In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-3928

PATRICE BOUVAGNET, 

Plaintiff-Appellant,

v.

JEAN C. BOUVAGNET,

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.

____________

ARGUED FEBRUARY 28, 2002—DECIDED JULY 26, 2002

____________

Before RIPPLE, MANION and EVANS, Circuit Judges.

RIPPLE, Circuit Judge. After his wife filed for divorce

in Cook County, Illinois, Patrice Bouvagnet, a resident of

France, filed a petition in the district court, seeking the return of the couple’s two children to France. Mr. Bouvagnet

petitioned under the International 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 children

where 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 process for obtaining French citizenship.

Mrs. Bouvagnet left France with her two children that

December and, after visiting her family, moved to Chicago

in 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’s

application for French citizenship was based on her marriage to Patrice Bouvagnet, a French citizen. R.1 at 13. A

French 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 case because the Illinois proceedings were ongoing, but the dismissal was overturned in October

2001 and the action recently reinstated. The record does not indicate

the current status of the French proceedings.

ary 2000, however, Mrs. Bouvagnet’s application for French

citizenship was dismissed after 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 served 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 rejected 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 visitation 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 days 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 that

it was required to abstain because three conditions existed: first, state proceedings that were judicial in nature

were pending; second, the state proceedings implicated

an important state interest; and third, the state proceedings afforded Mr. Bouvagnet the opportunity to present
4 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 problem 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, ought to be reconciled with abstention principles that govern the relationship of federal

and state courts in this country. In order to place this issue in an appropriate context, we pause to consider the

problem 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 child

readily was assumed by the jurisdiction in which the abducted child was present, and the courts of that state

considered 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]n

this 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, rampant 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 disputes

were 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 Kidnaping 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, state

courts 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 international child abduction just as

it contributed to the problem in the domestic arena. As

Congress observed in enacting the International Child Abductions Remedies Act, “[i]nternational abductions and

retentions of children are increasing, 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 international child abduction. “A

fundamental purpose of the Hague Convention is to protect children from wrongful international removals or retentions by persons bent on obtaining their physical and/or

legal custody.” Department of State Public Notice, Hague

International Child Abduction Convention; Text and Legal

Analysis, 51 Fed. Reg. 10,494, 10,504 (Mar. 26, 1986) [hereinafter State Department Legal Analysis]. Generally, the

Hague Convention requires a court to order the return

of a child who has been “wrongfully removed” from the
No. 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 and

ICARA do not empower courts to make any determination concerning the merits of the 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. at

10,511. 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 begun

in 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, if

not, whether abstention is appropriate based on considerations of “[w]ise judicial administration,” as in Colorado

River Water Conservation District v. United States, 424 U.S.

800, 817 (1976).
8 No. 01-3928

1.

We review de novo a district court’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 Supreme

Court of the United States undertook to describe, in contemporary terms, the Younger doctrine and to place principled limitations on its scope. In NOPSI, the Supreme Court

began its appraisal by restating the general principle

that must govern all exercises of federal judicial jurisdiction. “Our cases have long supported the proposition that

federal courts lack the authority to abstain from the exercise of jurisdiction that 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, however, 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 withhold equitable relief to avoid

undue interference with the course of ongoing state proceedings. Specifically, the Supreme Court held that, absent

extraordinary circumstances not at issue here, federal

courts 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 a

Union of separate state governments, and a continuance of the belief that the National Government will

fare best if the States and their 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 difficult

problem is to discern in a principled manner those ongoing state proceedings in which Younger abstention 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 multi-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 of

constitutional 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 recognized this distinction, observing in Green v. City of Tucson, 255 F.3d 1086, 1093-94 (9th Cir. 2001),

that the three-part test ordinarily applies only if the federal relief

would interfere with the state court proceedings and that the interference requirement “ordinarily . . . restricts application of the

Younger doctrine to circumstances in which the state court proceeding is an enforcement action against the federal court plaintiff,

and is not met simply by the prospect 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 arguably be offset by a substantial federal interest in the opposite outcome. Rather

what 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 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 . . . .” 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 from a federal judge would come

close to allowing a state criminal defendant to remove
No. 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 obtained 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 appealing judgment against it for tortious

interference with contract; “Both Juidice and this case involve challenges to the processes by which the State compels compliance with

the judgment of its courts.”).

his criminal prosecution into 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 apparatus effectively to address the

misconduct of a defendant.3

 Thus, Younger does not apply

if the federal plaintiff has not 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 for

custody of her children rests in no way on any misconduct on the part of Mr. Bouvagnet. It is true that the state
12 No. 01-3928

4 Elisa Perez-Vera was the official Hague 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 explains 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 Documents 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 provisions

of the Hague Convention actually contemplates that a successful action might well result in 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 implementing 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].4

 The abuse of parental

child abduction arose because local jurisdictions to which

a child had been taken often did 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 petition is not discretionary).

dence.5 It was to curb this abuse that the United States

assumed a treaty obligation to cooperate with other nationstates to adopt a mutual policy in favor of restoring the

status 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 practical 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 custody

decree 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 Circuits that have confronted

the issue,6

 that 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 and federal courts,” principles

resting on “considerations of [w]ise judicial administration,

giving regard to conservation of judicial resources and

comprehensive 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 dismissal “for reasons of wise

judicial administration are considerably more limited than

the circumstances appropriate for abstention [under the

other abstention doctrines].” Id. at 817-18. Indeed, “[o]nly

the clearest of justifications 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 exercise of federal jurisdiction by the district court; rather, the task

is to ascertain whether there exist ‘exceptional’ circumstances, the ‘clearest of justifications,’ that can suffice

under Colorado River to justify the surrender of that jurisdiction.

Id. (emphasis in original).

For Colorado River to 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 issues simultaneously in two
No. 01-3928 15

fora.” Id. (internal quotation omitted). “The question is not

whether the suits are formally symmetrical, but whether

there 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 considered 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 to

determine 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 the

children 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 court

has no occasion to determine whether the children wrongfully were removed from France. Although the Illinois court

would no doubt consider, as part 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 district
16 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 appropriate for the district court to consider factors other than a comfortable material existence, including

“peculiar circumstances surrounding the children’s living environment” attributable to the parental attempt to evade the original

custody decree).

court.7 Notably, 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. The

Supreme Court has made it clear that “the decision whether to dismiss a federal action 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 case, 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 factors). 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 Congress
No. 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’s

petition 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 a

controversy that implicates both the United States’ international treaty obligations and its concomitant interest in

foreign relations weighs especially 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 deliberately, has vested the

district courts with the jurisdiction 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 submits that the federal court’s

exercise of jurisdiction in this case runs counter to the most

significant 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 entertain an action under ICARA,

ICARA expresses no requirement or even preference for that forum. Indeed, the legislative history of the Act makes clear that Con-

(continued...)

meal litigation.” Colorado River, 424 U.S. at 817. There, the

federal statute at issue evinced a “clear federal policy . . .

[of] avoidance of piecemeal adjudication 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 piecemeal

litigation when necessary actually counsels against abstention).8
No. 01-3928 19

8 (...continued)

gress, after considerable discussion of 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 perceived reluctance of state courts

to decline jurisdiction in favor of the 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. at

818, but it is not dispositive. Again, the Hague Convention and ICARA contemplate that Hague petitions will be

filed after the state-court custody 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 to

return a child under this Convention . . . .” Hague Convention, supra, art. 17; see State Department Legal Analysis, 51

Fed. 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 regards

as 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 curtailed severely if a federal
20 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., 780

F.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 particular weighs 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 appropriate: 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 River doctrines is inappropriate. We therefore reverse the district court’s dismissal of the Hague petition

and remand the case to the district court for proceedings
No. 01-3928 21

consistent with this opinion. Mr. Bouvagnet may recover

the cost of this appeal.

REVERSED and REMANDED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-97-C-006—7-26-02