## In the 

# United States Court of Appeals
For the Seventh Circuit

____________

No. 01-3928

P ATRICE B OUVAGNET , Plaintiff-Appellant

, v

.
J EANC. B OUVAGNET , Defendant-Appellee.

____________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 01 C 4685— Ronald A. Guzman
, Judge

.

____________ A RGUEDF EBRUARY28, 2002—D ECIDED J ULY 26, 2002

____________
Before RIPPLE , M ANIONand E VANS , Circuit Judges

. R IPPLE , Circuit Judge . After his wife filed for divorce in Cook County, Illinois, Patrice Bouvagnet, a resident ofFrance, filed a petition in the district court, seeking the return of the couple’s two children to France. Mr. Bouvagnet petitioned under the Intern ational Child Abduction Remedies Act, 42 U.S.C. §§ 11601- 11610 (“ICARA”), which implements the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S.No. 11670, 1343 U.N.T.S. 89 (“Hague Convention”). The district court dismissed the petition, holding that Younger v. Harris, 401 U.S. 37 (1971), required abstention. For the reasons set forth in the following opinion, we reverse the judgment of the district court.2 No. 01-3928

I

BACKGROUND

A. Facts Patrice and Jean Bouvagnet were married in New York City in 1988. They later moved to France where their twin children, Jennifer and Maxime Bouvagnet, were born in 1995. In November 1998, Patrice and Jean Bouvagnet filed for divorce in a French court and agreed to a “temporary convention,” which provided that the Bouvagnets would share custody of the children. In December 1998, Mrs. Bouvagnet represented to Mr. Bouvagnet that she wanted to move to Chicago for a short time with the childrenwhere she would work as a flight attendant for her employer, United Airlines, until she could earn enough seniority and good will to secure a transfer to Paris, France. Mr. Bouvagnet agreed. That same month, Mrs. Bouvagnet initiated the application proce ss for obtaining French citizenship. Mrs. Bouvagnet left France with her two children that December and, after visiting her family, moved to Chicagoin January 1999. Throughout 1999, Mrs. Bouvagnet continued to represent to Mr. Bouvagnet that she would soon return permanently to France. Indeed, in August 1999, Mrs. Bouvagnet visited France to sign papers concerning her application for French citizenship. In that regard, Mr. and Mrs. Bouvagnet agreed in November 1999 to put the French divorce proceedings “on hold,” because Mrs. Bouvagnet’sapplication for French citizenship was based on her marriage to Patrice Bouvagnet, a French citizen. R.1 at 13. AFrench court dismissed the divorce proceeding the following month for want of prosecution. Mrs. Bouvagnet assured Mr. Bouvagnet in January 2000 that her transfer to Paris would soon be effected. In Febru-No. 01-3928 3

1 A French court dismissed the ca se because the Illinois proceedings were ongoing, but the dism issal was overturned in October 2001 and the action recently reinstat ed. The record does not indicate the current status of the French proceedings. ary 2000, however, Mrs. Bouvagnet’s application for French citizenship was dismissed afte r she failed to appear for a mandatory meeting with French authorities. That same month, Mrs. Bouvagnet filed for divorce in Cook County, Illinois. Mr. Bouvagnet was serv ed with the divorce petition in March 2000 while visiting his children. Mr. Bouvagnet then instituted French divorce proceedings in May 2000. 1 After the Illinois court reject ed Mr. Bouvagnet’s challenge to its jurisdiction, he participated in the Illinois proceedings. The Illinois court granted temporary custody of the children to Mrs. Bouvagnet in July 2000 and, in March 2001, denied Mr. Bouvagnet’s request for visi tation in France. Trial was set for June 2001. Mr. Bouvagnet informed the court in April 2001 that he intended to file a Hague petition, and the court struck the trial dates a few da ys later. The Illinois proceedings are still pending. Mr. Bouvagnet filed the petition with the federal district court in June 2001.

B. District Court Proceedings

Upon Mrs. Bouvagnet’s motion, the district court ruled that the abstention doctrine of Younger v. Harris , 401 U.S. 37 (1971), required that it abstain from hearing Mr. Bouvagnet’s petition. The district court took the view thatit was required to abstain because three conditions existed: first, state proceedings that were judicial in nature were pending; second, the state proceedings implicatedan important state interest; and third, the state proceedings afforded Mr. Bouvagnet the opportunity to present4 No. 01-3928
his Hague petition. See Bouvagnet v. Bouvagnet , No. 01 C 4685, 2001 WL 1263497, at *2-4 (N.D . Ill. Oct. 22, 2001) (citing O’Neill v. City of Philadelphia , 32 F.3d 785, 789 (3d Cir. 1994)). Having determined that it was required to abstain under Younger , the district court dismissed the case.

II

DISCUSSION The movement of children from one jurisdiction to another in the course of a custodial dispute between their parents has been a major prob lem in the last several decades and has occupied, on both the national and international levels, significant legislative efforts to curb the prevalent abuses and to permit the matter of custody to be determined in a fair and rational manner that reduces, as far as possible, the trauma necessarily suffered by children in such a situation. Today we must determine how two of those efforts, the Hague Convention and the federal implementing legislation, ough t to be reconciled with abstention principles that govern the relationship of federaland state courts in this country. In order to place this issue in an appropriate context, we pause to consider theproblem that precipitated the Convention and its implementing legislation and the manner in which those enactments attempt to address it.

A. As of 2001, all of the states and the federal government have enacted legislation to address the problem of child abduction—a parent’s taking a child from a jurisdiction that has awarded custody rights to the other parent in the hope that a court in another jurisdiction will be more sympa-No. 01-3928 5
thetic to the abducting parent’s plea for custody. See Parental Kidnaping Prevention Act, 28 U.S.C. § 1738A; Unif. Child Custody Jurisdiction Act (UCCJA), 9 U.L.A. 261(Supp. 2001); Unif. Child Custody Jurisdiction & Enforcement Act, 9 U.L.A. 649 (Supp. 2001). Prior to these legislative efforts, authority to determine the custody of the childreadily was assumed by the jurisdiction in which the abducted child was present, and the courts of that stateconsidered themselves free to determine custody according to what appeared to them to be, at the moment, the best interests of the child. Accordingly, as a practical matter, no jurisdictional limitations prevailed; courts of different states aggressively asserted jurisdiction over the same custody disputes and often issued conflicting orders. See UCCJA, Prefatory Note, 9 U. L.A. 263 (1999). Because “[i]nthis confused legal situation the person who has possession of the child has an enormous tactical advantage,” id. at 264, “the traditional wide -open jurisdictional approach inevitably led to chaos, ramp ant child abduction, and unending litigious strife.” Christopher L. Blakesley, Comparativist Ruminations from the Bayou on Child Custody Jurisdiction: The UCCJA, the PKPA, and the Hague Convention on Child Abduction , 58 La. L. Rev. 449, 464 (1998). Legislation like the Uniform Child Custody Jurisdiction Act (“UCCJA”), variants of which have been enacted in almost every state,was designed to “avoid jurisdictional competition and conflict” among courts of different states and to deter abductions by limiting the exercise of jurisdiction by courts in forums to which a parent unlawfully had taken a child. UCCJA § 1, 9 U.L.A. 271 (1999); see id. § 8, 9 U.L.A. 526. Despite such state legislative efforts to cooperate in matters of child custody, Congress determined that state laws controlling jurisdiction over child custody disputeswere inconsistent and conflicting and that such shortcomings in the state legislation resulted in continuing child ab-6 No. 01-3928

ductions. See Parental Kidnaping Prevention Act, Pub. L. No. 96-611, § 7(a), 94 Stat. 3569 (1980), quoted in 28 U.S.C.A. § 1738A, Historical and Statutory Notes (1994). It therefore enacted the Parental Kidnap ing Prevention Act (“PKPA”)with the goals of deterring abductions, fostering cooperation and avoiding jurisdictional competition and conflict among the states. See id. § 7(c).

The PKPA does not apply to international custody disputes, and, although the UCCJA does apply to international disputes, see UCCJA § 23, 9 U.L.A. 639 & comment, statecourts have been reluctant to defer to the custody determinations of foreign courts or to order the return of children to foreign countries. See Robert J. Levy, Memoir of an Academic Lawyer: Hague Convention Theory Confronts Practice

,29 Fam. L.Q. 171, 175 (1995). Apparently, inconsistent application of the principles underlying the UCCJA exacerbated the problem of internat ional child abduction just as it contributed to the problem in the domestic arena. AsCongress observed in enacting the International Child Abductions Remedies Act, “[i] nternational abductions and retentions of children are in creasing, and only concerted cooperation pursuant to an international agreement can effectively combat this problem.” 42 U.S.C. § 11601(a)(3).

The Hague Convention, which ICARA implements, addresses this problem of inte rnational child abduction. “Afundamental purpose of the Hague Convention is to protect children from wrongful in ternational removals or retentions by persons bent on obtaining their physical and/or legal custody.” Department ofState Public Notice, Hague International Child Abduction Convention; Text and LegalAnalysis, 51 Fed. Reg. 10,494, 10,504 (Mar. 26, 1986) [hereinafter State Department Lega l Analysis]. Generally, the Hague Convention requires a court to order the return of a child who has been “wrongfully removed” from theNo. 01-3928 7
country where the child had resided with the parent who had rightful custody of the child. Hague Convention, supra , arts. 3 & 12. If the Hague petition is filed more than one year since the child’s wrongful removal, the court shall order the return of the child “unless it is demonstrated that the child is now settled in its new environment.” Id. art. 12. Even the existence of a custody order in the state to which the child wrongfully has been removed will not permit the court to refuse to order the return of the child. See id. art. 17. Significantly, the Hague Convention andICARA do not empower courts to make any determination concerning the merits ofthe custody dispute, but allow for the continuation or initiation of custody proceedings in the country to which the child is returned. See ICARA, 42 U.S.C. § 11601(b)(4); Hague Convention, supra , art. 19; State Department Legal Analysis, 51 Fed. Reg. at10,511. Thus, both ICARA and the Hague Convention contemplate that an order for the return of a child will interfere necessarily with any custody proceeding that has begunin the state to which the child wrongfully has been removed. With this background in mind, we now turn to the situation before us.

B.

At the outset, it is important to stress the narrow nature of the issue before us. We are not asked in this appeal to determine whether Mrs. Bouvagnet wrongfully removed her children from France. The only issues that we must decide are whether the district court properly dismissed the petition under the Younger abstention doctrine and, ifnot, whether abstention is appropriate based on considerations of “[w]ise judicial administration,” as in Colorado River Water Conservation Di strict v. United States , 424 U.S. 800, 817 (1976).8 No. 01-3928

1.

We review de novo a districtcourt’s decision to abstain under Younger v. Harris , 401 U.S. 37 (1971). See Majors v. Engelbrecht , 149 F.3d 709, 712 (7th Cir. 1998).

In New Orleans Public Service, Inc. v. Council of New Orleans , ( NOPSI ), 491 U.S. 350, 364-73 (1989), the SupremeCourt of the United States undertook to describe, in contemporary terms, the Youngerdoctrine and to place principled limitations on its scope. In NOPSI , the Supreme Court began its appraisal by rest ating the general principle that must govern all exercises of federal judicial jurisdiction. “Our cases have long supported the proposition thatfederal courts lack the authority to abstain from the exercise of jurisdiction th at has been conferred.” NOPSI, 491 U.S. at 358. “ ‘When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction. . . . The right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied.’ ” Id . at 358-59 (quoting Willcox v. Consol. Gas Co. , 212 U.S. 19, 40 (1909)). In NOPSI , the Court was quick to add, howeve r, that this principle cannot negate the traditional discretion of the federal courts to determine whether it is appropriate to grant certain types of relief in certain circumstances.

In Younger , the Court exercised this discretion to hold that, in the context of “Our Federalism,” Younger , 401 U.S. at 44, federal courts ought to withho ld equitable relief to avoidundue interference with the course of ongoing state proceedings. Specifically, the Supreme Court held that, absent extraordinary circumstances not at issue here, federalcourts should not enjoin pending state criminal prosecutions. Younger , 401 U.S. at 53-54. As the Supreme Court has often explained, its holding in Younger rests primarily on the notion of “comity,”No. 01-3928 9
that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of aUnion of separate state governments, and a continuance of the belief that the National Government will fare best if the States and th eir institutions are left free to perform their separate functions in their separate
ways.
Id. at 44; see NOPSI , 491 U.S. at 364; Middlesex County Ethics Comm. v. Garden State Bar Assoc. , 457 U.S. 423, 431 (1982). The Court has extended the reach of Younger to certain types of noncriminal judicial proceedings as well, see NOPSI
, 491 U.S. at 367-68 (describing cases), but in the latest such case the Court also was careful to note that it did “not hold that Younger abstention is always appropriate whenever a civil proceeding is pending in a state court.” Pennzoil Co. v. Texaco, Inc. , 481 U.S. 1, 14 n.12 (1987). The difficultproblem is to discern in a principled manner those ongoing state proceedings in which Youngerabstention is warranted. This issue was the focus of the Supreme Court’s analysis in NOPSI. It also has been the focal point of considerable litigation in this circuit and in others. Relying on the Supreme Court’s decision in Middlesex

, we often have articulated a mu lti-part test to determine whether a district court should abstain under Younger. “The Younger abstention doctrine requires federal courts to abstain from enjoining ongoing state proceedings that are (1) judicial in nature, (2) implicate important state interests, and (3) offer an adequate opportunity for review ofconstitutional claims, (4) so long as no extraordinary circumstances exist which would make abstention inappropriate.” Green v. Benden , 281 F.3d 661, 666 (7th Cir. 2002); see Majors v. Engelbrecht , 149 F.3d 709, 711 (7th Cir. 1998). The difficulty with a test such as this one is that it often takes on a life of its own and no longer effectively imple-10 No. 01-3928

2 The Ninth Circuit also has recogn ized this distinction, observing in Green v. City of Tucson , 255 F.3d 1086, 1093-94 (9th Cir. 2001), that the three-part test ordinarilyapplies only if the federal relief would interfere with the state co urt proceedings and that the interference requirement “ordinarily . . . restricts application of the Younger doctrine to circumstances inwhich the state court proceeding is an enforcement action ag ainst the federal court plaintiff, and is not met simply by the prospe ct that the federal court decision may, through claim or issue preclusion, influence the result in state court.” Id. at 1094. ments the policy concerns that gave it birth. As the Supreme Court pointed out in NOPSI, the substantiality of a state’s interest is an illusive inquiry. We must inquire, wrote the Court, not to the state’s “interest in the outcome of the particular case—which could ar guably be offset by a substantial federal interest in the opposite outcome. Ratherwhat we look to is the importance of the generic proceedings to the State.” NOPSI , 491 U.S. at 365 (emphasis in original). In this respect, we have held that “ Younger is confined to cases in which th e federal plaintiff ha[s] engaged in conduct actually or ar guably in violation of state law, thereby exposing himsel f to an enforcement proceeding in state court . . . .” Hinrichs v. Whitburn , 975 F.2d 1329, 1333 (7th Cir. 1992) (quoting Alleghany Corp. v. Haase , 896 F.2d 1046, 1053 (7th Cir. 1990), vacated as moot sub nom. Dillon v. Alleghany Corp. , 499 U.S. 933 (1991)). 2 We emphasized in Haase and Hinrichs that in such cases, when the ongoing state proceedings involve criminal prosecutions or civil enforcement actions
, the concerns of comity underlying the Supreme Court’s decision in Younger are especially
acute.Allowing [a defendant] to block the prosecution by obtaining an injunction froma federal judge would come close to allowing a state criminal defendant to removeNo. 01-3928 11

3 See Huffman v. Pursue, Ltd. , 420 U.S. 592 (1975) (state’s action for enforcement of nuisance statute); Juidice v. Vail, 430 U.S. 327 (1977) (fine for contempt); Trainor v. Hernandez , 431 U.S. 434 (1977) (action to recover fraudulently obta ined welfare payments); Moore v. Sims
, 442 U.S. 415 (1979) (state action for temporary custody of children believed to have been abused); Middlesex, 457 U.S. 423 (state proceeding to discipline attorney); Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc. , 477 U.S. 619 (1986) (administrative proceeding for sex discrimination); Pennzoil, 481 U.S. 1 (defendant’s obligation to post bond before appealin g judgment against it for tortious interference with contract; “Both Juidiceand this case involve challenges to the processes by which the State compels compliance with the judgment of its courts.”). his criminal prosecution in to federal court—a course that would wreck the balance between federal and state prerogatives that is struck in the habeas corpus
statute. . . .

The grounds for denying a federal-court injunction are only slightly attenuated when instead of a criminal prosecution the state has brought a civil enforcement action . . . .

Haase , 896 F.2d at 1050. This limitation on the scope of Younger abstention is consistent with the types of cases in which the Supreme Court has held Younger to apply; in each case, the federal plaintiff sought to disrupt the ability of a state’s judicial apparatu s effectively to address the misconduct of a defendant. 3 Thus, Younger does not apply if the federal plaintiff has no t engaged in misconduct that would expose him to an enforcement proceeding in state
court.

As in Haase, “the critical element of misconduct” is missing here. Haase , 896 F.2d at 1053. Mrs. Bouvagnet’s suit forcustody of her children rests in no way on any misconduct on the part of Mr. Bouvagnet. It is true that the state12 No. 01-3928

4 Elisa Perez-Vera was the officialHague Convention reporter for the Hague Conference on Private International Law, which drafted the Convention. See State Department Legal Analysis, 51 Fed. Reg. at 10,503. The State Department expl ains that Ms. Perez-Vera’s report “is recognized by the Conference as the official history and commentary on the Convention and is a source of background on the meaning of the provisions of the Convention . . . .” Id. ; accord Blondin v. Dubois, 189 F.3d 240, 246 n.5 (2d Cir. 1999). The Explanatory Report is among the Acts and Docu ments of the Fourteenth Session of the Conference. See State Department Legal Analysis, 51 Fed. Reg. at 10,503-04. custody proceedings are pending and that the district court’s resolution of Mr. Bouvagnet’s petition may prevent those proceedings from ever reaching judgment. “But there is no doctrine that the availability or even the pendency of state judicial proceedings excludes the federal courts.” NOPSI , 491 U.S. at 373.

There is, moreover, an even more fundamental reason why the maintenance of this action does not implicate the strictures of the Younger doctrine. As we have noted earlier, an action under the ICARA implementing the provisionsof the Hague Convention actually contemplates that a successful action might well resultin the displacement of a custody decision in the state to which the child wrongfully has been taken. Indeed, one of the primary purposes of the Convention and its implementi ng legislation is “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Hague Convention, supra , art. 1(b);

see Elisa Perez-Vera, Explanatory Report, ¶ 16 (April 1981) [hereinafter Explanatory Report]. 4The abuse of parental child abduction arose because local jurisdictions to which a child had been taken often di d not respect the pre-existing custody arrangement required by the child’s habitual resi-No. 01-3928 13

5 See UCCJA, Prefatory Note, 9 U.L. A. 263-64; PKPA, Pub. L. No. 96- 611, § 7(a)(3), 94 Stat. 3569 (1980).

6 See Grieve v. Tamerin , 269 F.3d 149, 153 (2d Cir. 2001) (holding that the comity concerns of Younger are not implicated by a Hague petition); Silverman v. Silverman , 267 F.3d 788, 792 (8th Cir. 2001) (holding that district court lacked authority to abstain because the relief requested by a Hague peti tion is not discretionary). dence. 5 It was to curb this abuse that the United Statesassumed a treaty obligation to cooperate with other nationstates to adopt a mutual policy in favor of restoring thestatus quo by means of the prompt return of abducted children to the country of their habitual residence and in this way depriving custody decrees of states to which a parent has removed a child “of any pr actical or juridical consequences.” Explanatory Report at ¶ 16. Indeed, although the state to which the child has been taken no doubt has an important interest in adjudicating the custody of a child within its borders, it now shares, with the other states of the Union, an even more important interest in ensuring that its courts are not used to escape the strictures of a custodydecree already rendered by another nation-state or to otherwise interfere with the custody rights that a parent enjoys under the law of another country. We hold, therefore, in agreement with the other Ci rcuits that have confronted the issue, 6that a Hague petition simply does not implicate the Younger abstention doctrine.

2. Mrs. Bouvagnet also submits that, even if Younger is inapplicable, abstention is appropriate under the principles set out in Colorado River Water Conservation District v. United States , 424 U.S. 800 (1976). In that case, the Su-14 No. 01-3928
preme Court held that “in situations involving the contemporaneous exercise of concurrent jurisdictions, either by federal courts or by state an d federal courts ,” principles resting on “considerations of [w ]ise judicial administration, giving regard to conservation of judicial resources andcomprehensive disposition of litigation,” sometimes permit the dismissal of a federal suit. Id. at 817 (alteration in original). The Court was careful to point out, however, that abstention “is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.” Id. at 813. Moreover, the Court continued, given “the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them,” the circumstances permitting dism issal “for reasons of wise judicial administration are co nsiderably more limited than the circumstances appropriate for abstention [under the other abstention doctrines].” Id. at 817-18

. Indeed, “[o]nly the clearest of justificatio ns will warrant dismissal.” Id. at 819. Construing its decision in Colorado River , the Court repeated these cautions in Moses H. Cone Memorial Hospital v. Mercury Construction Corp. , 460 U.S. 1, 25-26 (1983): [W]e emphasize that our task in cases such as this is not to find some substantial reason for the exerciseof federal jurisdiction by the district court; rather, the task is to ascertain whether ther e exist ‘exceptional’ circumstances, the ‘clearest of justifications,’ that can suffice under Colorado River to justify the surrenderof that jurisdiction.

Id. (emphasis in original).

For Colorado Riverto apply, the state and federal proceedings must be parallel. See AAR Int’l, Inc. v. Nimelias Enters. S.A. , 250 F.3d 510, 518 (7th Cir. 2001). The proceedings are parallel if “substantially the same parties are litigating substantially the same i ssues simultaneously in twoNo. 01-3928 15

fora.” Id. (internal quotation omitted). “The question is not whether the suits are formally symmetrical, but whetherthere is a ‘substantial likelihood’ that the foreign litigation ‘will dispose of all claims presented in the federal case.’ ” Id. (quoting Day v. Union Mines, Inc. , 862 F.2d 652, 656 (7th Cir. 1988)).

We do not believe that the federal ICARA case and the state custody case can be cons idered parallel as that term was employed in AAR International . Although the federal and state cases involve the same parties, we think it is unrealistic to characterize them as involving “substantially the same issues.” Indeed, as we have pointed out earlier, the whole point of the federal litigation under ICARA is todetermine whether the child, now the subject of a custody action in the state court to which he has been taken, ought to be returned, by virtue a federal treaty obligation, to his home nation-state. Here, the district court must determine whether Mrs. Bouvagnet wrongfully removed thechildren from France and, if so, whether the children nevertheless are “settled” in their new environment, in which case the court would not be obligated to grant the petition. See Hague Convention, supra , art. 12; State Department Legal Analysis, 51 Fed. Reg. at 10,509. Because Mr. Bouvagnet has not filed a Hague petition in the state court, the state courthas no occasion to determine whether the children wrongfully were removed from France . Although the Illinois court would no doubt consider, as pa rt of an overall assessment of the best interests of the child in a custody action, whether the children were settled in their new environment, that determination would be made in an entirely different context than the one that must be the focus of the district16 No. 01-3928

7 See Lops v. Lops, 140 F.3d 927, 946 (11th Cir. 1998) (discussing the meaning of “well-settled ” in the context of the Hague Convention and suggesting that it was appropri ate for the district court to consider factors other than a comfortable material existence, including “peculiar circumstances surroundi ng the children’s living environment” attributable to the parent al attempt to evade the original custody decree). court. 7Notably, a custody decision by a state court does not foreclose the relief sought in a Hague petition. See Hague Convention, supra , art. 17. Even if we were to conclude that these actions are parallel, we would not agree that abstention is warranted here. TheSupreme Court has made it clear that “the decision whether to dismiss a federal acti on because of parallel statecourt litigation does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone , 460 U.S. at 16. “The weight to be given to any one factor may vary greatly from case to ca se, depending on the particular setting of the case.” Id. Our earlier decisions, following the Supreme Court’s approach, confirm that there is no rigid checklist that ought to be followed to determine whether abstention is appropriate. See Sverdrup Corp. v. Edwardsville Cmty. Unit Sch. Dist. No. 7 , 125 F.3d 546, 549-50 (7th Cir. 1997) (discussing fa ctors). Indeed, our decisions have identified at least ten factors that may, depending on the facts and circumstances of the individual case, be relevant to the determination. See Caminiti & Iatarola, Ltd. v. Behnke Warehousing, Inc. , 962 F.2d 698, 701 (7th Cir. 1992) (listing factors).

As we emphasized in Sverdrup, the primary duty of a district court is to exercise the jurisdiction that CongressNo. 01-3928 17
has conferred upon it; there is a presumption against abstention. Sverdrup, 125 F.3d at 549-50. The Supreme Court has also stated that “the presence of federal-law issues must always be a major consideration weighing against surrender.” Moses H. Cone , 460 U.S. at 26. Mr. Bouvagnet’spetition relies not only on a federal act, but on an international treaty that the United States has ratified. Although ICARA provides for concurrent jurisdiction with state courts, the federal court’s unique interest in deciding acontroversy that implicates both the United States’ international treaty obligations and its concomitant interest in foreign relations weighs especi ally heavily against abstention. See Lops v. Lops , 140 F.3d 927, 943 (11th Cir. 1998) (holding Colorado River abstention inappropriate in Hague Convention case in part because “ICARA is a federal statute enacted to implement a treaty entered into by the federal government”); see also Grieve v. Tamerin , 269 F.3d 149, 153 (2d Cir. 2001) (holding that the comity concerns of Younger are not implicated in a Hague Convention case because a Hague petition “implicates a paramount federal interest in foreign relations and the enforcement of United States treaty obligations”). Congress specifically, and de liberately, has vested the district courts with the jurisd iction to entertain an action under ICARA. The district court thus has the responsibility to determine, at the request of a French citizen, Mr.Bouvagnet, whether his children wrongfully have been removed from his country. In an effort to overcome the presumption that the federal district court ought to fulfill the responsibility given by Congress, Mrs. Bouvagnet subm its that the federal court’s exercise of jurisdiction in this case runs counter to the mostsignificant factor weighing in the Supreme Court’s decision in Colorado River , “the desirability of avoiding piece-18 No. 01-3928

8 Although a state court can ente rtain an action under ICARA,ICARA expresses no requirement or even preference for that forum. Indeed, the legislative histor y of the Act makes clear that Con- (continued...) meal litigation.” Colorado River , 424 U.S. at 817. There, the federal statute at issue evince d a “clear federal policy . . . [of] avoidance of piecemeal ad judication of water rights in a river system.” Id. at 819 (discussing the McCarran Amendment (also known as the McCarran Water Rights Suit Act), 43 U.S.C. § 666). Mrs. Bouvagnet submits that the district court’s consideration of the Hague petition would result in piecemeal litigation because both the district court and the state court (should the petition be denied) would have to consider how “settled” their children are in their new environment. Unlike the statute at issue in Colorado River , however, the Hague Convention and ICARA actually contemplate the possibility of piecemeal litigation.Indeed, it is central to the Convention’s function. For instance, Article 19 of the Convention provides that “[a] decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.” Hague Convention, supra , art. 19. “It follows that once the factual status quo ante has been restored, litigation concerning custody or visitation issues could proceed.” State Department Legal Analysis, 51 Fed. Reg. at 10,511. Therefore, the fact that the state court, in its custody determination, may have to consider an issue similar to one that the district court had to consider does not weigh in favor of abstention because the federal law providing the right to file the Hague petition anticipates just such a result. See Moses H. Cone, 460 U.S. at 19-20 (holding that the fact that a federal statute requires piecemeallitigation when necessary actually counsels against abstention). 8No. 01-3928 19

8 (...continued)
gress , after considerable discussionof the matter, determined to give the federal and the state courts concurrent jurisdiction over the matter. See 134 Cong. Rec. S3839-02 (1988). This determination makes good sense in light of the pe rceived reluctance of state courts to decline jurisdiction in favor ofthe jurisdiction, domestic or foreign, that previously entered an outstanding custody decree. See Levy, supra , at 175; supra pt. A. In the same vein, Mrs. Bouvagnet also points out that she filed her state-court custody action before Mr. Bouvagnet filed his Hague petition. The “order in which jurisdiction was obtained by the concurrent forums” is, as a general matter, a factor to be weighed, Colorado River , 424 U.S. at818, but it is not dispositive. Again, the Hague Convention and ICARA contemplate that Hague petitions will be filed after the state-court cu stody proceedings. 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 requested State shall not be a ground for refusing toreturn a child under this Convention . . . .” Hague Convention, supra , art. 17; see State Department Legal Analysis, 51Fed. Reg. at 10,504 (“Children who otherwise fall within the scope of the Convention are not automatically removed from its protections by virtue of a judicial decision awarding custody to the alleged wrongdoer. This is true whether [or not] the decision as to custody was made . . . in the State to which the child has been taken.”). Because the parent who wrongfully removes a child from the child’s habitual residence often is motivated by the desire to seek a custody determination in a forum “he regardsas more favorable to his own claims,” Explanatory Report, ¶ 14, and because, in the United States, that forum will always be a state court, federal court consideration of Hague petitions would be curt ailed severely if a federal20 No. 01-3928
court could not hear a petition once a state-court custody proceeding has begun. Therefore, because “a federal court cannot lightly abjure its responsibility to assert jurisdiction,” Lumen Constr., Inc. v. Brant Constr. Co., Inc. , 780F.2d 691, 694 (7th Cir. 1985), the mere fact that the statecourt custody proceeding was filed first does not weigh heavily in favor of abstention. Finally, Mrs. Bouvagnet suggests that the state court’s experience with custody determinations and with the facts of this case in particularweighs in favor of abstention. We have recognized a state court’s ability or inability to protect the federal plaintiff’s rights as a factor to consider. See Sverdrup Corp. , 125 F.3d at 549 (citing Moses H. Cone
, 460 U.S. at 23). However, whatever familiarity the state court may have with the facts of the case is significantly outweighed by the duty of federal courts to hear cases lawfully before them.
Here, the federal and international aspects of this action under ICARA are paramount and none of the countervailing considerations offered by Mrs. Bouvagnet, whether taken separately or together, can outweigh those concerns. Accordingly, abstention under the Colorado River doctrine would not be approp riate: the guiding principle must be that abstention is an exception to a federal court’s“virtually unflagging obligation” to adjudicate a claim properly before it. Sverdrup Corp. , 125 F.3d at 549, 550 (internal quotation omitted).

Conclusion

Abstention in this case under either the Younger or Colorado Riverdoctrines is inappropriate. We therefore reverse the district court’s di smissal of the Hague petition and remand the case to the district court for proceedingsNo. 01-3928 21
consistent with this opinion. Mr. Bouvagnet may recover the cost of this appeal.

R EVERSEDand R EMANDED

A true Copy:

Teste:

_____________________________ Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-97-C-006—7-26-02