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Diabo v Delisle, 500 F.Supp.2d 159
(N.D. New York, 2007)
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In Diabo v Delisle, 500 F.Supp.2d
159 (N.D. New York, 2007) Shaynah J. Diabo was a member of the Kahnawake
Band of (Mohawk) Indians and originally resided on the Kahnawake Mohawk
Territory in Quebec, Canada. She was the mother of the child. The mother
and father were both teenagers when the child was born, and they resided
with the father's parents, respondents Patricia Delisle Thomas and
Cedric Thomas for a number of years. The grandmother, a member of the
Mohawk Nation, and the grandfather, a member of the Onondaga Nation,
resided at the Onondaga Nation Territory near Nedrow, New York.
According to the mother's Petition for Return of a Child, she and the
father intended to change their residence to the Kahnawake Mohawk
Territory in Quebec, Canada, when they traveled there for a Pow Wow on
July 9, 2004. The grandmother disagreed with the mother and father's
decision to stay in Canada, and she took the child back to New York with
her on July 12, 2004. The mother and father remained in Canada. They no
longer lived together after October 2004. The grandmother and
grandfather refused the mother's requests to return the child to live
with her in Canada. The father purportedly granted the grandparents
custody of the child in December 2004. On February 4, 2005, the mother
filed a Request for Return of a Child Addressed to the United States
pursuant to the Hague Convention on the Civil Aspects of International
Child Abduction. On April 4, 2005, the Onondaga Nation Council of Chiefs
purportedly granted full physical custody of the child to the
grandparents. The grant of custody was retroactive to September 2003,
and stated that it would remain effective until April 5, 2010. An order
dated June 29, 2005, by the Superior Court for the District of Longueuil,
Quebec, Canada granted the mother custody . The Petition instituting
this action was filed on October 12, 2005. The mother sought return of
the child to her in Canada from the grandparents in New York. On
February 28, 2006, all parties and amicus appeared for the hearing on
the merits and notified the Court that they were prepared to enter a
stipulation into the record. The stipulation included a plan for
reintegrating the child into the mother's life, consummating with the
child being returned to reside with the mother in Canada in time for the
beginning of the 2006-2007 school year, anticipated to be August 31,
2006. The stipulation was very clear that there was "no condition
precedent for the return of [the child] to Canada to be with [the]
mother on a permanent basis." Additionally, the parties agreed that the
father and grandparents would have meaningful access to the child once
he returned to Canada. The parties agreed not to attempt to enforce any
of the alleged existing custody orders. The parties also agreed and
understood that upon acceptance by the Court, the settlement would
"constitute an enforceable order of this court, and that they will not
breach or cause to be breached by any others the terms of this order
which may be enforced by both the criminal and civil contempt powers of
this court." The parties submitted a written stipulation reflecting the
terms as set forth in open court. Additionally, the written stipulation
provided that the child would be returned to Canada to live with the
mother in time for the start of the 2006-2007 school year, and in no
event not later than August 28, 2006. The written stipulation further
provided that the Court would retain jurisdiction for the purpose of
enforcing the terms and conditions of the Stipulation and Order. It was
so ordered and entered on the record on April 3, 2006. On August 29,
2006, petitioner filed an Emergency Motion to Hold Respondents in
Contempt of Court, Emergency Petition for Warrant in Lieu of Writ of
Habeas Corpus, and Request for Emergency Hearing, because the
grandparents concealed the child and refused to turn the child over to
the mother on the court-ordered date for return of August 28, 2006. An
Order to Show Cause was issued and a hearing was held on the emergency
motion. The grandmother and grandfather admitted that they failed to
comply with the April 2006 Order, and they continued to refuse to comply
with the order. The grandmother and grandfather were held in contempt of
court and a warrant was issued for their arrest. They were released from
the custody of the Marshal upon causing the child to be relinquished and
returned to the mother in Canada. The child resided with the mother in
Canada since that date. The father initiated a custody proceeding in
Onondaga County Family Court, apparently in January 2007. The mother
filed a motion to dismiss, which was denied by the referee. The referee
then set August 8, 2007, for a trial to determine custody and parenting
time rights, prompting petitioner to bring this proceeding to enforce
the April 2006 Order. On March 7, 2007, the father filed a motion for
modification of the Canadian custody order, or in the alternative for a
change of custody, in the Superior Court for the District of Longueuil,
Quebec, Canada. Petitioner sought a permanent injunction preventing
custody determinations from being made in the courts of New York State,
specifically the Onondaga County Family Court. She contended that a
permanent injunction is required in order to protect and effectuate the
April 2006 Order. The Court granted her motion. It noted that under the
The Anti-Injunction Act Proceedings in state courts cannot be interfered
with by federal courts except in very limited circumstances. (Citing
Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 146, 108 S.Ct. 1684, 1689,
100 L.Ed.2d 127 (1988). The Anti-Injunction Act now provides: A court of
the United States may not grant an injunction to stay proceedings in a
State Court except as expressly authorized by Act of Congress, or where
necessary in aid of its jurisdiction, or to protect or effectuate its
judgments. 28 U.S.C 2283. In other words, a federal court may enjoin
state court proceedings where expressly authorized by Congress, to aid
in the federal court's jurisdiction, and to protect or effectuate a
federal court's judgment. So long as an injunction is not prohibited by
the Anti-Injunction Act, a federal court may, within its equitable
discretion, enjoin state court proceedings. The court analyzed the
statute and First concluded that there is no express authorization by
Act of Congress which would permit the injunction. The first exception
was therefore inapplicable. Thus, an injunction may issue only if it
falls within the "in aid of jurisdiction" or "to protect or effectuate a
judgment" exception. The in Aid of Jurisdiction Exception permits
enjoining state court proceedings "where necessary in aid of its
jurisdiction." 28 U.S.C. 2283. This exception must be "read in tandem
with the All Writs Act, 28 U.S.C. 1651." The All Writs Act provides that
"The Supreme Court and all courts established by Act of Congress may
issue all writs necessary, or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law." 28
U.S.C. 1651(a). Oftentimes this exception is applied " 'where the court
has been heavily involved in settlement negotiations or the formulation
of a consent decree.' " It is also applicable "where issues subsequently
raised in state court cannot be separated from the relief previously
ordered in federal court." Finally, an injunction in aid of jurisdiction
is particularly appropriate where a district court retains jurisdiction
over suits related to a consent judgment." The Court was deeply involved
in enforcing the April 2006 Order when the grandmother and grandfather
failed to comply with it and the Court found them in contempt and
ordered their arrest pending compliance. . Additionally, the Federal
Court ordered relief that cannot be separated from relief sought in the
pending state family court proceeding. The Court ordered that the child
be returned to reside with the mother in Canada, relief that would be
rendered ineffective if the state family court made a custody
determination in favor of the father. Further, the Court ordered that
enforcement of the allegedly existing Onondaga custody orders and
Canadian custody orders not be sought, and that no additional custody
orders would be sought. The father's custody petition in state court
directly contravened that order. Finally, the Federal Court retained
jurisdiction in order to enforce the terms and conditions of the April
2006 Order. Accordingly, enjoining the New York State family court
proceeding was permissible under the "necessary in aid of its
jurisdiction" exception. See Am. Soc'y of Composers, Authors, &
Publishers, 442 F.2d at 603; Hutton Constr. Co., 1997 WL 291954, at 4.
The court also noted that the third exception, to protect or effectuate
a federal court's judgments, is commonly referred to as the "relitigation
exception." The relitigation exception, "founded in the well-recognized
concepts of res judicata and collateral estoppel," allows a federal
court to prevent relitigation in state court of an issue previously
decided by the federal court. Res judicata applies to "preclude
relitigation of a claim where the earlier decision was a final judgment
on the merits rendered by a court of competent jurisdiction, in a case
involving the same parties or their privies, where the same cause of
action is asserted in the later litigation." A consent judgment, because
it is an exercise of judicial authority, is "entitled to res judicata
effect." Accordingly, a stipulation so ordered by the court is a
judgment entitled to be protected and effectuated. See Amalgamated Sugar
Co., 825 F.2d at 640. Thus, if the issues presented in the state court
action are the same as those litigated by the parties or their privies,
and actually decided in this case, then the Anti-Injunction Act does not
preclude enjoining the state court proceeding. The court found that the
issues resolved in this Federal Court and those before the referee were
identical. The father was properly considered a party to this action.
Even if he were not considered a party, he and any and all other persons
acting on behalf of the child were bound by any injunction entered in
this Federal Court action. The April 2006 Order had the effect of a
binding judgment on the merits; therefore, the issues decided in it
precluded relitigation of the same issues in a state court proceeding.
Thus, the Federal Court could enjoin the state court custody proceeding
in aid of its jurisdiction and to protect and effectuate its orders.The
Court noted that ICARA provides that a petitioner seeking the return of
a child, if successful, is entitled to an award of necessary expenses
including court costs and legal fees unless a respondent establishes
that such an award "would be clearly inappropriate." 42 U.S.C. 11607.
The mother brought this action pursuant to 42 U.S.C. 11603 seeking the
return of the child. The Federal Court ordered the child returned to the
mother.Accordingly, the mother was entitled to an award of necessary
expenses including court costs and legal fees unless the grandmother,
grandfather, and/or the father established that such an award "would be
clearly inappropriate." See 42 U.S.C. 11607. Petitioner was given an
appropriate time within which to file an application for such necessary
expenses, and respondents will have the opportunity to respond.
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