Category Archives: Fed vs. State

Hague – Federal Injunction of State Proceedings – Rigby v Dimant

Although the Dimant court refused to enjoin the state court proceeding could improperly decide issues that the Hague convention requires the Hague court only to decide, it wrote:

“Furthermore, the Barnstable court litigation (state court) will not frustrate this proceeding. Even if the state court made a custody determination before this court issued a judgment, that ruling would not bind this court.

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The Legal Argument for a Federal Hague Court to Enjoin a State Court Proceeding

I recently submitted the following to a Hague trial court magistrate:

“This Court has the authority to enjoin the Connecticut temporary custody order and the resulting threatened or actual criminal contempt proceedings against Petitioner in this action. As clearly stated by the Ninth Circuit in Holder v. Holder, 305 F. 2d 854, quoting with approval an earlier Ninth Circuit decision (9th Cir. 2002):

“Congress has expressly granted the federal courts jurisdiction to vindicate rights arising under the Convention. Thus, federal courts must have the power to vacate state custody
determinations and other state court orders that contravene the treaty.” [ Mozes v. Mozes, 239 F.3d 1067 (9th Cir 2001]] 239 F.3d at 1085 n. 55 (citation omitted).” This case law and authority flows directly from the clear language of Article 16 of the Convention on the
Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980 (the “Hague Convention” or “Convention”) :
Article 16:After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.”
In Doe v. Mann, 415 F.3d 1038 (9th Cir.2005), the Court correctly construed ICARA, the Hague
enabling federal legislation upon which we established jurisdiction in this action in our Petition, as follows:
“Another useful example of an explicit grant of authority for federal courts to invalidate state
court judgments is the implementing legislation of the Hague Convention. The statute, the
International Child Abduction Remedies Act (“ICARA”), provides that state and federal courts
have concurrent original jurisdiction over actions arising under the Hague Convention. 42
U.S.C. § 11603(a). We have interpreted this provision of ICARA to provide federal district courts the authority to vacate state custodial decrees that violate the Hague Convention:”