Eighth Circuit rules for broad mandate on child repatriation petitions

[JURIST] The US Court of Appeals for the Eighth Circuit [official website] held [opinion, PDF] on Monday that federal courts must rule on an international petition for child repatriation unless a state court has already fully considered and ruled on the petition. The ruling came in a case involving a father's petition under the International Child Abduction Remedies Act (ICARA) [text] seeking to have his children moved from Missouri, where they live with their mother, to Israel to live with him. A federal district court had refused to rule on the petition, reasoning that the issue had already been raised in state court custody proceedings. Reversing the lower court's decision and remanding for consideration of the petition, the circuit court held that courts must rule on the petitions in all but the narrowest cases:

Because neither parent filed a [ICARA] petition in state court, we conclude that the [ICARA] issues were not properly or fully raised in that proceeding. The parties did not litigate the merits of such issues, and any statement by the state court touching on an issue under the [ICARA] inquiry is not controlling. It is "the petitioner [who] is free to choose between state or federal court," and in the absence of a Hague petition the state court proceeding did not present an adequate opportunity to litigate ICARA issues. It was therefore an abuse of discretion for the district court to abstain.
The ICARA enforces the US's participation in the Hague Convention on the Civil Aspects of International Child Abduction [text; official materials], which was signed by the US in 1980. The Convention is specifically designed to provide for the repatriation of children who have been removed from their country of "habitual residence" by one parent without the consent of the other, and petitions brought under the Convention can only be filed in participating countries [signatory list].

 

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