Case Update: 1980 Convention, Federal vs. State Court, Abstention Doctrine
The U.S. District Court issued a new order on May 18, 2020 in the Barron v. Kendall case related to the issue of abstention in a Hague Abduction return proceeding simultaneously before the state courts and the federal courts.
In this case, the father allegedly abducted the parties’ 5-year-old child from Mexico to San Diego, California, where, about one week later, he filed for custody. He was granted temporary emergency custody. The mother appeared in the custody case in February 2020 and requested that the family court return the child to Mexico. The judge denied the mother’s request, but set in, sua sponte, the case for a “Hague Status hearing” despite the fact that no petition was filed requesting that the child be returned to Mexico using the 1980 Hague Abduction Convention. At the status hearing, the judge set in a trial date on the Hague Abduction issue, but it was continued, and continued again, due to court closures related to COVID-19. As of the federal court’s May 18, 2020 opinion, the Hague matter has still not been concluded in the state court.
In April 2020, a few months after the initiation of the family court case, the mother filed a Hague Abduction return proceeding in the U.S. District Court for the Southern District of California. She requested the child’s return, and for the federal court to vacate the San Diego family court’s temporary custody order. The mother also filed a motion in the state family court case to vacate the temporary court order and stay that case. The father sought an expedited Hague evidentiary hearing in the state court, which was denied due to a lack of legal emergency. The court also denied the mother’s request to stay as moot and denied her request to vacate the temporary custody order.
The issue at hand relates to where the Hague return petition will proceed - state court or federal court. The father argued that the Hague proceedings were already commenced in the state family court, and would have proceeded, but for COVID-19. He argued that despite the lack of a formal Hague filing in the state court, the court took up the matter, and the mother did not object. He further argued that the mother, filing in federal court, was forum shopping. The mother argued that it is her prerogative of where to file, and that the state court raised the issue sua sponte, and it has not been litigated.
The federal court recognized the abstention issue of one of first impression, and admitted that it is unaware of authority that permits (or not) a court to sua sponte raise a Hague abduction issue. The state court judge, at the emergency hearing where the mother requested her child’s return to Mexico, specifically refused to return the child, and then set in the case to be scheduled for a Hague Abduction return hearing on an expedited basis before the designated “Hague judge.”
The mother, having failed to raise any timely objection to proceeding in state court, waived her right to object to the state court hearing the proceedings. She never notified the state court that she intended to file her Hague return petition in the federal courts, and she allowed the court to set in a hearing and assign the case to a specific judge.
The federal court concluded that the Hague Abduction case is properly before the San Diego state family court, and then further concluded that the state court should not abstain from hearing the matter. There are ongoing judicial proceedings that implicate state interests (i.e., family law) and the mother will have more than sufficient opportunity to raise all relevant claims in the state court. (Younger v. Harris, 401 U.S. 37 (1971)). The U.S. District Court dismissed the mother’s petition in federal court to conserve judicial resources, avoid conflicting judgments, and in the interest of comity. She will have the opportunity to fully litigate her Hague return petition when the state court reopens.