. More significant to the determination was the fact that the issues were not substantially similar. The subject matter of the two cases was decidedly different. The Court could not decide issues of custody, only which jurisdiction should properly determine custody. And the state court cannot decide whether the child should be returned to Belize. The fact that the same evidence could be used in both proceedings does not mean the issues are necessarily substantially similar. Even assuming the existence of a parallel state proceeding, the Court found abstention under Colorado River inappropriate. It considered all of the factors and found that they strongly militated against abstention under the Colorado River doctrine. Accordingly, Respondent's motion was denied on this basis.
No comments:
Post a Comment