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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.
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