Case Update (7 August 2024): Bichanich v. Young; Defendant’s right to removal of Hague case to federal court can be remanded back to state court
In the United States, under the International Child Abduction Remedies Act (ICARA), both federal and state courts have concurrent jurisdiction to hear a parent’s request to return their children pursuant to the Hague Abduction Convention. It is common that if a Left Behind Parent files this request in a state court that the Taking Parent may seek to remove the case to the companion U.S. District Court (federal court). The removing defendant bears the burden of establishing that removal is proper. If there is any doubt regarding the existence of subject matter jurisdiction, then the federal court must resolve those doubts by remanding the case back to state court. In California, the issue of removal is particularly interesting. California is unique among the U.S. states in that it has its own mini-Central Authority under the Hague Abduction Convention in its Office of Attorney General, and while litigants in other states must hire private counsel and file their suits, in California, the OAG will refer the case to local state prosecutors to pursue the child’s return. This provides a low or no cost remedy for the Left Behind Parent in the other Country, which vanishes when the case is removed to federal court, where there are relatively few free options to hire counsel.
In this case, the parties, both permanent legal residents of Italy had commenced divorce and custody proceedings in Italy on February 6, 2024. In mid-May 2024, however, the Respondent took the parties’ 3 children to California without Petitioner’s consent. She promptly filed a divorce and custody suit in California state court, seeking full custody. Later in May 2024, she sought a domestic violence restraining order. The Petitioner then filed a complaint in state court, seeking the children’s return using the Hague Abduction Convention. The state court issued an ex parte order, which precluded the Respondent from removing the children from the county, requiring the Respondent to turn over the children’s passports, granting the Petitioner “temporary sole physical and legal custody of the Children” when he arrived in California, and staying the divorce proceedings, including the restraining order request. The Respondent then removed the action to federal court. The Petitioner Father asked the federal court to remand the action back to the state court, arguing that the Respondent’s initiation of divorce proceedings in the state court waived her right of removal. The Respondent Mother contended that the only case pending in state court was the Hague case and it was removed.
A waiver of the right of removal must be “clear and unequivocal” and may be waived “if the defendant takes actions in state court that manifest his or her intent to have the matter adjudicated there.” In this case, the Respondent continued litigating the divorce and custody suit in California state court, even after removal. The court did not agree with her denial of the existence of other pending state court matters (other than the Hague matter). She did not attempt to explain the effect of her prior filings in the state court. Further, the most “obvious example of when a finding of waiver is appropriate is where a defendant removes a case to federal court after receiving an unfavorable determination on the merits of the case in state court”. In a similar case, the federal court concluded that removing the case after the court had ruled against her was “a transparent attempt at forum shopping that would likely constitute a waiver of removal.” Noting the existing ex parte order which granted temporary custody to the Petitioner Father by the state court, the federal court concluded that the Respondent here was attempting to forum shop.
