In Barzilay v Barzilay, 536 F.3d 844 (8th
Cir. 2008) Sagi Barzilay sought the return to Israel of the children
from his marriage to Tamar Barzilay, by invoking the Hague Convention.
Tamar previously petitioned a state court to modify custody provisions
in their Missouri divorce decree. Sagi moved to dismiss her petition on
the grounds that the state court lacked jurisdiction over the children's
custody because of a prior decree issued by an Israeli court, and he
then initiated this federal action under the International Child
Abduction Remedies Act. Tamar moved to dismiss the federal action for
failure to state a claim. The district court abstained sua sponte under
Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971),
concluding that Sagi had an adequate opportunity to litigate his Hague
Convention claims in the ongoing state court proceedings. The Eighth
Circuit reversed.
Sagi and Tamar were both Israeli citizens. At
the time of their marriage in 1994 they resided in Tel Aviv, Israel.
They had three children, all of whom were Israeli citizens; the youngest
two are also American citizens. None of the children lived in Israel for
an extended period of time. In 2001 the family moved to Missouri from
the Netherlands, and Tamar and the children lived there since that time.
On January 6, 2005 a Missouri state court entered a divorce decree in
accordance with an agreement reached by the parties. The decree
established joint custody of the children. In the divorce decree the
parties agreed that upon the repatriation of one parent to Israel, the
other parent would "forthwith" return to Israel with the minor children
to live. On September 15, 2005 Sagi repatriated to Israel, but Tamar and
the children remained in Missouri. Sagi contended that Tamar
consistently expressed her intention to repatriate to Israel with the
children in accordance with the divorce decree but refused to commit to
a timeline for complying.
In June 2006 Tamar took the children to Israel
for a visit, intending to return to the United States on July 9, 2006.
They were accompanied by Matt Johnson, the man whom Tamar subsequently
married. On July 3, 2006 Sagi filed an ex parte request for stay of exit
of minors in the family court of K'far Saba, Israel. Sagi argued that
Tamar had violated the Missouri court decree by failing to repatriate to
Israel with the children. Tamar states that she was informed of this
proceeding on July 4, 2006 and was compelled to participate in it
because Sagi had possession of the children's passports. The parties
entered into a consent agreement. Tamar agreed to an interim
international parenting agreement pending her repatriation to Israel
consistent with the Missouri divorce decree and to repatriate to Israel
with the children by August 1, 2009. The parties agreed that Tamar's
repatriation by the appointed date was an "irrevocable commitment" and
that the "sole and only international authority in regards to the
minors' immigration, repatriation and custody" was the court in K'far
Saba. Tamar expressly agreed not to file a custody petition in Missouri
or in any place other than Israel and that any petition filed in
Missouri or any other court outside of Israel would be transferred to an
Israeli court. She also agreed that "[n]ot returning the minors to the
state of Israel by the appointed time is regarded as kidnapping" in
violation of the Hague Convention. As security for being allowed to
leave Israel with the children, Tamar had to pay Sagi $200,000 and post
her Missouri house as collateral. Tamar admits that she was represented
by competent counsel in the Israeli proceedings. The consent agreement
was formalized in a verdict of the Israeli court. Tamar testified in an
affidavit submitted to the federal district court that she only signed
the Israeli consent agreement so that she would be permitted to leave
the country with the children and that she had no intention of complying
with its terms.
On December 3, 2006, Sagi sued Tamar in the
Israeli court, on the grounds that she had not complied with the consent
decree by refusing to permit the children to visit Israel as agreed upon
in the consent agreement. In response Tamar retained counsel in Israel
and challenged the judgment that was entered upon the consent agreement.
On July 3, 2007, the Israeli court issued a judgment holding Tamar in
contempt of court for failing to return the children to Israel for a
visit as required under the agreement and ordered her to do so by July
10, 2007. She appealed, but the lower court was affirmed on November 26,
2007.
Meanwhile on June 6, 2007, Tamar filed a
petition in Missouri state court to modify the couple's divorce decree
to restrict Sagi's visitation rights with the children and a month later
she moved for a temporary restraining order to prevent the enforcement
of the Israeli judgment requiring her to send the children to Israel by
July 10. Sagi entered an appearance for limited purpose in state court
to challenge its jurisdiction, but at no time did he file a Hague
petition there. On October 16, 2007, the state court issued an order
denying Sagi's motion to dismiss or in the alternative to decline
jurisdiction. In its two page order the court stated that "[t]he mere
presence of the minor children on vacation in Israel is insufficient to
establish a 'habitual presence' [under ICARA]."
Sagi filed this suit in the Eastern District of
Missouri on October 18, 2007, seeking immediate access to the children
and their return to Israel under ICARA. 42 U.S.C. 11603(b). Tamar moved
to dismiss for failure to state a claim under the Hague Convention and
ICARA, arguing that because the children's habitual residence was
Missouri and they had never been wrongfully removed from their habitual
residence, Sagi could not state a claim under the Hague Convention or
ICARA. The district court first addressed whether it had subject matter
jurisdiction under ICARA to determine whether the children were
wrongfully detained in Missouri. It decided that it had and then
considered whether it should address the substantive issues in light of
the ongoing state proceeding. It abstained from hearing the case
pursuant to Younger, 401 U.S. at 37, 91 S.Ct. 746, to avoid interfering
with a state court ruling on what it considered the merits of a Hague
Convention claim.
The Eighth Circuit reversed. It pointed out
that Federal courts have a "virtually unflagging obligation ... to
exercise the jurisdiction given them." Colorado River Water Conservation
Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483
(1976). The Supreme Court has articulated several abstention doctrines
as exceptions to this rule, one of which is the Younger doctrine. See
Younger, 401 U.S. at 37, 91 S.Ct. 746. In order for a federal court to
abstain under the Younger doctrine there must be an ongoing state
proceeding which implicates important state interests and which affords
an adequate opportunity to raise the federal issues. Middlesex County
Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct.
2515, 73 L.Ed.2d 116 (1982); Silverman I, 267 F.3d at 792. The Hague
Convention requires that state court custody proceedings be stayed until
the resolution of the Hague litigation. Hague Convention art. 16,
T.I.A.S. No. 11670 ("[T]he judicial or administrative authorities of the
Contracting State to which the child has been removed or in which it has
been retained shall not decide on the merits of rights of custody until
it has been determined that the child is not to be returned under this
Convention.") (emphasis added); Yang v. Tsui, 416 F.3d 199, 201 (3d
Cir.2005). While ICARA does not have a similar express provision, the
purpose of the Convention is to "provide for a reasoned determination of
where jurisdiction over a custody dispute is properly placed." Yang, 416
F.3d at 203. It is thus "consistent with this purpose that it is the
custody determination, not the Hague Convention Petition, that should be
held in abeyance if proceedings are going forward in both state and
federal courts." Id. The pendency of state custody proceedings therefore
does not support Younger abstention in the Hague Convention context.
Moreover, given that Sagi obtained a custody determination from an
Israeli court and Tamar has obtained a custody determination from a
state court in this country, the federal district court was uniquely
situated to adjudicate the question of whether Israel or Missouri is the
habitual residence of the Barzilay children and whether they were
wrongfully removed from that residence. See id. at 204; 42 U.S.C. s
11601(b)(3)(B) (emphasizing "the need for uniform international
interpretation of the Convention"). Although the state clearly has an
important interest in child custody matters, that interest has not been
considered to be a significant factor in terms of abstention where ICARA
is involved. See Yang, 416 F.3d at 204 ("It would make the Hague
Convention and ICARA meaningless if a federal court abstained in a Hague
Convention Petition because child custody was being disputed in state
court.").
The parties disputed whether the state court
proceedings afforded Sagi an adequate opportunity to raise the Hague
Convention issues. The controlling case in the circuit was Silverman I,
which concluded that abstention was inappropriate in Hague Convention
cases. 267 F.3d at 792. The district court in this case sought to
distinguish Silverman I, citing the Third Circuit's decision in Yang
which recognized situations in which the Hague Convention issues could
be litigated in state court: [i]n a situation where there is a state
court custody proceeding and a petition is filed in federal court under
the Hague Convention, but the Hague Convention has not been raised, or
raised but not litigated, in the state court, the federal court has
generally found that abstention is not appropriate. Where the Hague
Convention Petition has been raised and litigated in the state court,
abstention by the federal court has generally been found to be
appropriate. 416 F.3d at 202. It is the "petitioner [who] is free to
choose between state or federal court." Yang, 416 F.3d at 203. Neither
Tamar nor Sagi filed a Hague petition in state court. Tamar merely
referenced the Hague Convention twice, in her motion to modify the
divorce decree, and in her motion for a temporary restraining order. At
no time did Tamar file a Hague petition in the Missouri court. She did
not request the state court to make a habitual residence determination
under the Hague Convention. She did not allege or ask the state court to
rule that Sagi had wrongfully removed the children to Israel or
wrongfully retained them there. Sagi's special appearance in Missouri
was for the "limited purpose of opposing [the state court's]
jurisdiction." Sagi restricted his state court arguments to
jurisdictional issues. He never raised the Hague Convention before the
state court except to contest its exercise of jurisdiction. Sagi never
engaged in an argument in the state court on the merits of the Hague
Convention considerations--habitual residence and wrongful removal.
Rather, he informed the state court that he intended to file a Hague
petition in federal district court to litigate the merits of the Hague
issues in that forum. Because neither parent filed a Hague petition in
state court, the Court concluded that the Hague Convention issues were
not properly or fully raised in that proceeding. The parties did not
litigate the merits of such issues, and any statement by the state court
touching on an issue under the Hague Convention inquiry is not
controlling. It is "the petitioner [who] is free to choose between state
or federal court," Yang, 416 F.3d at 203, and in the absence of a Hague
petition the state court proceeding did not present an adequate
opportunity to litigate ICARA issues. It was therefore an abuse of
discretion for the district court to abstain.
The Court expressed no opinion on the issues of
the habitual residence of the children or of wrongful removal or
retention and left those for the district court.
