USA – FEDERAL – GERBATSCH – 1999 (Age of consent) (Abstention) GERBATSCH v GERBATSCH the children went to Germany to visit with their father. Apparently the children did not want to return to the US. The mother applies to the German courts for their return. The court agreed that the children were detained in Germany in violation of a joint custody order issued in California and that under article 12 of the Convention the court must order the return. However the court found that the 10 year old had reached the age of maturity and denied the return. They held that since the parents had indicated that the children were not to be separated, they denied the return of the 7 year old as well. The denial was upheld on appeal. The father agreed to let the mother come for a visit with the children. The mother takes the children to Austria. The older child balked at being taken to the US so she was left in Austria and returned to the father. The mother takes the younger child to California. The father applies for her return under the convention. The court rules that the State court “is better able to adjudicate the matter” the father’s petition was denied.

Gerbatsch v Gerbatsch (S.D. Calif. 1999)No. 99 cv 728-J (CGA)
21 International Abduction (USA 1999)


Filed: 07 Jul 1999


This matter comes before the Court on Respondent Ildiko
Christine Gerbatsch’s motion for the Court to either stay,
abstain, remand, or remove this action so that the Superior
Court of California can determine the underlying custody
issue. In the alternative, she requests that the Court
dismiss this action. Having considered the arguments of
counsel, FN01 the Court GRANTS Respondent’s motion to
abstain and dismiss Petitioner’s petition.


Petitioner is the father of and Respondent is the mother of
Isabelle Theresa Gerbatsch (“Isabelle”), now age nine, and
Naomi Gerbatsch (“Naomi”), who will be twelve years old this
July 20. Respondent and Petitioner were married in Europe
in 1982, and during their marriage, Naomi and Isabelle were
born in Germany On June 8, 1994. Petitioner and
Respondent’s FN02 marriage was dissolved by the Superior
Court of California, County of San Diego. (Pet., Exh A) On
June 13, 1995, the Superior Court of California, County of
San Diego, granted Petitioner/father and Respondent/mother
joint custody of Naomi and Isabelle. Id. at p 1.
Respondent/mother was given primary physical custody Id.
The court ordered that when each of the children reached the
age of thirteen, it may have an in camera hearing to
ascertain the wishes of either or both minor children as to
the custody and visitation arrangement Id. at p. 2. In this
order, the Court stated that it was “the mutual intent of
the parents that each child will spend one school year
during the high school years living and studying abroad with
the [Petitioner/father]” Id. at p. 2. Respondent was given
seven weeks summer visitation with both children, and
alternating Christmas vacations. Id. at p 2-3

In June, 1997, both children went to Germany to visit their
father pursuant to the joint custody order. At the end of
the visit, the children apparently informed their father
that they did not wish to return to the United States and
wished to reside with their father, and Petitioner informed
Respondent of this. Pet . at p 3 and Exh. C. Respondent
claims that a “Warrant in Lieu of Writ of Habeas Corpus” was
issued on August 4, 1997 as to both minor children by the
Superior Court of California, County of San Diego (Mem. at
p. 3) FN03

Respondent applied to the District Court of Achim, German
Republic for an Order of Repatriation, pursuant to German
law and the Hague Convention on the Civil Aspects of
international Child Abduction, which sets forth procedures
for signatory countries to follow when children are
wrongfully removed by a parent and taken to another country.
FNO4 The District Court of Achim found that Petitioner was
violation the joint custody award issued by the Superior
Court of California, County of San Diego and that under Art.
12 of the Hague Convention, it must order the children’s
immediate return to Respondent. FN05 (Pet, Exh. C. at p.
4). However, it rejected the children’s return because it
found that under Art 13, 2 of the Hague Convention on the
Civil Aspects of International Child Abduction, it did not
have to return the children if they oppose such return and
“have reached an age and maturity which seems to justify
taking their opinion into consideration.” FN06 id. at p. 4
The District Court of Achim found that Naomi, of her own
free will and being of the age (age 10) and maturity to form
her own opinion, opposed the return to her mother and
preferred to reside with her father in Germany. id at p.
4-5. As for Isabelle, the District Court of Achim found
that at the age of seven she did not have the age and
maturity to come to an independent decision. Id. at p 5.
However, the District Court of Achim found that because the
parents agreed that the children should not be separated,
Isabelle should also remain in Germany with her father Id.
Respondent appealed this decision to Oberlandesgericht
(Higher Regional Court) Celle, which denied the appeal (Pet.
Exh E)

In August, 1998, Petitioner and Respondent informally agreed
to allow Respondent visitation with the children in Germany.
Petitioner claims that Respondent unlawfully removed the
children from Germany to Austria and tried to take them from
Austria to California. (Pet. at p 4) According to
Petitioner, Naomi, the older child, refused to cooperate and
was left in Austria. Id. Naomi was later picked up by
Petitioner and currently lives with Petitioner in Germany.
id. Respondent returned to California with Isabelle and
Respondent claims that since her return Isabelle has made
statements which cause Respondent to believe that there was
“substantial coercion, influence, and perhaps hypnotism
exerted on the minor children for them to make a choice to
stay with [Petitioner] ” (Mem. at p. 2). It appears that
criminal prosecution, initiated by Petitioner, has begun in
Germany against Respondent on the charge of “child
stealing.” See Decl. Respondent, filed May 13, 1999, at p. 3

On April 9, 1999, Petitioner filed a “Petition for Relief”
Pursuant to 42 U.S.C. 11601 ” This statute, 42 U.S.C. 11601
et. seq., titled the “International Child Abduction Remedies
Act.”, establishes procedures for persons seeking to
initiate judicial proceedings under the Hague Convention for
the return of a child. See 42 U.S.C.  11601, 11603(b).
Petitioner argues that Respondent’s removal of Isabelle to
California violates the Hague Convention and requests that
this Court return Isabelle to him.


Respondent has filed a “Motion to Stay/Abstain/Remove/Remand
Matter to Superior Court of California, County of San Diego
and/or Dismiss Action.” (Mot. filed May 13, 1999) Respondent
brings the motion on the following grounds

(1) there is no wrongful withholding of
Isabelle under the terms and conditions of the
Hague Convention.

(2) Petitioner/Father has “unclean hands” being
in violation of the Federal and State Court
laws, in fact and in spirit, in the area of
parental kidnaping.

(3) Family Division of the State Court of
California is a more appropriate and convenient
forum and has already dealt with the
jurisdictional issues, the parties, and the
children in this matter.


(4) there are pending “foreign” (State of
California) proceedings.
(Mot. at p 1-2).

A. Respondent’s request that the Court find that there was
no wrongful withholding of Isabelle and that Petitioner had
“unclean hands” in the German judicial proceedings.

It appears that Respondent argues that her withholding of
Isabelle is not wrongful because the District Court in Achim
incorrectly found that Naomi was of sufficient age and
maturity to choose which parent she wishes to reside with.
See Mem. at p. 3-5. In addition, she also appears to seek
this finding on the grounds that Petitioner had “unclean
hands” in the judicial proceedings before the German courts
Id. However, the Court notes that this case is at its very
early stages and this present motion is simply to decide
whether the Court may or should reach the substantive merit
of Petitioner’s claim and is not a motion for the Court to
actually reach the merits of Petitioner’s petition.
Accordingly, the Court declines Respondent’s invitation to
question the decision by the German courts denying the
return of Isabelle and Naomi to Respondent.

B. Respondent’s motion to abstain

Respondent seeks the Court to abstain from this matter to
allow the state court to adjudicate Petitioner’s petition
pursuant to the Hague Convention and the underlying custody
issues at the same time. FN07 Under the doctrine known as
Younger abstention, a federal court may abstain under
certain circumstances if there is a pending state judicial
proceeding. See Beltran v. California, 871 F 2d 777, 781
(9th Cir 1988). Federal abstention is appropriate in favor
of state court proceedings if the following conditions are

(i) the state court proceedings are ongoing;

(ii) the proceedings implicate important state interests;

(iii) the state proceedings provide the plaintiff with an
adequate opportunity to litigate his claims. See Aiona v.
Judiciary of State of Hawaii, 17 F.3d 1244, 1248 (9th Cir

1. There are ongoing state proceedings

It is undisputed that an action is currently pending in
Superior Court of California, County of San Diego between
Petitioner and Respondent with respect to the custody of the
children. Respondent’s counsel claims that there is an
outstanding warrant in lieu of writ of habeas corpus, which
was issued on August 4, 1997. (Mem at p. 3, 6). Respondent
has also provided a declaration stating that she is filing
concurrently with her motion to stay, an Order to Show Cause
in the Dissolution matter (presumably with the Superior
Court of California, County of San Diego). See Decl.
Respondent, filed May 13, 1999, at p. 1 Also, the Superior
Court, in executing the Joint Custody Order in 1994,
retained jurisdiction “to make any further orders necessary
and proper to carry out the executory provisions of this
JUDGMENT” (Pet., Exh A at p 12.13). Moreover Petitioner does
not dispute that there currently is a pending state matter,
and in point of fact his attorney states that he is filing a
Motion to Quash (presumably the OSC) in state court. See
Opp. at p. 7.

However, Petitioner argues that the abstention standards are
not met because. “[a]t the time of the filing of the
petition here, there was no pending state actions and no
state Interest” (Opp. at p 6). There is legal support for
Petitioner’s argument. The Ninth Circuit has stated that the
“critical question is not whether the state proceedings are
still ongoing but whether the state proceedings were
under way before initiation of the federal proceedings”
Wiener v County of San Diego 23 F 3d 263, 266 (9th Cir.

However, the Ninth Circuit has also held that the
“initiation of the federal proceedings” can be measured by a
date after the filing of the complaint as long as the
federal case was at the “embryonic” stage. See Dorarn v
Salem Inn, Inc., 422 U.S. 922, 929 (1975) (abstention
required because, when the state court proceeding began,
“the federal litigation was in an embryonic stage and no
contested matter had been decided “). Here, Petitioner filed
his petition on April 9, 1999, and no action was taken by
this Court prior to hearing this present motion. As stated
above, the Court declines to address the substantive merits
of the petition, and this motion, which is the first
presented to this Court, is simply to decide if abstention
is appropriate, so the Court finds that this case is still
at its “embryonic” stage. See Hawaii Housing Auth. v
Midkiff, 467 U.S. 229, 238 (1984) (“abstention is required,
however only when state court proceedings are initiated
before any proceedings of substance on the merits have taken
place in the federal court.”) (citation and quotation
omitted). Even if the Court were to use the most recent day
of action in the state court proceeding (May 13, 1999, the
date Respondent filed an OSC in the dissolution matter),
this date is still prior to any substantive rulings by this
Court. which have yet to occur

2. the proceedings do implicate important state interest

The Court finds that the petition and the underlying child
custody actions implicate important state interests.
Petitioner is correct that the petition, by the terms of
Article 19 of the Hague Convention and 42 U.S.C. 
11601(b)(4), cannot raise child custody issues and is simply
about the return of a wrongfully removed child. However,
Petitioner’s petition does raise issues which involve
domestic relations and therefore is a state interest See
Kitchen V Bowen, 825 F.2d 1337, 1340 (9th Cir 1987) (“the
realm of domestic relations is and has been traditionally
governed by the State law.”)

3. the state proceedings provide the Petitioner an adequate
opportunity to litigate his claims

Finally, as stated above, the state court and the federal
district court share concurrent jurisdiction over claims
brought under the International Child Abduction Act, 42
U.S.C.  et. seq. See supra. note 7, 42 U.S.C. 11603(a).
Accordingly, the Court finds that the state proceedings
provide the Petitioner with an adequate opportunity to
litigate his claims.

B. The Court finds that it may still abstain even though
the petition does not raise a constitutional claim.

Defendant argues that there is no constitutional challenge
raised in his petition and that he merely seeks remedies
under the Hague Convention. (Opp. at p. 6). However, the
Court finds that the absence of a constitutional issue in
the petition does not bar abstention. “Abstention is also
appropriate where there have been presented difficult
questions of state law bearing on policy problems of
substantial public import whose importance transcends the
result in the case then at bar.” Colorado River Water
Conservation District v. United States, 424 U.S. 800, 814

The Court finds that the petition raises several issues
regarding child custody which have substantial public
import. For example, one issue which is implicated by
Petitioner’s petition is how custodial decisions and
decisions rendered under the Hague Convention should be
reconciled. Here, the District Court in Achim recognized
the validity of the custody arrangement between Petitioner
and Respondent and found that Petitioner had breached the
terms of the Joint Custody Order by not returning the
children to the United States and their mother after the
summer vacation was over. Nevertheless, the District Court
in Achim ordered that the children did not have to be
returned, despite the Joint Custody Order, because the
children had expressed their wish to remain with their
father. Yet by the terms of the Hague Convention, this
decision does not impact upon the custody status of the
children. See Hague Convention, Article 19 (1988 WL 411501
*5); see also 42 U.S.C.  11601(b)(4). FN08 Reconciling
the custodial status of the children in light of the Joint
Custody Order and the Warrant in Lieu of the Writ of Habeas
Corpus, which support a finding that the children belong
with Respondent in the United States, with the order by the
District Court in Achim and the Oberlandesgericht Celle
(Higher Regional Court), which has ordered that the children
should not be removed from Germany, is an issue which can be
best handled by the Superior Court, County of San Diego.
That court is the one which decided the custodial issue in
the first instance and which retains jurisdiction over the
custodial issue.

Moreover, the Court notes another important consideration in
this case — the children. Naomi and Isabelle. As a result
of their parents actions, the children have been uprooted
several times. Prior to their visit to Germany in 1997,
their primary residence was in the United States with the
Respondent, although they had extended vacations with
Petitioner in Germany. During the legal process in Germany,
their residency status was unclear and undetermined. Then,
the German courts found that the children had been
“wrongfully removed” from Respondent but thai under an
exception of the Hague Convention, the children did not have
to be returned to Respondent and therefore their residence
was Germany. Now, after Respondent violated the German
orders under the Hague Convention by taking Isabelle from
Germany, Isabelle is residing in the United States.
Additionally, the children have been separated, which
undoubtably has further impacted upon them because it
appears that the children have a close relationship to one
another. See Pet., Exh. C, at p. 4 and Exh. E, at p. 9. A
decision on Petitioner’s petition under the International
Child Abduction Act will further bear upon the residential
status of Isabelle. The Court finds that the state court,
which is already familiar with the family and their
relationship with one another and which has retained
jurisdiction over the joint custody arrangement is best
equipped to handle the issue of Isabelle’s return under the
International Child Abduction Act.


For the reasons stated above, the Court finds that
abstention is appropriate because there is an ongoing state
action which is related to the action before this Court. In
addition, the Court finds that the state court is better
able to adjudicate the matter. Accordingly, the Court hereby
GRANTS Respondent’s motion to abstain. As the Court has
found abstention to he appropriate in light of the state
action, the Court hereby DISMISSES Petitioner’s petition.
The Court DENIES as moot Respondent’s remaining motions


Dated: 07 Jul 1999 /s/ Napoleon A. Jones, Jr.
United States District Judge


01. The Court has received and considered Respondent’s
motion and memorandum Petitioner’s opposition,
Respondent’s reply, and all exhibits tiled therein.
After briefing was completed, Petitioner filed a
“Notice of New Law” and provide the Court with a copy
of Brown v. Brown, 71 Cal App.4th 358 (1999). The
Court also considered this decision. Pursuant to
Local Rule 7.1(d), the Court found the matter
suitable for disposition without oral argument,
notified the parties. and took the matter under

02. In the case presently before this Court, the father,
Klaus-Peter Gerbatsch, is the Petitioner and the
mother, Ildiko Gerbatsch, is the Respondent. In the
joint custody order, the lather is referred to as the
Respondent and the mother is referred to as
Petitioner. For the sake of clarity and consistency,
the Court will refer to the father as the
“Petitioner” and the mother as “Respondent”
throughout this Order.

03. Respondent does not provide the court with any
evidence of this, and no mention of this writ is
provided by Respondent in her declaration. See Decl.
Respondent, filed May 13, 1999

04. The Hague Convention on International Child Abduction
was adopted on October 24, 1980. See Hague
Convention, 1988 WL 411501. The purpose of the Hague
Convention was “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, as well as to secure protection for rights
of access.” Id at *2, Section 11601 et. seq., of
Title 42 of the United States Code sets forth the
procedures for implementing the Hague Convention.

5. Article 12 of the Hague Convention provides the

Were a child has been wrongfiully removed or retained
in terms of Article 3 and, at the date of the
commencement of the proceedings before the judicial
or administrative authority of the Contracting State
where the child is, a period of less than one year
has elapsed from the date of the wrongful removal or
retention, the authority concerned shall order the
return of the child forthwith.
1988 WL 4411501 at *4

6. Article 13 provides the following exception to the
return of the child who is wrongfully removed:

The judicial or administrative authority may also
refuse to order the return of the child it finds that
the child objects to being returned and has attained
the aue and degree of maturity at which it is
appropriate to take account of its views.
1988 WL 411501 at *5.

07. The Court notes that the state court and the federal
district courts have concurrent jurisdiction over
claims under the International Child Abduction Act.
See 42 U.S.C.  11603(b) (providing that a petition
pursuant to the Act may be filed in any court which
has jurisdiction of such action and which is
authorized to exercise its jurisdiction in the place
where the child is located at the time the petition
is filed.”). Under 42 USC.  11603(a), “the courts of
the States and the United States district courts
shall have concurrent original jurisdiction of
actions arising under the Convention”. The Act
defines “State” as “any of the several States, the
District of Columbia, and any commonwealth, territory
or possession of the United States” See 42 U.S C. 

08. Although Petitioner filed a notice of new law with
the Court, see supra note 1, the Court finds that it
actually supports Respondent’s motion to abstain and
dismiss because the CaLifornia appellate Court
acknowledged the inability of the district court to
rule on child custody matters. Brown v Brown 71
CaI.App.4th 358, 364, n. 5 (1999) (“the district
court . . could not rule on the underlying merits of
the custody dispute. The Convention provides no
structure for such a determination. Rather it
mandates those matters he resolved in the forum of
the child’s habitual residence.)

³ Comment by Wm. M. Hilton ³
³ 22 Apr 2000 ³

Not discussed in the above decision is the effect of 42
U.S.C. 11602(1), 11602(4), and 11603(b). These sections
seem to say that only the parent who has lost custody of the
child is entitled to bring an action (and consequently
choose either state or federal court) under ICARA. See
Fjeldheim v Fjeldheim (W.Dist.Mich. So.Div. 1995) No.
1:95-CV-394, 19 Jan 1996.

The issue of abstention was recently discussed in Friedrich
v Thompson (Middle Dist 1999); Civ No 1: 99 CV 00772 (Merits
of case); 15 International Abduction [USA 1999] wherein the
court, in ruling that abstention did not apply, stated:

“At the beginning of the hearing, this Court
inquired of both counsel whether it was
necessary for the Court to exercise
jurisdiction in this matter since, pursuant to
42 U.S.C.  11603(a), this Court and the State
Court had concurrent jurisdiction for
proceedings filed under the Hague Convention.
Respondent asserted that this Court should
abstain from exercising jurisdiction because of
the State court action. However, the Court
determined that Respondent’s Complaint in the
State District Court was not a Hague petition,
but rather an action for custody of the child.
In the state court action, Respondent only made
reference to the affirmative defenses under
Article 13 of the Hague Convention in order to
establish that there had been a change of
circumstances warranting a new custody
determination by the State District Court.
Moreover, based upon persuasive authority cited
by Petitioner, the Court determined that the
Hague Convention only contemplates petitions
filed by custodial parents, since only
custodial parents can make the allegation that
a wrongful removal or retention has occurred.
Fjeldheim v. Fjeldheim, No. 95-CV-394
(W.D.Mich. Jan. 19, 1996). Therefore, since
Petitioner chose to file a Hague petition in
federal district court, this Court determined
that it had exclusive jurisdiction over the
matter for the purposes of the Hague
Convention. Accordingly, the Court ordered that
the State District Court custody proceeding and
the order granting temporary custody to
Respondent be stayed pending this Court’s
determination of the issues raised by the
application filed by Petitioner pursuant to the
Hague Convention.”

This court also, in the opinion of the writer, improperly
considered the “best interests” of the children in that the
court argued that the California state court would be a
better place to determine which of the parents would have
custody of the child.

That issue, however, was not before the Federal court. The
sole issue before the Federal court was whether or not,
under The Convention, the child would be returned to
Germany. If the Federal court had ordered the return of the
child to Germany then the fact that the California family
court was involved would be of no consequence.

This court also, I believe, mis-applied Brown v. Brown
(Cal.App. 1999) 71 Cal.App.4th 358. In Brown the
California court of appeal held that the sole matter before
the Federal court was whether or not the child should be
returned to Austria under the terms of The Convention. The
Brown court further stated that the Federal court could not
rule on the underlying custody case which, as in Friedrich,
supra, meant that the only issue before the Federal court
was the return of the child and therefore the State and
Federal actions were, as a matter of law, unrelated to one

The trial court also neglected to discuss the effect of Art.
16 which prohibits the State court from proceeding on issues
of custody while the action under The Convention was
pending. Since that was the case here at all times relevant
there was no action before the State court and therefore
there was further reason not to abstain.

The Federal court did, however, correctly rule on the issue
raised concerning the German decision. The argument made
was that the German decision was improperly made because of
actions of the parent in Germany. Implicit in this court’s
refusal to become involved with this point is that it could
only be properly brought up before the German courts. See
paragraph 34 of the Explanatory Report by E. Perez-Vera,
Hague Conference on Private International Law, Actes et
documents de la Quatorzieme session, vol. Ill, 1980, p. 426.