Case Update (29 May 2025): Mendez v. Brandon; pleading filed in state court that had elements of Hague return petition can be adjudicated, foreclosing a federal proceeding
This case was before the U.S. District Court for the Western District of Kentucky. The case was filed by the Petitioner Father requesting the return of the parties’ children to Japan from Kentucky, alleging that the children were wrongfully retained as of May 11, 2024 pursuant to the Hague Abduction Convention. This May 29, 2025 opinion related to the Respondent Mother’s request to dismiss the return petition, and abstain from proceeding.
In October 2024, the Respondent Mother had filed a divorce and custody matter in the local state court in Kentucky. On November 27, 2024, the Petitioner Father filed a notice with the state court along with an “application for assistance in child’s return.” The notice alleged the children’s wrongful retention in Kentucky, and stated that he would be filing an appropriate application and petition for return of the children within a reasonable timeframe, so the court should not reach a merits determination on custody until the resolution of that matter. The Petitioner Father then filed an application with the Japanese Central Authority. At this time, the Father did not file any petition in the federal court seeking the children’s return. In the application that Petitioner Father filed with the state court, he alleged that the children were under 16 years of age, were habitually resident in Japan, that he was exercising his custody rights under Japanese law, and that his rights were breached as of May 11, 2024 when the Mother refused to return the children to Japan. In other words, he made the requisite allegations necessary to argue his prima facie case to return the children under the Hague Abduction Convention. On December 16, 2024, the state court set in a scheduling order, calendaring an evidentiary hearing for February 17, 2025, which it stated was for a “Hague Determination”. The Father did not contest/challenge this scheduling order. On February 17th, the hearing was held, although the Father and his lawyer did not appear. Eight days later, the state court entered findings of fact, conclusions of law, and a decree with respect to the Father’s allegations that the Mother was wrongfully retaining the children. It concluded that the Father’s filing in the state court “substantially complied with 22 USC 9003(b) leading [the] court to schedule a hearing related to the claims under the International Child Abduction Remedies Act and 1980 Commission [sic] on the Civil Aspects of International Child Abduction”. With notice given, no challenge to the scheduling order, and the hearing being held, the court concluded that the Father failed to prove his claim for the children’s return, and it denied his petition.
This state court order came down a few months after the Father had filed a petition for the children’s return in the federal court on December 20, 2024. He apparently did not advise the federal court of the state court action. He did not file a return of service. On January 14, 2025, the Mother filed her motion to dismiss the federal suit. No one requested an expedited ruling in the federal case, so the state court reached its ruling before the federal court addressed the Mother’s motion to dismiss. The Mother alerted the federal court of the state court’s “Hague Judgment”, then causing the Father to move for expedited relief.
The Father argued as to the motion to dismiss and for abstention that he did not actually file a petition in the state court, he has the right to choose the forum, he was not properly served in the state court proceedings, and that the abstention doctrine was inapplicable. He also accused the state court judge of “abject unfairness and bias.” The federal court rejected these arguments. The state court construed his filings as a petition for the return of his children, and his application, filed in the state court, included all of the information that is otherwise necessary and that is part of the model form for a child’s return. He then never made an objection in the state court proceedings to disabuse the court of its conclusion that he was seeking the children’s return in that state court proceeding. He never alerted the state court of his federal court filing or vice versa, he didn’t seek expedited relief in the federal court. When the state court set in his Hague Determination hearing, the Father had not yet filed anything in federal court - “that is, he had not elected a different forum.” Abstention is further proper, as the federal court’s action would threaten interference with state court proceedings.
The federal matter is dismissed, and the court abstains from proceeding.
