267 F.3d 788 (8th Cir. 2001), 00-4004, Silverman v Silverman

Docket Nº:00-4004
Citation:267 F.3d 788
Party Name:ROBERT HECHTER SILVERMAN, APPELLANT, v. JULIE HECHTER SILVERMAN, APPELLEE.
Case Date:October 04, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 788

267 F.3d 788 (8th Cir. 2001)

ROBERT HECHTER SILVERMAN, APPELLANT,

v.

JULIE HECHTER SILVERMAN, APPELLEE.

No. 00-4004

United States Court of Appeals, Eighth Circuit

October 4, 2001

Submitted: June 13, 2001

Appeal from the United States District Court for the District of Minnesota.

Page 789

Before Murphy, Heaney and Beam, Circuit Judges.

Heaney, Circuit Judge

This case involves the application of the Younger1 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.

I. BACKGROUND

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.

In June 2000, Julie2 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

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court seeking a legal separation from Robert and custody of the children. Robert was personally served in Israel.

Pursuant to the Hague Convention, Robert filed a "Request for Return of Abducted Children" with the National Center for Missing and Exploited Children (NCMEC)3 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.

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...

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