Bouvagnet, Patrice v. Bouvagnet, Jean C. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3928
PATRICE BOUVAGNET,
Plaintiff-Appellant,
v.
JEAN C. BOUVAGNET,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 4685—Ronald A. Guzman, Judge.
____________
ARGUED FEBRUARY 28, 2002—DECIDED JULY 26, 2002
____________
Before RIPPLE, MANION and EVANS, Circuit Judges.
RIPPLE, Circuit Judge. After his wife filed for divorce
in Cook County, Illinois, Patrice Bouvagnet, a resident of
France, filed a petition in the district court, seeking the re-
turn of the couple’s two children to France. Mr. Bouvagnet
petitioned under the International Child Abduction Rem-
edies Act, 42 U.S.C. §§ 11601-11610 (“ICARA”), which im-
plements the Hague Convention on the Civil Aspects
of International Child Abduction, Oct. 25, 1980, T.I.A.S.
No. 11670, 1343 U.N.T.S. 89 (“Hague Convention”). The dis-
trict court dismissed the petition, holding that Younger v.
Harris, 401 U.S. 37 (1971), required abstention. For the rea-
sons set forth in the following opinion, we reverse the
judgment of the district court.
2 No. 01-3928
I
BACKGROUND
A. Facts
Patrice and Jean Bouvagnet were married in New York
City in 1988. They later moved to France where their twin
children, Jennifer and Maxime Bouvagnet, were born in
1995. In November 1998, Patrice and Jean Bouvagnet filed
for divorce in a French court and agreed to a “temporary
convention,” which provided that the Bouvagnets would
share custody of the children. In December 1998, Mrs.
Bouvagnet represented to Mr. Bouvagnet that she wanted
to move to Chicago for a short time with the children
where she would work as a flight attendant for her em-
ployer, United Airlines, until she could earn enough sen-
iority and good will to secure a transfer to Paris, France.
Mr. Bouvagnet agreed. That same month, Mrs. Bouvagnet
initiated the application process for obtaining French citi-
zenship.
Mrs. Bouvagnet left France with her two children that
December and, after visiting her family, moved to Chicago
in January 1999. Throughout 1999, Mrs. Bouvagnet contin-
ued to represent to Mr. Bouvagnet that she would soon
return permanently to France. Indeed, in August 1999, Mrs.
Bouvagnet visited France to sign papers concerning her
application for French citizenship. In that regard, Mr. and
Mrs. Bouvagnet agreed in November 1999 to put the French
divorce proceedings “on hold,” because Mrs. Bouvagnet’s
application for French citizenship was based on her mar-
riage to Patrice Bouvagnet, a French citizen. R.1 at 13. A
French court dismissed the divorce proceeding the follow-
ing month for want of prosecution.
Mrs. Bouvagnet assured Mr. Bouvagnet in January 2000
that her transfer to Paris would soon be effected. In Febru-
No. 01-3928 3
ary 2000, however, Mrs. Bouvagnet’s application for French
citizenship was dismissed after she failed to appear for
a mandatory meeting with French authorities. That same
month, Mrs. Bouvagnet filed for divorce in Cook County,
Illinois. Mr. Bouvagnet was served with the divorce petition
in March 2000 while visiting his children. Mr. Bouvagnet
1
then instituted French divorce proceedings in May 2000.
After the Illinois court rejected Mr. Bouvagnet’s challenge
to its jurisdiction, he participated in the Illinois proceedings.
The Illinois court granted temporary custody of the children
to Mrs. Bouvagnet in July 2000 and, in March 2001, denied
Mr. Bouvagnet’s request for visitation in France. Trial was
set for June 2001. Mr. Bouvagnet informed the court in April
2001 that he intended to file a Hague petition, and the court
struck the trial dates a few days later. The Illinois proceed-
ings are still pending. Mr. Bouvagnet filed the petition with
the federal district court in June 2001.
B. District Court Proceedings
Upon Mrs. Bouvagnet’s motion, the district court ruled
that the abstention doctrine of Younger v. Harris, 401
U.S. 37 (1971), required that it abstain from hearing Mr.
Bouvagnet’s petition. The district court took the view that
it was required to abstain because three conditions ex-
isted: first, state proceedings that were judicial in nature
were pending; second, the state proceedings implicated
an important state interest; and third, the state proceed-
ings afforded Mr. Bouvagnet the opportunity to present
1
A French court dismissed the case because the Illinois proceed-
ings were ongoing, but the dismissal was overturned in October
2001 and the action recently reinstated. The record does not indicate
the current status of the French proceedings.
4 No. 01-3928
his Hague petition. See Bouvagnet v. Bouvagnet, No. 01 C
4685, 2001 WL 1263497, at *2-4 (N.D. Ill. Oct. 22, 2001) (cit-
ing O’Neill v. City of Philadelphia, 32 F.3d 785, 789 (3d Cir.
1994)). Having determined that it was required to abstain
under Younger, the district court dismissed the case.
II
DISCUSSION
The movement of children from one jurisdiction to
another in the course of a custodial dispute between their
parents has been a major problem in the last several dec-
ades and has occupied, on both the national and interna-
tional levels, significant legislative efforts to curb the prev-
alent abuses and to permit the matter of custody to be
determined in a fair and rational manner that reduces,
as far as possible, the trauma necessarily suffered by chil-
dren in such a situation. Today we must determine how
two of those efforts, the Hague Convention and the federal
implementing legislation, ought to be reconciled with ab-
stention principles that govern the relationship of federal
and state courts in this country. In order to place this is-
sue in an appropriate context, we pause to consider the
problem that precipitated the Convention and its imple-
menting legislation and the manner in which those enact-
ments attempt to address it.
A.
As of 2001, all of the states and the federal government
have enacted legislation to address the problem of child
abduction—a parent’s taking a child from a jurisdiction that
has awarded custody rights to the other parent in the hope
that a court in another jurisdiction will be more sympa-
No. 01-3928 5
thetic to the abducting parent’s plea for custody. See Paren-
tal Kidnaping Prevention Act, 28 U.S.C. § 1738A; Unif.
Child Custody Jurisdiction Act (UCCJA), 9 U.L.A. 261
(Supp. 2001); Unif. Child Custody Jurisdiction & Enforce-
ment Act, 9 U.L.A. 649 (Supp. 2001). Prior to these legisla-
tive efforts, authority to determine the custody of the child
readily was assumed by the jurisdiction in which the ab-
ducted child was present, and the courts of that state
considered themselves free to determine custody accord-
ing to what appeared to them to be, at the moment, the best
interests of the child. Accordingly, as a practical matter,
no jurisdictional limitations prevailed; courts of different
states aggressively asserted jurisdiction over the same
custody disputes and often issued conflicting orders. See
UCCJA, Prefatory Note, 9 U.L.A. 263 (1999). Because “[i]n
this confused legal situation the person who has posses-
sion of the child has an enormous tactical advantage,” id.
at 264, “the traditional wide-open jurisdictional approach
inevitably led to chaos, rampant child abduction, and un-
ending litigious strife.” Christopher L. Blakesley, Compar-
ativist Ruminations from the Bayou on Child Custody Juris-
diction: The UCCJA, the PKPA, and the Hague Convention on
Child Abduction, 58 La. L. Rev. 449, 464 (1998). Legislation
like the Uniform Child Custody Jurisdiction Act (“UCCJA”),
variants of which have been enacted in almost every state,
was designed to “avoid jurisdictional competition and con-
flict” among courts of different states and to deter abduc-
tions by limiting the exercise of jurisdiction by courts in
forums to which a parent unlawfully had taken a child.
UCCJA § 1, 9 U.L.A. 271 (1999); see id. § 8, 9 U.L.A. 526.
Despite such state legislative efforts to cooperate in
matters of child custody, Congress determined that state
laws controlling jurisdiction over child custody disputes
were inconsistent and conflicting and that such shortcom-
ings in the state legislation resulted in continuing child ab-
6 No. 01-3928
ductions. See Parental Kidnaping Prevention Act, Pub. L.
No. 96-611, § 7(a), 94 Stat. 3569 (1980), quoted in 28 U.S.C.A.
§ 1738A, Historical and Statutory Notes (1994). It therefore
enacted the Parental Kidnaping Prevention Act (“PKPA”)
with the goals of deterring abductions, fostering coopera-
tion and avoiding jurisdictional competition and conflict
among the states. See id. § 7(c).
The PKPA does not apply to international custody dis-
putes, and, although the UCCJA does apply to international
disputes, see UCCJA § 23, 9 U.L.A. 639 & comment, state
courts have been reluctant to defer to the custody determi-
nations of foreign courts or to order the return of children
to foreign countries. See Robert J. Levy, Memoir of an Aca-
demic Lawyer: Hague Convention Theory Confronts Practice,
29 Fam. L.Q. 171, 175 (1995). Apparently, inconsistent ap-
plication of the principles underlying the UCCJA exacer-
bated the problem of international child abduction just as
it contributed to the problem in the domestic arena. As
Congress observed in enacting the International Child Ab-
ductions Remedies Act, “[i]nternational abductions and
retentions of children are increasing, and only concerted
cooperation pursuant to an international agreement can
effectively combat this problem.” 42 U.S.C. § 11601(a)(3).
The Hague Convention, which ICARA implements, ad-
dresses this problem of international child abduction. “A
fundamental purpose of the Hague Convention is to pro-
tect children from wrongful international removals or re-
tentions by persons bent on obtaining their physical and/or
legal custody.” Department of State Public Notice, Hague
International Child Abduction Convention; Text and Legal
Analysis, 51 Fed. Reg. 10,494, 10,504 (Mar. 26, 1986) [here-
inafter State Department Legal Analysis]. Generally, the
Hague Convention requires a court to order the return
of a child who has been “wrongfully removed” from the
No. 01-3928 7
country where the child had resided with the parent who
had rightful custody of the child. Hague Convention, supra,
arts. 3 & 12. If the Hague petition is filed more than one
year since the child’s wrongful removal, the court shall
order the return of the child “unless it is demonstrated
that the child is now settled in its new environment.” Id.
art. 12. Even the existence of a custody order in the state
to which the child wrongfully has been removed will not
permit the court to refuse to order the return of the child.
See id. art. 17. Significantly, the Hague Convention and
ICARA do not empower courts to make any determina-
tion concerning the merits of the custody dispute, but al-
low for the continuation or initiation of custody proceed-
ings in the country to which the child is returned. See
ICARA, 42 U.S.C. § 11601(b)(4); Hague Convention, supra,
art. 19; State Department Legal Analysis, 51 Fed. Reg. at
10,511. Thus, both ICARA and the Hague Convention con-
template that an order for the return of a child will inter-
fere necessarily with any custody proceeding that has begun
in the state to which the child wrongfully has been re-
moved. With this background in mind, we now turn to the
situation before us.
B.
At the outset, it is important to stress the narrow nature
of the issue before us. We are not asked in this appeal to
determine whether Mrs. Bouvagnet wrongfully removed
her children from France. The only issues that we must
decide are whether the district court properly dismissed
the petition under the Younger abstention doctrine and, if
not, whether abstention is appropriate based on consider-
ations of “[w]ise judicial administration,” as in Colorado
River Water Conservation District v. United States, 424 U.S.
800, 817 (1976).
8 No. 01-3928
1.
We review de novo a district court’s decision to abstain
under Younger v. Harris, 401 U.S. 37 (1971). See Majors v.
Engelbrecht, 149 F.3d 709, 712 (7th Cir. 1998).
In New Orleans Public Service, Inc. v. Council of New Or-
leans, (NOPSI), 491 U.S. 350, 364-73 (1989), the Supreme
Court of the United States undertook to describe, in con-
temporary terms, the Younger doctrine and to place princi-
pled limitations on its scope. In NOPSI, the Supreme Court
began its appraisal by restating the general principle
that must govern all exercises of federal judicial jurisdic-
tion. “Our cases have long supported the proposition that
federal courts lack the authority to abstain from the exer-
cise of jurisdiction that has been conferred.” NOPSI, 491
U.S. at 358. “ ‘When a Federal court is properly appealed
to in a case over which it has by law jurisdiction, it is its
duty to take such jurisdiction. . . . The right of a party
plaintiff to choose a Federal court where there is a choice
cannot be properly denied.’ ” Id. at 358-59 (quoting Willcox
v. Consol. Gas Co., 212 U.S. 19, 40 (1909)). In NOPSI, the
Court was quick to add, however, that this principle can-
not negate the traditional discretion of the federal courts
to determine whether it is appropriate to grant certain types
of relief in certain circumstances.
In Younger, the Court exercised this discretion to hold that,
in the context of “Our Federalism,” Younger, 401 U.S. at 44,
federal courts ought to withhold equitable relief to avoid
undue interference with the course of ongoing state pro-
ceedings. Specifically, the Supreme Court held that, absent
extraordinary circumstances not at issue here, federal
courts should not enjoin pending state criminal prosecu-
tions. Younger, 401 U.S. at 53-54. As the Supreme Court has
often explained, its holding in Younger rests primarily on the
notion of “comity,”
No. 01-3928 9
that is, a proper respect for state functions, a recogni-
tion of the fact that the entire country is made up of a
Union of separate state governments, and a continu-
ance of the belief that the National Government will
fare best if the States and their institutions are left free
to perform their separate functions in their separate
ways.
Id. at 44; see NOPSI, 491 U.S. at 364; Middlesex County Ethics
Comm. v. Garden State Bar Assoc., 457 U.S. 423, 431 (1982).
The Court has extended the reach of Younger to certain types
of noncriminal judicial proceedings as well, see NOPSI,
491 U.S. at 367-68 (describing cases), but in the latest
such case the Court also was careful to note that it did “not
hold that Younger abstention is always appropriate when-
ever a civil proceeding is pending in a state court.” Pennzoil
Co. v. Texaco, Inc., 481 U.S. 1, 14 n.12 (1987). The difficult
problem is to discern in a principled manner those ongo-
ing state proceedings in which Younger abstention is war-
ranted. This issue was the focus of the Supreme Court’s
analysis in NOPSI. It also has been the focal point of
considerable litigation in this circuit and in others.
Relying on the Supreme Court’s decision in Middlesex,
we often have articulated a multi-part test to determine
whether a district court should abstain under Younger. “The
Younger abstention doctrine requires federal courts to
abstain from enjoining ongoing state proceedings that are
(1) judicial in nature, (2) implicate important state inter-
ests, and (3) offer an adequate opportunity for review of
constitutional claims, (4) so long as no extraordinary cir-
cumstances exist which would make abstention inappropri-
ate.” Green v. Benden, 281 F.3d 661, 666 (7th Cir. 2002); see
Majors v. Engelbrecht, 149 F.3d 709, 711 (7th Cir. 1998).
The difficulty with a test such as this one is that it often
takes on a life of its own and no longer effectively imple-
10 No. 01-3928
ments the policy concerns that gave it birth. As the Supreme
Court pointed out in NOPSI, the substantiality of a state’s
interest is an illusive inquiry. We must inquire, wrote the
Court, not to the state’s “interest in the outcome of the
particular case—which could arguably be offset by a sub-
stantial federal interest in the opposite outcome. Rather
what we look to is the importance of the generic proceed-
ings to the State.” NOPSI, 491 U.S. at 365 (emphasis in
original). In this respect, we have held that “Younger is
confined to cases in which the federal plaintiff ha[s] en-
gaged in conduct actually or arguably in violation of state
law, thereby exposing himself to an enforcement proceed-
ing in state court . . . .” Hinrichs v. Whitburn, 975 F.2d 1329,
1333 (7th Cir. 1992) (quoting Alleghany Corp. v. Haase, 896
F.2d 1046, 1053 (7th Cir. 1990), vacated as moot sub nom.
2
Dillon v. Alleghany Corp., 499 U.S. 933 (1991)). We empha-
sized in Haase and Hinrichs that in such cases, when the
ongoing state proceedings involve criminal prosecutions
or civil enforcement actions, the concerns of comity under-
lying the Supreme Court’s decision in Younger are especially
acute.
Allowing [a defendant] to block the prosecution by ob-
taining an injunction from a federal judge would come
close to allowing a state criminal defendant to remove
2
The Ninth Circuit also has recognized this distinction, observ-
ing in Green v. City of Tucson, 255 F.3d 1086, 1093-94 (9th Cir. 2001),
that the three-part test ordinarily applies only if the federal relief
would interfere with the state court proceedings and that the in-
terference requirement “ordinarily . . . restricts application of the
Younger doctrine to circumstances in which the state court proceed-
ing is an enforcement action against the federal court plaintiff,
and is not met simply by the prospect that the federal court deci-
sion may, through claim or issue preclusion, influence the result in
state court.” Id. at 1094.
No. 01-3928 11
his criminal prosecution into federal court—a course
that would wreck the balance between federal and
state prerogatives that is struck in the habeas corpus
statute. . . .
The grounds for denying a federal-court injunction
are only slightly attenuated when instead of a criminal
prosecution the state has brought a civil enforcement
action . . . .
Haase, 896 F.2d at 1050. This limitation on the scope of
Younger abstention is consistent with the types of cases in
which the Supreme Court has held Younger to apply; in
each case, the federal plaintiff sought to disrupt the ability
of a state’s judicial apparatus effectively to address the
3
misconduct of a defendant. Thus, Younger does not apply
if the federal plaintiff has not engaged in misconduct that
would expose him to an enforcement proceeding in state
court.
As in Haase, “the critical element of misconduct” is miss-
ing here. Haase, 896 F.2d at 1053. Mrs. Bouvagnet’s suit for
custody of her children rests in no way on any miscon-
duct on the part of Mr. Bouvagnet. It is true that the state
3
See Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) (state’s action for
enforcement of nuisance statute); Juidice v. Vail, 430 U.S. 327 (1977)
(fine for contempt); Trainor v. Hernandez, 431 U.S. 434 (1977) (action
to recover fraudulently obtained welfare payments); Moore v. Sims,
442 U.S. 415 (1979) (state action for temporary custody of children
believed to have been abused); Middlesex, 457 U.S. 423 (state pro-
ceeding to discipline attorney); Ohio Civil Rights Comm’n v. Dayton
Christian Sch., Inc., 477 U.S. 619 (1986) (administrative proceeding
for sex discrimination); Pennzoil, 481 U.S. 1 (defendant’s obliga-
tion to post bond before appealing judgment against it for tortious
interference with contract; “Both Juidice and this case involve chal-
lenges to the processes by which the State compels compliance with
the judgment of its courts.”).
12 No. 01-3928
custody proceedings are pending and that the district
court’s resolution of Mr. Bouvagnet’s petition may prevent
those proceedings from ever reaching judgment. “But there
is no doctrine that the availability or even the pendency of
state judicial proceedings excludes the federal courts.”
NOPSI, 491 U.S. at 373.
There is, moreover, an even more fundamental reason
why the maintenance of this action does not implicate the
strictures of the Younger doctrine. As we have noted earlier,
an action under the ICARA implementing the provisions
of the Hague Convention actually contemplates that a suc-
cessful action might well result in the displacement of a
custody decision in the state to which the child wrongfully
has been taken. Indeed, one of the primary purposes of the
Convention and its implementing legislation is “to ensure
that rights of custody and of access under the law of one
Contracting State are effectively respected in the other
Contracting States.” Hague Convention, supra, art. 1(b);
see Elisa Perez-Vera, Explanatory Report, ¶ 16 (April 1981)
4
[hereinafter Explanatory Report]. The abuse of parental
child abduction arose because local jurisdictions to which
a child had been taken often did not respect the pre-existing
custody arrangement required by the child’s habitual resi-
4
Elisa Perez-Vera was the official Hague Convention reporter for
the Hague Conference on Private International Law, which drafted
the Convention. See State Department Legal Analysis, 51 Fed. Reg.
at 10,503. The State Department explains that Ms. Perez-Vera’s report
“is recognized by the Conference as the official history and com-
mentary on the Convention and is a source of background on the
meaning of the provisions of the Convention . . . .” Id.; accord Blondin
v. Dubois, 189 F.3d 240, 246 n.5 (2d Cir. 1999). The Explanatory Re-
port is among the Acts and Documents of the Fourteenth Session
of the Conference. See State Department Legal Analysis, 51 Fed.
Reg. at 10,503-04.
No. 01-3928 13
5
dence. It was to curb this abuse that the United States
assumed a treaty obligation to cooperate with other nation-
states to adopt a mutual policy in favor of restoring the
status quo by means of the prompt return of abducted chil-
dren to the country of their habitual residence and in this
way depriving custody decrees of states to which a parent
has removed a child “of any practical or juridical conse-
quences.” Explanatory Report at ¶ 16. Indeed, although the
state to which the child has been taken no doubt has an
important interest in adjudicating the custody of a child
within its borders, it now shares, with the other states of the
Union, an even more important interest in ensuring that
its courts are not used to escape the strictures of a custody
decree already rendered by another nation-state or to other-
wise interfere with the custody rights that a parent enjoys
under the law of another country. We hold, therefore,
in agreement with the other Circuits that have confronted
6
the issue, that a Hague petition simply does not impli-
cate the Younger abstention doctrine.
2.
Mrs. Bouvagnet also submits that, even if Younger is
inapplicable, abstention is appropriate under the prin-
ciples set out in Colorado River Water Conservation District
v. United States, 424 U.S. 800 (1976). In that case, the Su-
5
See UCCJA, Prefatory Note, 9 U.L.A. 263-64; PKPA, Pub. L. No. 96-
611, § 7(a)(3), 94 Stat. 3569 (1980).
6
See Grieve v. Tamerin, 269 F.3d 149, 153 (2d Cir. 2001) (holding that
the comity concerns of Younger are not implicated by a Hague
petition); Silverman v. Silverman, 267 F.3d 788, 792 (8th Cir. 2001)
(holding that district court lacked authority to abstain because the
relief requested by a Hague petition is not discretionary).
14 No. 01-3928
preme Court held that “in situations involving the contem-
poraneous exercise of concurrent jurisdictions, either by
federal courts or by state and federal courts,” principles
resting on “considerations of [w]ise judicial administration,
giving regard to conservation of judicial resources and
comprehensive disposition of litigation,” sometimes per-
mit the dismissal of a federal suit. Id. at 817 (alteration in
original). The Court was careful to point out, however, that
abstention “is an extraordinary and narrow exception to
the duty of a District Court to adjudicate a controversy
properly before it.” Id. at 813. Moreover, the Court contin-
ued, given “the virtually unflagging obligation of the fed-
eral courts to exercise the jurisdiction given them,” the
circumstances permitting dismissal “for reasons of wise
judicial administration are considerably more limited than
the circumstances appropriate for abstention [under the
other abstention doctrines].” Id. at 817-18. Indeed, “[o]nly
the clearest of justifications will warrant dismissal.” Id. at
819. Construing its decision in Colorado River, the Court
repeated these cautions in Moses H. Cone Memorial Hos-
pital v. Mercury Construction Corp., 460 U.S. 1, 25-26 (1983):
[W]e emphasize that our task in cases such as this is not
to find some substantial reason for the exercise of fed-
eral jurisdiction by the district court; rather, the task
is to ascertain whether there exist ‘exceptional’ circum-
stances, the ‘clearest of justifications,’ that can suffice
under Colorado River to justify the surrender of that juris-
diction.
Id. (emphasis in original).
For Colorado River to apply, the state and federal proceed-
ings must be parallel. See AAR Int’l, Inc. v. Nimelias Enters.
S.A., 250 F.3d 510, 518 (7th Cir. 2001). The proceedings
are parallel if “substantially the same parties are litigat-
ing substantially the same issues simultaneously in two
No. 01-3928 15
fora.” Id. (internal quotation omitted). “The question is not
whether the suits are formally symmetrical, but whether
there is a ‘substantial likelihood’ that the foreign litiga-
tion ‘will dispose of all claims presented in the federal
case.’ ” Id. (quoting Day v. Union Mines, Inc., 862 F.2d 652,
656 (7th Cir. 1988)).
We do not believe that the federal ICARA case and the
state custody case can be considered parallel as that term
was employed in AAR International. Although the federal
and state cases involve the same parties, we think it is
unrealistic to characterize them as involving “substantially
the same issues.” Indeed, as we have pointed out earlier, the
whole point of the federal litigation under ICARA is to
determine whether the child, now the subject of a cus-
tody action in the state court to which he has been taken,
ought to be returned, by virtue a federal treaty obligation,
to his home nation-state. Here, the district court must deter-
mine whether Mrs. Bouvagnet wrongfully removed the
children from France and, if so, whether the children never-
theless are “settled” in their new environment, in which case
the court would not be obligated to grant the petition. See
Hague Convention, supra, art. 12; State Department Legal
Analysis, 51 Fed. Reg. at 10,509. Because Mr. Bouvagnet has
not filed a Hague petition in the state court, the state court
has no occasion to determine whether the children wrong-
fully were removed from France. Although the Illinois court
would no doubt consider, as part of an overall assessment
of the best interests of the child in a custody action, whether
the children were settled in their new environment, that
determination would be made in an entirely different
context than the one that must be the focus of the district
16 No. 01-3928
7
court. Notably, a custody decision by a state court does not
foreclose the relief sought in a Hague petition. See Hague
Convention, supra, art. 17.
Even if we were to conclude that these actions are parallel,
we would not agree that abstention is warranted here. The
Supreme Court has made it clear that “the decision wheth-
er to dismiss a federal action because of parallel state-
court litigation does not rest on a mechanical checklist,
but on a careful balancing of the important factors as they
apply in a given case, with the balance heavily weighted
in favor of the exercise of jurisdiction.” Moses H. Cone, 460
U.S. at 16. “The weight to be given to any one factor may
vary greatly from case to case, depending on the particu-
lar setting of the case.” Id. Our earlier decisions, follow-
ing the Supreme Court’s approach, confirm that there is no
rigid checklist that ought to be followed to determine
whether abstention is appropriate. See Sverdrup Corp. v.
Edwardsville Cmty. Unit Sch. Dist. No. 7, 125 F.3d 546, 549-50
(7th Cir. 1997) (discussing factors). Indeed, our decisions
have identified at least ten factors that may, depending on
the facts and circumstances of the individual case, be
relevant to the determination. See Caminiti & Iatarola, Ltd. v.
Behnke Warehousing, Inc., 962 F.2d 698, 701 (7th Cir. 1992)
(listing factors).
As we emphasized in Sverdrup, the primary duty of a
district court is to exercise the jurisdiction that Congress
7
See Lops v. Lops, 140 F.3d 927, 946 (11th Cir. 1998) (discussing the
meaning of “well-settled” in the context of the Hague Convention
and suggesting that it was appropriate for the district court to con-
sider factors other than a comfortable material existence, including
“peculiar circumstances surrounding the children’s living environ-
ment” attributable to the parental attempt to evade the original
custody decree).
No. 01-3928 17
has conferred upon it; there is a presumption against ab-
stention. Sverdrup, 125 F.3d at 549-50. The Supreme Court
has also stated that “the presence of federal-law issues
must always be a major consideration weighing against
surrender.” Moses H. Cone, 460 U.S. at 26. Mr. Bouvagnet’s
petition relies not only on a federal act, but on an inter-
national treaty that the United States has ratified. Although
ICARA provides for concurrent jurisdiction with state
courts, the federal court’s unique interest in deciding a
controversy that implicates both the United States’ interna-
tional treaty obligations and its concomitant interest in
foreign relations weighs especially heavily against absten-
tion. See Lops v. Lops, 140 F.3d 927, 943 (11th Cir. 1998) (hold-
ing Colorado River abstention inappropriate in Hague Con-
vention case in part because “ICARA is a federal statute
enacted to implement a treaty entered into by the federal
government”); see also Grieve v. Tamerin, 269 F.3d 149, 153
(2d Cir. 2001) (holding that the comity concerns of Younger
are not implicated in a Hague Convention case because
a Hague petition “implicates a paramount federal interest
in foreign relations and the enforcement of United States
treaty obligations”).
Congress specifically, and deliberately, has vested the
district courts with the jurisdiction to entertain an action
under ICARA. The district court thus has the responsi-
bility to determine, at the request of a French citizen, Mr.
Bouvagnet, whether his children wrongfully have been re-
moved from his country.
In an effort to overcome the presumption that the federal
district court ought to fulfill the responsibility given by
Congress, Mrs. Bouvagnet submits that the federal court’s
exercise of jurisdiction in this case runs counter to the most
significant factor weighing in the Supreme Court’s deci-
sion in Colorado River, “the desirability of avoiding piece-
18 No. 01-3928
meal litigation.” Colorado River, 424 U.S. at 817. There, the
federal statute at issue evinced a “clear federal policy . . .
[of] avoidance of piecemeal adjudication of water rights
in a river system.” Id. at 819 (discussing the McCarran
Amendment (also known as the McCarran Water Rights
Suit Act), 43 U.S.C. § 666). Mrs. Bouvagnet submits that
the district court’s consideration of the Hague petition
would result in piecemeal litigation because both the district
court and the state court (should the petition be denied)
would have to consider how “settled” their children are in
their new environment. Unlike the statute at issue in Col-
orado River, however, the Hague Convention and ICARA
actually contemplate the possibility of piecemeal litigation.
Indeed, it is central to the Convention’s function. For in-
stance, Article 19 of the Convention provides that “[a]
decision under this Convention concerning the return of
the child shall not be taken to be a determination on the
merits of any custody issue.” Hague Convention, supra, art.
19. “It follows that once the factual status quo ante has
been restored, litigation concerning custody or visitation
issues could proceed.” State Department Legal Analysis, 51
Fed. Reg. at 10,511. Therefore, the fact that the state court,
in its custody determination, may have to consider an is-
sue similar to one that the district court had to consider
does not weigh in favor of abstention because the federal
law providing the right to file the Hague petition anticipates
just such a result. See Moses H. Cone, 460 U.S. at 19-20 (hold-
ing that the fact that a federal statute requires piecemeal
litigation when necessary actually counsels against absten-
8
tion).
8
Although a state court can entertain an action under ICARA,
ICARA expresses no requirement or even preference for that fo-
rum. Indeed, the legislative history of the Act makes clear that Con-
(continued...)
No. 01-3928 19
In the same vein, Mrs. Bouvagnet also points out that she
filed her state-court custody action before Mr. Bouvagnet
filed his Hague petition. The “order in which jurisdiction
was obtained by the concurrent forums” is, as a general
matter, a factor to be weighed, Colorado River, 424 U.S. at
818, but it is not dispositive. Again, the Hague Conven-
tion and ICARA contemplate that Hague petitions will be
filed after the state-court custody proceedings. Article 17
provides that “[t]he sole fact that a decision relating to
custody has been given in or is entitled to recognition in
the requested State shall not be a ground for refusing to
return a child under this Convention . . . .” Hague Conven-
tion, supra, art. 17; see State Department Legal Analysis, 51
Fed. Reg. at 10,504 (“Children who otherwise fall with-
in the scope of the Convention are not automatically re-
moved from its protections by virtue of a judicial decision
awarding custody to the alleged wrongdoer. This is true
whether [or not] the decision as to custody was made . . .
in the State to which the child has been taken.”). Because
the parent who wrongfully removes a child from the
child’s habitual residence often is motivated by the desire
to seek a custody determination in a forum “he regards
as more favorable to his own claims,” Explanatory Re-
port, ¶ 14, and because, in the United States, that forum
will always be a state court, federal court consideration of
Hague petitions would be curtailed severely if a federal
8
(...continued)
gress, after considerable discussion of the matter, determined to
give the federal and the state courts concurrent jurisdiction over
the matter. See 134 Cong. Rec. S3839-02 (1988). This determination
makes good sense in light of the perceived reluctance of state courts
to decline jurisdiction in favor of the jurisdiction, domestic or for-
eign, that previously entered an outstanding custody decree. See
Levy, supra, at 175; supra pt. A.
20 No. 01-3928
court could not hear a petition once a state-court custody
proceeding has begun. Therefore, because “a federal
court cannot lightly abjure its responsibility to assert juris-
diction,” Lumen Constr., Inc. v. Brant Constr. Co., Inc., 780
F.2d 691, 694 (7th Cir. 1985), the mere fact that the state-
court custody proceeding was filed first does not weigh
heavily in favor of abstention.
Finally, Mrs. Bouvagnet suggests that the state court’s
experience with custody determinations and with the
facts of this case in particular weighs in favor of abstention.
We have recognized a state court’s ability or inability to
protect the federal plaintiff’s rights as a factor to consider.
See Sverdrup Corp., 125 F.3d at 549 (citing Moses H. Cone,
460 U.S. at 23). However, whatever familiarity the state
court may have with the facts of the case is significantly
outweighed by the duty of federal courts to hear cases
lawfully before them.
Here, the federal and international aspects of this ac-
tion under ICARA are paramount and none of the counter-
vailing considerations offered by Mrs. Bouvagnet, wheth-
er taken separately or together, can outweigh those con-
cerns. Accordingly, abstention under the Colorado River
doctrine would not be appropriate: the guiding principle
must be that abstention is an exception to a federal court’s
“virtually unflagging obligation” to adjudicate a claim prop-
erly before it. Sverdrup Corp., 125 F.3d at 549, 550 (internal
quotation omitted).
Conclusion
Abstention in this case under either the Younger or
Colorado River doctrines is inappropriate. We therefore re-
verse the district court’s dismissal of the Hague petition
and remand the case to the district court for proceedings
No. 01-3928 21
consistent with this opinion. Mr. Bouvagnet may recover
the cost of this appeal.
REVERSED and REMANDED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—7-26-02