Holder v Holder (9th Cir. 2002)305 F.3d 854
14 International Abduction [USA 2002]
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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 01-35467 and No. 01-35519
305 F.3d 854 (9th Cir. 2002)
06 Sep 2002
JEREMIAH W. HOLDER, PETITIONER-APPELLANT,
v.
CARLA R. HOLDER, RESPONDENT-APPELLEE. JEREMIAH W. HOLDER,
PETITIONER-APPELLEE,
v.
CARLA R. HOLDER, RESPONDENT-APPELLANT.
Appeal from the United States District Court for the Western
District of Washington John C. Coughenour, District Judge,
Presiding D.C. No. CV-00-01927-JCC
Counsel
Rhea J. Rolfe, Edmonds, Washington, for the petitioner
apellant-cross-appellee.
A. Chad Allred, Seattle, Washington, for the respondent
appellee-cross-appellant.
Before: Dorothy W. Nelson, David R. Thompson and Richard A.
Paez, Circuit Judges.
[11]The opinion of the court was delivered by: Paez, Circuit
Judge
FOR PUBLICATION
Argued and Submitted April 3, 2002–Seattle, Washington
Opinion by Judge Paez; Dissent by Judge Thompson
OPINION
001 Jeremiah W. Holder (“Jeremiah”), a member of the
United States Air Force stationed in Germany, appeals the
order of the district court staying his petition for return
of his children from Washington State to Germany under the
Hague Convention on the Civil Aspects of International Child
Abduction (“the Hague Convention”), Oct. 25, 1980, 19 I.L.M.
1501, as implemented by the International Child Abduction
Remedies Act (“ICARA”), 42 U.S.C. 11601-11610. Jeremiah
had previously commenced divorce and custody proceedings
against Carla R. Holder (“Carla”), the children’s mother, in
California state court. As a result of those pending state
court proceedings, the district court stayed the action
pending resolution of Jeremiah’s state court appeal,
invoking _C_o_l_o_r_a_d_o_ _R_i_v_e_r_ _W_a_t_e_r_ _C_o_n_s_e_r_v_a_t_i_o_n_ _D_i_s_t_r_i_c_t_ _v_.
_U_n_i_t_e_d_ _S_t_a_t_e_s, 424 U.S. 800 (1976). Carla cross-appeals the
district court’s denial of her request for attorney’s fees
and costs.
002 We conclude that the district court should have
promptly adjudicated Jeremiah’s Hague Convention petition in
accordance with the purposes of the treaty and its
implementing legislation. The Hague Convention seeks to
prevent an abducting parent from gaining any advantage in
litigation by providing the left-behind parent with an
expeditious avenue for seeking return of the abducted child
in addition to those remedies available under the local laws
of the country to which the child has been taken. With those
purposes in mind, we conclude that Jeremiah’s decision to
file for custody in state court in California, but bring his
Hague Convention petition in federal court in Washington,
does not now mean that he is barred from raising them in
federal court by the preclusive effect of the state court
judgment or that he has waived his rights under the Hague
Convention.
003 Thus, we hold that the district court abused its
discretion in staying proceedings under _C_o_l_o_r_a_d_o_ _R_i_v_e_r. In
this Circuit, the narrow _C_o_l_o_r_a_d_o_ _R_i_v_e_r doctrine requires
that the pending state court proceeding resolve all issues
in the federal suit. Here, this dispositive requirement is
not met because the issues in a suit under the Hague
Convention case will not be resolved by a state court
custody suit in which no Hague Convention claim is raised.
On balance, other _C_o_l_o_r_a_d_o_ _R_i_v_e_r factors also weigh against
staying proceedings in this case.
004 Because we vacate the district court’s order staying
proceedings pending the outcome of Jeremiah’s state court
appeal and remand for expeditious adjudication of his Hague
Convention claim, we also vacate the district court’s denial
of Carla’s motion for attorney’s fees on the grounds that it
is premature.
I. BACKGROUND
A. THE HAGUE CONVENTION AND ICARA
005 The Hague Convention is a multilateral international
treaty on parental kidnapping to which the United States and
Germany are signatories. The Convention’s preamble describes
the signatories as “desiring to protect children
internationally from the harmful effects of their wrongful
removal.” Hague Convention, Oct. 25, 1980, preamble, 19
I.L.M. 1501, 1501. “These harmful effects may occur either
through the ‘removal of a child from its habitual
environment,’ or by ‘a refusal to restore a child to its own
environment after a stay abroad.’ ” _M_o_z_e_s_ _v_._ _M_o_z_e_s, 239 F.3d
1067, 1070 (9th Cir. 2001) (quoting Elisa Perez-Vera,
Explanatory Report 11, in 3 Hague Conference on Private
International Law, Acts and Documents of the Fourteenth
Session, Child Abduction 426 (1982)).
006 The Convention seeks to deter parental abductions by
“depriving the abductor’s actions of any practical or
juridical consequences,” and thus eliminating the “primary
motivation” for the abduction — to obtain an advantage in
custody proceedings by commencing them in another country.
Mozes, 239 F.3d at 1070 (citations and internal quotation
marks omitted). Article 12 therefore provides that when a
child is removed from one signatory nation to another, the
latter “shall order the return of the child forthwith.”
Hague Convention, art. 12, 19 I.L.M. at 1502; accord Mozes,
239 F.3d at 1069. Article 16 provides that “until it has
been determined that the child is not to be returned under
the Convention,” the state to which the child has been
removed “shall not decide on the merits of rights of
custody.” Hague Convention, art. 16, 19 I.L.M. at 1503.
Article 17 provides that “the sole fact that a decision
relating to custody has been given in or is entitled to
recognition in the country to which the child has been taken
shall not be a ground for refusing to return a child under
this Convention . . . .” Id., art. 17, 19 I.L.M. at 1503.
007 ICARA, 42 U.S.C. 11601-11610, implements the Hague
Convention in the United States. ICARA vests state and
federal courts with concurrent jurisdiction over claims
under the Convention. 42 U.S.C. 11603(a). ICARA also
provides that “the remedies established by the Convention
and this chapter shall be in addition to remedies available
under other laws or international agreements.” 42 U.S.C.
11603(h); see also Dep’t of State, Hague International Child
Abduction Convention Text and Legal Analysis, 51 Fed. Reg.
10494, 10507-08 (Mar. 26, 1986) hereinafter Convention Text
and Legal Analysis (“Under Article 29 a person is not
precluded from seeking judicially-ordered return of a child
pursuant to laws and procedures other than the Convention.
Indeed, Articles 18 and 34 make clear that nothing in the
Convention limits the power of a court to return a child at
any time by applying other laws and procedures conducive to
that end.”).
B. FACTS AND PROCEDURAL HISTORY
008 In this Hague Convention case, Jeremiah seeks the
return of his two children to Germany from the United
States.
009 Jeremiah and Carla are both United States citizens.
They met in California and were married there in March 1994.
Their son Jordan was also born in California in October
1994, and their son Kyle was born there in July 1999. In
November 1994, Jeremiah entered the United States Air Force.
The family lived in Texas while Jeremiah attended basic
training and technical school, and then returned to
California in June 1995. The family moved to Japan for
overseas duty for two years in 1995, returning to California
in August 1997. According to Jeremiah, the difficulties in
his marriage became severe during the time that he was
stationed in Japan. It was while they were in Japan that
Carla raised the possibility of divorce and that the couple
began marriage counseling.
010 In December 1998, the Air Force notified Jeremiah
that he had been assigned to a post in Germany for a minimum
of four years. Jeremiah states that this was a permanent
duty post and that he had to re-enlist for another six years
to accept the post. Around September 1, 1999, Carla and the
two boys joined Jeremiah in Germany. The family lived in
base housing and Jordan attended kindergarten on-base.
011 In April 2000, Jeremiah and Carla made plans for
Carla to travel with the boys to Washington, where Carla’s
parents had moved from California. They bought round-trip
tickets for Carla and the two boys departing on May 5 with
return dates of June 19. Jeremiah contends that he expected
Carla to return with the children to Germany on June 19, but
Carla contends that she and Jeremiah agreed that she would
remain in Washington with the children because of the
couple’s marital difficulties.
012 Jeremiah alleges that, on or around three days after
Carla and the children arrived in Washington, Carla told him
that she and the children would not be returning to Germany.
He states that he attempted to “persuade Carla to change her
mind,” but realized that it was futile when Carla told him
to communicate with her through her attorney.
013 Jeremiah alleges that he then began to explore
various legal options to accomplish Carla’s and the
children’s return to Germany. He stated that he hoped that
her return would allow them to resolve their marital
problems and to “come to a reasonable settlement of their
differences.”
013 He alleges that around this time, a base attorney
advised him that German courts “did not get involved in
civil matters regarding family law,” and that he should file
for divorce in California. Jeremiah did not consult with a
German attorney at this time.
014 On June 27, 2000, Jeremiah filed for divorce and
child custody in family court in California. Jeremiah
requested joint legal custody with him as the primary
caretaker and with the children to live with him in Germany.
Carla then filed for divorce, child custody, and a
restraining order in Washington, and moved to dismiss the
California proceedings for lack of jurisdiction.
015 In response to Carla’s motion to dismiss, Jeremiah
defended jurisdiction in California under the Uniform Child
Custody Jurisdiction and Enforcement Act (“UCCJEA”), as
codified in California Family Code 3400-3462. He also
stated that he “believed that the German courts would not
accept a family law case between two U.S. citizens who are
in that country on military assignment,” and argued that
“this California court is the only court that can decide all
issues.” Carla eventually stipulated that jurisdiction was
proper in California and dropped her motion to dismiss.
016 The California court ordered the parties to mediate
the issue of child custody. Jeremiah states that at the time
of the mediation on August 9, 2000, he had not seen his
children in several months and “very much wanted to see
them.” Although he felt that the mediation was “very
unfair,” he agreed to the visitation schedule proposed by
the mediator because he thought that it was “all I was going
to get from this mediator.” *fn1 On August 9, 2000, the
court entered “custody and visitation orders . . . based
upon the combined agreement of the parties and
recommendation of the Mediator/ Evaluator,” providing for
joint legal custody, with the children to remain with Carla
in Washington.
017 Jeremiah obtained a new attorney and filed a motion
for reconsideration on August 18, 2000. He urged the court
to find that California had no jurisdiction over child
custody under the UCCJEA, because Germany, not California,
was the children’s “home state” under that statute. Jeremiah
did not raise a Hague Convention claim in this motion. He
also declares that, on August 29, 2000, he filed an
application for return of the children under the Hague
Convention with the United States Central Authority, an
administrative agency called for by the Hague Convention and
created by ICARA, 42 U.S.C. 11606.
018 At the October 2, 2000 hearing on the motion for
reconsideration, Jeremiah’s attorney informed the state
court that Jeremiah’s Washington counsel intended to pursue
a Hague Convention claim in that state, and that the Hague
Convention was not a subject of litigation in the California
proceeding. In response, the state court stated that the
Hague Convention claim “may be peripheral to what we’re
going to discuss today,” and “appears to me to be proceeding
on a separate track than this case,” but also stated that he
would allow Carla’s attorney to raise related points “to the
extent that she wishes to reference it, because I believe
that it has been raised.” The court also stated that the
Convention was unlikely to affect its determination of
Jeremiah’s motion. Jeremiah’s attorney stated that he was
unprepared to argue the Hague Convention issue and instead
argued that the court lacked jurisdiction under the UCCJEA
because Germany, not California, was the children’s “home
state.”
019 The state court denied Jeremiah’s motion for
reconsideration, finding that California was the children’s
home state under the UCCJEA, and without making any findings
under the Hague Convention. Jeremiah appealed to the
California Court of Appeal. Later in the course of that
proceeding, the California Court of Appeal invited the
United States to file a brief as amicus curiae, and the
United States did so.
020 On November 14, 2000, Jeremiah filed the instant
Hague Convention petition in federal court in the Western
District of Washington. On November 21, 2000, Jeremiah moved
the California state court for a stay of all custody
proceedings pending the outcome of this petition. On
December 19, 2000, the court stayed the action regarding
issues of child support, spousal support, and attorney’s
fees. But the court entered modified custody and visitation
orders “based on the combined agreement of the parties and
recommendation of the Mediator/Evaluator” that permitted
visitation by Jeremiah over the Christmas holiday and an
uninterrupted period of care by Carla from July 20, 2001
until August 10, 2001.
021 On February 14, 2001, a United States Magistrate
Judge recommended that the federal district court stay the
federal proceedings in light of the pending California state
court proceedings. He concluded that, once the state court
judgment became final, it would likely preclude Jeremiah’s
federal Hague Convention claim, and that “wise judicial
administration” counseled a stay under Colorado River Water
Conservation District v. United States, 424 U.S. 800 (1976).
The district court adopted the Magistrate’s Report and
Recommendation and stayed the federal proceedings on April
16, 2001. Jeremiah timely appealed on May 15, 2001.
022 Before this case was argued and submitted on April 3,
2002, the California Court of Appeal for the Fifth Appellate
District ruled on Jeremiah’s appeal in an unpublished
opinion, rejecting his allegations that California lacked
jurisdiction over his custody petition, and that, even if
California had jurisdiction, the state trial court was
nevertheless obligated to stay custody proceedings under the
Hague Convention. Holder v. Holder (In re Marriage of
Holder), 2002 WL 443397 (Cal. Ct. App. Mar. 20, 2002)
(unpublished disposition). Following oral argument, the
parties notified us that the California Court of Appeal
decision became final on May 20, 2002.
II. APPELLATE JURISDICTION & STANDARD OF REVIEW
023 The district court’s order staying proceedings
pending the resolution of the state court appeal is
appealable as a final order under 28 U.S.C. 1291. Moses H.
Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 8-13
(1983); Intel Corp. v. Advanced Micro Devices, Inc., 12 F.3d
908, 912 (9th Cir. 1993). We review for abuse of discretion
the district court’s decision to stay proceedings under
Colorado River Water Conservation District v. United States,
424 U.S. 800 (1976). Intel, 12 F.3d at 912; Nakash v.
Marciano, 882 F.2d 1411, 1413 (9th Cir. 1989). The abuse of
discretion standard that we use in such cases is stricter,
however, “than the flexible abuse of discretion standard
used in other areas of law.” Intel, 12 F.3d at 912. “When a
stay for reasons of ‘wise judicial administration’ under
Colorado River] is contemplated, ‘discretion must be
exercised within the narrow and specific limits prescribed
by the particular abstention doctrine involved. . . . There
is little or no discretion to abstain in a case which does
not meet traditional abstention requirements.’ ” Id.
(quoting Mobil Oil Corp. v. City of Long Beach, 772 F.2d
534, 540 (9th Cir. 1985)) (second alteration in original).
Thus, the district court’s discretion “must have been
exercised within the ‘exceptional circumstances’ limits of
the Colorado River] doctrine.” Travelers Indem. Corp. v.
Madonna, 914 F.2d 1364, 1367 (9th Cir. 1990).
024 Questions of claim and issue preclusion are reviewed
de novo. Frank v. United Airlines, 216 F.3d 845, 849-50
(9th Cir. 2000), cert. denied, 121 S. Ct. 1247 (2001). We
also review de novo the district court’s conclusions of law,
Cacique v. Robert Reiser & Co., 169 F.3d 619, 622 (9th Cir.
1999), including those regarding the interpretation of
federal and state statutes and of federal treaties. The
district court’s decision to deny attorney’s fees is
reviewed for abuse of discretion. Shaw v. City of
Sacramento, 250 F.3d 1289, 1293-94 (9th Cir. 2001).
III. DISCUSSION
025 We conclude that the district court erred in staying
proceedings. In light of the Hague Convention policy that
signatory countries should return wrongfully removed
children expeditiously and through any appropriate remedy,
we reject the claim that a left-behind parent is precluded
or barred from raising his Hague Convention claim in the
court of his choice, or that “wise judicial administration”
is furthered by staying a federal Hague petition, simply
because that left-behind parent has pursued the return of
his children through multiple legal avenues.
A. CLAIM PRECLUSION
026 The district court erred in ruling that the
California Court of Appeal decision would be entitled to
preclusive effect when it became final. Such a holding
undermines the purposes of the Hague Convention and ICARA,
and is contrary to our prior decision in Mozes v. Mozes, 239
F.3d 1067 (9th Cir. 2001).
027 1. Federal courts give preclusive effect to state
court judgments to the extent required by statute and by the
res judicata principles embodied in federal common law. See
18B Charles Alan Wright, Arthur R. Miller, & Edward H.
Cooper, Federal Practice and Procedure § 4469 (2d ed.
2002). In situations in which federal courts apply 28 U.S.C.
§ 1738, *fn2 the generic full faith and credit statute,
they generally give state court judgments the same res
judicata effect that they would be given by another court of
that state. See Matsushita Elec. Indus. Co. v. Epstein, 516
U.S. 367, 373 (1996); accord Bybee v. A-Mark Precious
Metals, Inc. (In re Bybee), 945 F.2d 309, 316 (9th Cir.
1991) (“The res judicata effect of a previous state court
judgment is determined by the law of the rendering court.”).
028 2 Here, the district court held that, because
Jeremiah failed to raise his Hague Convention claim in state
court in California, a final judgment from that state court
would bar Jeremiah from raising his Hague Convention claim
in federal court. In California, a final judgment, “even
if erroneous,” acts as a bar to all other claims arising
from the “invasion of one primary right,” that is, to all
other claims arising from the same injury. Eichman v.
Fotomat Corp., 759 F.2d 1434, 1438 (9th Cir. 1985). This bar
applies whether or not the claim was actually adjudicated in
the prior proceeding, Thibodeau v. Crum, 6 Cal. Rptr. 2d 27,
29 (Ct. App. 1992), and, under California’s compulsory
cross-complaint rules, it applies to defendants as well as
to plaintiffs, see Morris v. Blank, 114 Cal. Rptr. 2d 672,
677-78 (Ct. App. 2001).
029 The district court erred, however, in applying
general res judicata principles in this context. We have
recognized that, in some cases, “the implementation of
federal statutes representing countervailing and compelling
federal policies justifies departures from a strict
application” of general res judicata principles. Red Fox v.
Red Fox, 564 F.2d 361, 365 n.3 (9th Cir. 1977); accord
American Mannex Corp. v. Rozands, 462 F.2d 688 (5th Cir.
1972). The Hague Convention and ICARA present such a case,
as is evident both from the particularized full faith and
credit provision in ICARA, 42 U.S.C. 11603(g), and the
overall statutory scheme that the Hague Convention and ICARA
establish.
030 3 Section 11603(g) provides that federal courts
adjudicating Hague Convention petitions must accord full
faith and credit only to the judgments of those state or
federal courts that actually adjudicated a Hague Convention
claim in accordance with the dictates of the Convention and
ICARA:
031 Full faith and credit shall be accorded by the courts
of the States and the courts of the United States to the
judgment of any other such court ordering or denying the
return of a child, pursuant to the Convention, in an action
brought under this chapter. 42 U.S.C. 11603(g) (emphasis
added); see also Ostevoll v. Ostevoll, 2000 WL 1611123, at
*18 (S.D. Ohio 2000) (“At the time of the state court’s
custody decision, no Hague Petition was before the state
court, nor did the state court order the return of the
children pursuant to the Hague Convention, thus, we are not
required under 42 U.S.C. 11603(g) to accord the decision
preclusive effect.”).
032 4 It would also undermine the very scheme created by
the Hague Convention and ICARA to hold that a Hague
Convention claim is barred by a state court custody
determination, simply because a petitioner did not raise his
Hague Convention claim in the initial custody proceeding.
The Hague Convention provides that children are not
automatically removed from its protections by virtue of a
judicial decision awarding custody to the alleged abductor.
E.g., Hague Convention, art. 17, 19 I.L.M. at 1503. Indeed,
the typical Hague Convention case involves at least the
potential for two competing custody orders, one in the
children’s “habitual residence,” and one in the country to
which the children have been taken. To hold that a
left-behind parent is barred, in such a case, from raising a
Hague Convention claim in a subsequent federal proceeding
just because he or she did not raise it in the state custody
proceeding would render the Convention an incompetent remedy
for the very problem that it was ratified to address.
033 5 Such a holding would also contravene our holding in
Mozes. In Mozes, we held that the Rooker-Feldman doctrine
*fn3 would not bar a federal district court adjudicating a
Hague Convention proceeding from vacating a state court’s
custody order or its order enjoining removal of the child
from its jurisdiction: “Congress has expressly granted the
federal courts jurisdiction to vindicate rights arising
under the Convention. Thus, federal courts must have the
power to vacate state custody determinations and other state
court orders that contravene the treaty.” 239 F.3d at 1085
n.55 (citation omitted). It clearly follows that, if a prior
state court custody order cannot bar a federal court from
vacating the state court order, then it cannot bar federal
adjudication of the Hague Convention claim.
034 The fact that Jeremiah, not Carla, filed for custody
in state court does not compel a different result in this
case. This is true, first, because there is nothing in
general claim preclusion law or in 11603(g) that suggests
that this type of distinction would be appropriate. Second,
under the Hague Convention and ICARA, Jeremiah may choose to
bring his Hague Convention claim in either federal or state
court, see 42 U.S.C. 11603(a), and he may pursue his
remedies under both the Convention and state law, see, e.g.,
42 U.S.C. 11603(h); Hague Convention, art. 18, 19 I.L.M.
at 1503; Hague Convention, art. 29, 19 I.L.M. at 1504; Hague
Convention, art. 34, 19 I.L.M. at 1504; Convention Text and
Legal Analysis, 51 Fed. Reg. at 10507-08.
035 We also reject the argument that we must accord full
faith and credit to the California custody determination
under the Parental Kidnapping Prevention Act, 28 U.S.C.
1738A (“PKPA”). PKPA requires state courts to give full
faith and credit to the custody determinations of other
states. See 28 U.S.C. 1738A(a). We might apply PKPA
standards if, under 1738, we were giving the custody
determination the same preclusive effect that it would have
in California. Here, however, we are applying the
particularized full faith and credit provision of 42 U.S.C.
11603(g). Because nothing in PKPA suggests that its
provisions apply independently to federal courts, we need
not interpret it in a way that is inconsistent with the
express command of 11603(g). See Thompson v. Thompson, 798
F.2d 1547, 1553 (9th Cir. 1986) (“Nowhere in the statute is
it stated or implied that the obligations imposed by section
1738A are to be imposed upon federal courts . . . .”),
aff’d, 484 U.S. 174 (1988). Furthermore, the PKPA was
enacted to discourage parental kidnapping across state lines
within the United States, much like the Hague Convention
seeks to deter parental kidnapping internationally. See
Thompson v. Thompson, 484 U.S. 174, 182 (1988). It would be
illogical, therefore, to interpret the PKPA in a way that
would undermine the purposes of the Hague Convention and
eviscerate the remedy that the Convention provides.
036 6 Because we determine that federal courts
adjudicating petitions under the Hague Convention must
accord preclusive effect only to those state court judgments
ordering or denying the return of a child pursuant to the
Hague Convention in an action under ICARA, we do not address
whether the district court correctly applied California res
judicata principles.
B. ISSUE PRECLUSION
037 Carla argues that even if Jeremiah’s petition is not
barred by claim preclusion principles, then issue preclusion
principles nevertheless dictate that we must give the
California Court of Appeal judgment preclusive effect on the
dispositive issue whether Jeremiah waived his remedies under
the Hague Convention by filing for custody in state court.
We disagree.
038 7 Decisions regarding issue preclusion are governed
by the same basic framework as the decisions regarding claim
preclusion discussed above. 18B Wright, Miller, & Cooper,
supra, 4470.2; see also Matsushita Elec. Indus. Co v.
Epstein, 516 U.S. 367 (1996). Therefore, although 28 U.S.C.
1738 requires that federal courts generally give state
court judgments the same issue preclusive effect that they
would be given by the rendering court, because we apply
ICARA’s more particularized full faith and credit provision
of 42 U.S.C. 11603(g), we do not give preclusive effect to
state court adjudication of issues in a situation in which
that court did not have a Hague Petition before it and did
not order the return of the children pursuant to the
Convention.
039 Moreover, Carla’s argument would fail even in the
absence of our holding that it is inappropriate to apply 28
U.S.C. 1738’s general rule to this case. We take judicial
notice of the California Court of Appeal opinion and the
briefs filed in that proceeding and in the trial court and
we determine that the waiver issue was not actually
litigated and necessarily decided here, see Jacobs v. CBS
Broadcasting Inc., 291 F.3d 1173, 1177-78 (9th Cir. 2002);
Lucido v. Superior Court, 795 P.2d 1223, 1225 (Cal. 1990),
notwithstanding the California Court of Appeal’s comments
regarding waiver and its citation of Journe v. Journe, 911
F. Supp. 43 (D.P.R. 1995), in which a district court invoked
equitable waiver principles to bar a Hague Convention claim.
Jeremiah’s references to his Hague Convention claim in the
state trial court were made in the context only of notifying
the court of his intent to file a petition in federal court,
requesting that the state court stay custody proceedings,
and arguing that the Hague Convention claim was not properly
before the state court. Cf. Silverman v. Silverman, 267 F.3d
788, 792 (8th Cir. 2001) (holding that Younger abstention
was inappropriate because federal petitioner could not
secure relief under the Hague Convention in state court
where “Hague issues were raised . . . only by way of support
for his argument that the state court should not have ruled
on the custody issue”).
040 Furthermore, it is clear from its decision that the
California Court of Appeal did not deem Jeremiah to have
raised a Hague Convention claim in state court,
notwithstanding its comments regarding the issue of waiver:
“Arguments not asserted in the trial court are waived and
will not be considered for the first time on appeal. We
decline to consider whether The Hague Convention applies
because the issue was neither considered nor ruled upon by
the trial court.” Holder v. Holder (In re Marriage of
Holder), 2002 WL 443397, at *5 (Cal. Ct. App. Mar. 20, 2002)
(unpublished disposition) (internal citation omitted). It is
clear from this discussion that the California Court of
Appeal in fact determined that Jeremiah was barred from
litigating the issue before it because he had failed to
raise it before the trial court.
C. COLORADO RIVER STAY
041 8 We also hold that the district court erred in
concluding that it was appropriate to stay proceedings under
Colorado River Water Conservation District v. United States,
424 U.S. 800 (1976). Under Colorado River], considerations
of “wise judicial administration, giving regard to
conservation of judicial resources and comprehensive
disposition of litigation,” Colorado River], 424 U.S. at
817, may justify a decision by the district court to stay
federal proceedings pending the resolution of concurrent
state court proceedings involving the same matter, Intel
Corp. v. Advanced Micro Devices, Inc., 12 F.3d 908, 912 (9th
Cir. 1993). “Exact parallelism” is not required; “it is
enough if the two proceedings are ‘substantially similar.’ ”
Nakash v. Marciano, 882 F.2d 1411, 1416 (9th Cir. 1989)
(citations omitted).
042 9 But because “generally, as between state and
federal courts with concurrent jurisdiction, the rule is
that the pendency of an action in the state court is no bar
to proceedings concerning the same matter in the Federal
court having jurisdiction,” the Colorado River] doctrine is
a narrow exception to “the virtually unflagging obligation
of the federal courts to exercise the jurisdiction given
them.” Colorado River], 424 U.S. at 817 (internal citation
and quotation marks omitted); accord Intel, 12 F.3d at 912.
In Moses H. Cone Memorial Hospital v. Mercury Construction
Corp., 460 U.S. 1 (1983), the Supreme Court clarified that
to fit into this narrow doctrine, “exceptional
circumstances” must be present. 450 U.S. at 15-16; see also
Colorado River], 424 U.S. at 818 (“Given the federal court’s
obligation to exercise jurisdiction, and the absence of
weightier considerations of constitutional adjudication and
state-federal relations, the circumstances permitting the
dismissal of a federal suit due to the presence of a
concurrent state proceeding for reasons of wise judicial
administration are considerably more limited than the
circumstances appropriate for abstention. The former
circumstances, though exceptional, do nevertheless exist.”).
*fn4
043 The district court found that it would be prudent to
abstain “in the interests of comity and federalism,” because
the California decision would be “entitled to preclusive
effect” once it became final. In addition, the court found
that the state custody proceedings were substantially
similar to the federal Hague Convention proceedings “because
they both address whether post-removal/retention custody of
the Holder children should be determined in California or
Germany,” and because the issue of the children’s “habitual
residence” under the Hague Convention “overlaps the ‘home
state’ inquiry” under California law. The district court
also found that the Colorado River] factors weighed in favor
of abstention.
044 We reject the reasoning of the district court and
vacate its order staying the proceedings in federal court.
1. SUBSTANTIAL DOUBT THAT STATE CUSTODY SUIT WILL RESOLVE
ALL ISSUES
045 10 Because there is substantial doubt that a final
determination in the custody proceeding will resolve all of
the issues in Jeremiah’s federal Hague Convention petition,
we conclude that the district court abused its discretion in
staying proceedings. In Intel, we held that this was a
“significant countervailing consideration that we find
dispositive.” 12 F.3d at 913.
046 Under the rules governing the Colorado River]
doctrine, the existence of a substantial doubt as to whether
the state proceedings will resolve the federal action
precludes the granting of a stay. . . . “When a district
court decides to dismiss or stay under Colorado River], it
presumably concludes that the parallel state-court
litigation will be an adequate vehicle for the complete and
prompt resolution of the issues between the parties. If
there is any substantial doubt as to this, it would be a
serious abuse of discretion to grant the stay or dismissal
at all. . . . Thus, the decision to invoke Colorado River]
necessarily contemplates that the federal court will have
nothing further to do in resolving any substantive part of
the case, whether it stays or dismisses.” Id. (quoting Moses
H. Cone, 460 U.S. at 28) (emphasis in Intel).
047 Jeremiah’s Hague Convention claims will not be
resolved by the state court proceeding. For the reasons
discussed above, a state court judgment in the custody case
does not bar Jeremiah from raising a Hague Convention claim
in federal court. In addition, the federal district court
will not be able to resolve the case simply by according
preclusive effect to the state court’s determination of the
various issues involved in the state custody suit because
the issues relevant to the adjudication of a
Hague Convention petition are distinct from those relevant
to a custody determination under state law.
048 The district court erred in determining that
Jeremiah’s claim for custody was substantially similar to
his Hague Convention claim. As a result, the proceedings are
not “parallel,” as required for a stay under Colorado
River], see Nakash, 882 F.2d at 1416, nor will an
adjudication of custody on the merits resolve all necessary
issues, see Intel, 12 F.3d at 913 n.4 (“The requirement of
‘parallel’ state court proceedings implies that those
proceedings are sufficiently similar to the federal
proceedings to provide relief for all of the parties’
claims.”) (citation omitted).
049 The state court’s custody determination did not
resolve several of the issues critical to the disposition of
a Hague Convention petition. In Mozes, we held that a court
adjudicating a Hague Convention petition must “answer a
series of four questions: (1) When did the removal or
retention at issue take place? (2) Immediately prior to
retention, in which state was the child habitually resident?
(3) Did the removal or retention breach the rights of
custody attributed to the petitioner under the law of the
habitual residence? (4) Was the petitioner exercising those
rights at the time of removal or retention?” 239 F.3d at
1070.
050 Although there may be some overlap between the second
and third questions and the determinations under California
law of a child’s “home state,” see Cal. Fam. Code 3402,
3421, and of the best interest of the child, the Hague
Convention inquiries are nevertheless distinct. In Mozes, we
suggested that “habitual residence” has its own meaning,
uniform among signatories to the Convention and distinct
from local legal concepts. See Mozes, 239 F.3d at 1071. We
also distinguished “wrongful removal” under the Hague
Convention from more holistic custody inquiries regarding
the best interests of the child:
051 “It is important to understand that ‘wrongful
removal’ is a legal term strictly defined in the Convention.
It does not require an ad hoc determination or a balance of
the equities. Such action by a court would be contrary to a
primary purpose of the Convention: to preserve the status
quo and to deter parents from crossing international
boundaries in search of a more sympathetic court.” See id.
at 1073 n.10 (quoting Friedrich v. Friedrich, 983 F.2d 1396,
1400 (6th Cir. 1993)); see also Convention Text and Legal
Analysis, 51 Fed. Reg. at 10509 (noting that a custody
determination under the UCCJA “may not by itself” be
sufficient to determine wrongfulness of removal under the
Hague Convention).
052 Here, the parties point to no findings by the state
court regarding “habitual residence” or “wrongful removal”
as those terms are used in the context of the Hague
Convention. It was therefore inappropriate for the district
court to conclude that the proceedings were substantially
similar and to stay the proceedings under Colorado River].
053 Because Jeremiah did not bring a Hague Convention
claim in his state court custody proceeding, this case is
distinguishable from cases in which other courts have stayed
proceedings under Colorado River] or otherwise abstained
pending the outcome of proceedings in state court. See,
e.g., Copeland v. Copeland, 134 F.3d 362 (4th Cir. 1998)
(unpublished disposition); Cerit v. Cerit, 188 F. Supp. 2d
1239 (D. Haw. 2002); cf. Grieve v. Tamerin, 269 F.3d 149 (2d
Cir. 2001) (holding that Younger abstention was appropriate
and that petitioner was “collaterally estopped” from
litigating rights under the Hague Convention in federal
court because he failed to raise his claim in a prior
federal proceeding). In these cases, the left-behind parent
chose the state court as the forum for his or her Hague
Convention petition, not just for his other remedies under
state law. In such cases, it is more reasonable to confine
the left-behind parent to their choice and to be concerned
about the forum-shopping implications of failing to do so.
Here, affirming the district court stay would deprive
Jeremiah of his choice of forum in which to bring his Hague
petition. And requiring him to bring all of his claims in a
single forum could effectively require him to choose between
remedies, if for example jurisdiction or venue is improper
under the Hague Convention in California, and jurisdiction
under state custody law is improper in Washington. *fn5
054 There are also at least two cases in which
out-of-circuit district courts abstained pending state
custody proceedings, even though the petitioner did not
raise an ICARA claim in state court. Bouvagnet v. Bouvagnet,
2001 WL 1263497, at *4 n.3 (N.D. Ill. Oct. 22, 2001)
(abstaining under Younger and stating that “the relevant
inquiry is wether the petitioner had the right to raise the
ICARA claim in the state court; whether the petitioner did
so is not relevant”) (citing Bowden v. Sigg, No.
2:99-CV-908K, at 3-4 (C.D. Utah Dec. 22, 1999) (unpublished
disposition)). These cases presume, however, that the state
court custody judgment would act as a bar to the subsequent
adjudication of a Hague Convention petition in federal
court. For the reasons stated above, it would be
inconsistent with our decision in Mozes and would severely
limit the leftbehind parent’s choice of remedies in a way
not contemplated by the Hague Convention to abstain in every
case where a state custody proceeding had been filed and
where an ICARA claim could have been raised.
802. OTHER COLORADO RIVER FACTORS
055 Although it is “dispositive” that the state court
judgment will not resolve all of the issues before the
federal court, Intel, 12 F.3d at 913, we also conclude that
other Colorado River] factors weigh against a stay in this
case. Colorado River] and subsequent cases lay out the
following factors, that, although not exclusive, are
relevant to whether it is appropriate to stay proceedings:
056 (1) whether the state court first assumed
jurisdiction over property;
057 (2) inconvenience of the federal forum;
057 (3) the desirability of avoiding piecemeal
litigation;
058 (4) the order in which jurisdiction was obtained by
the concurrent forums;
059 (5) whether federal law or state law provides the
rule of decision on the merits;
060 (6) whether the state court proceedings are
inadequate to protect the federal litigant’s rights;
061 (7) whether exercising jurisdiction would promote
forum shopping. See Moses H. Cone, 460 U.S. at 15-16, 23,
26; Travelers Indem., 914 F.2d at 1367-68; see also Colorado
River], 424 U.S. at 818-19.
062 The factors relevant to a given case are subjected to
a flexible balancing test, in which one factor may be
accorded substantially more weight than another depending on
the circumstances of the case, and “with the balance heavily
weighted in favor of the exercise of jurisdiction.” Moses H.
Cone, 460 U.S. at 16; accord Travelers Indem., 914 F.2d at
1368.
063 On balance, the factors counsel against staying
proceedings. Factor (1) is not relevant here. See Lops, 140
F.3d at 943; Cerit, 188 F. Supp. 2d at 1249. Factor (2)
counsels against a stay because Carla and the children are
currently located in Washington. See Lops, 140 F.3d at 943
(noting that a Georgia forum “was particularly convenient”
because the children and one of the respondents lived in
Georgia). Indeed, Carla initially contested jurisdiction in
California because she preferred a Washington forum. *fn6
Factor (5) weighs against staying proceedings because
federal law and a federal treaty provide the rule of
decision. Lops, 140 F.3d at 943. But see Cerit, 188 F. Supp.
2d at 1250 (holding that state law domestic relations issues
predominated and thus that the federal source of law was of
“diminished importance”). Factor (6) also weighs against a
stay in this case, because, as discussed above, these state
court proceedings will not reach the key issues that must be
adjudicated to get relief under the Hague Convention. See
Intel, 12 F.3d at 913 n.4. Factor (7) also does not counsel
for staying these particular proceedings because under 42
U.S.C. 11603(b), as between the federal court in
Washington and the state court in California, Jeremiah
probably had to bring his Hague Convention claim in federal
court. See supra note 6.
064 Although Factor (3) and Factor (4) appear to militate
in favor of staying proceedings, we accord them less weight
in the context of ICARA and the Hague Convention. Factor (3)
and Factor (4) inquiries are motivated by order and
efficiency concerns. In this context, however, these
concerns should be subordinated to those motivating ICARA
and the Hague Convention, particularly the requirement that
courts expeditiously resolve claims. See, e.g., Hague
Convention, art. 2, art. 11, 19 I.L.M. at 1501, 1502; see
also Lops, 140 F.3d at 943-44. The district court’s decision
to stay federal proceedings pending the appeal of a state
court decision that did not address the requirements of the
Hague Convention frustrates this purpose and delays any
relief to which Jeremiah might be entitled under the
Convention.
065 In addition, piecemeal litigation (Factor (3)) may be
unavoidable in a typical ICARA situation. Indeed, the Hague
Convention was promulgated to address situations in which
there are multiple custody proceedings in multiple
countries. And as discussed above, piecemeal litigation may
be necessary in cases in which no one court has jurisdiction
over both claims under state custody law and under the Hague
Convention to ensure that a left-behind parent may pursue
all of his remedies. Indeed, the Hague Convention
specifically contemplates that, in a situation in which
there are multiple proceedings, it is the state custody
court that should issue a stay, not the court adjudicating
the Hague Convention petition. See Hague Convention, art.
16, 19 I.L.M. at 1503.
066 Carla argues that the “doctrine of judicial estoppel”
also favors abstention. See generally Rissetto v. Plumbers &
Steamfitters Local 343, 94 F.3d 597, 600-05 (9th Cir. 1996)
(discussing the doctrine of judicial estoppel). She points
to no case, however, in which a court has found it
appropriate to stay proceedings or otherwise abstain because
a party has taken inconsistent positions in an attempt to
gain advantage in litigation. Furthermore, Jeremiah’s
position that California had jurisdiction over his custody
claim is not necessarily inconsistent with his position that
Washington, not California, has jurisdiction over his ICARA
claim, because the concept of “home state” under California
state law differs from the concept of “habitual residence”
under ICARA. Cf. Pegram v. Herdrich, 530 U.S. 211, 228 n. 8
(2000) (“Because fiduciary duty to disclose is not
necessarily coextensive with fiduciary responsibility for
the subject matter of the disclosure, defendant is not
estopped from contesting its fiduciary status with respect
to the allegations of the amended complaint.”). Even
Jeremiah’s statement, “California is the only court that can
decide all issues,” is one that we believe is best
understood as a statement regarding all issues raised in the
California case.
D. ALTERNATIVE ARGUMENTS FOR DISMISSAL
1. WAIVER
067 Although we have already rejected Carla’s argument
that issue preclusion dictates that we must conclude that
Jeremiah, by filing for custody in California, waived his
rights under the Hague Convention, she also argues that we
can find waiver in the first instance under Journe. We
decline to do so.
068 In Journe, the district court invoked its “equitable
powers” and the doctrine of waiver to dismiss Dr. Journe’s
Hague Convention petition for return of his children to
France. The court reasoned that, because “his remedy under
the Convention would put him in the same position he was in
on November 17, 1994,” Dr. Journe’s request, on November 22,
1994, that the French court voluntarily dismiss his custody
claim “can only be characterized as indicative of an intent
to relinquish his rights to have the custody issues decided
by the courts of France.” 911 F. Supp. at 48.
069 This case is distinguishable. Jeremiah has not given
up the very thing that relief under the Hague Convention
would give him: “his choice of a German forum to decide the
custody issues under German law, as contemplated by the
Convention.” Id. Many of the reasons that Jeremiah may have
had for filing for custody in California are wholly
consistent with a desire to have them finally adjudicated in
Germany.
070 For example, Jeremiah may not have wanted Carla to
gain an advantage even greater than the one that she may
have sought to gain by removing the children from Germany.
If we were to conclude that a left-behind parent may not
simultaneously bring claims for both custody and return of
the child under the Hague Convention, then the left-behind
parent would have to wait until his Hague Convention
proceeding was adjudicated before filing for custody. Under
those circumstances, the abducting parent would always have
an advantage in choosing the forum in which to litigate
custody because they could always file first. Even if that
custody proceeding was then stayed under the Hague
Convention, the left-behind parent would nevertheless have
to litigate the stay and any other matters in a (likely less
convenient) forum of the abducting parent’s choosing.
071 We do not conclude, therefore, that under these
circumstances Jeremiah has exhibited his “uncoerced intent
to relinquish” his rights under the Hague Convention. Id. at
47. To do so would be to ignore the central purpose of the
Hague Convention and ICARA — to prevent an abducting parent
from gaining an advantage in custody litigation by
manipulating the forum in which the suit is brought. *fn7
072 The dissent contends that this result “gives the left
behind parent a windfall by providing him with two
opportunities to litigate custody: once in state court, and
if he is unhappy with the result, all over again in another
forum under the Hague Convention.” Slip op. at 13338. The
dissent ignores, however, the fact that the parent will only
get two opportunities to litigate custody if a court
properly determines under the Hague Convention that the
children were wrongfully abducted from their country of
habitual residence by the other parent. We disagree that the
left-behind parent receives any windfall in this situation
or that any injustice is done to the parent that wrongfully
abducted her children.
2. FEDERAL QUESTION JURISDICTION
073 In her brief to this court, Carla also incorporates
by reference the Magistrate Judge’s suggestion, on which his
recommendations did not rely, that “it is questionable
whether this court has jurisdiction for lack of a
substantial question under the Hague Convention because
Jeremiah filed this action after he obtained a
post-removal/retention custody decision regarding his
children in a court of his choosing.” We reject this
reasoning to the extent that it is substantively similar to
the waiver argument, and because it ignores the several
provisions in ICARA and the Hague Convention that
specifically contemplate that a left-behind parent may
pursue remedies under both the Convention and state law.
See, e.g., 42 U.S.C. 11603(h); Hague Convention, art. 18,
19 I.L.M. at 1503; Hague Convention, art. 29, 19 I.L.M. at
1504; Hague Convention, art. 34, 19 I.L.M. at 1504.
E. ARGUMENTS REGARDING THE MERITS OF JEREMIAH’S PETITION
074 We do not reach any of the parties’ arguments that
bear on the merits of Jeremiah’s petition, including those
relating to the question whether Germany is the children’s
“habitual residence” under ICARA and those relating to the
question whether Carla’s removal of the children was
wrongful. These should be resolved by the district court in
the first instance.
IV. CONCLUSION
075 For the reasons set forth above, we VACATE the
district court’s rulings staying this proceeding and
abstaining from exercising jurisdiction and REMAND for
further proceedings under the Hague Convention and ICARA. In
light of our disposition of Jeremiah’s appeal, we also
VACATE the district court’s denial of Carla’s request for
attorney’s fees and costs on the grounds that it is
premature.
VACATED and REMANDED.
THOMPSON, Circuit Judge, Dissenting:
076 I respectfully dissent. I do not agree with the
majority’s view that Jeremiah has not waived his Hague
Convention remedy. Jeremiah initiated and litigated the
child custody dispute in state court in California. After
pressing that court to resolve the merits of the custody
dispute, Jeremiah cannot now argue that the court should
have refrained from doing so, simply because he disagrees
with its decision.
077 A case involving analytically similar circumstances
was before the United States District Court for the District
of Puerto Rico in Journe v. Journe, 911 F.Supp. 43 (D.P.R.
1995). There, Dr. Journe filed for divorce and custody in
France. His wife, Ms. Soto, thereafter left France with the
children. Ms. Soto later appeared at a hearing in the French
court that was handling the divorce and custody proceedings.
Shortly after the hearing, Dr. Journe requested dismissal of
the divorce petition, believing that he and Ms. Soto had
reconciled. The French court granted Dr. Journe’s request
and dismissed the divorce complaint. Ms. Soto, however, did
not return to France and claimed that no reconciliation had
occurred. Dr. Journe sought to exercise his rights under the
Convention in the federal district court in Puerto Rico and
have the children returned to France. The district court
held that Dr. Journe’s voluntary dismissal of the divorce
complaint constituted a waiver of his remedy under the Hague
Convention. Dr. Journe had “his choice of a French forum to
decide the custody issues under French law, as contemplated
by the Convention. Given these circumstances, his voluntary
dismissal of the action for divorce can only be
characterized as indicative of an intent to relinquish his
rights to have the custody issues decided by the courts of
France.” Id. at 48.
078 The same equitable principle applies in this case.
Like Dr. Journe, Jeremiah gave up the very thing that relief
under the Hague Convention would give him: resolution of the
custody issue by a court in Germany. He did that by
eschewing the Hague Convention and litigating his custody
suit in state court. The majority argues that a left-behind
parent should be able to “simultaneously” file a custody
suit and a Hague Convention petition to ensure that the
abducting parent cannot choose the forum in which to
litigate custody. Maybe so. But that is not this case.
Jeremiah did not “simultaneously” file both claims and ask
the state court to stay the custody determination pending
resolution of the Hague petition. Instead, he filed only the
California custody suit, insisted that the California court
decide the custody issue on the merits, objected to Carla’s
reference to the Hague Convention, and sought relief under
that Convention only after the California state court issued
its adverse custody determination. *fn8 Consequently, he has
waived the Hague Convention claim he now asserts.
079 This result is supported by the policy underlying the
Hague Convention. The purpose of the Convention is to ensure
that the abducting parent is not advantaged in the custody
dispute. See Elisa Perez-Vera, Explanatory Report ¶ 16, in 3
Hague Conference on Private International Law, Acts and
Documents of the Fourteenth Session, Child Abduction 429
(1982). *fn9 The majority opinion, however, goes way beyond
this. It gives the left-behind parent a windfall by
providing him with two opportunities to litigate custody:
once in state court, and if he is unhappy with the result,
all over again in another forum under the Hague Convention.
As the United States aptly has observed in its amicus brief
filed in the state court of appeal, “the Hague Convention
was not intended to allow the ‘left-behind parent’ a second
bite at the custody apple just because, after specifically
electing to litigate custody in a forum that otherwise had
jurisdiction, the parent suffered an adverse result.”
080 This makes sense to me. I see no reason to give
Jeremiah a second bite at the custody apple. He’s had his
day in court in the forum he chose. I would direct the
district court to dismiss his Hague Convention petition, and
I would not reach the other issues addressed by the
majority.
Opinion Footnotes
*fn1 Jeremiah also submitted his own “Minutes” of the
mediation to the district court, but the Magistrate Judge
refused to consider them, finding the document to be
unauthenticated and hearsay.
*fn2 Section 1738 provides that the judicial proceedings of
any state court “shall have the same full faith and credit
in every court within the United States and its Territories
and Possessions as they have by law or usage in the courts
of such State, Territory or Possession from which they are
taken.”
*fn3 See generally Rooker v. Fid. Trust Co., 263 U.S. 413,
415-16 (1923); Dist. of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 486-87 (1983).
*fn4 The Colorado River] doctrine is not technically an
abstention doctrine, although it is sometimes referred to as
one. Moses H. Cone, 460 U.S. at 14-15; Attwood v. Mendocino
Coast Dist. Hosp., 886 F.2d 241, 243 (9th Cir. 1989).
*fn5 Jeremiah probably could not have brought his Hague
Convention petition in California in the first instance
because California probably does not have jurisdiction to
hear it. ICARA provides: Any person seeking to initiate
judicial proceedings under the Convention . . . may do so by
commencing a civil action by filing a petition for the
relief sought 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. 42 U.S.C. 11603(b). At least one of our
sister circuits has held that “located” has a particular
meaning in the context of ICARA, distinct from “a
traditional residency test.” Lops v. Lops, 140 F.3d 927, 937
(11th Cir. 1998). The Lops definition, “the place where the
abducted children are discovered,” is more equivalent to the
concept of physical presence. 140 F.3d at 937. This kind of
common-sense definition makes sense in the context of the
ICARA and the Hague Convention, concerned as they are with
the Hague Convention’s consistent application across
borders. See 42 U.S.C. 11601(b)(1)(B); cf. Mozes, 239 F.3d
at 1071. Carla argues that 11603(b) is merely a venue
provision, and points to one out-of-circuit district court
order in which the court, without analysis, refers to
11603(b) as such. Suki v. Kovacs (In re Suki), 1995 WL
631696, at *1 (E.D. Pa. Oct. 27, 1995). But the Eleventh
Circuit’s determination in Lops, 140 F.3d at 936-38, that
11603(b) referred to personal jurisdiction, is consistent
with the multiple references in ICARA itself to the word
jurisdiction in or in reference to 11603(b), 42 U.S.C.
11603(b) & 11604(a), (b). Even if 11603(b) is a venue
provision, it would still have prevented Jeremiah from
filing a Hague Convention petition in California absent a
waiver by Carla.
*fn6 The only possible inconvenience of the federal forum is
that it requires Carla to litigate in two courts. In the
ICARA context, however, we do give significant weight to
this type of inconvenience, because, as discussed above and
in reference to Factor (3), piecemeal litigation, litigation
in two courts is necessary in some cases to ensure that a
left-behind parent may pursue both his remedies under state
law and his remedies under the Hague Convention and ICARA.
*fn7 This is not to say that a court, reviewing a Hague
Convention Petition, could not consider as one of the
circumstances that might indicate waiver the act of filing
for custody in the jurisdiction to which a left-behind
parent’s children were removed. We hold that it is
insufficient, however, to find an “uncoerced intent to
relinquish” Hague Convention rights on this basis alone,
because, as discussed above, filing for custody might simply
indicate an intention to mitigate the litigation advantage
that an abducting parent would obtain by wrongfully removing
his or her children. In our view, this is consistent with
the position that the United States espoused in its amicus
curiae brief to the California Court of Appeal — that
remedies under the Hague Convention may be waived, and that
parents may agree to litigate custody in a forum besides the
children’s habitual residence. Our decision is also
consistent with the United States’s position that “whether
or not Mr. Holder actually waived a right to seek a remedy
under the Hague Convention should be decided in the first
instance by the court considering his Hague Convention
petition.”
*fn8 The first reference to the Hague Convention in the
California state court proceedings occurred when, after
having lost the custody dispute, Jeremiah filed a motion for
reconsideration on August 18, 2000. On August 29, 2000 he
filed with the United States Central Authority an
application for return of the children under the Hague
Convention. He did not file the district court petition in
this case until November 14, 2000. During the October 2,
2002 state court hearing on his motion for reconsideration,
his counsel stated that he was not raising the issue of the
Hague Convention and objected to Carla’s references to it.
His counsel told the court: Finally, as regards to Carla’s
addressing of Hague issues or alleged Hague Convention
issues in her reply points and authorities, there is a Hague
action that we filed in federal court the United States
Central Authority filing with another attorney, but in this
action, the action at bar, Jeremiah has not raised this
issue, and so I would object to sic relevancy to any law or
facts that were recited by Counsel as regards to Hague
Convention issues, and I’d like to make that objection
ongoing. Holder v. Holder (In re Marriage of Holder), 2002
WL 443397, at *4-5 (Cal. Ct. App. Mar. 20, 2002).
*fn9 Elisa Perez-Vera was the official Convention reporter,
and her report is recognized by the Conference as the
official history and commentary on the Convention. See
Gaudin v. Remis, 282 F.3d 1178, 1182 n.2 (9th Cir. 2002).