The initial question is whether there is a parallel state proceeding that raises "substantially identical claims [and] nearly identical allegations and issues." Yang v. Tsui, 416 F.3d 199, 204 n. 5 (3d Cir. 2005) (internal quotation and citation omitted). If the proceedings are parallel, courts then look to a multi-factor test to determine whether "extraordinary circumstances" meriting abstention are present.

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."

At least one other circuit has addressed this issue and found abstention inappropriate. See generally Yang v. Tsui, 416 F.3d 199 (3d Cir.2005). The Court also notes the Eighth Circuit's position that abstention is per se unavailable in Hague Convention proceedings.

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. Id.; Yang v. Tsui, 416 F.3d 199, 202 (3d Cir. 2005). The Younger case concerned state criminal proceedings but its principles have been applied to civil proceedings in which important state interests are involved. Moore, 442 U.S. at 423.

Third, Respondent has raised legitimate concerns regarding forum shopping, evidenced by the fact that Petitioner did not file the Petition in this Court until after availing herself of state court, and receiving an unfavorable ruling. Lastly, there is no doubt that the state court "will resolve all issues before the federal court" given the state court specifically designated a "Hague Judge" in addition to scheduling a Hague evidentiary hearing before those proceedings were postponed by the COVID-19 pandemic. Petitioner cites to Yang v. Tsui, 416 F.3d 199 (3d Cir. 2005), and similar cases, for the proposition that if the Hague issue has been "raised but not litigated" in state court, a federal court should not abstain from hearing a Hague Petition. Yang, 416 F.3d at 202.

"Three requirements must be met before Younger abstention is appropriate: (1) there must be an ongoing state judicial proceeding to which the federal plaintiff is a party and with which the federal proceeding will interfere, (2) the state proceedings must implicate important state interests, and (3) the state proceedings must afford an adequate opportunity to raise the claims." Yang v. Tsui, 416 F.3d 199, 202 (3d Cir. 2005). In the instant matter, part of the first prong for Younger abstention is clearly satisfied: Plaintiff admits in his response papers to Defendant's motion that his case in this Court "will in no way impede the New York Supreme Court matrimonial action, the sole issue of which is equitable distribution of certain assets."

The weight of authority elsewhere is divided as to whether Younger abstention is applicable in the context of an ICARA petition, even when a state court custody proceeding is completed or ongoing. See Brazilay v. Brazilay, 536 F.3d 844, 850 (8th Cir. 2008), quoting Yang v. Tsui, 416 F.3d 199, 204 (3d Cir. 2005) (Younger abstention not appropriate because state custody proceeding should give way to adjudication of ICARA petition); Karpenko v. Leendertz, 619 F.3d 259, 262 n.1 (3d Cir. 2010), citing Yang, 416 F.3d at 202 (Younger abstention not applicable when Hague Convention issues not raised in state court proceedings); Hazbun Escaf v. Rodriquez, 191 F.Supp.2d 685, 692-93 (E.D. Va. 2002) (“Although a state has a manifest interest in the outcome of a child custody dispute adjudicated in its courts, the resolution of a custody dispute is not at issue in a Hague Convention petition.”); but see Yang, 416 F.3d at 202 (“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”); Grieve v. Tamerin, 269 F.3d 149,153 (2d Cir. 2001); Minette v. Minette, 162 F.Supp.3d 643, 650 (S.D.

"The threshold question in this analysis is whether there is a parallel state proceeding." Yang v. Tsui, 416 F.3d 199, 205 (3d Cir. 2005).

The Seventh Circuit rejected the mother's argument that a custody order from the Cook County Circuit Court mooted the Hague petition, citing various other federal courts that had held that state court rulings or judgments on the issue of custody “do not deprive the federal courts of jurisdiction to rule on the merits of the petitions, either in the first instance or on appeal.” Id. at 1116-17 (citing Yang v. Tsui, 416 F.3d 199, 201-04 (3d Cir.2005); Silverman v. Silverman, 338 F.3d 886, 894 (8th Cir. 2003); Holder v. Holder, 305 F.3d 854, 864-66 & 867-72 (9th Cir. 2002)). The Seventh Circuit reasoned that because the parties disputed habitual residence, the district court first must resolve that question to determine which country had the power to resolve the issue of custody.

"Three requirements must be met before Younger abstention is appropriate[.]" Yang v. Tsui, 416 F.3d 199, 202 (3d Cir. 2005). "(1) [T]here must be an ongoing state judicial proceeding to which the federal plaintiff is a party and with which the federal proceeding will interfere, (2) the state proceedings must implicate important state interests, and (3) the state proceedings must afford an adequate opportunity to raise the claims."