Gerbatsch v Gerbatsch (S.D. Calif. 1999) No. 99 cv 728-J (CGA) 21 International Abduction (USA 1999) =========================================================== UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Filed: 07 Jul 1999 KLAUS-PETER GERBATSCH. CASE NO 99 cv 728-J (CGA) Plaintiff, ORDER GRANTING vs. RESPONDENT'S MOTION TO ABSTAIN AND ORDER ILDIKO CHRISTINE GERBATSCH, DISMISSING PETITION Defendant, This matter comes before the Court on Respondent Ildiko Christine Gerbatsch's motion for the Court to either stay, abstain, remand, or remove this action so that the Superior Court of California can determine the underlying custody issue. In the alternative, she requests that the Court dismiss this action. Having considered the arguments of counsel, FN01 the Court GRANTS Respondent's motion to abstain and dismiss Petitioner's petition. I BACKGROUND Petitioner is the father of and Respondent is the mother of Isabelle Theresa Gerbatsch ("Isabelle"), now age nine, and Naomi Gerbatsch ("Naomi"), who will be twelve years old this July 20. Respondent and Petitioner were married in Europe in 1982, and during their marriage, Naomi and Isabelle were born in Germany On June 8, 1994. Petitioner and Respondent's FN02 marriage was dissolved by the Superior Court of California, County of San Diego. (Pet., Exh A) On June 13, 1995, the Superior Court of California, County of San Diego, granted Petitioner/father and Respondent/mother joint custody of Naomi and Isabelle. Id. at p 1. Respondent/mother was given primary physical custody Id. The court ordered that when each of the children reached the age of thirteen, it may have an in camera hearing to ascertain the wishes of either or both minor children as to the custody and visitation arrangement Id. at p. 2. In this order, the Court stated that it was "the mutual intent of the parents that each child will spend one school year during the high school years living and studying abroad with the [Petitioner/father]" Id. at p. 2. Respondent was given seven weeks summer visitation with both children, and alternating Christmas vacations. Id. at p 2-3 In June, 1997, both children went to Germany to visit their father pursuant to the joint custody order. At the end of the visit, the children apparently informed their father that they did not wish to return to the United States and wished to reside with their father, and Petitioner informed Respondent of this. Pet . at p 3 and Exh. C. Respondent claims that a "Warrant in Lieu of Writ of Habeas Corpus" was issued on August 4, 1997 as to both minor children by the Superior Court of California, County of San Diego (Mem. at p. 3) FN03 Respondent applied to the District Court of Achim, German Republic for an Order of Repatriation, pursuant to German law and the Hague Convention on the Civil Aspects of international Child Abduction, which sets forth procedures for signatory countries to follow when children are wrongfully removed by a parent and taken to another country. FNO4 The District Court of Achim found that Petitioner was violation the joint custody award issued by the Superior Court of California, County of San Diego and that under Art. 12 of the Hague Convention, it must order the children's immediate return to Respondent. FN05 (Pet, Exh. C. at p. 4). However, it rejected the children's return because it found that under Art 13, 2 of the Hague Convention on the Civil Aspects of International Child Abduction, it did not have to return the children if they oppose such return and "have reached an age and maturity which seems to justify taking their opinion into consideration." FN06 id. at p. 4 The District Court of Achim found that Naomi, of her own free will and being of the age (age 10) and maturity to form her own opinion, opposed the return to her mother and preferred to reside with her father in Germany. id at p. 4-5. As for Isabelle, the District Court of Achim found that at the age of seven she did not have the age and maturity to come to an independent decision. Id. at p 5. However, the District Court of Achim found that because the parents agreed that the children should not be separated, Isabelle should also remain in Germany with her father Id. Respondent appealed this decision to Oberlandesgericht (Higher Regional Court) Celle, which denied the appeal (Pet. Exh E) In August, 1998, Petitioner and Respondent informally agreed to allow Respondent visitation with the children in Germany. Petitioner claims that Respondent unlawfully removed the children from Germany to Austria and tried to take them from Austria to California. (Pet. at p 4) According to Petitioner, Naomi, the older child, refused to cooperate and was left in Austria. Id. Naomi was later picked up by Petitioner and currently lives with Petitioner in Germany. id. Respondent returned to California with Isabelle and Respondent claims that since her return Isabelle has made statements which cause Respondent to believe that there was "substantial coercion, influence, and perhaps hypnotism exerted on the minor children for them to make a choice to stay with [Petitioner] " (Mem. at p. 2). It appears that criminal prosecution, initiated by Petitioner, has begun in Germany against Respondent on the charge of "child stealing." See Decl. Respondent, filed May 13, 1999, at p. 3 On April 9, 1999, Petitioner filed a "Petition for Relief" Pursuant to 42 U.S.C. 11601 " This statute, 42 U.S.C. 11601 et. seq., titled the "International Child Abduction Remedies Act.", establishes procedures for persons seeking to initiate judicial proceedings under the Hague Convention for the return of a child. See 42 U.S.C.  11601, 11603(b). Petitioner argues that Respondent's removal of Isabelle to California violates the Hague Convention and requests that this Court return Isabelle to him. II. DISCUSSION Respondent has filed a "Motion to Stay/Abstain/Remove/Remand Matter to Superior Court of California, County of San Diego and/or Dismiss Action." (Mot. filed May 13, 1999) Respondent brings the motion on the following grounds (1) there is no wrongful withholding of Isabelle under the terms and conditions of the Hague Convention. (2) Petitioner/Father has "unclean hands" being in violation of the Federal and State Court laws, in fact and in spirit, in the area of parental kidnaping. (3) Family Division of the State Court of California is a more appropriate and convenient forum and has already dealt with the jurisdictional issues, the parties, and the children in this matter. and (4) there are pending "foreign" (State of California) proceedings. (Mot. at p 1-2). A. Respondent's request that the Court find that there was no wrongful withholding of Isabelle and that Petitioner had "unclean hands" in the German judicial proceedings. It appears that Respondent argues that her withholding of Isabelle is not wrongful because the District Court in Achim incorrectly found that Naomi was of sufficient age and maturity to choose which parent she wishes to reside with. See Mem. at p. 3-5. In addition, she also appears to seek this finding on the grounds that Petitioner had "unclean hands" in the judicial proceedings before the German courts Id. However, the Court notes that this case is at its very early stages and this present motion is simply to decide whether the Court may or should reach the substantive merit of Petitioner's claim and is not a motion for the Court to actually reach the merits of Petitioner's petition. Accordingly, the Court declines Respondent's invitation to question the decision by the German courts denying the return of Isabelle and Naomi to Respondent. B. Respondent's motion to abstain Respondent seeks the Court to abstain from this matter to allow the state court to adjudicate Petitioner's petition pursuant to the Hague Convention and the underlying custody issues at the same time. FN07 Under the doctrine known as Younger abstention, a federal court may abstain under certain circumstances if there is a pending state judicial proceeding. See Beltran v. California, 871 F 2d 777, 781 (9th Cir 1988). Federal abstention is appropriate in favor of state court proceedings if the following conditions are met: (i) the state court proceedings are ongoing; (ii) the proceedings implicate important state interests; and (iii) the state proceedings provide the plaintiff with an adequate opportunity to litigate his claims. See Aiona v. Judiciary of State of Hawaii, 17 F.3d 1244, 1248 (9th Cir l994. 1. There are ongoing state proceedings It is undisputed that an action is currently pending in Superior Court of California, County of San Diego between Petitioner and Respondent with respect to the custody of the children. Respondent's counsel claims that there is an outstanding warrant in lieu of writ of habeas corpus, which was issued on August 4, 1997. (Mem at p. 3, 6). Respondent has also provided a declaration stating that she is filing concurrently with her motion to stay, an Order to Show Cause in the Dissolution matter (presumably with the Superior Court of California, County of San Diego). See Decl. Respondent, filed May 13, 1999, at p. 1 Also, the Superior Court, in executing the Joint Custody Order in 1994, retained jurisdiction "to make any further orders necessary and proper to carry out the executory provisions of this JUDGMENT" (Pet., Exh A at p 12.13). Moreover Petitioner does not dispute that there currently is a pending state matter, and in point of fact his attorney states that he is filing a Motion to Quash (presumably the OSC) in state court. See Opp. at p. 7. However, Petitioner argues that the abstention standards are not met because. "[a]t the time of the filing of the petition here, there was no pending state actions and no state Interest" (Opp. at p 6). There is legal support for Petitioner's argument. The Ninth Circuit has stated that the "critical question is not whether the state proceedings are still ongoing but whether the state proceedings were under way before initiation of the federal proceedings" Wiener v County of San Diego 23 F 3d 263, 266 (9th Cir. 1994) However, the Ninth Circuit has also held that the "initiation of the federal proceedings" can be measured by a date after the filing of the complaint as long as the federal case was at the "embryonic" stage. See Dorarn v Salem Inn, Inc., 422 U.S. 922, 929 (1975) (abstention required because, when the state court proceeding began, "the federal litigation was in an embryonic stage and no contested matter had been decided "). Here, Petitioner filed his petition on April 9, 1999, and no action was taken by this Court prior to hearing this present motion. As stated above, the Court declines to address the substantive merits of the petition, and this motion, which is the first presented to this Court, is simply to decide if abstention is appropriate, so the Court finds that this case is still at its "embryonic" stage. See Hawaii Housing Auth. v Midkiff, 467 U.S. 229, 238 (1984) ("abstention is required, however only when state court proceedings are initiated before any proceedings of substance on the merits have taken place in the federal court.") (citation and quotation omitted). Even if the Court were to use the most recent day of action in the state court proceeding (May 13, 1999, the date Respondent filed an OSC in the dissolution matter), this date is still prior to any substantive rulings by this Court. which have yet to occur 2. the proceedings do implicate important state interest The Court finds that the petition and the underlying child custody actions implicate important state interests. Petitioner is correct that the petition, by the terms of Article 19 of the Hague Convention and 42 U.S.C.  11601(b)(4), cannot raise child custody issues and is simply about the return of a wrongfully removed child. However, Petitioner's petition does raise issues which involve domestic relations and therefore is a state interest See Kitchen V Bowen, 825 F.2d 1337, 1340 (9th Cir 1987) ("the realm of domestic relations is and has been traditionally governed by the State law.") 3. the state proceedings provide the Petitioner an adequate opportunity to litigate his claims Finally, as stated above, the state court and the federal district court share concurrent jurisdiction over claims brought under the International Child Abduction Act, 42 U.S.C.  et. seq. See supra. note 7, 42 U.S.C. 11603(a). Accordingly, the Court finds that the state proceedings provide the Petitioner with an adequate opportunity to litigate his claims. B. The Court finds that it may still abstain even though the petition does not raise a constitutional claim. Defendant argues that there is no constitutional challenge raised in his petition and that he merely seeks remedies under the Hague Convention. (Opp. at p. 6). However, the Court finds that the absence of a constitutional issue in the petition does not bar abstention. "Abstention is also appropriate where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar." Colorado River Water Conservation District v. United States, 424 U.S. 800, 814 (1976). The Court finds that the petition raises several issues regarding child custody which have substantial public import. For example, one issue which is implicated by Petitioner's petition is how custodial decisions and decisions rendered under the Hague Convention should be reconciled. Here, the District Court in Achim recognized the validity of the custody arrangement between Petitioner and Respondent and found that Petitioner had breached the terms of the Joint Custody Order by not returning the children to the United States and their mother after the summer vacation was over. Nevertheless, the District Court in Achim ordered that the children did not have to be returned, despite the Joint Custody Order, because the children had expressed their wish to remain with their father. Yet by the terms of the Hague Convention, this decision does not impact upon the custody status of the children. See Hague Convention, Article 19 (1988 WL 411501 *5); see also 42 U.S.C.  11601(b)(4). FN08 Reconciling the custodial status of the children in light of the Joint Custody Order and the Warrant in Lieu of the Writ of Habeas Corpus, which support a finding that the children belong with Respondent in the United States, with the order by the District Court in Achim and the Oberlandesgericht Celle (Higher Regional Court), which has ordered that the children should not be removed from Germany, is an issue which can be best handled by the Superior Court, County of San Diego. That court is the one which decided the custodial issue in the first instance and which retains jurisdiction over the custodial issue. Moreover, the Court notes another important consideration in this case -- the children. Naomi and Isabelle. As a result of their parents actions, the children have been uprooted several times. Prior to their visit to Germany in 1997, their primary residence was in the United States with the Respondent, although they had extended vacations with Petitioner in Germany. During the legal process in Germany, their residency status was unclear and undetermined. Then, the German courts found that the children had been "wrongfully removed" from Respondent but thai under an exception of the Hague Convention, the children did not have to be returned to Respondent and therefore their residence was Germany. Now, after Respondent violated the German orders under the Hague Convention by taking Isabelle from Germany, Isabelle is residing in the United States. Additionally, the children have been separated, which undoubtably has further impacted upon them because it appears that the children have a close relationship to one another. See Pet., Exh. C, at p. 4 and Exh. E, at p. 9. A decision on Petitioner's petition under the International Child Abduction Act will further bear upon the residential status of Isabelle. The Court finds that the state court, which is already familiar with the family and their relationship with one another and which has retained jurisdiction over the joint custody arrangement is best equipped to handle the issue of Isabelle's return under the International Child Abduction Act. III. CONCLUSION AND ORDER For the reasons stated above, the Court finds that abstention is appropriate because there is an ongoing state action which is related to the action before this Court. In addition, the Court finds that the state court is better able to adjudicate the matter. Accordingly, the Court hereby GRANTS Respondent's motion to abstain. As the Court has found abstention to he appropriate in light of the state action, the Court hereby DISMISSES Petitioner's petition. The Court DENIES as moot Respondent's remaining motions IT IS SO ORDERED. Dated: 07 Jul 1999 /s/ Napoleon A. Jones, Jr. NAPOLEON A. JONES, JR United States District Judge Footnote 01. The Court has received and considered Respondent's motion and memorandum Petitioner's opposition, Respondent's reply, and all exhibits tiled therein. After briefing was completed, Petitioner filed a "Notice of New Law" and provide the Court with a copy of Brown v. Brown, 71 Cal App.4th 358 (1999). The Court also considered this decision. Pursuant to Local Rule 7.1(d), the Court found the matter suitable for disposition without oral argument, notified the parties. and took the matter under submission. 02. In the case presently before this Court, the father, Klaus-Peter Gerbatsch, is the Petitioner and the mother, Ildiko Gerbatsch, is the Respondent. In the joint custody order, the lather is referred to as the Respondent and the mother is referred to as Petitioner. For the sake of clarity and consistency, the Court will refer to the father as the "Petitioner" and the mother as "Respondent" throughout this Order. 03. Respondent does not provide the court with any evidence of this, and no mention of this writ is provided by Respondent in her declaration. See Decl. Respondent, filed May 13, 1999 04. The Hague Convention on International Child Abduction was adopted on October 24, 1980. See Hague Convention, 1988 WL 411501. The purpose of the Hague Convention was "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access." Id at *2, Section 11601 et. seq., of Title 42 of the United States Code sets forth the procedures for implementing the Hague Convention. 5. Article 12 of the Hague Convention provides the following: Were a child has been wrongfiully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. 1988 WL 4411501 at *4 6. Article 13 provides the following exception to the return of the child who is wrongfully removed: The judicial or administrative authority may also refuse to order the return of the child it finds that the child objects to being returned and has attained the aue and degree of maturity at which it is appropriate to take account of its views. 1988 WL 411501 at *5. 07. The Court notes that the state court and the federal district courts have concurrent jurisdiction over claims under the International Child Abduction Act. See 42 U.S.C.  11603(b) (providing that a petition pursuant to the Act may be filed in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed."). Under 42 USC.  11603(a), "the courts of the States and the United States district courts shall have concurrent original jurisdiction of actions arising under the Convention". The Act defines "State" as "any of the several States, the District of Columbia, and any commonwealth, territory or possession of the United States" See 42 U.S C.  11602(9). 08. Although Petitioner filed a notice of new law with the Court, see supra note 1, the Court finds that it actually supports Respondent's motion to abstain and dismiss because the CaLifornia appellate Court acknowledged the inability of the district court to rule on child custody matters. Brown v Brown 71 CaI.App.4th 358, 364, n. 5 (1999) ("the district court . . could not rule on the underlying merits of the custody dispute. The Convention provides no structure for such a determination. Rather it mandates those matters he resolved in the forum of the child's habitual residence.) 旼컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴� � Comment by Wm. M. Hilton � � 22 Apr 2000 � 읕컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴� Not discussed in the above decision is the effect of 42 U.S.C. 11602(1), 11602(4), and 11603(b). These sections seem to say that only the parent who has lost custody of the child is entitled to bring an action (and consequently choose either state or federal court) under ICARA. See Fjeldheim v Fjeldheim (W.Dist.Mich. So.Div. 1995) No. 1:95-CV-394, 19 Jan 1996. The issue of abstention was recently discussed in Friedrich v Thompson (Middle Dist 1999); Civ No 1: 99 CV 00772 (Merits of case); 15 International Abduction [USA 1999] wherein the court, in ruling that abstention did not apply, stated: "At the beginning of the hearing, this Court inquired of both counsel whether it was necessary for the Court to exercise jurisdiction in this matter since, pursuant to 42 U.S.C.  11603(a), this Court and the State Court had concurrent jurisdiction for proceedings filed under the Hague Convention. Respondent asserted that this Court should abstain from exercising jurisdiction because of the State court action. However, the Court determined that Respondent's Complaint in the State District Court was not a Hague petition, but rather an action for custody of the child. In the state court action, Respondent only made reference to the affirmative defenses under Article 13 of the Hague Convention in order to establish that there had been a change of circumstances warranting a new custody determination by the State District Court. Moreover, based upon persuasive authority cited by Petitioner, the Court determined that the Hague Convention only contemplates petitions filed by custodial parents, since only custodial parents can make the allegation that a wrongful removal or retention has occurred. Fjeldheim v. Fjeldheim, No. 95-CV-394 (W.D.Mich. Jan. 19, 1996). Therefore, since Petitioner chose to file a Hague petition in federal district court, this Court determined that it had exclusive jurisdiction over the matter for the purposes of the Hague Convention. Accordingly, the Court ordered that the State District Court custody proceeding and the order granting temporary custody to Respondent be stayed pending this Court's determination of the issues raised by the application filed by Petitioner pursuant to the Hague Convention." This court also, in the opinion of the writer, improperly considered the "best interests" of the children in that the court argued that the California state court would be a better place to determine which of the parents would have custody of the child. That issue, however, was not before the Federal court. The sole issue before the Federal court was whether or not, under The Convention, the child would be returned to Germany. If the Federal court had ordered the return of the child to Germany then the fact that the California family court was involved would be of no consequence. This court also, I believe, mis-applied Brown v. Brown (Cal.App. 1999) 71 Cal.App.4th 358. In Brown the California court of appeal held that the sole matter before the Federal court was whether or not the child should be returned to Austria under the terms of The Convention. The Brown court further stated that the Federal court could not rule on the underlying custody case which, as in Friedrich, supra, meant that the only issue before the Federal court was the return of the child and therefore the State and Federal actions were, as a matter of law, unrelated to one another. The trial court also neglected to discuss the effect of Art. 16 which prohibits the State court from proceeding on issues of custody while the action under The Convention was pending. Since that was the case here at all times relevant there was no action before the State court and therefore there was further reason not to abstain. The Federal court did, however, correctly rule on the issue raised concerning the German decision. The argument made was that the German decision was improperly made because of actions of the parent in Germany. Implicit in this court's refusal to become involved with this point is that it could only be properly brought up before the German courts. See paragraph 34 of the Explanatory Report by E. Perez-Vera, Hague Conference on Private International Law, Actes et documents de la Quatorzieme session, vol. Ill, 1980, p. 426.