USA – FEDERAL – SILVERMAN – 2001(remanded back to district court) SILVERMAN v SILVERMAN Because the Hague issue has not been addressed, we believe the appropriate course of action is to remand the matter to the district court to consider whether the Silverman children were wrongfully removed from Israel.


Silverman v. Silverman [US 2001]267 Fed.3d 788 (8th Cir. 2001)
No. 00-4004 (8th Cir. 04 Oct 2001)
United States Court of Appeals, Eight Circuit
14 International Abduction [USA 2001]


No. 00-4004

October 4, 2001




Before Murphy, Heaney and Beam, Circuit Judges.

The opinion of the court was delivered by: Heaney, Circuit Judge

Appeal from the United States District Court for the District of

Submitted: June 13, 2001

001 This case involves the application of the Younger FN01
abstention doctrine to a petition under the Hague Convention on
the Civil Aspects of International Child Abduction, Oct. 25,
1980, T.I.A.S. No. 11670 (Hague Convention). For the reasons
discussed below, we remand the matter to the district court for
further proceedings.


002 Robert Hechter Silverman and Julie Hechter Silverman were
married in 1989, and they have two children, ages 6 and 9. In
1995, the Silvermans moved from Poughkeepsie, New York to
Plymouth, Minnesota, where they lived until August 1999, when
they moved to Israel. In October of that year, the Silvermans
filed a voluntary petition in the United States Bankruptcy Court
in which they declared under penalty of perjury that they were
residing in Plymouth.

003 In June 2000, Julie FN02 left Israel with the children.
She had obtained round-trip tickets with a scheduled return to
Israel in August 2000, and had secured Robert’s written
permission to take the children across international borders
while “on vacation.” Before she and the children were scheduled
to return to Israel, however, Julie filed a petition in Minnesota
state court seeking a legal separation from Robert and custody of
the children. Robert was personally served in Israel.

004 Pursuant to the Hague Convention, Robert filed a “Request
for Return of Abducted Children” with the National Center for
Missing and Exploited Children (NCMEC) FN03 on August 24, 2000.
On October 5, 2000, Robert filed a Hague petition seeking the
return of the children in federal district court, and an

evidentiary hearing was scheduled for November 8, 2000. He also
filed a motion with the Minnesota court on October 10, 2000,
seeking either dismissal of the custody proceedings for lack of
subject matter jurisdiction in light of the Hague Convention, or
a stay of the custody proceedings pending resolution of his NCMEC
request. He did not file a Hague Convention petition with the
state court.

005 At the hearing before a state-court referee on October 10,
Robert’s attorney argued the jurisdictional issue, and the
referee engaged her in a discussion of the facts surrounding the
parties’ move to Israel, the bankruptcy, and the status of the
children in Minnesota at the time. Counsel repeatedly asserted
that the court should not reach the merits of the custody issue,
noting that the children’s physical presence in Minnesota was the
result of an allegedly wrongful removal from Israel. Julie’s
attorney, however, argued that the only prerequisite to the court
ruling on the merits of the custody issue was a finding that
Minnesota was the children’s “home state” under Minn. Stat.
§ 518D.102(h) (Minnesota’s version of the Uniform Child
Custody Jurisdiction Act (UCCJA)), and that the best interests of
the children required granting custody to Julie.

0061 On October 17, 2000, the referee issued an order (1)
granting Julie temporary sole legal custody and temporary sole
physical custody of the children, (2) granting Robert the right
to reasonable supervised visitation, and (3) appointing a
guardian ad litem for the children. In factual findings, the
referee noted that Robert had filed a Hague petition with the
federal district court, but that at the time of the October 10
hearing, Julie had not been served, FN04 and neither party had
requested that the record remain open, a fact which we deem
irrelevant to a decision in this matter. The remainder of the
findings, however, did not address Hague Convention issues. The
referee concluded that the Silvermans’ move to Israel “was a
temporary absence and not meant to be permanent” (App. at 108)
and that Minnesota was the children’s “home state” under the
UCCJA. The referee noted the inconsistency of Robert’s position
with respect to the child custody issue and his representation to
the bankruptcy court, and Julie’s allegation that Robert had
committed “numerous instances of domestic abuse” (App. at 107).

007 Julie filed her answer to Robert’s Hague petition at the
end of October, asserting that the federal district court lacked
jurisdiction over the petition because “the United States is not
[sic] the habitual residence of the children . . . , there has
been no wrongful removal or retention and therefore the Hague
Convention is not applicable” (App. at 57), and raising a number
of affirmative defenses. Julie also filed a motion to dismiss
Robert’s Hague petition arguing, inter alia, that the federal
court should abstain from exercising jurisdiction because (1)
there were ongoing state proceedings, (2) the state had a
significant interest in matters of child custody, and (3) Robert
had the opportunity to present the Hague issue in state court.

008 Meanwhile, on September 22, a NCMEC agent had contacted
Robert’s Israeli attorney and requested that the attorney obtain
from the Israeli courts a determination pursuant to Chapter III,
Article 15 of the Hague Convention FN05 as to whether Julie had
wrongfully removed or retained the children within the meaning of

the Convention. Robert’s Israeli attorney served Julie on
November 7, 2000 with a copy of the petition and supporting
documents. The district court was also advised of the Israeli

009 On November 7, 2000, the federal district court held a
hearing on Julie’s motion to dismiss Robert’s Hague petition
seeking to have the children returned. Julie’s attorney contended
that Younger abstention was appropriate because the matter before
the state court implicated the state’s significant interest in
child custody matters, and because Robert had litigated the Hague
Convention issues before the state court and had sought review of
the state court ruling in the Minnesota Court of Appeals. FN06

010 Robert’s attorney responded that the state court had
declined to rule on his Hague Convention argument, and emphasized
the differences between a Hague Convention proceeding and a
merits custody determination. Robert’s attorney also contended
that it is the “left-behind parent” who is entitled to select the
forum in which to raise Hague Convention issues.

011 The district court granted Julie’s motion and dismissed
Robert’s Hague petition, concluding Younger abstention was
appropriate because Robert had “failed to show that the state
courts will not afford him adequate opportunity to litigate his
Petition under the Hague Convention.” Silverman v. Silverman, No.
00-2274, slip op. at 6 (D. Minn. Nov. 13, 2000). The court noted
that the federal statute implementing the treaty vested
concurrent jurisdiction over Hague petitions in both state and
federal courts and that Robert “availed himself of state court to
the extent that he challenged subject matter jurisdiction and
argued that Israel is the ‘habitual residence’ of the children.”
Id. Robert appeals.


012 The Hague Convention attempts 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.” Hague Convention,
Preamble, T.I.A.S. No. 11670. The primary purpose of the
Convention is “to restore the status quo ante and to deter
parents from crossing international boundaries in search of a
more sympathetic court.” Rydder v. Rydder, 49 F.3d 369, 372 (8th
Cir. 1995) (citation omitted).

013 Although federal courts have a “virtually unflagging
obligation . . . to exercise the jurisdiction given to them,”
Colorado River Water Conservation Dist. v. United States, 424
U.S. 800, 817 (1976), the Supreme Court has formulated a number
of abstention doctrines based upon the federal courts’
prerogative to withhold equitable or quasi-equitable forms of
relief. Younger abstention prohibits a federal court from
interfering in pending state civil cases where (1) there is an
ongoing state proceeding (2) that implicates important state
interests and (3) there is an adequate opportunity in the state
proceeding to raise the federal issues. Middlesex County Ethics
Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). We
review the district court’s application of Younger abstention for

abuse of discretion. Night Clubs, Inc. v. City of Fort Smith,
Ark., 163 F.3d 475, 479 (8th Cir. 1998).

014 Robert’s arguments for reversal mostly implicate the third
consideration. In particular, he complains that the district
court’s ruling denied him his right to select the forum in which
to proceed with his petition, thereby permitting Julie to engage
in precisely the sort of forum selection the Hague Convention
aims to curtail. He also points out that the Hague issues were
raised in the state court only by way of support for his argument
that the state court should not have ruled on the custody issue
until the federal court resolved the Hague issues.

015 Whatever the validity of these arguments, it is apparent
that there is a fundamental defect in the federal district
court’s decision to dismiss Robert’s Hague petition on abstention
grounds. In Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 707
(1996), the Supreme Court made clear that “federal courts have
the power to dismiss or remand based on abstention principles
only where the relief sought is equitable or otherwise
discretionary.” That is not the sort of remedy sought here. The
Hague Convention mandates that a court that receives a valid
Hague petition must determine whether the child has, in fact,
been wrongfully removed:

016 Where a child has been wrongfully 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. Article 12 (emphasis added.)

017 In the absence of discretion with respect to relief,
abstention principles do not permit an outright dismissal of a
Hague petition. See Yamaha Motor Corp., U.S.A. v. Stroud, 179
F.3d 598, 603-04 (8th Cir. 1999).

018 Because the Hague issue has not been addressed, we believe
the appropriate course of action is to remand the matter to the
district court to consider whether the Silverman children were
wrongfully removed. We note that nearly a year has passed since
Robert filed his petition under the Hague Convention, due in no
small part to our own consideration of the case. This matter
warrants prompt resolution.


019 The matter is remanded to the district court for further
proceedings not inconsistent with this opinion. The mandate shall
issue forthwith.

Opinion Footnotes

01 Younger v. Harris, 401 U.S. 37 (1971).

02 For the sake of convenience, we refer to the parties by
their first names.

03 Under State Department regulations, the National Center

for Missing and Exploited Children is responsible for processing
applications seeking the return of children wrongfully removed to
or retained in the United States. 22 C.F.R. Sect. 94.6.

04 Julie was served the day of the hearing in the afternoon.
(App. at 14).

05 Article 15 provides: The judicial or administrative
authorities of a Contracting State may, prior to the making of an
order for the return of a child, request that the applicant
obtain from the authorities of the State of the habitual
residence of the child a decision or other determination that the
removal or retention was wrongful with the meaning of Article 3
of the Convention, where such a decision or determination may be
obtained in that State. The Central Authorities of the
Contracting States shall so far as practicable assist applicants
to obtain such a decision or determination. T.I.A.S. No. 11670.

06 Robert filed a petition for Writ of Mandamus on October
27, 2000. There has been subsequent state court action in the