Case Update: 1980 Hague Abduction Convention, Abstention Doctrine

The June 23, 2020 opinion in Cordoba v. Mullins raises an interesting abstention issue between a State Court divorce and protection order case and a Federal Hague Abduction return petition.  

Ms. Mullins (Mother) allegedly absconded with the parties’ two minor children to Illinois on January 4, 2020.  After learning of the children’s departure, Mr. Cordoba (Father) filed an "international parental child abduction case" in Ecuador and enrolled the children in the Passport Issuance Alert Program.  On January 9, 2020, Ms. Mullins filed a dissolution petition and a civil protection order matter in Cook County Circuit Court in Illinois (which were consolidated into one State Action).  

On March 18, 2020, Mr. Cordoba filed a motion to dismiss the State Action arguing a lack of jurisdiction.  That motion remains open and unresolved.  The Motion itself, according to the federal court, first raised the issue of the Hague Abduction Convention (despite not being a return petition filed under the Hague Abduction Convention and its implementing legislation). Mr. Cordoba did file an application with the Ecuador Central Authority on March 9, 2020, but had not yet filed any required court action in the United States to initiate a request for the return of his children using the treaty before he filed his motion to dismiss the State Action.

In the parties’ State Action in Illinois, Ms. Mullins filed a Motion for Declaratory Judgment that argued that Ecuador is not the children’s habitual residence and that, if it were, it would be a grave risk to return the children.  She asked for a declaratory judgment to declare the rights of the parties with regard to Mr. Cordoba's request to have the children returned to Ecuador. These arguments are tantamount to what she would argue in a Hague Abduction case.  

Four days later, Mr. Cordoba filed his Hague return petition in the federal court, and Ms. Mullins filed a motion to dismiss or stay, based on the abstention doctrine (that the issue was already pending in the State Action).

The federal court agreed with Ms. Mullins and stayed (but did not dismiss) the federal Hague Abduction case.  The federal court concluded that the parties were the same, the issues arose out of the same facts, and similar legal issues were raised by the parties in the parallel State Action. The federal court decided that the State Action would dispose of the claims presented in the federal case.  The cases need not be identical.

The Court felt that Mr. Cordoba first raised the Hague Convention claim in his motion to dismiss and Ms. Mullins further addressed it in her subsequent filing in the State Action, so Mr. Cordoba’s federal Hague Abduction return petition was essentially forum-shopping and duplicative.

In a footnote, the federal court noted that determining the children’s habitual residence and the possible harm to the children if returned to Ecuador “implicate considerations that the state court has some level of expertise in handling.” 

Compare this case to a recent abstention case in California, Barron v. Kendall, where the California family court had already scheduled a trial date to resolve the Hague Abduction issue before the federal Hague return petition was filed.