In Dawson v Dawson, 2021 WL 5232251 (10th
Circuit, 2021) Petitioner Clive Edward Dawson appealed from
the district court’s order dismissing with prejudice his petition for relief
under the Hague Convention. The 10th Circuit vacated the judgment of
the district court and remanded with directions to dismiss Dawson’s petition
without prejudice.
Dawson was a citizen of the United Kingdom. Respondent Dylla was a
citizen of the United States. Dawson and Dylla met in the United States and
were married in New Mexico on September 18, 2011. At the time of their
marriage, Dawson was working as an information technology consultant and Dylla
was an attorney. At some point after they were married, Dawson and Dylla moved
to the United Kingdom. The couple’s daughter, R., was born in the United
Kingdom on April 12, 2013. The couple separated on July 10, 2015. Following the
separation, Dylla informed Dawson that she was interested in relocating to the
United States with R. Dawson opposed the idea of R. living in the United States
with Dylla. On January 11, 2016, a family court in Manchester, England issued a
custody order that determined, in pertinent part, that it was in R.’s best
interests to live with Dylla in the United States. The custody order also,
however, granted Dawson parenting time on at least three occasions per year,
with two of those occasions to occur in the United States and one to occur in
the United Kingdom. . The two annual periods of parenting time in the United
States were to each be between three and four weeks in duration, and the single
period of parenting time in the United Kingdom was to be for a minimum of two
weeks. In addition, the Manchester
family court ordered that Dylla and Dawson would alternate having custody of R.
at Christmas time, and it directed Dylla to make R. available for “Google
Hangouts” with Dawson for five to fifteen minutes every other day (and
vice-versa during the periods when R. was in Dawson’s custody). Lastly, the
Manchester family court directed Dylla to register the custody order in
Colorado. In early 2016, Dawson registered the Manchester family court’s
custody order in Elbert County, Colorado, by filing a petition in the District
Court for Elbert County, Colorado (the state court) pursuant to Colo. Rev. Stat.
§ 14–13–305.
On January
28, 2021, Dawson initiated these federal proceedings by filing a pro se
petition against Dylla seeking expedited enforcement of the Manchester family
court’s January 11, 2016 custody order pursuant to the Hague Convention and
ICARA. On March 23, 2021, the district
court conducted a telephonic status conference and heard arguments from Dawson
and Dylla. On April 19, 2021, the district court issued an order dismissing
Dawson’s petition with prejudice. The order concluded that the Hague Convention
and ICARA were inapplicable because “[t]he evidence establish[ed] that there
ha[d] been no abduction or wrongful removal of the parties’ child,” and,
instead, that “Dylla brought R[.] to the U.S. in 2016 with the express
permission and order of the family court in Manchester, England,” and “[t]he
child’s habitual residence has been in the U.S. and in particular in Colorado,
since that time.” Id. at 145. The order further stated: Final judgment
was entered in the case on April 19, 2021. After filing an unsuccessful motion
for new trial, Dawson appealed to this court.
Dawson
argued in his appeal that the district court erred in dismissing his action. Dawson
did not claim that R. was internationally abducted or wrongfully retained by
Dylla, nor did he claim that R. should be returned to the United Kingdom for
custody proceedings. Dawson sought to enforce the rights of custody and access
that were granted to him by the Manchester family court’s January 11, 2016
custody order. There is a circuit split regarding whether ICARA authorizes
federal courts to entertain the type of access claim that Dawson sought to
assert here, i.e., a claim seeking to secure the exercise of visitation rights
that were previously afforded to him by the Manchester family court. See Ozaltin v.
Ozaltin, 708 F.3d 355 (2d Cir. 2013) (concluding that ICARA expressly
authorizes federal courts to hear access claims); Cantor v. Cohen, 442 F.3d 196
(4th Cir. 2006) (concluding that federal courts are not authorized
under ICARA to hear access claims).
It was
unnecessary to resolve that issue in this appeal because even assuming that
ICARA authorizes federal courts to hear access claims, the district court in
this case should have abstained from exercising jurisdiction over Dawson’s
access claims pursuant to Younger v.
Harris, 401 U.S. 37 (1971). Younger abstention applies when
“(1) there is an ongoing criminal, civil, or administrative proceeding, (2) the
state court provides an adequate forum to hear the claims raised in the federal
complaint, and (3) the state proceedings involve important state interests.” Weitzel v. Div.
of Occupational & Prof’l Licensing of Dep’t of Commerce, 240 F.3d 871,
875 (10th Cir. 2001) (quotation marks omitted). If these three
requirements are met and no exceptions apply, a federal court must abstain from
hearing the case. The record on appeal in this case indicates that all three
requirements were met. The judgment
of the district court was vacated and the matter remanded with directions to
dismiss the petition without prejudice.
