                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-3-2005

Yang v. Tsui
Precedential or Non-Precedential: Precedential

Docket No. 03-4714




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                                             PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                      No. 03-4714


                    TSAI-YI YANG

                          Appellant

                             v.

                  FU-CHIANG TSUI




     On Appeal from the United States District Court
         for the Western District of Pennsylvania
                  (D.C. No. 03-cv-01613)
     District Judge: Honorable Thomas M. Hardiman




              Argued September 30, 2004

Before: ROTH, BARRY, and CHERTOFF*, Circuit Judges.

                (Filed:    August 3, 2005)
Walter A. Angelini, Esquire (Argued)
Angelini & Angelini
3067 Pennsylvania Avenue
Weirton, WV 26062

             Counsel for Appellant


Andrew D. Glasgow, Esquire (Argued)
Dean E. Collins, Esquire
345 Fourth Avenue, 10 th Floor
Standard Life Building
Pittsburgh, PA 15222

             Counsel for Appellee




                OPINION OF THE COURT




________________
    * Judge Chertoff heard oral argument in this case but
resigned prior to the time the opinion was filed. The opinion
is filed by a quorum of the panel. 28 U.S.C. § 46(d).




                              2
ROTH, Circuit Judge:

       Tsai-Yi Yang filed a Petition pursuant to the

Convention on the Civil Aspects of International Child

Abduction, done at The Hague on October 25, 1980 (Hague

Convention), and the International Child Abduction Remedies




Act, 42 U.S.C. § 11601, et seq. (2004) (ICARA), its

implementing statute, in the U.S. District Court for the

Western District of Pennsylvania. Citing Younger v. Harris,

401 U.S. 37 (1971), the District Court abstained from

consideration of the Petition and denied as moot Yang’s

motion to stay state court custody proceedings. Yang filed a

timely appeal. For the reasons that follow, we will reverse the

District Court’s decision to abstain and will remand the case

for proceedings consistent with this opinion.

I.     Background

                               3
        The undisputed facts are that Tsai-Yi Yang and Fu-

Chiang Tsui are the mother and father, respectively, of a

daughter. Yang is a resident of British Columbia, Canada,

and Tsui is a resident of Pittsburgh, Pennsylvania. A dispute

as to the custody of the child led each party to file for custody,

resulting in an award of custody to Tsui in Pennsylvania and

an award of custody to Yang in British Columbia. After

unsuccessfully attempting to secure a voluntary return of the

child, Yang filed this Petition with the District Court.

II.     Jurisdiction and Standard of Review

        The District Court had jurisdiction pursuant to ICARA,

42 U.S.C. § 11603. At the time Yang’s Petition was filed in

the District Court, the child was located in Pittsburgh,

Pennsylvania. We have appellate jurisdiction over the appeal

from the District Court’s final order pursuant to 28 U.S.C. §

1291.

                                4
         We exercise plenary review over the legal

determination of whether the requirements for Younger

abstention have been met and, if so, we review the District

Court's decision to abstain for abuse of discretion. O'Neill v.

City of Phila., 32 F.3d 785, 790 (3d Cir. 1994). In reviewing

the District Court’s denial of the motion to stay, we exercise

plenary review over the District Court's legal conclusions.

Shire U.S. Inc. v. Barr Labs., Inc., 329 F.3d 348, 352 (3d Cir.

2003).

III.     Discussion

         A.    The Hague Convention

         The Hague Convention is a multilateral treaty on

parental kidnapping to which the United States and Canada

are signatories. The Hague Convention’s goal is to “protect

children internationally from the harmful effects of their

wrongful removal or retention and to establish procedures to

                                5
ensure their prompt return to the State of their habitual

residence, as well as to secure protection for rights of access.”

Hague Convention, Preamble, 19 I.L.M. 1501, 1501 (1980).

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 et seq., 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 further

                                6
provides “[t]he court in which an action is brought under

subsection (b) of this section shall decide the case in

accordance with the Convention.” 42 U.S.C. § 11603(d).

       B.     Younger Abstention

       Although the general rule is that the pendency of a

state court proceeding is not a reason for a federal court to

decline to exercise jurisdiction established by Congress,

McClellan v. Carland, 217 U.S. 268, 281-82 (1910), an

exception to that rule is Younger abstention. Younger, 401

U.S. 37 (1971), established a principle of abstention when

federal adjudication would disrupt an ongoing state criminal

proceeding. This principle has been extended to civil

proceedings and state administrative proceedings. Moore v.

Sims, 442 U.S. 415 (1979), Williams v. Red Bank Board of

Education, 662 F.2d 1008, 1017 (3d Cir. 1981) (overruled on

other grounds as recognized in Schall v. Joyce, 885 F.2d 101,

                                7
108 (3d Cir. 1989). Three requirements must be met before

Younger abstention is appropriate: (1) there must be an

ongoing state judicial proceeding to which the federal

plaintiff is a party and with which the federal proceeding will

interfere, (2) the state proceedings must implicate important

state interests, and (3) the state proceedings must afford an

adequate opportunity to raise the claims. FOCUS v.

Allegheny County Court of Common Pleas, 75 F.3d 834, 843

(3d Cir. 1996).1


       1
         We note that the Second, Seventh, and Ninth Circuit
Courts of Appeals have developed Younger criteria that vary
from those in this Court. The Second Circuit has explicitly
stated that it considers “whether the state action concerns the
central sovereign functions of state government . . ..” Philip
Morris, Inc. v. Blumenthal, 123 F.3d 103, 106 (2d Cir. 1997).
We do not undertake such a consideration. The Seventh and
Ninth Circuits have held that the Younger doctrine applies only
when “the federal plaintiff ha(s) engaged in conduct actually or
arguably in violation of state law, thereby exposing himself to
an enforcement proceeding in state court.” Bouvagnet v.
Bouvagnet, No 01-3928, 2002 U.S. App. LEXIS 17661 at *15

                               8
       The issue whether a District Court should abstain from

a Hague Convention Petition when a state court custody

proceeding is pending is an issue of first impression in this

Court.2 Courts in several other circuits, however, have

previously addressed this issue. Although the federal courts

applying abstention doctrines to Hague Convention Petitions

have reached different results as to whether to exercise




(7th Cir. July 26, 2002),(withdrawn 2002 U.S. App. LEXIS
17954) (internal quotations omitted). See also Green v. City of
Tuscon, 255 F.3d 1086, 1093-94 (9th Cir. 2001) (en banc)
(finding that Younger “ordinarily. . . although not always”
applies when the state proceeding is an enforcement action
against the federal plaintiff) (overruled in part on other grounds
in Gilbertson v. Albright, 381 F.3d 965, 968-69 (9 th Cir. 2004)
(en banc)). We have no such restriction.
       2
         There are cases in the Third Circuit in which a Hague
Convention Petition has been adjudicated by a District Court,
where a state proceeding is ongoing but where abstention was
never raised. See, e.g., Feder v. Evans-Feder, 63 F.3d 217 (3d
Cir. 1995), In re Application of Sasson v. Sasson, 327 F. Supp.
2d 489 (D.N.J. 2004).

                                9
abstention, there is a pattern in their analyses. In a situation

where there is a state court custody proceeding and a petition

is filed in federal court under the Hague Convention, but the

Hague Convention has not been raised, or raised but not

litigated, in the state court, the federal court has generally

found that abstention is not appropriate. See Gaudin v.

Remis, No. 03-15687, 2005 WL 1661593 (9th Cir., July 18,

2005), Holder v. Holder, 305 F.3d 854 (9th Cir. 2002);

Silverman v. Silverman, 267 F.3d 788 (8th Cir. 2001); Lops

v. Lops, 140 F.3d 927 (11th Cir. 1998); Hazbun Escaf v.

Rodriguez, 191 F. Supp. 2d 685 (E.D.Va. 2002). But see

Bouvagnet v. Bouvagnet, 2001 WL 1263497 (N.D.Ill. 2001).3



       3
          The Seventh Circuit Court of Appeals issued an
opinion in Bouvagnet, finding that abstention was not
appropriate, but withdrew that opinion due to the parties settling
out of court. Bouvagnet v. Bouvagnet, 45 Fed. Appx. 535 (7th
Cir. 2002).

                                10
Where the Hague Convention Petition has been raised and

litigated in the state court, abstention by the federal court has

generally been found to be appropriate. See Copeland v.

Copeland, 134 F.3d 362, 1998 WL 45445 (4th Cir. 1998)

(table), Cerit v. Cerit, 188 F. Supp. 2d 1239 (D. Haw. 2002).

       C.     Application of Younger to the Instant Case

       The first question in applying the Younger abstention

doctrine to a Petition raising Hague Convention claims in

federal court is whether the federal proceeding will interfere

with an ongoing state proceeding. It is clear that if the state

proceeding is one in which the petitioner has raised, litigated

and been given a ruling on the Hague Convention claims, any

subsequent ruling by the federal court on these same issues

would constitute interference. It seems equally clear that, if

the state court in a custody proceeding does not have a Hague

Convention claim before it, an adjudication of such a claim by

                                11
the federal court would not constitute interference.

       The difference in subject matter between a custody

determination and an

adjudication of a Hague Convention Petition is the reason for

finding no interference if the Hague Convention issues have

not been presented in state court. Custody litigation in state

court revolves around findings regarding the best interest of

the child, relying on the domestic relations law of the state

court. An adjudication of a Hague Convention Petition

focuses on findings of where the child was habitually located

and whether one parent wrongfully removed or retained the

child.4 Hague Convention, art. 3, 19 I.L.M. at 1501. These


       4
           In addition, as Tsui argues, if one year has elapsed
since a child was wrongfully removed or retained when a
Petition is filed, a court must also determine whether the child
is “settled in its new environment.” Hague Convention, art. 12,
19 I.L.M. at 1502. However, Yang in this case is raising a claim
for wrongful retention, not removal, which puts Yang’s Petition

                               12
are distinct determinations and the statutory language of the

Hague Convention and ICARA explicitly provides that these

determinations do not need to be made by the same court,

“[t]he Convention and this chapter empower courts in the

United States to determine only rights under the Convention

and not the merits of any underlying child custody claims.”

42 U.S.C. § 11601(b)(4).

       The Hague Convention proceedings can in fact be held

in either state or federal court. ICARA vests concurrent

jurisdiction over Hague Convention Petitions in both court

systems. 42 U.S.C. § 11603(a). Thus, a state court custody

proceeding can include consideration of a Hague Convention


inside the one year period (the Petition was filed on October 23,
2003 and, based on the letter of permission for the child to
travel, the earliest possible date of retention is October 25, 2002
and the more logical date is December 11, 2002, when Tsui filed
for custody). Thus, the “well-settled” determination would not
be relevant in this case.

                                13
Petition. But the petitioner is free to choose between state or

federal court. More significantly to the case before us, the

Hague Convention provides that any state court custody

litigation be stayed pending the outcome of the Hague

Convention litigation. Hague Convention, art. 16, 19 I.L.M.

at 1503. Although ICARA does not contain a similar express

provision, the purpose of the Hague Convention is to provide

for a reasoned determination of where jurisdiction over a

custody dispute is properly placed. Therefore, it is consistent

with this purpose that it is the custody determination, not the

Hague Convention Petition, that should be held in abeyance if

proceedings are going forward in both state and federal

courts.

          In the instant case, however, the District Court ruled

that it was the state court custody proceeding, not the Hague

Convention Petition, that should go forward. In doing so, the

                                 14
court found that “the parties are engaged in ongoing judicial

proceedings” and, thus, without further discussion, found that

the first prong of Younger was satisfied. It appears that the

District Court did not apply the full analysis of the first prong

of Younger, whether a federal proceeding would interfere

with those ongoing state proceedings, particularly in light of

the language and purpose of the Hague Convention. The

parties agree that Yang has not raised the Hague Convention

in state court. In addition, the state court has entered an

interim custody order in favor of Tsui but has held no

hearings and made no findings with regard to the Hague

Convention. Thus, the District Court’s adjudication of the

Hague Convention Petition would have been consistent with

the statutory provisions and would not have interfered with

the state court proceedings. In fact, given that Yang has

obtained an order of custody from the Canadian courts and

                               15
Tsui has obtained a custody order from the Pennsylvania

courts, it would seem appropriate to have a federal court

adjudication, pursuant to the Hague Convention, of whether

Canada or Pennsylvania is the habitual residence of the child

and thus the location of the court which should properly

decide the custody issue.

       The second prong of Younger is that the state court

proceedings must implicate important state interests. In

analyzing this prong, the District Court found that “it is well-

settled that family law is an important state interest, and

federal courts should defer to state primacy . . . not only out

of comity but also because the state is often more expert than

are [federal courts] at understanding the implications of each

decision in its practiced field.” (internal quotations omitted).

Thus, without further discussion, the District Court found that

the second prong of Younger was satisfied. Although the

                               16
District Court is correct that domestic relations are

traditionally the domain of state courts, the District Court

neglected to consider that Yang’s Petition was not one for

custody, but rather one for return of a child under the Hague

Convention and ICARA, which is a federal statutory matter.

See Hazbun Escaf, 191 F. Supp. 2d at 693 (finding wrongful

retention determination, as distinct from custody, is not an

important state interest). It would make the Hague

Convention and ICARA meaningless if a federal court

abstained in a Hague Convention Petition because child

custody was being disputed in state court. ICARA explicitly

provides the federal courts with jurisdiction to determine

jurisdiction over custody disputes under the Hague

Convention. If the District Court’s analysis were to be

accepted, ICARA would be a hollow statute.

       The third prong of Younger is whether the state

                               17
proceedings afford an adequate opportunity to raise federal

claims. The District Court found that “because Congress gave

state and federal courts concurrent original jurisdiction under

[ICARA], Petitioner has had adequate opportunity to raise

this Petition before the Court of Common Pleas.” Yang

chose, however, not to do so, and the language of ICARA

does not require her to raise the Hague Convention issue in

state court. Indeed, we conclude that it would not be

appropriate to apply Younger abstention to deprive a

petitioner of a specific grant of jurisdiction in federal court,

which she has in fact elected to exercise.

       D.     Motion to Stay

       As discussed above, the District Court erred in

dismissing Yang’s Petition because the requirements of




                                18
abstention were not met.5 As a result, Yang’s Petition should

have been considered by the District Court. Thus, the District

Court’s dismissal as moot of Yang’s Motion to Stay was also

in error.

IV.    Conclusion

       For the reasons discussed, above, abstention is not



       5
          Although the District Court did not address Colorado
River abstention, because some Hague Convention cases do
address Colorado River abstention, because Tsui raised
Colorado River abstention in his brief, and for reasons of
judicial efficiency, it is useful to note those requirements here.
The threshold question in this analysis is whether there is a
parallel state proceeding. Colorado River Water Conservation
District v. United States, 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed.
2d 483 (1976). Parallel cases involve the same parties and
"substantially identical" claims, raising "nearly identical
allegations and issues." Timoney v. Upper Merion Twp., 66
Fed. Appx. 403, 405 (3d Cir. 2003). The analysis of parallel
proceedings is very similar to the first prong of the Younger test
and, as in the analysis under Younger, the claims being
adjudicated and the issues being analyzed by the state and
federal courts in this case would be different. Thus, Colorado
River abstention is not appropriate here.

                               19
appropriate in the instant case because Yang has not raised

her Hague Convention claim in state court, because a Hague

Convention Petition and a custody determination are distinct

issues, and because the statutory provisions of ICARA and the

Hague Convention require a federal court to hear a Hague

Convention Petition in this circumstance. Thus, the District

Court’s decision to abstain under Younger and dismissal of

Yang’s Motion to Stay were both in error.

      Accordingly, the judgment is reversed and the case

remanded to the District Court for consideration of Yang’s

Petition under the Hague Convention.




                              20
