Case Update (25 June 2024): Schoner v. Schoner; Court dismisses Hague case using abstention doctrine because of pending state custody case
This particular Hague Abduction Convention return petition requires a more robust examination of all the various legal pleadings that have been filed in the Ohio (and Mexico) courts, because the U.S. District Court in this case dismissed the Petitioner’s request to return their child to Mexico pursuant to the Younger abstention doctrine. The federal court noted that there was a pending state court civil lawsuit in Ohio, which implicated important state interests, and that the Petitioner has the opportunity to raise his request to return the child in that lawsuit. The federal court further “expressed particular concern that: (1) the State Court, as part of the ongoing divorce proceedings, had issued a custody order with respect to [the children], and (2) if this Court granted Petitioner the relief he requested and Respondent intended to stay in the United States, then the Court would be ordering the children’s removal in contravention of that State Court order and in violation of principles of comity.” The federal court also asked whether a “Hague Convention petition may be a compulsory counterclaim to a divorce complaint under Ohio law.” The timeline is as follows:
June 29, 2023 - the Respondent took her children to Ohio for a visit and did not return to Mexico
July 21, 2023 - Respondent filed a Motion for Ex Parte Emergency Custody in Ohio state court; she also filed a Petition for Legal Separation
July 21, 2023 - the state court granted the Motion for Emergency Custody and entered a Temporary Restraining Order against the Petitioner
August 7, 2023 - a hearing was set in the Ohio state court case (the federal court notes that there is no indication on the docket that this hearing took place)
September 25, 2023 - the Petitioner filed a Mexican divorce case
December 19, 2023 - the Petitioner filed the U.S. District Court Hague matter
December 22, 2023 - the Respondent sought a Mexican process server be appointed (this was sustained on December 26, 2023)
December 28, 2023 - the Petitioner filed a Motion to Appoint Process Server and requested an expedited proceeding in the federal court
February 12, 2024 - the Ohio state court issued an Order Scheduling Final Hearing
February 20, 2024 - the Petitioner entered a notice of limited appearance in the Ohio state court proceeding to contest jurisdiction
March 11, 2024 - the Respondent filed a Motion to Convert the Legal Separation proceeding in the Ohio state court to a Divorce proceeding (this was sustained on March 13, 2024)
With regard to the Ohio State Court proceedings, the Petitioner contested that he was properly served pursuant to the Hague Service Convention. With no proper service, there is no personal jurisdiction, ergo no custody order (there is a temporary emergency custody order), and therefore this federal court Hague matter can proceed. In this federal case, Petitioner argues there was proper service on Respondent, the relief being sought is mandatory (the return of the child), so Younger should not even apply. Further, ICARA provides concurrent jurisdiction, and he raised this claim in the federal courts (not in state court). [Note: Less than one week ago, a sister-U.S. District Court concluded that it was the petitioner’s choice of forum to file in federal court, a presumption only to be overcome by strong evidence of public and private interests.]
Respondent argued that Petitioner did not make a formal contestation of jurisdiction in the Ohio state court case, the temporary emergency custody order preliminarily denies any attempt to return the children to Mexico, its decision must be afforded full faith and credit, the state court action involves important state interests, and ICARA vests concurrent jurisdiction, so Petitioner can raise his request to return the children in the state court. She further argued that the state court found that Ohio is the child’s “home state” (note - there is no actual cite to the language in the state court order, so there is no actual confirmation in this opinion that the state court found it to be the child’s home state, which is not the basis for an emergency order, but, as Petitioner states, home state and habitual residence are different/distinct. Furthermore, he contests that Ohio is the home state.)
There seems to be a lot of conflating of the Hague Abduction Convention and a custody case in this opinion. The two are very distinct proceedings. Further, unless there are other facts, if the child had been residing primarily in Mexico, and the Respondent filed a custody case in Ohio less than six months after having left Mexico, the UCCJEA would seem to indicate that her custody filing in Ohio should be dismissed (stayed, at first, pending the resolution of the Hague Abduction petition, but then dismissed as having been prematurely filed). All of that seems to be a red herring, however. The Abduction Convention case is not a resolution of custody jurisdiction, nor a decision on who should have custody and where and when. There is nothing referenced in the opinion stating that the Petitioner Father filed a request to return the child in the Ohio state court already, before filing in the federal court, so that the precise same action is filed in both venues. That has been the experience in some other Younger Hague decisions. [See Barron v. Kendall where the Petitioner parent had already had a Hague proceeding pending in California state court before he filed in federal court]
The federal court here seems to argue that an order from its bench returning the child to Mexico would overturn a custody order (note - a temporary emergency custody order, which, under the UCCJEA is only temporary until the home state would otherwise pick up jurisdiction to render a more permanent order). As referenced in FN 55 of the Mozes v. Mozes case, the 9th Circuit certainly felt that “federal courts must have the power to vacate state custody determinations and other state court orders that contravene the treaty”. Further, nowhere in the entire opinion does the court reference Article 16 of the Convention (but for a brief FN that may miss the mark), which would have required the Ohio state court to not decide on the merits of custody until after the Hague Abduction Convention return petition is resolved. Is the temporary emergency order (which, granted, was entered before the Hague petition was filed) a merits determination? It sounds as if the Ohio state court hasn’t reached a merits determination, and at best, the temporary emergency order is just a provisional remedy pending the decision of the Hague Abduction Convention case.
One final thought - does this decision incentivize abducting parents to immediately seek temporary emergency custody orders upon landing in the new country with the child?
