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holding that Younger abstention was appropriate where the petitioner had filed a Hague Convention petition in state court previous to filing it in federal court
Summary of this case from Witherspoon v. Orange County Dept. of Social ServicesOpinion
00-CV-3824 (UG)
August 25, 2000
JOSEPH LEE MATALON, New York, NY, Attorney for Plaintiff.
ROBERT D. ARENSTEIN, New York, NY, Attorney for Defendant.
MEMORANDUM AND ORDER
This action, brought under an international convention and its implementing legislation, seeks the return of plaintiffs child from the defendant, who is plaintiffs ex-wife and the child's mother, and a stay of state court custody proceedings. For the reasons discussed below, I dismiss the action under the Younger abstention doctrine.
BACKGROUND
Unless otherwise noted, the following facts are not in dispute.
Plaintiff Gad Grieve and Defendant Elisheva Tamerin were married on July 7, 1995, in Israel. (Declaration of Gad Grieve, July 27, 2000, ("Grieve Declaration") ¶ 2.) On April 16, 1996, Tamerin and Grieve had a child, Simcha Zissell. (Amended Complaint, ¶ 9.) In September 1997, Tamerin and Grieve received a divorce order by the Beth Din of Rabbi Nissim Karelitz, and, pursuant to a private agreement, Grieve was awarded custody of Simcha, with Tamerin having visitation rights. (Grieve Declaration, ¶¶ 2, 6; Affidavit of Elisheva Tamerin in Opposition to Order to Show Cause ("Tamerin Affidavit"), ¶¶ 2, 4.) The parties dispute whether Tamerin's participation in the process was knowing and voluntary and what, if any, legal effect on custody the decree by this rabbinical court has under Israeli law.
On December 19, 1999, Grieve and Simcha went to England. (Grieve Declaration, ¶ 11.) On January 19, 2000, the two traveled to New York. ( Id., ¶ 12.) Grieve contends that he intended to stay only briefly in order to find a wife, ( id.), while Tamerin contends that Grieve intended to settle in New York permanently, (Affirmation of Robert D. Arenstein in Opposition to Order to Show Cause ("Arenstein Affirmation"), ¶ 9.) Grieve contends that this travel with Simcha was authorized by his divorce agreement and Israeli law, while Tamerin argues that the travel was in violation of both.
Tamerin subsequently came to New York as well. (Tamerin Affidavit, ¶ 9.) On March 29, 2000, she obtained a temporary award of custody from the New York Supreme Court, Kings County, and Grieve was awarded visitation rights. (Garson, J.)
In May 2000, Grieve moved to dismiss the custody action, arguing that custody could not be adjudicated in the United States because of the dictates of the Convention on the. Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980 ("Hague Convention") and its implementing legislation, 42 U.S.C. § 11604 et seq. (Grieve Declaration, Exh. T.) That motion is still pending before the Supreme Court.
At oral argument, Grieve's new counsel contended that his client had made no Hague Convention application to the state court. That contention is contradicted by Exhibit T, which is a July 24, 2000, letter from Grieve to Justice Garson stating that he made the Hague Convention application in May and asking for a written decision on the application. (The fact that Grieve did not use the word "petition," the term of art used the in Convention is immaterial, especially given Grieve's pro se status at the time.)
Counsel's assertion is further contradicted by Paragraph 25 of his client's declaration, dated July 27, 2000, in which he states:
Recently, I brought an Order to Show Cause, in the State Supreme Court, requesting the Court to invoke the provisions of the Hague Convention, and return my passport so that my son may be returned to me and we can go back home. This was despite my objections, when acting pro se, that this delay was in contravention of the Hague Agreement and Article 11, which requests expeditious consideration thereof. . . . I have also requested a "Statement of Reason' from the Hon. Judge Gerald Garson (Exhibit T), asking him to give reason for the delay in making a decision regarding a previous attempt to invoke the Hague Convention, terms of Article 11 of the Convention.
Finally, Paragraph 26 of the amended complaint states that "there is an Order to Show Cause before Justice Gerald Garson of the State Supreme Court . . . seeking relief under the Hague Convention."
By order to show cause and amended order to show cause, Grieve, actingpro se, initiated the instant action. Relying on the Hague Convention, he seeks an order delivering Simcha to him and staying the state court proceedings.
Grieve is now represented by counsel.
DISCUSSION
A. The Hague Convention
The Hague Convention "seeks to `protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence.'" Blondin v. Dubois, 189 F.3d 240, 244-45 (2d Cir. 1999) (quoting Hague Convention, Preamble).
A court hearing a case brought under the Hague Convention is empowered only to adjudicate parties' rights under the Convention, "not the merits of any underlying child custody claims." 42 U.S.C. § 11601(b)(4). Accordingly, once a Hague Convention motion is made, a court should not make a custody decision "`until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time.'" Blondin, 189 F.3d at 245 n. 2 (quoting Hague Convention, Art. 16.) Applications brought under the Hague Convention are to be decided "`expeditiously.'" Id. at 243 (quoting Hague Convention, Art. 11).
A party bringing a Hague Convention action for return of a child must show by a preponderance of the evidence that the child was "wrongfully removed or retained within the meaning of the Convention." 42 U.S.C. § 11603 (e)(1)(A). Removal or retention is considered "wrongful" under the Convention if "`it is in breach of rights of custody attributed to a person . . ., either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention'" and if "`those rights were actually exercised'" at the time of the removal or retention. Blondin, 189 F.3d at 245 (quoting Hague Convention, Art. 3.) If the petitioner successfully shows wrongful removal or retention, "the child must be returned," unless the respondent proves that one of the Convention's exceptions apply.Blondin, 189 F.3d at 245 (citing 42 U.S.C. § 11601 (a)(4)).
B. Younger Abstention
Although the federal courts generally "`have a strict duty'" to decide cases over which they have jurisdiction, there are "`exceptional circumstances'" that can justify abstaining. Philip Morris. Inc. v. Blumenthal, 123 F.3d 103, 105 (2d Cir. 1997) (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996) Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976)). The defendant argues that such circumstances are present in this case and that it is an appropriate one for so-called Younger abstention. See Younger v. Harris, 401 U.S. 37 (1971). Under this doctrine, a federal court may refuse to hear a case "`that would interfere with a pending state criminal proceeding or with certain types of state civil proceedings.'" Philip Morris, 123 F.3d at 105 (quoting Quackenbusch, 517 U.S. at 716).
The Second Circuit has said that there are three requirements for Younger abstention: "`1) there is an ongoing state proceeding; 2) an important state interest is implicated; and 3) the plaintiff has an avenue open for review of constitutional claims in the state court.'"Philip Morris, 123 F.3d at 105 (quoting Hansel v. Town Court, 56 F.3d 391, 393 (2d Cir. 1995)).
Although the quoted language refers specifically to constitutional claims, courts have also found Younger abstention applicable when a party seeks to vindicate federal statutory rights. See, e.g., Martinez v. Scopetta, No. 96 Civ. 7580, 1997 WL 316714, at *7 n. 3 (S.D.N Y June 10, 1997).
It is undisputed that there is an ongoing custody proceeding in state court between Grieve and Tamerin. In fact, granting Grieve the relief he seeks here would have the effect of enjoining that state proceeding.
In assessing the importance of the state's interest in a given proceeding, I must look not to its interest in the outcome of a particular case, but rather to "`the importance of the generic proceeding to the State.'" Phillip Morris, 123 F.3d at 106 (quoting New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 365 (1989)). There is no question that the states have a strong interest in domestic relations matters generally and child custody questions in particular.See Moore v. Sims, 442 U.S. 415, 435 (1979) ("Family relations are a traditional area of state concern."); Neustein v. Orbach, 732 F. Supp. 333, 341 (E.D.N.Y. 1990) ("`In this narrow area of law [child custody], we should be especially careful to avoid unnecessary or untimely interference with the State's administration of its domestic policies.'" (quoting Mendez v. Heller, 530 F.2d 457, 461 (2d Cir. 1976) (Oakes, J., concurring)).
Finally, there has been an insufficient showing at this point that the state courts will not afford Grieve an adequate opportunity to litigate his federal claim. Grieve argues that the entire purpose of the Hague Convention would be subverted by forcing him to raise his claim in the very state courts that, he contends, are predisposed against transferring custody determinations abroad. This argument is belied by the Convention's implementing legislation, however, which explicitly vests concurrent jurisdiction over Convention claims in federal and state courts. See 42 U.S.C. § 11603 (a). Moreover, Grieve has already availed himself of the state court's jurisdiction by making his Hague Convention application (the same one he has made here) in state court.See H.C. v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000) (finding Younger abstention appropriate when plaintiffs had "already raised some of the same . . ., issues" in the state courts and could appeal any adverse determinations there); Brunken v. Lance, 807 F.2d 1325, 1330 (7th Cir. 1986) (noting that the plaintiff "not only had such an opportunity, but he also took advantage of it"). If that application is denied, he may appeal through the New York court system and, if necessary, seek review by the United States Supreme Court.
I am mindful of the fact that although a court must determine whether the Hague Convention is applicable before making any custody determination see Blondin, 189 F.3d at 245 n. 2, the state court has already awarded temporary custody of Simcha to Tamerin. However, at the time the court issued that order, there was no Hague Convention application before it. The state court has not taken any further action, such as, for example, awarding permanent custody, since Grieve's Hague Convention application was made.
I also realize that Grieve made his Hague Convention application to the state court in May and, as of the date of oral argument on the instant motion, the state court has not decided it. Courts have an obligation to quickly decide applications brought under the Convention. See id. at 243. While Grieve is understandably eager for a quick resolution of this question, I do not believe that the state court's three-month consideration of the application — which appears to raise complex questions of both American and Israeli law — has reached the point of constituting a deprivation of a meaningful opportunity for Grieve to raise his federal claim in state court.
CONCLUSION
For these reasons, the defendant's motion to dismiss this action under the doctrine of Younger abstention is granted. The Clerk is directed to enter judgment against plaintiff and close this case.
So Ordered.