Holder v. Holder

• Decision Date: 06 September 2002
• Docket Number: No. 01-35467.,No. 01-35519.,01-35467.,01-35519.
• Citation: 305 F.3d 854
• Parties: Jeremiah W. HOLDER, Petitioner-Appellant, v. Carla R. HOLDER, Respondent-Appellee. Jeremiah W. Holder, Petitioner-Appellee, v. Carla R. Holder, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

305 F.3d 854

Jeremiah W. HOLDER, Petitioner-Appellant, v. Carla R. HOLDER, Respondent-Appellee.

Jeremiah W. Holder, Petitioner-Appellee, v. Carla R. Holder, Respondent-Appellant.

No. 01-35467.

No. 01-35519.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 3, 2002.

Filed September 6, 2002.

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Rhea J. Rolfe, Edmonds, WA, for the petitioner-appellant-cross-appellee.

A. Chad Allred, Seattle, WA, for the respondent-appellee-cross-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.

Before D.W. NELSON, THOMPSON and PAEZ, Circuit Judges.

OPINION

PAEZ, Circuit Judge.

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 Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Carla cross-appeals the district court's denial of her request for attorney's fees and costs.

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.

Thus, we hold that the district court abused its discretion in staying proceedings under Colorado River. In this Circuit, the narrow Colorado River 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 Colorado River factors also weigh against staying proceedings in this case.

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

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 "[d]esiring 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.'" Mozes v. Mozes, 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)).

The Convention seeks to deter parental abductions by "depriv[ing 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 "[t]he 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.

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 "[t]he 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

In this Hague Convention case, Jeremiah seeks the return of his two children to Germany from the United States.

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.

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 reenlist 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.

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.

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.

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."

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.

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.

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 "believe[d] 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 "[t]his [California court] is the only court that can decide all issues." Carla eventually stipulated that...