[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 97-9381

________________________ D. C. Docket No. 1:97-CV-298 CHRISTINE LOPS, Petitioner-Appellee,

versus MICHAEL LOPS, ANNE E. HARRINGTON, Respondents-Appellants.

________________________ Appeal from the United States District Court for the Southern District of Georgia

_________________________ (May 7, 1998) Before COX and HULL, Circuit Judges, and KRAVITCH, Senior Circuit Judge. HULL, Circuit Judge: Petitioner-Appellee Christine Lops filed a petition under the International Child Abduction Remedies Act (“ICARA”), 42 U.S .C. § 11601-10, seeking return of her two minor children to Germany. After conducting evidentiary hearings, the district2 court found that Petitioner’s former husband, Respondent Michael Lops, and his mother, Respondent Anne Harrington, wrongfully removed Petitioner’s minor children from Germany to the United States in violation of Petitioner’s custody rights. As authorized under ICARA, the district court ordered the children’s return to Germany with Petitioner. Respondents appeal. After review, we affirm.
I. FACTS The issues in this appeal necessitate firs t a detailed review of the district court’s findings of fact and the evidence supporting them. A. On January 31, 1995, Petitioner Initiates Divorce And Custody Proceedings In Germany Petitioner and Respondent Lops were marri ed in Germany in June 1991. Until they separated in January 1995, they lived with their two minor daughters, Claire and Carmen Lops, in Rodgau, Ge rmany. On January 31, 1995, Petitioner initiated divorce and custody proceedings in the German family court for the district that was the marital and habitual residence of the parties. Alleging that Respondent Lops physically abused her, Petitioner sought so le custody of the children. From January 1995 to early May 1995, Petitioner and the ch ildren visited relativ es and friends in Belgium.3 On May 2, 1995, Petitioner and Respondent Lops app eared with counsel for their first hearing before the family court in Germany. Respondent Lops also sought sole custody of the children. Since the parties could not reach a custody agreement, Judge Rudolf Giwitz, the Germanfamily court judge, instru cted the parties to appear with the children the following week. Even though Petitioner had returned to Germany with the children in early May 1995, the animosity between Petitioner and Respondent Lops had increased due to Petiti oner’s taking the children to Belgium for four months without Respondent Lops’s consent. B. On May 10, 1995, Parties Agree To Sh are Custody At German Family Court Hearing On May 10, 1995, the parties appeared again with counsel and the children before Judge Giwitz. At this “isolated proceeding of custody” hearing under German law, Judge Giwitz heard from each party and interviewed the children. In a letter written from Judge Giwitz to the district c ourt, Judge Giwitz indicated that Petitioner expressed concerns that Respondent Lops would follow through on earlier threats to abduct the children and take them to the Un ited States. Judge Giwitz’s letter further1 Judge Giwitz’s correspondence and all of the German courts’ orders, and their English translations, were entered in the record at the evidentiary hearing. After observing that the German documents were translated by Petitioner’s German counsel, a partisan individual, the district court notedthat a neutral translator subsequently had affirmed that the translations were accurate in most respects. 4 states that Respondent Lops dispelled thes e concerns by arguing that he was firmly rooted in Germany and had no furthe r connection with the United States. 1
As a result of the German family court proceeding, th e parties agreed to share joint legal custody, with Petitioner retaining primary physical custody. Respondent Lops was allowed vis itation rights based on his assurance to Judge Giwitz that he would return the children to Petitioner. The parties’ agreement regarding cu stody of the children resulted in a suspension of the German family court proceedings. Judge Giwitz approved of Respondent Lops’s having a short visitation with the children immediately following the hearing, with the understanding that Respondent Lops would return the children that evening to Petitioner. The Germancourt considered the parties’ custody agreement announced in court as binding on both parties. C. On May 10, 1995, Respondent Lops Violates Custody Agreement Immediately following the May 10 hearing, Respondent Lops visited with the children as authorized by Judge Giwitz. Once Respondent Lops obtained the children5 physically, he did not return the childre n to Petitioner as agreed, and understood by Petitioner and Judge Giwitz, only hours ear lier. Petitioner objected and initiated efforts to contest this unilateral alteration of the partie s’ agreement announced before Judge Giwitz. Over the next two weeks, Petitioner re sided with Respondent Lops’s aunt and visited the children daily in the marital resi dence, but she was ne ver allowed to remain alone with the children. During this time, there was also some attempt at marital reconciliation, which soon failed. D. On May 30, 1995, Respondents FraudulentlyObtain New Passports For The Children Unbeknownst to Petitioner, Respondents planned to remove the children from Germany, but could not because the ch ildren’s passports were in Petitioner’s possession. The district court determ ined that Respondents misrepresented to Consulate officials that Petitioner had ab andoned the children and thereby obtained new passports for the children on May 30, 1995. The district court expressly found, and the evidence showed, that Petitioner ne ver abandoned the children and that she had parental custody rights not only by ope ration of German law but also by the agreement before and approved by the German family court judge.6 E. On May 30, 1995, Petitioner Reopens Custody Proceedings In German Family Court, And On June 1, 1995, Respondent Lops Take s Children From Germany To Spain On May 30, 1995, the same day Responde nts obtained new passports for the children, Petitioner reopened th e suspended custody proceedings before Judge Giwitz. However, on June 1, 1995, w ithout Petitioner’s knowledge or consent and in violation of the parties’ custody agreement in Judge Giwitz’s court, Respondent Lops took the children from Germany to Spain, where they stayed until approximately June 25, 1995. While Respondent Lops and the children were in Spain, Respondent Harrington, Respondent Lops’s mother, remain ed at the former marital residence in Rodgau, Germany. F. On June 27, 1995, Respondent Harring ton Takes Children To The United States Respondent Lops and the children returnedto Germany on June 25, 1995. Only two days later, Respondent Harrington took the children to the United States, without Petitioner’s knowledge or consent and in vi olation of her custody rights under German law and the parties’ custody agreement in Judge Giwitz’s court. G. On July 3, 1995, German FamilyCourt Conducts Another Hearing7 Judge Giwitz held another custody hearing on July 3, 1995. Neither Respondent Lops nor his counsel revealed to the German family court, or Petitioner, that his mother, Respondent Harrington, had already taken the children to the United States, or that Respondent Lops was packing his furniture and belongings to leave for the United States only days later. H. On July 8, 1995, Respondent Lops Jo ins Children In The United States But Conceals Whereabouts On July 8, 1995, Respondent Lops left for the United States. Initially, Respondent Lops and the children stayed with Respondent Harrington in her home in Martinez near Augusta, Georgia. In early August 1995, Respondent Lops and the children moved into a home purchased by Respondent Harrington across Georgia’s border in North Augusta, South Carolina. Th e district court described the transaction for “this curiously purchased house” as “pecu liar.” The purchase contract called for a down payment and a twenty-year mort gage, but Respondent Harrington was not to receive an executed deed to the home for twenty years. Instead, the seller of the home remained its owner, and the lender he ld the deed from the seller to Respondent Harrington. The deed was to be transf erred to Respondent Harrington only after all2 Evidence before the district court re vealed that while Respondent Lops made some payments in cash, Respondent Harri ngton made most tuition payments by check. 8 of the mortgage payments were made. Thus, the title to the South Carolina home apparently remained in the seller, arguably concealing its true ownership. The district court found that over th e next two and one-half years Respondent Lops and his mother, Respondent Harrington, took other more significant measures to conceal his and the children’s whereabouts from Petitioner. For example, Respondent Lops had no checking account and personally transacted business only in cash, including at times the children’s private school tuition. 2 Respondent Lops drove a $30,000 van registeredunder Respondent Harrington’s name. Despite the fact that he earned an annual six-figure income as a foreign exchange broker in Germany, Respondent Lops did not obtain any employm ent in the United States, which would have required him to disclose his social security number. Instead, he worked as a parttime independent contractor with Hous e Rentals owned by his stepfather, Wayne Harrington. Respondent Lops, Mr. Harringt on, and Mr. Harrington’s company did not have any real estate licenses.9 Respondent Lops never reporte d any income or paid any federal or state income taxes in the United States during 1995, 1996, or 1997. In short, Respondent Lops had no “electronic identity.” As the district court aptly noted in its findings of fact: Mr. Lops has no conventional cred it, no credit cards, engages only in cash transactions; pays no utilities; his mother takes care of those; has no lease with his mother. This is a curious existence. . . . Notwithstanding his significant income re duction, Respondent Lops maintained a comfortable lifestyle, reportedly by borrowi ng from friends and family; yet, no loans had any documentation. A lthough living and driving in South Carolina for over two years, Respondent Lops never obtained a South Carolina driver’s licence, nor did any insurance policy list Respondent Lops as an authorized driver of the van. The district court’s findings of fact concluded: . . . I see Mr. Michael Lops in a s ituation or in a position or pattern of continuing deception and even if ever y word that he says about his income and his business affairs is to be believed he is committing either four or five misdemeanors to maintain this pattern and to conceal, at least himself, from any authority. I. On August 31, 1995, German Court I ssues A “Certificate Of Unlawfulness,” And Then Petitioner Files A Request For Return Of Children Under Hague Convention While Respondent Lops concealed his and the children’s whereabouts in South Carolina, the German court proceedings continued unabate d. Although Respondent10 Lops was never present in c ourt, his counsel was. Af ter a hearing on August 31, 1995, attended by Respondent Lops’s attorney, th e German court issued a “Certificate of Unlawfulness.” The “Certif icate of Unlawfulness” f ound that Respondent Lops had not returned the children following a period of visitation, “contrary to the Agreement settled in the presence of the Family Judge.” In that Certificate, the German court further found that Respondent Lops violat ed Petitioner’s custody rights and was acting unlawfully. Likewise, the district court also found that “Respondents removed the children from the country of their habitual residence in breach of custody rights which Petitioner was actually exercising at the time of removal.” In September 1995, Petitioner filed a “Re quest for Return” of the children under the Hague Convention with the Central Authority in Germany. J. On September 26, 1995, German Fam ily Court Awards Petitioner Temporary Sole Custody Of The Children On September 26, 1995, Judge Giwitzconducted another custody hearing. Respondent Lops’s attorney again appeared and contended thatPetitioner should not have sole custody of the children due to her own misconduct and that the German court lacked jurisdiction. Since the childre n had lived in Germany with their parents since birth, Judge Giwitz’s Septembe r 26 order rejected Respondent Lops’s11 contentions and determined th at Germany was the state of habitual place of residence and that the German court had jurisdiction. The district court found that the orders of the German courts regarding custody were valid and further showed that Responde nt Lops had violated Petitioner’s custody rights. In the September 26, 1995 order, Judge Giwitz recited the history of the case, including the parties’ agreement announ ced before him on May 10, 1995. Judge Giwitz’s order specifically found that Petiti oner had been the most important person in the children’s lives, that the children had developed well in the care of their mother, and that Petitioner was able to educate the children. In contrast, Respondent Lops’s behaviors, including his misrep resentations to the court and violations of the parties’ custody agreement, persuaded Judge Giwitzto find in his September 26 order that Respondent Lops was concerned more with his own interests th an the children’s welfare, and, that Respondent Lops was not able to educate the children properly. Consequently, the German family court awarded Petitioner sole temporary custody of the children. Respondent Lops’s attorn ey appealed Judge Giwitz’s order. K. On January 11, 1996, German Appellate Court Affirms Grant Of Custody To Petitioner12 On January 11, 1996, a German appellate court affirmed Judge Giwitz’s temporary grant of sole custody to Petitioner, holding that the children’s habitual residence was Germany. On January18, 1996, Petitioner petitioned the German family court for a final divorce and perm anent custody. On October 7, 1996, the German family court pronounced final j udgment awarding Petitioner a final divorce and permanent sole custody of both children. L. In August 1996, Respondent Lops Initiates Divorce Action In South Carolina Despite the German appellate court’ s affirming Judge Giwitz’s award of custody to Petitioner and his counsel’s partic ipating in the German court proceedings, Respondent Lops filed a divorce action in August 1996 in the Family Court of Aiken County, South Carolina. Respondent Lops claims that he attempted service upon Petitioner by mailing papers to her last known German address and that Petitioner failed to respond. Petitioner denies ever receiving them. On September 20, 1996, the South Carolina court entered a pendente lite order pursuant to the Uniform Child Custody Jurisdiction Act based on the reside nce of Respondent Lops and the children. The South Carolina court’s order awarde d Respondent Lops sole temporary custody of the children pending final hearing on the divorce, and held “[a]ll other issues3 The divorce action in the South Carolin a court subsequently was stayed in February 1998 pending the outcome of the app eal in this case. Also, we could not locate a final custody or divorce decree by th e South Carolina court in the record. Instead, a South Carolina court order, date d January 28, 1998, states that regarding “the action for Divorce which is pending in this court . . ., regardless of previous service, Chistiane [sic] Lops . . . [was] served with the Summons and Complaint on January 6, 1998. . . . [t]he last day for answering or otherwise responding to the Complaint will be February 5, 1998.” This further indicates that the South Carolina divorce action has not proceeded to final judgment. 13 relating to property, visitati on, support and the divorce itsel f” in abeyance until a final hearing on the merits. The district court made no findings of f act about what actually happened in this South Carolina divorce action, but rather c onsidered the prior German court orders valid and controlling as to the habitual resi dence of the children in 1995 and as to who had custody at the time of the removal of the children from Germany. Indeed, the South Carolina divorce action never proceededto final judgment, while the German divorce and custody action did. Also, the German appellate court affirmed the German family court’s award of cu stody to Petitioner before Respondent Lops initiated the South Carolina divorce action. The district court did not err in giving priority to the German court’s orders and final judgment in deciding that Petitioner had custody of the children at the time of Respondents’ removal of the children from Germany to the United States. 314 M. Petitioner’s Two-Year Efforts To Locate Children The record is replete withevidence of Petitioner’s tw o-year campaign to locate her children. For example, the distri ct court found that from 1995 to 1997 Petitioner employed the assistance of approximately el even state, national, and international agencies, including Interpol, the United St ates State Department, and the Georgia Bureau of Investigation (“GBI”). These agencies searched records (1) in Georgia, where Respondent Harrington lives; (2) in Vi rginia, where Respondent Lops’s sister lives; and (3) in New York, where Res pondent Lops’s adoptive father lives. The GBI conducted drive-by checks at Respondent Harrington’s home. The GBI contacted local school officials and checked credit and employment tax records. These and many other concerted efforts, including the State Department’s initiating database searches such as credit agencyreports and the Federal Parent Locator Service, were to no avail. One memo, dated August 9, 1996, from “Interpol Washington” to “Interpol Wiesbaden” in Germany is illustrative of the agencies’ efforts: Begin message: At the present tim e, we cannot locate Mr. Michael Raymond Lops and the two children, Carmen and Claire, anywhere in the State of Georgia. The two girls have not been enrolled in school and no sighting has been made of them at their Grandmother’s house in Martinez, Georgia. Several checks have been made on Mr. Lops [sic]4 The children were enrolled in private sc hool in South Carolina, which is why they could not be located in any public or private school in Georgia. 15 Social Security Number in 1995 and again in 1996 but all were negative. 4 Additionally, the district court noted that there was disputed evidence that Respondent Harrington was contacted by o fficials in December 1996, but denied knowing the whereabouts of the children. A memo, dated December 12, 1996, from the United States National Centr al Bureau to the Diplomatic Security Service of the Department of State, states as follows: Incidentally, Lops’ mother, who reside s in Martinez, Georgia, refuses to admit knowing where [Respondent Lops ] and the children can be found. I can locate no other trace as to their current whereabouts. Ultimately, officials contacted the District Attorney’s office in Georgia’s Augusta Judicial Circuit, where Respondent Harrington lives. The District Attorney’s office received authorization from the Superior Court of Columbia County, Georgia, also located in the Augusta Judicial Circuit, to place a wiretap on Respondent Harrington’s telephone. Through wiretaps, officials ascertained the whereabouts of Respondent Lops and the children, as well as wh en the children would be at Respondent Harrington’s home in Georgia.5 The Georgia court’s November 15 order states that the children were picked up on November 6, 1997. Howeve r, the parties’ briefs indicate that the children were picked up on November 5, 1997. 16 On November 3, 1997, as a result of the GBI’s requesting custody of the children, the Superior Court of Columbia County, Georgia issued an order directing law enforcement to sei ze the children and surrender custody to the Georgia Department of Family and Children Servi ces (“DFACS”). On November 5 or 6, 1997, DFACS took custody of the children at Respondent Harrington’s home. 5
Petitioner took a leave of absence from wo rk and immediately came to the United
States.
II. PROCEDURAL HISTORY A. Superior Court Of Columbia County, Georgia On November 12, 1997, Petitioner file d a petition, pursuant to the Hague Convention and ICARA, in th e Superior Court of Columbia County, Georgia (the “Georgia court”). Petitioner filed her petition in that forum because that Georgia court had issued the wiretap and seizure orders and because the children were in Columbia County, Georgia, in the custody of Georgia DFACS. After a hearing, another judge of thatsame Georgia court entered an order, dated November 15, 1997, findi ng lack of jurisdiction in Georgia and transferring the17 case to South Carolina. Instead of dismi ssing the case, the Georgia court transferred the case to the neighboring court a few mile s away in South Carolina, stating in its order that the parties “stipulated to a transf er of the proceedings verses [sic] dismissal and refiling in the event this Court found no authority for exercising jurisdiction in Georgia.” B. Family Court Of Aiken County, South Carolina The Family Court of Aiken, South Car olina (the “South Carolina court”) held a brief hearing on November 26, 1997, but dete rmined that it could not hear the merits of the ICARA petition until January 16, 1998. In a later order (which Respondents state was entered on December 2, 1997, but which is dated December 11, 1997), the South Carolina court directed that the ch ildren be released temporarily from the custody of DFACS in Georgia and placed in the temporary custody of Respondent Harrington in Georgia and that the passports of the children, Respondent Lops, and Respondent Harrington be surrendered. The Georgia court had transferred th e case to South Carolina because the children and Respondent Lops had resided in South Caro lina before Georgia DFACS picked up the children. However, the S outh Carolina court then ordered DFACS in Georgia to release the ch ildren to reside in Geor gia with Respondent Harrington,18 albeit temporarily, until the South Carolina c ourt could hear the merits of the ICARA petition. C. Federal Court In Georgia On December 3, 1997, Petitione r filed an ICARA petition in the federal district court for the Southern District of Georgia located in Augusta, Georgia. On December 3, 1997, the district court issued an orde r directing that the custody of the children remain with Georgia DFACS pending further order of the court. Expediting the case as ICARA and the Hague Convention require, the district court conducted two full days of evidentiary hearings on December 12 and 19, 1997. After closing arguments on December 22, 1997, the court orally entered detailed findings of fact and conclusions of law fro m the bench, plus a written final judgment finding that Respondents had wrongfully removed the children from Germany in violation of Petitioner’s custody rights and ordering that the children should be returned to the custody of Petitioner for return to Germany. The children were released to Petitioner. On December 23, 1997, this court granted Respondents’ “motion for emergency stay” and enjoined all parties from re moving the children from Georgia or South6 We review the district court’s factua l findings for clear error and its legal conclusions de novo . Lykes Bros., Inc. v. United St ates Army Corps of Engineers , 64 F.3d 630, 634 (11 thCir. 1995). 19 Carolina until further order of this court. From December 23, 1997 to the present, the children have resided with Petiti oner in Georgia. This court also expedited the appeal.
III. EVIDENCE SUPPORTED DISTRICT COURT’S FINDINGS OF FACT Respondents’ first contention on appeal is that the district court’s factual findings are clearly erroneous. We reject that contention because substantial evidence supports all of the district court’s factual findings. 6 In particular, the district court’s pivotal factual finding that Respondents wrongfully removed the children from Germany in violation of Petitioner’s custody rights is amply supported by the evidence in this record. In light of the overwhelming evidence of wrongful removal in violation of Petitioner’s custody rights, Respondents’ app eal focuses more on the legal issues regarding whether the district court wa s precluded from hearing this ICARA petition due to either collateral est oppel or the abstention doctrin e. Respondents also contend that even if they wrongfully removed the children, the district court erred in returning the children to Germany because Respondent s proved the “well-se ttled” affirmative defense to an ICARA petition. We first discuss ICAR A and the Hague Convention.7 “The Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980, establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained, as well as for securing the exercise of visitation rights.” 42 U.S.C. § 11601(a)(4). 20 IV. ICARA AND THE HAGUE CONVENTION Congress enacted ICARA to implement the Hague Convention on the Civil Aspects of International Child Abduction, 7 a treaty to which the United States and Germany are signatories. 42 U.S.C. § 11601(b )(1). The goals of the Convention are “to secure the prompt return of children wrongfully removed to or retained in any Contracting State” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively resp ected in other Contracting States.” The Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, art. 1, T.I.A.S. No. 11670, 19 I. L.M. 1501, 1501 [hereinafter “Hague Convention”]. Article 3 of the Hague Convention provide s that the removal or retention of a child is wrongful where it violates the custody rights of another person that were actually being exercised at the time of the removal or retention or would have been exercised but for the removal or retention, as follows: The removal or the retention of a child is to be considered wrongful where—8 Respondents argue that the children we re with Petitioner in Belgium from January 1995 to May 1995, that their “hab itual residence” was Belgium, even though they returned to Germany in early May 1995, and that the Hague Convention and ICARA do not apply because Belgium is not a signatory to the Hague Convention. The federal district court correctly rej ected Respondents’ argument and did not err in finding that the children’s habitual reside nce since birth had been Germany and still was in Germany at the time of the wrongful removal. Both the German family court and the German appellate court likewise rejected Respondent Lops’s contention that the children’s habitual residence was Belgi um and that the German courts lacked jurisdiction. 21 a it is in breach of rights of custody attributed to a person, an institution or any other body, eith er jointly or alone, under the law of the State in which the child wa s habitually resident immediately before the removal or retention; and b at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Hague Convention, art. 3. The removal of a child from the country of his or her habitual residence 8 is “wrongful” under the Hague C onvention if the petitioner “is, or otherwise would have been, exercising cust ody rights to the child under that country’s law at the moment of remova l.” Friedrich v. Friedrich , 78 F.3d 1060, 1064 (6 thCir. 1996) (citing Hague Convention, art. 3). Under ICARA, a person may file a petition fo r the return of a child in any court authorized to exercise jurisdiction “in the place where the child is located at the time the petition is filed,” as follows:22 Any person seeking to initiate judicial proceedings under the Convention for the return of a child . . . may do so by . . . filing a petition . . . in any court which has jurisdiction of suchaction and which is authorized to exercise its jurisdiction in the place wh ere the child is located at the time the petition is filed. 42 U.S.C. § 11603(b). ICARA further provi des that a petitioner has the burden to show by a preponderance of the evidence that the petitioner was exercising custody rights at the time of the removal and that the removal was wrongful. 42 U.S.C. § 11603(e)(1)(A); Friedrich , 78 F.3d at 1064. If a petitione r meets this burden, ICARA requires that “[c]hildren who are wrongfullyremoved or retained . . . are to be promptly returned unless one of the narro w exceptions set forth in the Convention applies.” 42 U.S.C. § 11601(a)(4). A court considering an ICARA petition ha s jurisdiction to decide the merits only of the wrongful removal claim, not of any underlying custody dispute. Friedrich , 78 F.3d at 1063; see also Feder v. Evans-Feder , 63 F.3d 217, 221 & n.5 (3 d Cir. 1995); Rydder v. Rydder , 49 F.3d 369, 372 (8 thCir. 1995). The Hague Convention is intended to “restore the pre-abduction stat us quo and to deter parents from crossing borders in search of a more sympathetic court.” Friedrich , 78 F.3d at 1064; see also Feder , 63 F.3d at 221; Rydder , 49 F.3d at 372.23 Finally, Article 11 of the Hague Convention contemplates that courts shall expedite ICARA proceedings, stating: The judicial or administrative author ities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of the commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a re ply is received by the Central Authority of a requested State, that Authority sh all transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be. Hague Convention, art. 11. Against this ICARA background, we turn to Respondents’ collateral estoppel argument.
V. COLLATERAL ESTOPPEL A. Georgia Court’s Transfer Order E rroneously Imposed Residency Test On ICARA Respondents’ collateral estoppel argument is based solely on the Georgia court’s interlocutory order, entered November 15, 1997, transferring Petitioner’s ICARA petition from a Georgia trial court to a South Carolina trial court. The federal district court in Georgia properly found that it had jurisdiction over the ICARA petition because the children, picked up at Respondent Harrington’s home in Georgia,9 Respondent Harrington resides in Martinez, Georgia. Regarding Respondent Lops, the district court found that “on the ev idence that I have heard, contrary to the much abbreviated record that was devel oped before Judge Allgood, these children have a dual residence at least between Anne Harrington’s residence in Columbia County and Michael Lops’ house that he occ upies, courtesy of his mother, in North Augusta.” Respondent Lops and the childre n regularly went back and forth between Augusta and Martinez, Georgi a, and North Augusta, South Carolina. To the extent he worked, Respondent Lops worked for Hous e Rentals, which the district court also found had offices in Georgia, either in Richmond or Columbia County. The record before the district court was replete w ith other evidence that Respondents had more than sufficient contacts with Georgia to satisfy due process requirements.

10 We review the district court’s determ ination that res judicata and collateral estoppel do not apply de novo . See Richardson v. Miller , 101 F.3d 665, 667-68 (11 th Cir. 1996). The district court’s conclusions of law state: In determining its own jurisdiction a federal district court is not bound by res judicata. Nor are the parties bound by any collate ral estoppel with respect to the factual findings made by any other court. Indeed, it is the duty of a federal district court to de termine a sufficiency of jurisdictional facts to properly decide or ascertain its own jurisdiction. On appeal, the parties correctly focus on collateral estoppel since this case involves 24 were in Georgia DFACS’s custody at the time the petition was filed and thus were “located” under ICARA in the same place as the district court. The district court also correctly determined that Respondents had mo re than sufficient contacts with Georgia to satisfy due process requirements. 9 The federal district court concluded that neither res judicata nor collateral estoppel applie d because federal district courts must determine their own jurisdiction. 10issue preclusion and not claim preclusion.

11 The November 3, 1997 order directing the children to be picked up at Respondent Harrington’s home and placed in the custody of Georgia DFACS was issued by Superior Court Judge Bernard J. Mulherin, Sr., of the Superior Court of Columbia County, Georgia. However, Judge Robert L. Allgood, of that same court, presided over the ICARA action Petitioner f iled in the Superior Court of Columbia County, Georgia. In his November 15, 1997 order, Judge Allgood determined that despite “the actual physical seizure of the ch ildren in Georgia,” th ere were insufficient contacts in Georgia for personal jurisdic tion over the children and Respondent Lops, and thus Judge Allgood transferred the matte r to the Family Court of Aiken County, South Carolina. The district court also correctly found that the children’s dual residence with Respondent Harrington in Georgia yielded more than sufficient contacts with Georgia to satisfy due process requirements. See supranote 9. 25 In contrast, the Georgia court’s transferorder incorrectly applied a traditional residency test and erroneouslyconcluded (a) that the children were not “located” in Georgia under ICARA, and (b) that it l acked personal jurisdiction over Respondent Lops and the children. 11 “Located” under ICARA does not require a showing of residency but contemplates the place where the abducted children ar e discovered. 42 U.S.C. § 11603(b). Thus, the children were “located” in Georgia for purposes of ICARA. There was also ample evidence s upporting the district court’s finding that Respondents had more than sufficient contact s with Georgia to satisfy due process requirements.12 Each decision cited by Respondents and th e dissent involved an actual final dismissal and/or a final judgment ente red in the state court action. See Underwriters Nat’l Assurance Co. v. North Carolina Life & Accident & Health Ins. Guar. Ass’n. , 455 U.S. 691, 706 (1982) (Indiana state court final order settling and dismissing all claims); Durfee v. Duke , 375 U.S. 106, 111 (1963) (Nebrask a state court final order in quiet title action with no appeal); American Surety Co. v. Baldwin , 287 U.S. 156, 166 (1932) (Idaho state court final judgment on supersedeas bond affirmed on appeal); Baldwin v. Iowa State Traveling Men’s Ass’n , 283 U.S. 522, 524-26 (1931) (Missouri state court final default judgment with no appeal); Deckert v. Wachovia Student Fin. Servs. , 963 F.2d 816, 819 (5 thCir. 1992) (Texas state court final order dismissing case for lack of personal jurisdiction) ; Harbuck v. Marsh Block & Co. , 896 F.2d 1327, 1329 (11 thCir. 1990) (New York state court fi nal order granting permanent stay of arbitration with dismissed appeal); Wiggins v. Pipkin , 853 F.2d 841, 842 (11 thCir. 1988) (Florida state court final order dismissi ng case for lack of personal jurisdiction); American Steel Bldg. Co. v. Davidson & Richardson Constr. Co. , 847 F.2d 1519, 1521 (11 thCir. 1988) (Texas state court final default judgment); Rubaii v. Lakewood Pipe of Texas , 695 F.2d 541, 543 (11 thCir. 1983) (Florida state court final order 26 Nonetheless, Respondents contend that under the doctrine of collateral estoppel, the Georgia court’s prior determination, evenif erroneous, that jurisdiction did not lie in Georgia barred the federal district court in Georgia from later finding it had jurisdiction over Respondents and the childre n in order to hear the ICARA petition. Respondents cite several cases for the pro position that when the issue of personal jurisdiction has been fully litigated and fina lly decided by a state court, that decision must be given full faith and credit in federal court. However, unlike the case before us, each decision cited by Respondents involve s a final judgment entered by the state

court. 12 Even assuming arguendo that Respondents are correct that a state court finaldismissing case for lack of personal jurisdiction); see also United States v. Timmons , 672 F.2d 1373, 1378 (11 thCir. 1982) (federal court fi nal judgment in condemnation action). In contrast, this case does not involve a final judgment or dismissal but only an interlocutory transfer order. The dissent acknowledges that “[t]he wrinkle here is that the Georgia court did not simply dismiss th e case.” The dissent then dismisses this “wrinkle” as insignificant and advocates that the Georgia courts would still view this interlocutory transfer order as effectively a dismissal and consider the transfer order a final judgment. However, this ignores th e fact that Georgia courts have not viewed or recharacterized transfer orders as dismi ssals but directly have held that transfer orders in civil cases are not final appeal able orders because the case is still pending in the court below. See Fulton County Dep’t of Fam ily and Children Servs. v. Perkins , 259 S.E.2d 427 (Ga. 1978); Wright v. Millines , 442 S.E.2d 304, 304 (Ga. Ct. App. 1994); Griffith v. Georgia Bd. of Dentistry , 333 S.E.2d 647, 647 (Ga. Ct. App. 1985). 27 judgment regarding personal jurisdiction may bar a federal court’s reconsidering that issue in certain circumstances , the doctrine of collateral es toppel is inapplicable here because the Georgia court’s interlocutory tr ansfer order was not a final judgment and was not an otherwise final app ealable order under Georgia law. B. Collateral Estoppel Requires A Final Judgment Or A Final Appealable Order Under the Full Faith and Cr edit Act, federal courts generally should respect state court judgments, even where err oneous. 28 U.S.C. § 1738; Matsushita Elec. Indus. Co., Ltd. v. Epstein , 516 U.S. 367, 373 (1996). In deciding whether the Georgia court’s transfer order is entitled to preclusive effect, this court must determine first whether that order was a “fin al judgment” under Georgia law. See Gresham Park28 Community Org. v. Howell , 652 F.2d 1227, 1242 (5 thCir. Unit B Aug. 10, 1981); First Nat’l Bank of Dublin v. Col onial Fire Underwriters Ins. Co. , 160 Ga. 166, 167 (1925). A final judgment is required before any possibility of application of the doctrine of res judicata or collateral estoppel may arise. Quinn v. State , 471 S.E.2d 337, 339 (Ga. Ct. App. 1996), aff’d , 485 S.E.2d 483 (Ga. 1997); Green v. Transport
Ins. Co. , 313 S.E.2d 761, 763 (Ga. Ct. App. 1984). No Georgia case has held that a transfer order represents a final judgment in the transferring court, much less given preclusive effect to a transfer order. Nonetheless, we recognize that under Georgia law finality for preclusion purposes may also be measured by the same standard as finality for appealability purposes. See Gresham Park Community Org. v. Howell , 652 F.2d 1227, 1241-42 (5 th Cir. Unit B Aug. 10, 1981); see also Culwell v. Lomas & Nettleton Co. , 248 S.E.2d 641, 642 (Ga. 1978); Dep’t of Corrections v. Robinson , 455 S.E.2d 323, 324 (Ga. Ct. App. 1995). Therefore, in or der to determine whether the transfer order was final for preclusion purposes, we must also examin e whether the transfer order could be considered a final appealable order. Cl ose examination of Georgia law reveals that the Georgia court’s transfer order was also not a final appealab le order for several

reasons.29 C. Transfer Order Was Not A Final Appeal able Order Under Section 5-6-34(a)(1) First, a transfer order, especially one entered only ten days after a case begins, is an inherently interlocut ory order and not appealable. Under Georgia law, the only way this interlocutory transfer order may be converted into a fi nal appealable order is if it falls under this Georgia statute: O.C.G.A. § 5-6-34(a)(1), entitled in part “Judgments and rulings deemed directly appealable.” Section 5-6-34 provides that an order b ecomes directly appealable when the case is “no longer pending in the court below,” as follows: (a) Appeals may be taken to the Supreme Court and the Court of Appeals from the following judgments and rulings of the superior courts, the constitutional city courts, and su ch other courts or tribunals from which appeals are authorized by the Constitution and laws of this state: (1) All final judgments, that is to say, where the case is no longer pending in the court below , except as provided in Code Section 5-6-35; . . . . O.C.G.A. § 5-6-34(a)(1) (emphasis supplied). The “in the court below” language in § 5-6-34(a)(1) is generally us ed to refer to a trial court as distinguished from an appellate court. A literal reading of § 5-6-34(a)(1) supports the conclusion that an order transferring a case from a trial court to a different tr ial court is not appealable, because that case is still “pending in the court below.” This is especially true here,30 given the fact that the parties stipulated to a transfer to anothe r trial court, as opposed to a dismissal of the case. D. Georgia Courts Follow General Rule ThatTransfer Orders In Civil Cases Are Not Final Judgments Second, Georgia courts repeatedly have he ld that transfer orders are not final appealable orders under § 5-6-34(a)(1) becau se a case transferred from one trial court to another trial court is still “pendi ng in the court below.” See, e.g. , Wright v. Millines , 442 S.E.2d 304, 304 (Ga. Ct. App. 1994); Griffith v. Georgia Bd. of Dentistry , 333 S.E.2d 647, 647 (Ga. Ct. App. 1985). For example, in Griffith , the action was transferred from a trial court in one jurisdiction to a trial court in a different jurisdiction. The Ge orgia appellate court dismissed the appeal, concluding that “[t]he subject transfer order is not a final judgment as the case is still pending in the court below, albeit a different court from the one ordering the transfer.” 333 S.E.2d at 647 (emphasis supplied). The appellate court held that “[t]he order is thus inte rlocutory and not appealable . . . .” Id. This same result prevailed in Wright , which held that the appeal of a transfer of a civil case from one trial court to a different trial c ourt was “premature as there is no final judgment and the case remains pending in the trial court , albeit the Superior Court of13 Both Griffithand Wright involved transfers from one court jurisdiction to a separate and distinct c ourt jurisdiction. Wright involved a transfer from the Superior Court of Fulton County in the Atlanta Judicial Circuit in Judicial District 5 to the Superior Court of Douglas County in the Douglas Judicial Circuit in Judicial District 10. Griffithinvolved a transfer from the Superior Court of Bibb County in the Macon Judicial Circuit in Judicial District 3 to the Superior Court of Fulton County in the Atlanta Judicial Circuit in Judicial District 5. 31 Douglas County to which the case was transf erred rather than the Superior Court of Fulton County where plaintiff filed his notices of appeal.” 442 S.E.2d at 304 (emphasis supplied). 13 Finally, Georgia’s general rule that tran sfer orders are not “final appealable orders” also adheres when anorder transfers a case to a different typeof trial “court below.” Fulton County Dep’t of Fam ily and Children Servs. v. Perkins , 259 S.E.2d 427 (Ga. 1978). Perkins , a child custody case closest in point, merits full review. After Georgia DFACS took custody of their child, the foster parents in Perkins filed a complaint in the superior court for author ization to adopt the child and for a writ of habeas corpus returning the child. The court dismissed all claims but the habeas petition and then transferred the case to the juvenile court, whic h earlier had asserted jurisdiction over matters relating to custody of the child. Followi ng the transfer, the juvenile court vacated its earlier order asse rting jurisdiction and transferred the case back to the superior court. DFACS app ealed contending both transfer orders were14 The issue in Perkins was whether the transfer orde rs appealed from were final orders within the meaning of then-exi sting Ga. Code Ann. §§ 24A-3801 and 6-701. 259 S.E.2d at 428. In 1981, these code sec tions were renumbere d, respectively, as O.C.G.A. § 15-11-64 and O.C.G.A. § 5-6-34, the latter of which is at issue in this case. The court held that the transfer orders were “not final and hence . . . not appealable without a certificate of immediate review.” Id. at 429.

15 The court was referring to J. T.M. v. State of Georgia , 236 S.E.2d 764 (Ga. Ct. App. 1977), which held that an order transf erring a criminal case from a juvenile court to a superior court for final dispositi on is a final appealable order. Id. at 765; see also Rivers v. State of Georgia , 493 S.E.2d 2, 4 (Ga. Ct. App. 1997). 32 “final” because “once a transfer order is entered, then the case is no longer pending in that court . . . .” Id. at 428. The Georgia appellate court held that neither transfer order was appealable. 14 The appellate court first acknowle dged that an order transferring a criminal casefrom a juvenile court to a superior court may be a final appealable order because it concludes all matters in the juvenile court and changes th e nature of the proceeding. Id. at 428-29. 15 The court explained that a transfer order in divorce, alimony, or habeas corpus (custody) cases changes th e forum but does not change the nature of the proceeding . Id. at 429. The court concluded thatdespite the transfer of forum,

“ [a] transfer of a child custody case is a continuation of that proceeding whereas a transfer of a juvenile for trial of a crime as an adult is not a continuation of the same proceeding .” Id. (emphasis supplied). Even though the transferring court loses16 The dissent concludes that Petitioner was judicially estopped from contending that venue was proper and that personal juri sdiction was present in Georgia. To reach this conclusion, the dissent argues that Pe titioner stipulated that venue was improper and that personal jurisdiction was wanting in Georgia. However, Petitioner never made any such stipulation a bout venue or personal jurisdic tion. Instead, the Georgia court’s order recites that the parties “stipulated to a transf er of the proceedings verses [sic] dismissal and refiling in the event this Court found no authority for exercising jurisdiction in Georgia.” Petitioner consente d to transfer in the event the Georgia court rejected her contentions and found no authority for exercising jurisdiction in Georgia. Petitioner’s argument to the district court that venue was proper, and jurisdiction present, was not inconsistent at all with the same arguments Petitioner 33 jurisdiction and the case is no longer pending inthat court, Georgia courts repeatedly have held that an order transferring a civil casefrom one trial court to another trial court is not appealable because the case is still pending in a court below, albeit a different court below. As in Perkins , Griffith , and Wright , the transfer of this ci vil case to another trial court, albeit a South Carolina trial court, is a continuation of the same civil proceeding originally initiated in the Geor gia trial court. This case, if anything, presents an even stronger case for a finding of non-appealabilityunder Georgia law because the parties stipulated to the transfer and a conti nuation of the proceedings, as opposed to a dismissal. The Georgia court’s transfer or der in this civil case changed only the forum and not the nature of the proceeding in the court below, and thus is not a final appealable order under Georgia law. 16made to the Georgia court. Judicial es toppel does not apply. Even Respondents admit Petitioner stipulated for the case to be transferred to South Carolina and Respondents do not contend that Petitioner ever stipulat ed that venue was improper or personal jurisdiction in Georgia was lacking.

17 The dissent also cites Arnold v. Jordan , 378 S.E.2d 139 (Ga. Ct. App. 1989), involving an interstate transfer order, but the Arnold court “granted the father’s application for discretionary review.” 378 S.E.2d at 141. O.C.G.A. § 5-6-34(b) provides that the courts “may thereupon, in their discretion , permit an appeal to be taken” from certain interlocutory orde rs or non-final judgments. The dissent concludes that Arnold involves discretionary review of domestic relations cases under O.C.G.A. § 5-6-35(a)(2) and not discretionary re view of an interlocutory order or nonfinal judgment under O.C.G.A. § 5-6-34(b). Arnoldcites no statute or decision after its statement granting discretionary review. Thus, Arnold ’s reference to “discretionary review” could be read to cover both types of di scretionary review. Even if the “discretionary review” in Arnoldwas under only § 5-6-35(a)(2), the parties in Arnold did not consent to a transfer as opposed to a dismissal as the parties did here, which is an important factual dis tinction. Also, Georgia courts have held that intrastate transfer orders in certain cases are directly appealable which undermines the dissent’s proposed interstate versus intr astate bright-line distinction. Rivers v. State of Georgia , 493 S.E.2d 4 (Ga. Ct. App. 1997); J.T.M. v. State of Georgia , 236 S.E.2d 764, 765 (Ga. Ct. App. 1977). 34 E. Interstate Transfers In Georgia’s Juvenile Court Cases We note that two Georgia decisions have allowed orders transferring juveniles, adjudicated as delinquent in Georgia, to another state to be appealable, but those cases involve “adjudicatory orders” on the merits of the case and are not applicable here. In the Interest of T.L.C. , 467 S.E.2d 885 (Ga. 1996); G.W . v. State of Georgia , 210 S.E.2d 805 (Ga. 1974). 17 In these two juvenile court cases, the Georgia appellate court35 allowed juveniles to appeal the “adjudicator y order” transferring their case to another state for disposition because that adjudicator y order also decided the merits of the case, determined whether the juvenile s had committed the acts charged, and adjudicated them as delinquent. See O.C.G.A. §§ 15-11-33 and 15-11-35. However, these quasi-criminal juvenile cases do not cite or discuss O.C.G.A. § 5-6-34(a)(1), and never discuss whether the case is still pendi ng “in the court below.” Instead, these cases adopt an equal protection analysis because the juveniles had been adjudicated delinquent, and denying them an opportunity to appeal a finding of guilt denies the juveniles equal protection of the laws. Id. at 806. In any event, the facts inthis case are materially different from those in G.W. and T.L.C. Here, the parties stipulated to the transfer of the cas e to South Carolina, thus waiving any right to appeal in Georgia and, a fortiori, waiving any equal protection argument . The parties’ stipulation alone makes these juvenile court cases inapplicable. In addition, there was no determination on the merits of Petitioner’s substantive claims, but only a preliminary de termination that the Georgia state court was not the proper forum to hear the merits of the case. At a minimum, these juvenile court cases in G.W. and T.L.C. are not persuasive author ity for the interpretation a18 After acknowledging that intrastate transf ers from one trial court to a different trial court are not final appealable orders because Georgia courts hold the case is still pending in the court below, the dissent broadly asserts that interstate transfer orders are treated entirely differently by the Geor gia courts. However, the Georgia courts have not created a different rule for transfer orders intrastate versus interstate. For example, in G.W. , the Georgia Supreme Court could have, but did not, create a brightline rule distinguishing between intrastate tr ansfers and interstate transfers. If the Georgia Supreme Court had wanted to make a new or different ru le for all interstate transfers, the court could have noted that, because the case was transferred out of state, it was “no longer pending in any c ourt below.” However, the G.W. opinion does not cite or discuss § 5-6-34(a) (1) and does not address whethe r the case was “no longer pending in the court below.”Instead, the court employed an equal protection analysis to allow a non-resident juvenile adjudicated delinquent to appeal that adjudication. Similarly, the Georgia Supreme Court, in T.L.C. , did not cite or discuss § 5-6- 34(a)(1), or whether the case still was pending in the court below. Rather, the Georgia Supreme Court merely cited G.W. in reaching the same conclusion as G.W. when facing facts materially indistinguishable from G.W. The T.L.C. court did not expand G.W. , but rather quoted only from the last sentence of G.W. in support of its conclusion that the litigant in T.L.C. had a right to appeal immediately the adjudicatory order in that case. 36 federal court shoul d give to § 5-6-34(a)(1) because they do not cite or discuss this statute. Instead, the civil cases disc ussed earlier are more closely in point. 18 F. Parties’ Stipulation to Transfer Finally, the parties’ unique stipulation to the transfer here makes this transfer order particularly non-appealable under Georgia law. This case remained, by stipulation, in the court below, albeit a different court below. We see no reason a Georgia court would be inclined to hold that parties may convert this inherently19 The dissent contends that the Georgia tr ial court lacked authority to transfer the case to South Carolina, and thus the di ssent recharacterizes the transfer order as a dismissal. Since a transfer order is in terlocutory and not a ppealable under Georgia law, the dissent recharacterizes the transfer order as a dismissal in order to make it a final judgment and appealable. There is no statutory or decisional authority for the dissent’s proposition that this transfer order should be treated somehow as an effective dismissal. Further, the parties’ consent to the transfer not only provides the authorization but also waives any right to complain about any error in transferring the case to South Carolina. Respondents wanted the case to go to the South Carolina court, which in turn accepted jurisdiction. Whether the South Carolina court was required to take jurisdiction is not a question we have to face or resolve. Alternatively, the dissent argues that since the Georgia court lacked authority to transfer the case, the transfer order wa s “a nullity.” We are aware of no authority which permits, much less compels, us to conclude that a “null” transfer can be considered a “final judgment” for purposes of collateral estoppel. To the contrary, something that is null has no legal or binding force. See B LACK ’ S L AW D ICTIONARY 1067 (6 thEd. 1990) (defining “nullity” as “an actor proceeding in a cause which the opposite party may treat as though it had not taken place, or which has absolutely no legal force or effect.”). 37 interlocutory transfer order under § 5-6-34(a )(1) to a final appealable order when they stipulated to the transfer as opposed to a dismissal. 19 We conclude that Georgia courts would not consider this transfer order in this type of case a final appealable order under § 5-6-34(a)(1) because the case was transferred from one trial c ourt to another trial court and remained pending “in the court below.” Section 5-6-34(a)(1) does not state “no longer pending in the same court” or “no longer pending in a court in Georgia” or “no longer pending in the court20 Georgia courts also recognize that the application of collateral estoppel may be avoided where it would result in “m anifest injustice” to a party. See Fierer v. Ashe , 249 S.E.2d 270, 273 (Ga. Ct. App. 1978). Thus , alternatively, Georgia courts, at a minimum, would find that manifest injustice re sults if preclusive effect is given to this transfer order where the partie s stipulated to the transferand where the Georgia court erroneously interp reted federal law. 38 that issued the order on appeal,” but st ates only “no longer pending in the court below.” We should not add qualifying or lim iting terms to an otherwise clear state statute. This is also not the construction the Georgia courts have placed on this statute when considering transfer orders in civil cas es. We find that the Georgia courts would hold that this type of transfer order, en tered only ten days afte r this civil case was filed, was not a final appealable orde r under § 5-6-34(a)(1) because the transfer changed only the forum and not the nature of the proceeding and because the parties stipulated to the transfer, as opposed to a dismissal. 20
VI. ABSTENTION We next address Respondents’ argument th at the exercise of wise judicial administration required the district court, as a matter of law, to abstain due to the parallel South Carolina action. See Moses H. Cone Mem’l Ho sp. v. Mercury Constr.
Co. , 460 U.S. 1 (1983); Colorado River Water Conservation Dist. v. United States ,21 We review the district court’s decision whether to abstain for abuse of discretion. See Rindley v. Gallagher , 929 F.2d 1552, 1554 (11 thCir. 1991). The dissent correctly notes that the Colorado River doctrine is not a traditional form of abstention, see Colorado River , 424 U.S. at 817, but is based on “considerations of ‘wise judicial admini stration, giving regard to conservation of judicial resources and comprehens ive disposition of litigation.’” Id. (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co. , 342 U.S. 180, 183 (1952)). However, since prior decisions of this court label a federa l court’s deference to a parallel state court litigation as a type of abstenti on, we do likewise. See, e.g. , Lake Lucern Civic Ass’n v. Dolphin Stadium Corp. , 878 F.2d 1360, 1373 (11 thCir. 1989); Forehand v. First Alabama Bank of Dothan , 727 F.2d 1033, 1035 (11 thCir. 1984); Fountain v. Metropolitan Atlanta Rapid Transit Auth. , 678 F.2d 1038, 1046 (11 thCir. 1982). 39 424 U.S. 800 (1976). We hold that the distri ct court did not abuse its discretion in declining to abstain for several reasons. 21 First, “[a]bstention from th e exercise of federal jurisdiction is the exception, not the rule.” Colorado River , 424 U.S. at 813. When a para llel state court action exists, the Supreme Court has emphasized that “[t] he doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow ex ception to the duty of a District Court to adjudicate a controversy properly before it.” Id. (quoting County of A llegheny v. Frank Mashuda
Co. , 360 U.S. 185, 188-89 (1959)). “[T]he pendenc y of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction . . . .” Id. at 817 (quoting McClelland v. Carland , 217 U.S. 268, 28240 (1910)). Instead, the Supreme Court has emphasized “the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.” Id. at 817 (emphasis supplied). Second, all relevant factors support the district court’s decision to hear the ICARA petition and not abstain. When a parallel state court action pends, the Supreme Court has outlined six factors for fe deral courts to consider in determining whether to abstain and dismiss a federal ac tion: (1) whether one of the courts has assumed jurisdiction over any property in i ssue; (2) the inconvenience of the federal forum; (3) the potential for piecemeal litigation; (4) the order in which the forums obtained jurisdiction; (5) whether federal or state law w ill be applied; and (6) the adequacy of each forum to protect the parties’ rights. Moses H. Cone , 460 U.S. at 15- 16, 23-27; Colorado River , 424 U.S. at 818. No one fact or is per se determinative.
Moses H. Cone , 460 U.S. at 16. How each factor is weighed depends on the facts of each case. Id. Here, neither the state nor the federal court had jurisdiction over any property in issue, rendering the first factor inapp licable. The remaining factors all counsel against abstention. The federal forum in Georgia was particularly convenient because the children were in the custody of Ge orgia DFACS and Respondent Harrington lives22 The district court found this factor, as well as others, favored its declining to abstain: I have had some concerns . . . relating to the parallel state proceedings that were originated in Georgia and subsequently transferred to the Family Court of South Carolina. I do not know of any concept that would bar the prosecution of both of these cases at the same time.

. . . . Interestingly, because of the apparent heavy schedule of the Family Court of South Carolina, a hearing date could not be established until January 15, 1998. Because of the less demanding schedule apparently, this Court has been able to act and seeks to conclude the matter this 22 nd day of December.

. . . . I will be the first, in most instances , to give great deference to a pending proceeding in state court. Howeve r, the mere pendency of a parallel proceeding does not require the dismissa l of a federal suit. This case, in my view, does not require dismissal of the federal action. Indeed, in my view, it is more appropriate for the federal court to proceed to disposition. After all, the act and the treaty, which the Petitioner seeks to enforce, are creatur es of the federal sovereign as opposed to any state’s sovereignty. The apparent election of the forum by the Petitioner can be and 41 in Georgia. Even Respondent Lops’s resi dence in North Augusta, South Carolina was on the Georgia and South Carolina border and only a few miles from the federal district court in Augusta, Georgia. Although both state and federa l courts adequately could protect the parties’ rights, ICARA is a federal statute enacted to implement a treaty entered into by the federal governme nt. Federal law provides the rule of decision in this case, which counsels agains t abstention by the federal district court. 22has been easily explained because the Georgia Court’s [sic] were already involved through the efforts of the Georgia Bureau of Investigation to locate the children. And, indeed, Judge Mulherin of the Augusta Judicial Circuit, including Columbia County, had entered the order by which the trap and trace order was permitted w ith respect to the telephone calls. These observations, coupled with the fact that the case primarily involved the interpretation and appli cation of federal law, impel me to continue in this matter to a dis positive level in this ICARA petition action. 42 Additionally, there was no threat of piecem eal litigation because the district court could, and did, resolve all issues. Respondents contend that the South Carolina court’s having jurisdiction first strongly favored abstention here. However, the Supreme Court has explained that the factor of which court first obtained jurisdiction involves more than a chronological assessment of whether the state or federal ac tion was filed first. Rather, the question is whether proceedings are further along in one jurisdiction than in the other. Moses
H. Cone , 460 U.S. at 21-22; Noonan South, Inc. v. County of Volusia , 841 F.2d 380, 382 (11 thCir. 1988). At the time the district court decided the case, the South Carolina case had just begun. More importantly, ICARA requires expedited judicial proceedings. The ICARA pe tition was transferred to the South Carolina court on November 15, 1997, but that court indicatedon November 26 that it was not able to schedule a hearing on the merits of the wrongful removal until January 16, 1998.43 The district court, on the other hand, wa s prepared to, and did, expedite the ICARA petition as required by ICARA. The ICARA petition was filed in the district court on December 3. The district court conducted two full days of evidentiary hearings on December 12 and 19 and heard closing arguments on December 22, after which the district court immediately dict ated comprehensive findings of fact and conclusions of law, covering sixty-four pages of transcript in the record, and entered final judgment. This is what ICARA contemplates. Respondents also argue that Petitioner, unhappy with the South Carolina court’s releasing the children from Georgia DFACS to Respondent Harrington in Georgia, forum shopped and essentially “removed” her ICARA petition to federal court. Respondents ignore that they were the or iginal forum shoppers. Respondents first tried to forum shop this case away from th e German courts, where Petitioner initiated custody proceedings. A German family court had jurisdiction first. Respondent Lops left Germany and wrongfully removed the ch ildren from Germany to try to avoid the German court’s order and jurisdiction ove r him and the children. After Respondent Lops lost on the merits and on the jurisdic tion issues before both the German family court and German appellate court, Res pondent Lops forum shopped and filed a divorce action in South Carolina in 1996.44 While Petitioner normally shoul d select one forum and stay there, the record established that Petitioner’s filing in federa l court in Georgia was motivated in large part by the South Carolina court’s inability to hear her ICARA petiti on in an expedited manner as prescribed by ICARA and the Ha gue Convention. The dissent advocates that Petitioner’s sole motivation for fili ng in federal court was because she was “apparently dissatisfied by a temporary cu stody decision of the South Carolina court” and that the district court fa iled to consider the “reactive nature of Mrs. Lops’s suit.” However, the record shows th at the district court specifi cally considered the parallel state court proceedings but determined that the concurrent actions were in part caused by “the apparent heavy schedule” of the South Carolina court and Petitioner’s inability to obtain a hearing until January 16 in the South Carolina court – over two months after her ICARA petition was transferred to South Carolina. The district court also recognized that Article 11 of the Hague Convention c ontemplates an immediate emergency hearing in international child abduction cases and a judicial decision within six weeks. Unlike the South Carolina state court, the district court was able to expedite the matter under the federal ICARA statute and thus the district court exercised its discretion to hear the case.23 The different approaches by the dissent versus the district court to the abstention, or “wise judicial administration, ” issue appear to stem in part from the district court’s view that Georgia law enfo rcement officials were heavily involved and the ICARA petition alleging international child abduction required expedited review but the South Carolina court could not h ear the case due to its “apparent heavy schedule.” In contrast, the dissent finds “[n]o such extenuating circumstances existed here, however.” Nonetheless, the dissent acknowledges that “[t]his case involves legal claims of significant human importance,” wh ich is exactly why the district court expedited the case when the South Carolin a court failed to schedule a hearing expeditiously in this international child abduction case. The dissent also emphasizes that Petitioner continued to file pleadings in the South Carolina court action; however, after th e district court ruled, Petitioner filed a motion to dismiss the South Carolina action and the Supreme Court of South Carolina ultimately stayed the South Carolina action. The record also reflects that since her children were in Georgia DFACS custody, Petitioner obtained a leave of absence from work in Germany and immediately flew to the United States to regain the custody of her children awarded by the German courts and that once in Georgia Petitioner’s main 45 On appeal, the issue is not what we would have done but whether the district court abused its discretion in making its deci sion not to abstain. The district court fully considered the fact that a parallel South Carolina action existed, but exercised its discretion not to defer because the st ate court action had just begun, the South Carolina court, due to an “apparent heavy sc hedule,” was not able to expedite the case when the federal court could, the construc tion of a federal statute was involved, and the federal forum was convenien t to all parties. The district court acted because the federal law in issue contemplates an expe dited hearing but the South Carolina court was failing to act expeditiously. 23goal was to obtain an exped ited hearing on the merits of her international child abduction petition under ICARA as opposed to se lecting a particular court or forum for that hearing. The district court r ecognized this, rejected Respondents’ claims of forum shopping, and expedited the case as ICARA and the Hague Convention require. The dissent’s harsh indictment of Petitione r for “egregious manipulation of ICARA’s system of concurrent jurisdiction” is notsupported by the district court’s findings of fact and does not take into account the fact that the district court acted because it found that the South Carolina court was fai ling to act expeditiously because of its “apparent heavy schedule.” See supranote 22.

24 Respondents decry Petitioner’s forum s hopping but ignore not only their own forum shopping but also the misrepresentations made to accomplish their forum shopping. The district court found that Res pondent Lops made misrepresentations to the German court and other officials by stating he would return the children to Petitioner after a few hours on May 10, 1995, and by not a dvising the German family court judge in the July 3, 1995 hearing that his mother already had wrongfully removed the children to the United States on June 27, 1995, and that he was already packing up his furniture and planning to leave on July 8, 1995, and by advising consulate officials on May 30, 1995 thatPetitioner had abandoned the children in order to obtain new passports and wrongfu lly remove the children from Germany. The district court noted that a collateral eff ect of its decision is to give full faith and credit to the court orders in Germany. 46 At a minimum, the parties were equa l forum shoppers, which neutralizes this factor in the abstention equation. 24 Application of these Colorado River and Moses
H. Cone factors readily reveals why the district court did not abuse its discretion in hearing the case, in declining to abstain, and in expediting the case to final judgment.
VII. RESPONDENTS’ AFFIRMATIVE DEFENSE BASED ON ICARA’S WELL-SETTLED EXCEPTION25 Article 12 states: Where a child has been wrongfully removed or retain ed in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authorityof the Contracting State where the child is, a period of less than one y ear has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedi ngs have been commencedafter the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unl ess it is demonstrated that the child is now settled in its new environment. Hague Convention, art. 12. Respondent s must establish this exception by a preponderance of the evidence. 42 U.S.C. § 11603(e)(2)(B). 47 Once Petitioner satisfied her burden to show that a wrongful removal from Germany had occurred, the children must be returned to Germany unless Respondents established that any of the Hague Convention’s affirmative defenses apply. 42 U.S.C. § 11603(e)(2); Friedrich , 78 F.3d at 1067. Respondents contend that the children should not be returned to Germany because they showed that the ICARA petition was filed more than one year after the wrongful removal of the children and that the children are now “well-settled” intheir new environment. See Hague Convention, art. 12; 25 see also Friedrich , 78 F.3d at 1067. After reviewing the evidence at trial, we conclude that the district court corr ectly determined that Respondents had not established an affirmative defense under the “well-settled” exception or any other26 Respondents also contend that they es tablished other affirmative defenses under ICARA by showing that Pe titioner had consented, or at least acquiesced by her conduct, to the children’s removal and that there was a significant risk of psychological harm if the children were re turned to Germany after two and one-half years in the United States. Respondents have not shown that the district court erred in finding Respondents had not established thes e defenses. In particular, the evidence amply supported the district court’s expre ss factual findings that Petitioner had valid custody rights to the children, that Petitione r had persistently prosecuted and protected her custody rights in the German courts , and that Petitioner never consented or acquiesced to the removal but made concer ted efforts to locate the children through international, national, and local agencies. Also, in finding that Respondents had not established any ICARA defenses, the district court succinctly noted that “the very idea of these children being placed in a position or status of pawns in the parents’ skirmishes is, I will have to say, repugnant or deplorable . And this proceeding today and its conclusion is only th e natural sequel of the initial decision made in May or June of 1995 to bring the children to the United States without the recognition of the mother’s rights as accorded by German law and our treaty.” 48 affirmative defense availabl e under ICARA and that the district court did not err in ordering that the children be returned to Germany with Petitioner. 26 Although the petition was not filed withinone year of the wrongful removal, the district court first determined that th is one-year time limit, which in some respects is similar to a statute of limitations, may be equitably tolled. In doing so, the district court found that it is difficult to “conceive of a time period arising by a federal statute that is so woodenly applied that it is not subject to some tolling, interruption, or suspension, if it is shown or demonstrated clearly enough that the action of an alleged wrongdoer concealed the existen ce of the very act which initiates the running of the important time period.” We are not required to reach the issue of whether equitable tolling may apply under ICARA because the evidence supported the district court’s27 The evidence indicated that although Respondent Lops worked only a few hours each week, Respondent Harrington picked the children up from school each day and attended more to the nurture and needs of the children. The district court found that Respondent Harrington was “in virtual control of the financial and other affairs of this family. I see that the grandmothe r [Respondent Harrington] is a co-partner, coparticipant in the abduction and in the ma intenance of these appearances whose only object could be to conceal the existe nce of the origins of the children.” 49 factual finding that the children were not yet “well-settled” under the Hague Convention. The district court found that “well- settled” means more than having a comfortable material existence. In de termining whether the children were “wellsettled,” the district court properly consider ed many relevant factors, including but not limited to several peculiar circumstances surrounding the children’s living environment, Respondent Harrington’s bei ng more involved with the children in certain areas than Respondent Lops, 27 the active measures Respondents were undertaking to keep Respondent Lops’s and the children’s whereabouts concealed from Petitioner and the German(and other) authorities, and the fact that Respondent Lops could be prosecuted for his violations of state and federal law because he was committing “four and five misdemeanors . . . to conceal, at least himself, from any authority.” Other evidence adequately supported the district court’s finding that the children were not “well-settled” as contem plated under ICARA and Article 12 of the28 Respondents also contend (1) that the district court erred in failing to consider the 1996 order in the divorce case Respondent Lops brought in a South Carolina court which awarded custody of the children to Res pondent Lops; (2) that the district court did not give Respondents a full and fair heari ng; (3) that the district court violated Respondent Lops’s procedural and substantiv e due process rights; and (4) that the district court erred in awarding Petitioner costs, fees, and expenses allowed by 42 U.S.C. § 11607(b)(3). After review, we c onclude that each contention lacks merit. 50 Hague Convention. Therefore, we conclude that the distri ct court also did not err in its finding that Respondents had not established that the children were “well-settled.” 28
VIII. CONCLUSION We conclude that the district court correctly ordered that the two minor children, Claire Lops and Carmen Lops, be returned to the custody of Petitioner for immediate return to Germany. In acco rdance with the terms of ICARA and the Convention, the district court’s judgment also correctly resolves only Petitioner’s wrongful removal claim and remands any matter regarding the underlying custody dispute to be resolved by German courts where the litigation between the parties first began and should be29 The dissent acknowledges “the apparent soundness of the district court’s ruling on the merits of the ICARA petition” and does not quarrel with our conclusions that the evidence and law supported the district court’s findings that Respondents wrongfully removed the children from Germany to the United States in violation of Petitioner’s custody rights, that Respondents failed to show that the children were “well-settled” in the United States, and that the children should be returned to Germany. The dissent also agrees “that the Georgia court misinterpreted the ICARA statute” and does not contest our conclusion that the Georgia court’s transfer order erroneously held that jurisdiction did not lie in Georgia over Respondents and the children. Instead, the dissent advocates only that the federal district court should have dismissed the case based on collateral est oppel or under the abstention doctrine based on “wise judicial administration.” Therefor e, these two issues have been discussed in more detail in this decision. 51 resolved. 29 Thus, we affirm the judgment of the district court.
AFFIRMED.

KRAVITCH, Senior Circuit Judge, dissenting: This case involves legal claims of significant human importance. In her petition brought under the International Child Abduc tion Remedies Act (“ICARA”), 42 U.S.C. §§ 11601-11610, Mrs. Lops alleges that Mr. Lops wrongfully abducted their daughters, and she requests that the tw o girls be returned to her custody. This court, however, must determine wh ether the district court was the proper court to hear the merits of the case. ICARA vests concurrent jurisdiction in state and federal courts. See 42 U.S.C. § 11603(a). Initially, Mr s. Lops chose to file her ICARA petition in the Superior Court of Columbia County, Georgia (“the Georgia court”), rather than in a fede ral district court. The Geor gia court ruled that venue and52 personal jurisdiction did not lie in Georgia and, pursuant to the parties’ stipulation, directed that the case be transferred to the Family Court of Aiken County, South Carolina (“the South Carolina court”), which assumed jurisdiction over the case. Then, apparently dissatisfied by a tempor ary custody decision of the South Carolina court and while that action was still pending, Mrs. Lops filed an identical ICARA petition with the United States District Court for the Southern District of Georgia (“the district court”), which, after ruli ng that venue and pers onal jurisdiction did exist in Georgia, proceeded to determine th e merits of Mrs. Lops’s ICARA petition. Because I conclude that the district court should not have exercised jurisdiction over the case, I respectfully dissent. In my view, the district court was required to accept the Georgia court’s determinations that venue and personal jurisdiction dete rminations were lacking in Georgia. I believe that the majority, in holding to the contrary, misinterprets Georgia collateral estoppel law and undermines the Full Faith and Credit Act, 28 U.S.C. §
1738. See infraPart II. Moreover, even if the district court was not precluded from hearing the case, the district court abused its discretion by fa iling to stay the case in deference to the South Carolina court. Such deference was required in light of the reactive nature of Mrs. Lops’s federal suit and Mrs. Lops’s circumvention of fe deral removal policy. Accordingly, even if preclusion principles do not apply, this court, in the interests of “wise judicial administration,” Colo. Rive r Water Conservation Dist. v. United States ,53 424 U.S. 800, 817, 96 S. Ct. 1236, 1246 (1976) (quotation omitted), should vacate the district court’s judgment and order that it stay Mrs. Lops’s federal ac tion, see infra
Part III.
I. Because I believe that the majority has omitted a few relevant details, I include a brief summary of the facts pertinent to my dissent. In 1995, Mr. Lops took his two daughters from Germany, where they were liv ing with Mrs. Lops, to live with him in South Carolina. On November 6, 1997, Georgia law enforcement officials, acting pursuant to court order, seized the children, who were temporarily at the home of Mr. Lops’s mother in Columbia County, Geor gia, and placed the children in the custody of the Georgia Department of Family and Children Services. On November 12, Mrs. Lops filed an ICARA petition in the Georgia state court seeking the return of her two children to Germany. On Novemb er 14, the Georgia court issued an order: (1) holding that venue and personal jurisdiction were lacking in Georgia and that the case should have been brought in South Carolina, the1 The Georgia court stated that 42 U.S.C. § 11603(b) (stating that ICARA petition should be filed “in any court which has jurisdicti on of such action and which is authorized to exercise its jurisdiction inthe place where the childis located at the time the petition is filed”) reflected Congre ss’s intent that ICARA petitions “be filed in the state where the child or children have primarily resided, not necessarily where they are found.” Georgia court’s Order of November 14, 1997, at 5. The children’s permanent residence was in South Carolina, even though they were physically located in Georgia when Mrs. Lops filed suit. Thus, the court held that under ICARA Mrs. Lops should have filed suit in a South Carolina court. Id. at 5-7. This holding appears to constitute a ruling that venue did not lie in Georgia. The Georgia court also determined that it could not exercise personal jurisdiction over Mr. Lops or the children: But for the actual physical seizure of the children in Georgia, there has been no other minimally sufficient c ontact between the State of Georgia and the children or Mr. Lops which would rise to a sufficient level to meet [the] due process requirement for this Court to exercise jurisdiction in this matter. Id. at 6.

2 The court stated, “All parties stipulated to a transfer of th e proceedings verses [sic] dismissal and refiling in the event this Court found no authority for exercising jurisdiction in Georgia.” Georgia court’s Or der of November 14, 1997, at 7 n.2. The South Carolina court’s first written order st ates that Mrs. Lops’s ICARA petition was then filed in the South Carolina court. See South Carolina court’s Order of December 11, 1997, at 1-2.

3 See R3: 6, 36-37; Appellants’ Reply Br. at 3. 54 jurisdiction where the children reside; 1 and (2) transferring the case to the South Carolina court pursuant to the parties’ stipulation. 2 On November 26, the South Carolina court held an initial hearing, during which it informed the parties that it would hear the merits of the ICARA petition on January 16, 1998. 3 On December 2, 1997, the South Caro lina court informed the parties that during the pendency of the ICARA proceedings the children would be placed with Mr.4 See Michael Lops’s and Anne E. Harrington’s Motion to Dismiss Order, December 10, 1997, at 2, 7; Appellants’ Br. at 3; Appellants’ Reply Br. at 8; see also Invoice of John L. Creson attached to Chris tine Lops’s Motion for Attorney Fees and Costs, January 22, 1998, at 5 (“12/2/ 97 . . . Telephone conference with Judge Nuessle’s office.”). Mrs. Lops does not contest this fact.

5 See South Carolina court’s Order of D ecember 11, 1997, at 2-4. The court also provided that “[i]f the Court finds that there has been a wrongful removal or detention then a further hearing has been scheduled for January 31, [1998,] determine [sic] whether any defense to return of the children to the Petitioner under the Hague [sic] or applicable State or Federa l [sic] may be applicable.” Id. at 3. This additional hearing actually was held on February 3, 1998.

6 See Appellants’ Br. at 3; Appellants’ Reply Br. at 8. Mrs. Lops does not contest this fact.

7 Mrs. Lops did not attempt to dismi ss her South Carolina state court action until “within 48 hours of the January 16, 1998,” hearing held by the South Carolina court. See South Carolina court’s Order of January 27, 1998, at 2. 55 Lops’s mother, Anne E. Harrington, s ubject to an adequate security bond. 4 In a subsequent written order, the South Carolin a court confirmed the January 16 hearing date and the award of temporary custody to Mr. Lops’s mother. 5 On December 3, 1997, Mrs. Lops filed in the South Carolina court a motion to reconsider its December 2 decision regarding temporary custody. 6 Also on December 3, Mrs. Lops filed an ICAR A petition in the federal distri ct court. She did not move to dismiss the South Carolina court action at this time. 7 Mr. Lops then moved to dismiss Mrs. Lops’s federal suit on the grounds, inter alia , that: (1) the Georgia state court’s juri sdictional ruling had preclusive effect in8 See Michael Lops’s Motion to Dismiss, December 19, 1997, at 1, ¶ 3; see also Michael Lops’s and Anne E. Harrington’ s Motion to Dismiss Order, December 10, 1997, at 3-4, ¶ 9-10.

9 See Michael Lops’s and Anne E. Harrington’s Motion to Dismiss Order, December 10, 1997, at 3-4, ¶¶ 10, 12.

10 See District court’s Order of Decembe r 22, 1997, at 7-8 (concluding that an ICARA petition should be filed in the jurisdiction where the children are “located,” see 42 U.S.C. § 11603(b), rather than where they reside). 56 federal court in Georgia; 8 and (2) Mrs. Lops ’s suit represented an improper attempt by a state court plaintiff to obtain removal to federal court. 9 On December 22, the district court, in an oral order, denied Mr. Lops’s motion to dismiss. The district court explicitly rejected the Georgia court’s analysis of the ICARA statute, 10 and it also stated: In determining its own jurisdiction a federal district court is not bound by res judicata. Nor are the parties bound by any collate ral estoppel with respect to the factual findings made by any other court. Indeed, it is the duty of a federal district court to de termine a sufficiency of jurisdictional facts to properly decide or ascertain its own jurisdiction. * * * * I have had some concerns . . . relating to the parallel state proceedings that were originated in Georgia and subsequently transferred to the Family Court of South Carolina. I do not know of any concept that would bar the prosecution of both of those cases at the same time. * * * * This case, in my view, does not requi re dismissal of the federal action. Indeed, in my view, it is more appropriate for the federal court to proceed to disposition. After all, the act and the treaty, which the Petitioner seeks to enforce, are creat ures of the federal sovereign as opposed to any state’s sovereignty. * * * * Accordingly, it is my finding and conclu sion . . . that this federal district court is possessed of jurisdiction to decide the matter in its entirety . . . .57 District court’s Order of December 22, 1997, at 7-11. On January 16, 1998, the South Carolina court held the scheduled hearing on the merits of Mrs. Lops’s ICARA petition. In a subsequent order pendente lite, the South Carolina court noted that Mrs. Lops had made an untimely attempt to file a motion to dismiss in the South Carolina court. See South Carolina court’s Order of January 27, 1998, at 2 (denying Mrs. Lops’s motion to dismiss because it was filed “within 48 hours” of the South Carolina court’s substantive ICARA hearing on January 16, 1997, in plain violation of the court’s “requisite 5 day notice requirement”). On January 17, Mrs. Lops filed a motion in district court requesting that the district court stay the South Caro lina court proceedings. On February 3, the South Carolina court held an additional hear ing on the merits of Mrs. Lops’s ICARA petition. On February 13, the district court granted Mrs. Lops’s motion to stay the South Carolina court proceedings, and shortlythereafter the Supreme Court of South Carolina stayed the South Caro lina court proceedings pendingresolution of the federal action.
II. If the Georgia court simply had dismi ssed Mrs. Lops’s ICARA petition for lack of venue and personal jurisdiction, then th e federal district court in Georgia would have been precluded from assuming jurisdic tion over Mrs. Lops’s subsequent ICARA petition. See infra Part II.A. The Georgia court, how ever, after ruling that venue and personal jurisdiction were lacking in Geor gia, did not dismiss the case but rather11 I also believe that no exception to Georgia’s collateral estoppel doctrine is applicable here. See infraPart II.F. 58 purported to transfer it to South Carolina. In my view, the fact that the Georgia court’s order contained an interstate tran sfer directive does not alter the preclusive effect of the Georgia court’s venue and personal jurisdiction rulings. First, the Georgia court was not authorized to transf er the case to another state, and thus its order must be considered a simple dismi ssal, plainly a final judgment under Georgia law. See infra Part II.B. Second, even assumi ng that the Georgia court had the authority to order an interstate transfer , I believe that the rationale of Georgia collateral estoppel doctrine, see infra Part II.C, and the pl ain language of Georgia statutory provisions and case-law, see infra Part II.D and Part II.E, compel the conclusion that the Georgia court’s order was a final judgment entitled to preclusive effect. 11 Although no case squarely addresses the issu es in this case, I believe that all relevant legal authority demands the same conclusion: The Georgia court’s order was a final judgment entitled to preclusive eff ect under Georgia law. Because the majority fails to apply collateral estoppel to the Georgia court’s decision, I consider the majority’s holding a troubling precedent for federal courts’ compliance with the Full Faith and Credit Act, 28 U.S.C. § 1738.
A.59 The preclusive effect of a Georgia court’s judgment is governed by Georgia preclusion law. As the Supreme Court has explained, the Full Faith and Credit Act, 28 U.S.C. § 1738, “mandate[s] that the ‘judici al proceedings’ of any State ‘shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from whic h they are taken.’” Matsushita Elec. Indus. Co., Ltd. v. Epstein , 516 U.S. 367, 373, 116 S. Ct. 873, 877 (1996) (quoting 28 U.S.C. § 1738). Accordingl y, “[f]ederal courts may not employ their own rules . . . in determining the eff ect of the state judgment, but must accept the rules chosen by the State from which the judgment is taken.” 516 U.S. at 373, 116 S. Ct. at 877 (internal quotation omitted). Georgia collateral estoppel doctrine follows black-letter principles. Relying on the Restatement (Second) of Judgments (1982) (“Restatement”), the Georgia Supreme Court recently explained, [C]ollateral estoppel applies where anissue of fact or law is actually litigated and determined by a valid judgment, and the determination is essential to the judgment. That dete rmination is then conclusive in a subsequent action between the same parties.
Kent v. Kent , 265 Ga. 211, 211, 452 S.E.2d 764, 766 (1995) (citing Restatement § 27). Under Georgia law, collateral estoppe l applies only where the antecedent judgment was a final judgment. See, e.g. , Quinn v. State , 221 Ga.App. 399, 400, 471 S.E.2d 337, 339 (1996), aff’d , 268 Ga. 70, 485 S.E.2d 483 (1997); Greene v. Transp.60 Ins. Co. , 169 Ga.App. 504, 506, 313 S.E.2d 761, 763 (1984). If a trial court’s judgment is not appealed, that order beco mes final when the time to seek appellate review has expired. See Reid v. Reid , 201 Ga.App. 530, 533, 411 S.E.2d 754, 756 (1991). The Georgia court’s November 14 order, which ruled that venue and personal jurisdiction were lacking in Georgia, was not appealed. The order became final for collateral estoppel purposes on December 15. See O.C.G.A. § 5-6-38(a) (stating that notice of appeal must be filed within 30 days after entry of judgment). Under Georgia law, therefore, the Georgia court’s ju dgment became final one full week before December 22, when the district court rule d on Mr. Lops’s motion to dismiss. The timing prerequisites for collatera l estoppel thus were satisfied. If the Georgia court simply had dismissed the case for lack of venue and personal jurisdiction, then its order plainl y would have had precl usive effect on other Georgia courts. As described in the Res tatement, if a court dismisses a case for improper venue, collateral estoppel bars th e plaintiff from attempting to bring the same suit in the same jurisdiction. See Restatement § 20 cmt. b illus. 1. Similarly, if a court dismisses a case for lack of persona l jurisdiction, the specific jurisdictional determination of that court is binding on subsequent courts. See N. Ga. Elec. Membership Corp. v. City of Calhoun, Ga. , 989 F.2d 429, 433 (11th Cir. 1993) (discussing federal collateral estoppel pr inciples; “Although the dismissal of a complaint for lack of jurisdiction does not ad judicate the merits so as to make the case12 See also Wiggins v. Pipkin , 853 F.2d 841, 842 (11th Cir. 1988); Rubaii v. Lakewood Pipe of Tex., Inc. , 695 F.2d 541, 543 (11th Cir. 1983); Deckert v. Wachovia Student Fin. Servs., Inc. , 963 F.2d 816, 819 (5th Cir. 1992). In each of Wiggins , Rubai , and Deckert , the court ruled that a state court order dismissing an action for lack of personal jurisdiction ba rred the plaintiff from bringing a diversity suit based on the same cause of action in fede ral court in the same state. In those cases, the state courts’ personal jurisdicti on determinations had preclusive effect on the federal courts because a federal courts sitting in diversitydetermine personal 61 res judicata on the substance of the asserted claim, it does adjudicate the court’s jurisdiction, and a second complaint cannot command a second consideration of the same jurisdictional claim.”) (quoting Boone v. Kurtz , 617 F.2d 435, 436 (5th Cir. 1980)). Accordingly, had the Georgia court simply dismissed the instant case for lack of venue and personal jurisdiction, collate ral estoppel principles would have barred Mrs. Lops from refiling the same case in any Georgia state court. Cf. Tyndale v. Mfrs. Supply Co. , 209 Ga. 564, 74 S.E.2d 857 (1953) ( holding that the second court was bound by the first court’s determin ation that service was improper). Because Georgia preclusion law governs th e preclusive effect of a Georgia court’s judgment in federal courts, see 28 U.S.C. § 1738, collateral estoppel likewise would have barred Mrs. Lops from bringing the same case before a federal district court in Georgia if the Georgia court simply had dismissed the case on the grounds that venue and personal jurisdiction were lacking in Georgia. See, e.g , Harbuck v. Marsh Block & Co. , 896 F.2d 1327, 1329 (11th Cir. 1990) (“Where the question of personal jurisdiction has been fully and fair ly litigated and finally decided in state court . . . that decision must be accorded full faith and cr edit in the federal court.”). 12jurisdiction in the same way that the state courts do: by following state law. Similarly, the federal district court in this case had to determine venue and personal jurisdiction in the same way that the Georgia state court did: by examining the ICARA statute and federal due process guarantees. Thus, just as collateral estoppel precluded the federal district courts in Wiggins , Rubai , and Deckert from revisiting the state courts’ jurisdictional rulings, so collateral estoppe l should have precluded the federal district court in this case from revisiting the Geor gia court’s venue and personal jurisdiction rulings.

13 In Parts II.C, II.D, and II.E, infra , I will demonstrate that even if the interstate transfer directive was effective, the Georgia court’ s order was a final judgment with corresponding preclusive effect. 62 B. The wrinkle here is thatthe Georgia court did not simply dismiss the case. Based on its venue and persona l jurisdiction rulings, the Georgia court directed that the case be transferred to South Carolina: “A ll parties stipulated to a transfer of the proceedings verses [sic] dismissal and re filing in the event this Court found no authority for exercising jurisdiction in Geor gia.” Georgia court’s Order of November 14, 1997, at 7 n.2. I believe, however, thatthe Georgia court l acked the authority to transfer Mrs. Lops’s ICARA petition to th e South Carolina court. Thus, I conclude that the Georgia court’s order constituted a simple dismissal, plainly a final judgment with preclusive effect. 13 The Georgia court was not authorized to transfer Mrs. Lops’s ICARA petition to the court of another state. The fe deral ICARA statute itself does not sanction interstate transfers. Likewise, Georgia does not have a general statutory provision allowing state courts to transf er cases to other states, cf. 20 Am.Jur. 2d Courts § 13014 Instead, Georgia law only authorizes in terstate transfers in certain narrowly defined situations. For example, O.C.G.A. § 15-11-44 authorizes the transfer of a child to the state of the child’s residence if the child is adjudi cated to be delinquent under the Uniform Juvenile C ourt Act. Also, the Uniform Child Custody Jurisdiction Act authorizes Georgia courts to stay child custody cases brought under that Act on the condition that a proceeding “be promp tly commenced in another named state,” see O.C.G.A. § 19-9-47(e)(2), and permits Ge orgia courts to forward relevant information to the receiving court, see O.C.G.A. § 19-9-47(h). See Mulle v. Yount , 211 Ga.App. 584, 586, 440 S. E.2d 210, 213 (1993) (stating that O.C.G.A. § 19-9-47 authorizes interstate transfers).

15 Forum non conveniens permits a court to resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a statute. See Smith v. Bd. of Regents of the Univ. Sys. of Ga. , 165 Ga.App. 565, 565, 302 S.E.2d 124, 125 (1983). Forum non conveniens was inappli cable here because no specific Georgia statutory provision authorizes the doctrine in ICARA cases. See Holtsclaw v. Holtsclaw , 269 Ga. 163, 163-64, 496 S. E.2d 262, 263 (Ga. 1998) (stating that because the courts of Georgia have no inherent auth ority to decline to exercise jurisdiction granted by the Georgia Constitution, the doctrine of forum non conveniens is only available pursuant to specific Georgia st atutory provisions). Forum non conveniens also is inappropriate where, as here, the court determines that it lacks jurisdiction over the action. See, e.g. , Fleming James, Jr. & Geoffrey C. Hazard, Jr., Civil Procedure, § 2.31, at 105 (3d ed. 1985) (“The forum non conveniens rule has application only if the court has jurisdiction, by virtue of ‘min imum contacts’ or on some other basis. If the jurisdictional contacts are lacking, th e court must dismiss the action for that reason, even if an alternative forum were more convenient.”). Moreover, even if forum non conveniens had beenappropriate here, the doctrine would not have permitted the Georgia court to transfer th e case to another state. Id. at 107 (“The courts of one state . . . may not transfer cases to courts of another state, and dismissal is the only device for implementing forum non conveniens on an interstate basis.”). 63 (1995) (describing Uniform Transfer of Litigation Act, which Georgia has not adopted), or a specific statutory provision c oncerning the interstate transfer of ICARA

cases. 14 Similarly, the doctrine of forum non conveniens did not permit the Georgia court’s interstate transfer. 15 Accordingly, the interstate transfer directive issued by the Georgia court was unauthorized. Cf. Rogers v. Rogers , 688 So.2d 421, 422 (Fla. 3d64 DCA 1997) (reversing an interstate transfer order that was not authorized under state law); United Carolina Bank v. Martocci , 416 Pa.Super. 16, 22-23, 610 A.2d 484, 487-88 (1992) (holding that Pennsylvania’s intr astate transfer law does not authorize interstate transfers); Bliss v. Bliss , 343 Pa.Super. 17, 21, 493 A.2d 780, 782 (1985) (same). Because the Georgia court entered an in terstate transfer directive despite lacking the authority to do so, that directive is considered a nullity, see Thomas v. Thomas , 221 Ga. 652, 652, 146 S.E.2d 724, 725 (1966); Skinner v. Skinner , 172 Ga.App. 609, 610, 323 S.E.2d 905, 906 (1984), and “may be attacked any where and any time in any court,” see Palmer v. Bunn , 218 Ga. 244, 245, 127 S.E.2d 372, 373 (1962). The Georgia court e xplicitly stated that the transfer directive was an alternative to simply dismissing the case. See Georgia court’s Order of November 14, 1997, at 7 n.2. Thus, this court must charact erize the Georgia court’s order, absent the invalid transfer directive, to be a dismissal. See In re Marriage of Clark , 232 Ill.App.3d 342, 347, 597 N.E.2d 240, 243 (1992) (reasoning that because Illinois law only authorized intrastate transfers, the trial court’s order transferring the case to another state constituted a simple dismissal); see also In re Marriage of Kelso , 173 Ill.App.3d 746, 751, 527 N.E.2d 990, 992 (1988) (describing a motion for interstate transfer as “more properly, a motion to dismi ss”). As a dismissal, the Georgia court’s order was a final judgment with preclusive effect.65 Apparently conceding that no federal or Georgia law authorizes the interstate transfer of an ICARA case, the majority contends that the parties, through their stipulation, gave the Georgia court the power to transfer the case. Georgia black-letter law, however, long has been clear: Partie s by agreement cannot provide a court with authority that it otherwise would have lacked. See Dix v. Dix , 132 Ga. 630, 632, 64 S.E. 790, 791 (1909) (“It is rudimentary law that parties can not, by consent express or implied, give jurisdiction to a court; thatas to the subject-matter the court is limited by the powers conferred upon it by law, and can not be given additional power or jurisdiction by consent of the parties or by waiver.”), cited inMitchell v. Mitchell , 220 Ga.App. 682, 683, 469 S.E.2d 540, 542 (1996). Finally, the majority argues that Mr. Lops , having stipulated to the transfer, may not challenge its legality. A null order of a Georgia court, however, “may be attacked any where and any time in any court.” See Palmer v. Bunn , 218 Ga. 244, 245, 127 S.E.2d 372, 373 (1962). Moreover, it is Mrs. Lops , not Mr. Lops, w ho has altered her legal position. Mr. Lops cons istently has contended thatthis case should have been brought in South Carolina, not Georgia. Bycontrast, Mrs. Lops, having stipulated to the transfer of the case to South Carolin a based on the Georgia court’s finding that venue and jurisdiction were lackingin Georgia, filed suit in the federal district court in Georgia, where she argued thatvenue and jurisdiction did exist in Georgia. Georgia preclusion law prohibited Mrs. Lops from changing her position in this
manner. See Thompson v. Thompson , 237 Ga. 509, 509, 228 S.E.2d 886, 887 (1976)16 Contrary to the majority’s characterization of my dissent, my position is not that Mrs. Lops “stipulated that venue wa s improper and that pe rsonal jurisdiction was wanting in Georgia.” Rather, Mrs. Lops ’s stipulation was based on the Georgia court’s judgment that venue and personal jurisd iction were lacking in Georgia. Because the basis for Mrs. Lops’s stipulation in the Georgia court was inconsistent with her later arguments regarding venue and personal jurisdiction in the district court, the principle of collateral estoppel applies. See Ghrist , 219 Ga.App. at 417, 465 S.E.2d at 504. 66 (“[P]arties to stipulations and agreements entered into in the course of judicial proceedings will not be permitted to take positions inconsistent therewith in the absence of fraud, duress or mistake.”); Ghrist v. Fricks , 219 Ga.App. 415, 417, 465 S.E.2d 501, 504 (1995) (applying collateral es toppel to the mother’s statement of paternity contained in a settlement agreement because “[p]arties to stipulations and agreements entered into in the course of judicial proceedings are estopped from taking positions inconsistent therewith”) (quotation omitted). 16
C. Even assuming, arguendo , that the Georgia court’s in terstate transfer directive was effective, the Georgia court’s order was a final judgment entitled to preclusive effect. In my view, Georgia’s collatera l estopppel doctrine does not permit a contrary conclusion. The purpose of Georgia collateral estoppel doctrine is judicial economy. As the Georgia Supreme Court has explained, collateral estoppel “applies where an issue of fact or law is actually litigated and de termined by a valid judgment, and the determination is esse ntial to the judgment.” Kent v. Kent , 265 Ga. 211, 211, 45267 S.E.2d 764, 766 (1995) (citing Restatement § 27). By according preclusive effect to final judgments, see Quinn v. State , 221 Ga.App. 399, 400, 471 S.E.2d 337, 339 (1996), aff’d , 268 Ga. 70, 485 S.E.2d 483 (1997), Ge orgia’s collatera l estoppel law serves to protect “litigants from the burden of relitigating an identical issue with the same party or his privy and [to promote] judicial economy by preventing needless litigation.” Parklane Hosiery Co. v. Shore , 439 U.S. 322, 326, 99 S.Ct. 645, 649 (1979), quoted inMatter of Gill , 181 B.R. 666, 670 (Bankr. N.D. Ga. Apr. 14, 1995) (describing the rationale for Georgi a’s collateral estoppel doctrine); see Bowman v.
Bowman , 215 Ga. 560, 561-62, 111 S.E.2d 226, 227-28 (1959) (concluding that the need for finality justifies the imposition of re s judicata; stating that the ancient maxim “It is of advantage to the pub lic that there be an end of litigation” represents a policy “so essential as not to admit of que stion or dispute”); Lankford v. Holton , 196 Ga. 631, 633, 27 S.E.2d 310, 312 (1943) (“One of th e prime objects of judicial procedure is to forever settle and end disputes between litigants, and courts never look with favor on the unnecessary prolongation of litigation, and particularly disapprove attempts to ignore or evade binding judgments.”). This court must accord preclusive eff ect to the Georgia court’s venue and personal jurisdiction rulings in order to fulfill the purpose of Georgia collateral estoppel doctrine. The Georgia court “actually litigated and determined” the issues of venue and personal jurisd iction, which were “essentia l to [its] judgment.” Kent , 265 Ga. at 211, 452 S.E.2d at 766 (citing Restatement § 27). Moreover, an68 examination of the implications of the ma jority’s ruling reveals that the Georgia court’s order was, necessarily, a final judgment with preclusive effect. Under the majority’s holding, if a state or federal court in Georgia transfers a case to another state for lack of venue and personal jurisdiction, then the plaintiff may bring the same action again in any state or federal court in Ge orgia and relitigate the issues of venue and personal jurisdiction. Indeed, if that court transfers the case again for the same reason, the plaintiff may ref ile once more in state or federal court in Georgia and relitigate the same issues. Acco rding to the majority’s logic, only when a transferred case reaches final judgment inanother state would the plaintiff become unable to relitigate the issues of venue and pe rsonal jurisdiction before state or federal courts in Georgia. The majority’s holding is thus contraryto judicial economy, the core purpose of Georgia collateral es toppel doctrine. See Matter of Gill , 181 B.R. 666, 670 (Bankr. N.D. Ga. Apr. 14, 1995) (citing Park lane Hosiery Co. v. Shore , 439 U.S. 322, 326, 99 S.Ct. 645, 649 (1979)); Bowman v. Bowman , 215 Ga. 560, 561-62, 111 S.E.2d 226, 227-28 (1959); Lankford v. Holton , 196 Ga. 631, 633, 27 S.E.2d 310, 312 (1943). Indeed, it also is contrary to principles of preclusion long-established in AngloAmerican jurisprudence. See Restatement Ch. 1 at 11 (“The convention concerning finality of judgments has to be accepted, certa inly if there is to be practical meaning to the idea that legal disputes can be resolved by legal pro cess.”). Unlike the majority, I do not believe that another Superior Court of the State of Georgia would allow Mrs.17 Relying on Culwell v. Lomas & Nettleton Co. , 248 S.E.2d 641 (Ga. 1978), this court has stated that, under Georgia law, “finality for res judicata purposes is 69 Lops to refile her ICARA suit and relitigate the Georgia court’s venue and personal jurisdiction rulings. Instead, that Superi or Court would recognize the Georgia court’s original order to be a final judgment with preclusive effect. Accordingly, I conclude that the district court was required to di smiss the case pursuant to the Full Faith and Credit Act, 28 U.S.C. § 1738.
D. My conclusion also is compelled by a close examination of Georgia law concerning the finality requirement of collateral estoppel doctrine. As the majority notes, no Georgia court has ru led whether an order containing an interstate transfer directive is a final judgment to be accorded pr eclusive effect. This apparent gap in the law is quite understandable, however. As described in Part II.B, supra , Georgia courts generally are not authorizedto transfer cases to another state. Logically, therefore, Georgia courts have had little opportunity to determine the preclusive effect of interstate transfer orders. Nonetheless, I believe that the Georgia Supreme Court, if faced with the question, would rule that th e Georgia court’s order in this case was a final judgment for collateral estoppel purposes. Under Georgia law, judgments that ar e final for collateral estoppel purposes include, but are not limited to, those ju dgments that are final for appealability
purposes. 17 Georgia’s appealability statute provides in part:measured by the same standard as finality for appealability purposes” and that the finality requirement is not “relaxed for purposes of collateral estoppel.” See Gresham Park Community Org. v. Howell , 652 F.2d 1227, 1242 & n.43 (5 th Cir. Unit B Aug. 10, 1981); Culwell , 248 S.E.2d at 642 (1978) (stating that the entry of a judgment as to one or more but fewer than all of the claims and parties is neither an appealable final judgment nor a judgment entitled to re s judicata effect unless the trial court makes an express direction for the entry of the final judgment and a determination that no just reason for delaying the fina lity of the judgment exists); see also Dep’t of Corrections v. Robinson , 216 Ga.App. 508, 509, 455 S.E.2d 323, 324 (1995) (“A superior court order remanding a case back to an administrative tribunal is not an appealable final judgment and thus is not binding for res judicata purposes.”) (citations omitted). Certain judgments, however, may be final for purposes of preclusion even though they are not appealable final judgm ents. In Studdard v. Satcher, Chick, Kapfer, Inc. , 217 Ga.App. 1, 456 S.E.2d 71 (1995), the court noted that although a voluntary dismissal with prejudice is a final judgment for res judicata purposes, see id. at 2 n.2, 456 S.E.2d at 73 n. 2 (citing Fowler v. Vineyard , 261 Ga. 454, 405 S.E.2d 678 (1991)), “we have found no cases which clearly hold that a voluntary dismissal with prejudice constitutes a ‘final judgment’ as that term is us ed in the appellate practice act,” Studdard , 456 S.E.2d at 73 n.2. Based on Gresham Park and Studdard , I conclude that judgments that are fina l for collateral estoppel purposes include, but are not limited to, those judgments that are final for appealability purposes. 70 (a) Appeals may be taken to the Supr eme Court and the Court of Appeals from the following judgments and rulings of the superior courts, the constitutional city courts, and such other courts or tribunals from which appeals are authorized by the Constitution and laws of this state: (1) All final judgments, that is to say, where the case is no longer pending in the court below , except as provided in Code Section 5- 6-35.
See O.C.G.A. § 5-6-34 (emphasis added). Acco rdingly, I turn to the question of whether a Georgia court’s order transferri ng a case to another state causes the case to be “no longer pending in the court below.” O.C.G.A. § 5-6-34(a)(1). Without citing any authority for its conclusion, the majority states that “the court below” refers to anytrial court, including the trial court of another state. In my71 view, however, the plain language, legislative history, and judicial interpretations of O.C.G.A. § 5-6-34(a)(1) all demand the conclusion that “the c ourt below” refers to a lower court in the State of Georgia . Therefore, a Georgia court’s order that effectively transfers a case to another state renders the case “no longer pending in the court below.” Such an order is a final judgment for appealability purposes and, consequently, for collateral estoppel purposes. A plain reading of the statute indicates that the phrase “the court below” in O.C.G.A. § 5-6-34(a)(1) refers to a lower court of the State of Georgia. Section 5-6- 34(a)(1) and the immediately preceding § 5-6- 34(a), considered together, have three elements. First, they describe the courts to which an “[a]ppeal [] may be taken,” namely the Georgia Supreme Court and the Georgia Court of Appeals. See O.C.G.A. § 5-6-34(a). Second, they describe the courts fromwhich an appeal may be taken, namely “the superior courts, the constituti onal city courts, and such other courts or tribunals from which appeals are author ized by the Constitution and laws of this state.” O.C.G.A. § 5-6-34(a). Third, they establish whenan appeal may be taken, namely when “the case is no longer pending in the court below.” O.C.G.A. § 5-6- 34(a)(1). The logical meaning of “the court belo w” in § 5-6-34(a)(1) is the court from which an appeal is taken to the Georgi a Supreme Court or the Georgia Court of Appeals. According to § 5- 6-34(a), the court from which such an appeal is taken is necessarily a lower court of the State of Ge orgia: a superior court, a constitutional72 city court, or one of the “other courts or tribunals from which appeals are authorized by the Constitution and laws of this state.” Thus, a case is only “pending in the court below” for purposes of O.C.G.A. § 5-6-34(a)(1) if it is pending in a lower court of the State of Georgia

. The Georgia court’s order purported to tr ansfer the case in its entirety to the South Carolina court. Assuming, as does the majority, that this tr ansfer directive was effective, the Georgia court’ s order rendered the case “no longer pending” in the lower courts of the State of Georgia. Thus, according to the plain language of O.C.G.A. § 5- 6-34(a)(1), the Georgia court’s order was a final judgment. The legislative history of O.C.G.A. § 5-6- 34(a)(1) reinforces this conclusion. The statutory precursor of O.C.G.A. § 5-6-34(a)(1) was Ga. Code Ann. § 6-701, which provided in part: No cause shall be carried to the S upreme Court or Court of Appeals upon any bill of exceptions while the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause or final as to some material party thereto. The structure of Ga. Code Ann. § 6-701 reveal s that “the court below” refers to the court from which an appeal is taken to the Supreme Court or Court of Appeals. Because it is beyond dispute that an appeal cannot be taken to these courts from courts outside of the State of Georgia, “the court below” necessarily refers to a lower court within the State of Georgia.73 When O.C.G.A. § 5-6-34(a)(1) replaced Ga. Code Ann. § 6-701, see 1965 Ga. Laws at 18, § 1, the meaning of “the court below” did not change. As the Georgia Court of Appeals has ruled, O.C.G.A. § 5-6-34(a)(1) only restates the original language of Ga. Code Ann. § 6-701 “in somewhat differe nt terminology . . . . [N]o change in result was inte nded.” Munday v. Brissette , 113 Ga.App. 147, 151, 148 S.E.2d 55, 60, 222 Ga. 162, rev’d on other grounds , 222 Ga. 162, 149 S.E.2d 110 (1966) (citing E. Freeman Leverett, The Appellate Procedure Act of 1965, 1 Ga. State Bar Journal 451, 456 (1965)). Accordingly, the legislative history of O.C.G.A. § 5-6- 34(a)(1) also supports the conclusion that “the court below” refers to a lower court in the State of Georgia. Finally, Georgia case-law confirms this interpretation of “the court below.” Georgia appellate courts have held that an intrastate transfer from one Georgia Superior Court to another is not a final judgment and therefore not appealable. See Wright v. Millines , 212 Ga.App. 453, 454, 442 S.E.2d 304, 304 (1994); Griffith v. Ga. Bd. of Dentistry , 175 Ga.App. 533, 533, 333 S.E.2d 647, 647 (1985); see also Ga. Const. of 1983, art. VI, § 1, ¶ 8; Georgia Uniform Transfer Rules. The rationale for this rule is that from the perspective of the Georgia appellate courts , a case that is transferred from one Georgia S uperior Court to another re mains “pending in the court below.” In Griffith , for example, the court explained that an order transferring a case from one Georgia Superior Court to anothe r was not a final judgment because the case remained pending in a “court below” th e Georgia Court of Appeals. See 175 Ga.App.18 See O.C.G.A. § 19-9-47(e)(2) (authorizing Georgia courts to stay child custody cases brought under the UCCJA on the condition that a similar proceeding be brought in the court of another name d state); O.C.G.A. § 19-9-47(h)(permitting Georgia courts to forward relevant inform ation to receiving courts in other states); see also Mulle v. Yount , 211 Ga.App. 584, 586, 440 S. E.2d 210, 213 (1993) (stating that O.C.G.A. § 19-9-47 authorizes interstate transfers). 74 at 533, 333 S.E.2d at 647 (“The subject transf er order is not a final judgment as the case is still pending in the court below, albe it a different court from the one ordering the transfer.”). By contrast, a case that is transferred to another state’s court is no longer appealable to a Georgia appellate c ourt. Thus, from the perspective of the Georgia appellate courts, an interstate tr ansfer order renders a case “no longer pending in the court below” and is a final judgment appealable under O.C.G.A. § 5-6-34(a)(1). The sparse Georgia case-law concerning interstate transfer orders further bolsters my conclusion that such orders ar e final judgments for appealability purposes. Even though Georgia courts generally are not authorized to transfer cases to another state, see supraPart II.B, relevant cas es have arisen under two Georgia statutes that do provide for interstate transfers. First, Georgia’s Uniform Child Custody Jurisdiction Act (“UCCJA”) provides that a court with jurisdiction under the UCCJA may transfer the case to anothe r state if it finds that Geor gia is an inconvenient forum and that a court of another st ate would be mo re appropriate. 18 In Arnold v. Jordan , 190 Ga.App. 8, 378 S.E.2d 139 (1989), the Ge orgia Court of Appeals reviewed a Georgia Superior Court’s order that a ch ild custody case be transferred to Texas pursuant to the UCCJA. See id. at 10, 378 S.E.2d at 141. In describing its assumption19 Appeals from judgments and orders in all “domestic relations” cases are discretionary. See O.C.G.A. § 5-6-35(a)(2).

20 A party seeking discretionary revi ew from an interlocutory order must comply with interlocutory review procedur es, such as obtaining from the trial court a certificate of immediate review pursuant to O.C.G.A. § 5-6-34(b). See Scruggs v. Ga. Dep’t of Human Resources , 261 Ga. 587, 588, 408 S. E.2d 103, 104 (1991); see also Wieland v. Wieland , 216 Ga.App. 417, 418, 454 S.E.2d 613, 614 (1995) (dismissing a discretionary appeal from an interlocutory order because the appellant failed to comply with interlocutory review procedures).

21 Avera thus belies the majority’s assertion that “Arnold ’s reference to ‘discretionary review’ could be read to” m ean that the interstate transfer order in Arnoldwas an interlocutory order. 75 of jurisdiction over the case, the Georgia C ourt of Appeals stated simply that it had “granted the father’s appli cation for discretionary review .” Id. (emphasis added). 19 This language indicates that the father did not have to comply with Georgia’s interlocutory review procedures. 20 Cf. Avera v. Avera , 268 Ga. 4, 4, 485 S.E.2d 731, 732 (1997) (reviewing on appeal the trial court’s order in a divorce action and stating, “This court granted Wife’s application for interlocutory discretionary reviewof the trial court’s order.”) (emphasis added). 21 Therefore, Arnold demonstrates that an interstate transfer by a Georgia trial court is a final, not interlocutory, order for appealability purposes. A second statute, Georgia’s Uniform Juvenile Court Act (“UJCA”), authorizes a court to transfer a child to the state of the child’s reside nce if the child is adjudicated to be delinquent. See O.C.G.A. § 15-11-44. The Georgi a Supreme Court has ruled that such interstate transfers ar e appealable final judgments. See In the Interest of76 T.L.C. , 266 Ga. 407, 407, 467 S.E.2d 885, 886 (1996); G.W. v. State , 233 Ga. 274, 275-76, 210 S.E.2d 805, 807 (1974). In my view, T.L.C. and G.W. provide further support for the conclusion that the Georgia court’s interstate transfer order in this case was a final judgment under O.C.G.A. § 5-6-34(a)(1). The test for determining whether juvenile court orders are final judgments and thus appealable is the same standard found in O.C.G.A. § 5-6-34(a)(1). See O.C.G.A. § 15-11-64 (“In all cases of final judgments of a juvenile court judge, appeals shall be taken to the Courts of Appeals or the S upreme Court in the same manner as appeals from the superior court.”); J.T.M. v. State , 142 Ga.App. 635, 636, 236 S.E.2d 764, 765 (1977) (applying the standard of whether th e case is “no longer pending in the court below,” see O.C.G.A. § 5-6-34(a)(1), in determ ining whether a juvenile court judgment is an appealable final judgment). Even though a juvenile court order adjudicating delinquency and transferri ng the case to another court withinGeorgia for disposition is not a final judgment, see D.C.E. v. State , 130 Ga.App. 724, 724-25, 204 S.E.2d 481, 481-82 (1974); In the Interest of G.C.S. , 186 Ga.App. 291, 291, 367 S.E.2d 103, 104 (1988), a juvenile court order adjudicating delinquency and transferring the case to another state for disposition is a final judgment, see In the Interest of T.L.C. , 266 Ga. 407, 407, 467 S.E.2d 885, 886 (1996); G.W. v. State , 233 Ga. 274, 275-76, 210 S.E.2d 805, 807 (1974). Noting the constitutional imperative of according appellate review to juveniles whose cases are tr ansferred out of state, the77 G.W. court explained that an interstate transfer order is an appealable final judgment because it is the last order to be issu ed by any Georgia court regarding the case: The judgment appealed from in this case was the final judgment to be entered in the case by any court in Georgia and therefore, unlike the cases relied upon where the case was transferred to another Georgia court for final disposition, it was subj ect to review without a certificate authorizing immediate review. 233 Ga. at 275-76, 210 S.E.2d at807 (emphasis added); see also T.L.C. , 266 Ga. 407, 467 S.E.2d at 886 (citing G.W. , 233 Ga. at 275-76, 210 S.E.2d at 807). The majority attempts to limit the holdings of G.W. and T.L.C. on the grounds that the G.W. court mentioned equal protection concerns prior to reaching its conclusion. Subsequent opinions that have described the G.W. court’s holding regarding final judgments, however, do not evenmention equal protection. In T.L.C. , for example, the court simply cited the G.W. court’s conclusion that an interstate transfer order was appealable because it was “the final judgment to be entered in the case by any court in Georgia.” See T.L.C. , 266 Ga. 407, 467 S.E.2d at 886 (citing
G.W. , 233 Ga. at 275-76, 210 S.E.2d at 807). Sim ilarly, the Georgia Court of Appeals recently described T.L.C. and G.W. as follows: In our view, the order appeal ed from in the case sub judice is not a final order, for it does not render a judgm ent of adjudication and disposition on the allegations contained in the petition for delinquenc y. Rather, it holds all charges in abeyance during a period of good behavior. Upon successful completion of that peri od of good behavior, all charges will be dismissed. Compare Inthe Interest of T.L.C. , 266 Ga. 407, 467 S.E.2d 885 (adjudication of delinquency and transfer to the juvenile court of Russell County, Alabama, wa s directly appealable because it “was the final judgment to be entered in the case by any court in78 Georgia....”); G.W. v. State of Ga. , 233 Ga. 274, 276, 210 S.E.2d 805 (adjudication of delinquency and tran sfer to county of residence of nonresidents of Georgia was the “final judgment to be entered in the case by any court in Georgia and therefor e, unlike the cases ... where the case was transferred to another Georgia court for final disposition, ... was subject to review without a certifi cate authorizing immediate review.”). Since the order appealed from is not the final judgment to be entered in the case by any court in Georgia, this appeal is premature, and the case must be dismissed without prejudice. In Interest of M.T. , 223 Ga.App. 615, 616, 478 S.E.2d 428, 429 (1996); see also Sanchez v. Walker County Dept. of Family and Children Servs. , 235 Ga. 817, 818, 221 S.E.2d 589, 589 (1976). Accordingly, although the G.W. court did refer to e qual protection concerns,
G.W. and its progeny stand for the proposition thatan interstate transfer order, being the last order entered by any court in Ge orgia, is a final judgment for appealability purposes. Because the test for determini ng whether juvenile court orders are appealable final judgments is the sa me standard employed under O.C.G.A. § 5-6- 34(a)(1), see O.C.G.A. § 15-11-64; J.T.M. v. State , 142 Ga.App. 635, 636, 236 S.E.2d 764, 765 (1977), these cases from the juvenile court context reinforce my conclusion that an order containing an interstate transf er directive is an appealable final judgment under O.C.G.A. § 5-6-34(a)(1). As the majority points out, an intrastate transfer order that changes the fundamental nature of a proceeding also is deemed a final judgment for appealability22 For example, an intrastate transfer of a criminal case from juvenile to superior court is an appealable final judgment. See Rivers v. State , 229 Ga.App. 12, 13, 493 S.E.2d 2, 4 (1997); J.T.M. v. State of Ga. , 142 Ga.App. 635, 636, 236 S.E.2d 764, 765 (1977). As the Georgia Supreme Court has explained, J.T.M. v. State of Ga. . . . deals with the appeal ability of a transfer order in a criminal context which determines whether the defendant will be treated as a juvenile and tried for delinquency under the applicable juvenile provisions, or whether he will be treated as an adult and prosecuted under the criminal laws of this state. . . . [A] criminal transfer order . . . is determinative as to th e ‘juvenile’ aspect of the case and thus may be final and reviewable. Fulton County Dep’t of Family & Children Servs. v. Perkins , 244 Ga. 237, 239, 259 S.E.2d 427, 428-29 (1978). Distinguishing J.T.M. , the Perkins court held that an intrastate transfer of a child custody case from juvenile to superior court is not a final judgment because it “changes the forum but [] not [] the nature of the proceeding, to wit: the determination of child custody.” See 244 Ga. at 239-40, 259 S.E.2d at 429. Despite the fact that Perkins involves only an intrastate transfer, the majority cites Perkins for the proposition that an interstate transfer order is not a final judgment because it changes only the forum and not the nature of the proceed ing. I believe that the majority’s attemp ted reliance on Perkins is misplaced. Perkins only indicates that certain intrastate transfer orders are appealable final judgments. Perkins is not relevant, even tangentially, to the question of whether an interstate transfer order renders a case “no longer pending in the court below” under O.C.G.A. § 5-6-34(a)(1). 79 purposes. 22 This observation, however, casts no doubt whatsoever on my conclusion that an effective interstate transfer order is a final judgment under O.C.G.A. § 5-6- 34(a)(1) because it renders the case “no longer pending in the court below.” Accordingly, all relevant evidence from Georgia law points unambiguously to the same conclusion: A case is “pending in the court below,” see O.C.G.A. § 5-6- 34(a)(1), only if it re mains in one of the lower Georgia courts. Conversely, if a Georgia court issues a legitimate interstate transfer order, that order renders the case “no longer pending in the court below,” and thus the order is appealable, see O.C.G.A.80 § 5-6-34(a)(1), and entitled to preclusive effect, see Gresham Park Community Org. v. Howell , 652 F.2d 1227, 1242 & n.43 (5th Cir. Unit B Aug. 10, 1981). Therefore, even assuming, arguendo , that the Georgia court’s inte rstate transfer directive was effective, the district court should have accorded preclusive effect to the Georgia court’s venue and personal jurisdiction determinations.
E. The fact that the parties conditionally sti pulated to the interstate transfer does nothing to alter my conclusion that the Ge orgia court’s order was a final judgment with preclusive effect. Collateral estoppel “applies where an issue of fact or law is actually litigated and determined by a valid judgment, and the determination is essential to the judgment.” Kent v. Kent , 265 Ga. 211, 211, 452 S.E.2d 764, 766 (1995) (citing Restatement § 27). Here, the parties stipulated to the interstate transfer in the eventthat the court determined that it l acked jurisdiction over the case. Because the Georgia court’s venue and personal jurisdiction rulings were “essential to the judgment,” collateral estoppel necessarily applies to those rulings. Indeed, the parties’ conditional stipulation only strengthens my conclusion that the Georgia court’s order must be accorded preclusive effect. Th e transfer to which Mrs. Lops stipulated was based on the Geor gia court’s rulings that venue and personal jurisdiction were lacking in Georgia. Georgia preclusion principles prohibited Mrs. Lops from refiling the same action in a stat e or federal court inGeorgia and claiming that venue and personal jurisdiction existed in Georgia. See Thompson v. Thompson ,81 237 Ga. 509, 509, 228 S.E.2d 886, 887 (1976) (“[P]arties to stipulations and agreements entered into in the course of judicial pro ceedings will not be permitted to take positions inconsistent therewith in th e absence of fraud, duress or mistake.”); Ghrist v. Fricks , 219 Ga.App. 415, 417, 465 S. E.2d 501, 504 (1995) (applying collateral estoppel to mother’s statement of paternity contained in settlement agreement because “[p]arties to stipulations and agreements entered into in the course of judicial proceedings are estopped from taking positions inconsistent therewith”) (quotation omitted); see also Great Atl. Ins. Co. v. Morgan , 161 Ga.App. 680, 683, 288 S.E.2d 287, 289 (1982) (stating that co llateral estoppel applies to consent judgments). Finally, even assuming that Mrs. Lops, by stipulating to the transfer, lost the right to appeal the Georgia court’s venue and personal jurisd iction rulings, those rulings are nonetheless binding on subsequent courts. As the Georgia Supreme Court stated in Kent , We need not determine whether the contempt court’s order was, on its face, appealable. It was the husband’ s duty to obtain an appealable order on that issue, and to the extent he did not, he cannot now argue that collateral estoppel should not apply. 265 Ga. at 212 n.3, 452 S.E.2d at 766 n.3 (emphasis added). Thus, even assuming that Mrs. Lops failed to obtain an appealable order from the Georgia court, she may not23 The Georgia court’s order, which tran sferred the case pursuant to Mrs. Lops’s stipulation, was similar to a voluntary dism issal with prejudice. A voluntary dismissal with prejudice is a final judgment for preclusion purposes, see Fowler v. Vineyard , 261 Ga. 454, 456, 405 S.E.2d 678, 680 (1991), even though it may notbe appealable, see Studdard v. Satcher, Chick, Kapfer, Inc. , 217 Ga.App. 1, 2 n. 2, 456 S.E.2d 71, 73 n.2 (1995) (“[W]e have found no cases whic h clearly hold that a voluntary dismissal with prejudice constitutes a ‘final judgment’ as that term is used in the appellate practice act.”). 82 claim that the Georgia court’s venue and personal jurisdiction rulings are not entitled to preclusive effect in federal court. 23
F. The majority, citing Fierer v. Ashe , 147 Ga.App. 446, 249 S.E.2d 270 (1978), would hold in the alternative that this court should apply the “manifest injustice” exception to the collateral estoppel doctrine. I disagree. In Fierer , the court noted that certain courts have “occasionally rejected or qualified [preclusion principles] in cases in which an inflexible application would have violated an overriding public policy or resulted in manifest injustice to a party.” See id. at 449-50, 249 S.E.2d at 273 (citing 1B Moore’s Federal Practice 783, ¶ O.405(11)). The Fierer court, however, characterized the manifest injustice exception as “narrow” and “obscure,” see 147 Ga.App. at 450, 249 S.E.2d at 273, and, without deciding whether the exception applied in the securities context, ruled that the appellees failed to meet their burden of proof, see id. In my view, applying such a “narrow” and “obscure” exception to the facts of this case would be a grave mistake. Rather than appeal the Georgia court’s venue and83 jurisdictional rulings, Mrs. Lops herself sti pulated that the case be transferred to the South Carolina court. Subsequently, dissatisfied by the South Carolina court’s oral statement on December 2 that it would pl ace the children with Mr. Lops’s mother during the pendency of the proceedings, Mrs. Lops brought suit in federal district court in Georgia. Mrs. Lops’s actions cons titute a flagrant attemp t to use the federal court system to circumvent the Georgi a court’s venue and personal jurisdiction rulings. Accordingly, applying the manifestinjustice exception in Mrs. Lops’s favor would be most inappropriate. Moreover, the apparent soundness of the di strict court’s ruling on the merits of the ICARA petition does not sugge st that reversing the district court’s decision would be manifestly unjust. The South Carolina c ourt has not yet ruled on the merits of Mrs. Lops’s ICARA petition, and Mrs. Lops ha s not suggested that the South Carolina court lacks competence to determine an ICAR A petition. If the facts in this case are as the district court found them, then the South Carolina court would have reached the same conclusion. For this court to pres ume otherwise would constitute an affront to the efficacy of the South Carolina court system. The majority also states that the Ge orgia court’s order should not be accorded preclusive effect because the order was ba sed on an erroneous interpretation of the ICARA statute. Although I agree that the Georgia court misinterpreted the ICARA statute, I dispute the majority’s interpretation of Georgia preclusion law. Georgia courts consistently and unamb iguously have held that even erroneous judgments must84 be accorded preclusive effect. See Chilivis v. Dasher , 236 Ga. 669, 670, 225 S.E.2d 32, 33-34 (1976) (stating that collateral est oppel applies “regardless of the correctness of [the] rulings”); Kilgo v. Keaton , 227 Ga. 563, 564, 181 S.E.2d 821, 822 (1971) (giving preclusive effect to a prior judgment “however irregular or erroneous”); Johnston v. Duncan , 227 Ga. 298, 298, 180 S.E.2d 348, 349 (1971) (holding that res judicata applies “[r]egardless of the correctness of [the former] decision”); Lankford v. Holton , 196 Ga. 631, 633-34, 27 S.E.2d 310 , 312 (1943) (stating that the importance of finality requires giving preclus ive effect even to erroneous decisions). In my view, the majority has misrepresent ed Georgia law by holding to the contrary. All relevant legal authority thus confirms that the district court should not have assumed jurisdiction over this case. The Ge orgia court explicitly held that venue was improper in Georgia and that personal juri sdiction did not lie in Georgia. Even assuming that the Georgia court had the au thority to transfer the case to South Carolina, the case, once transferred, wa s “no longer pending in the courts below,” O.C.G.A. § 5-6-34(a)(1), because Georgia appe llate courts no longer had jurisdiction over it. Under Georgia law, therefore, the Georgia court’s order was a final judgment that barred Mrs. Lops from relitigating the issues of ve nue and personal jurisdiction in any Georgia state court. Accordingly, Mrs. Lops was barred from suing again in federal district court in Georgia. See Matsushita Elec. Indus . Co., Ltd. v. Epstein , 516 U.S. 367, 373, 116 S. Ct. 873, 877 (1996) (int erpreting the Full Faith and Credit Act, 28 U.S.C. § 1738, as mandatory).24 Although the Supreme Court expressly ha s reserved the question of whether a stay or dismissal is appropriate when the Colorado River doctrine is invoked, see Arizona v. San Carlos Apache Tribe of Ariz. , 463 U.S. 545, 570 n.21, 103 S. Ct. 3201, 3215 n.21 (1983), the Court has hinted strongly th at a district court, in deferring to the state court, should keep the fede ral forum open if necessary, see id. ; see also Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp. , 460 U.S. 1, 28, 103 S. Ct. 927, 943 (1983). The choice between a stay and a dism issal will have no practical effect if all issues are in fact resolved by the state proceeding. See Bd. of Educ. of Valley View Community Unit Sch. Dist. No. 365U v. Bosworth , 713 F.2d 1316, 1322 (7th Cir. 1983). In the event that issues remain unr esolved in the state court, however, only a stay ensures that the fede ral court will meet its “unflagging duty” to exercise its jurisdiction, see Colorado River , 424 U.S. at 817, 96 S.Ct. at 1246, because, unlike a dismissal, a stay avoids the risk that th e plaintiff will be time-barred from reinstating the federal suit, see Lumen Constr., Inc. v. Brant Constr. Co., Inc. , 780 F.2d 691, 698 (7th Cir. 1985). Accordingly, I believe that the district court should have stayed, not dismissed, 85 III. Even if the district court was not pr ecluded from assuming jurisdiction over this case, the district court was faced with th e question of whether to stay the case in deference to the South Carolina court pursu ant to the doctrine enunciated in Colo. River Water Conservation Dist. v. United States , 424 U.S. 800, 96 S. Ct. 1236 (1976), and related cases. Because Mrs. Lops’s fe deral suit was reactive to the state court proceedings, see infra Part III.C, and contrary to federal remova l policy, see infra Part III.D, I conclude that the district court abused its discretion infailing to stay the instant action in deference to the South Carolina court. Furthermore, given that the South Carolina court already has held heari ngs on the merits of Mrs. Lops’s ICARA petition, see infra Part III.E, we should vacate the di strict court’s judgment and direct it to stay Mrs. Lops’s federal action, see infraPart III.F. 24the instant action. See Attwood v. Mendocino Coast Dist. Hosp. , 886 F.2d 241, 245 (9th Cir. 1989)(holding that a stay is the proper procedural mechanism for a district court to employ when deferring to a para llel state-court proceeding); LaDuke v. Burlington N. R.R. Co. , 879 F.2d 1556, 1562 (7th Cir. 1989) (same); see also Noonan S., Inc. v. County of Volusia , 841 F.2d 380, 383 (11th Cir. 1988) (“The dismissal of an action in deference to para llel state proceedings is an ex traordinary step that should not be undertaken absent a danger of a serious waste of judicial resources.”).

25 The Colorado River doctrine is not a recognized form of abstention. See Colo. River , 424 U.S. at 817, 96 S.Ct. at 1246. Unlike traditional abstention doctrines, which rest on “regard for federa l-state relations” and “considerations of proper constitutional adjudication,” the Colorado River doctrine is based on “considerations of ‘[w]ise judicial admini stration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.’” Id. (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co. , 342 U.S. 180, 183, 72 S. Ct. 219, 221 (1952)). Accordingly, I use the term “defer ence” rather than “abstention” to describe the Colorado River doctrine. See Fed. Deposit Ins. Corp. v. Nichols , 885 F.2d 633, 637 (9th Cir. 1989). But see Fuller Co. v. Ramon I. Gil, Inc. , 782 F.2d 306, 309 n.3 (1st Cir. 1986) (describing the Colorado River doctrine as “a fourth category of abstention”). 86 A. Considerations of “wise judicial admi nistration” may warrant that a federal district court defer25 to parallel state proceedings. See Colo. River , 424 U.S. at 818, 96 S.Ct. at 1246 (quotation omitted). In light of the “virtually unflagging” obligation of the federal courts to exercise their jurisdiction, see id. at 817, 96 S. Ct. at 1246, such deference to state courts should occur only under “exceptional” circumstances and when warranted by “the clearest of justifications,” id. at 818-19, 96 S. Ct. at 1246- 47. The Colorado River Court listed four illustrative factors to be considered in determining whether exceptiona l circumstances exist: (1) whether one of the courts has assumed jurisdiction over property; (2 ) the inconvenience of the federal forum;87 (3) the potential for piecemeal litig ation; and (4) the order in which the fora obtained jurisdiction. See id. at 818, 96 S. Ct. at 1246-47. In Moses H. Cone Mem’l Hosp. v. Mercury Constr. , 460 U.S. 1, 19, 23-26, 103 S. Ct . 927, 938, 941-42 (1983), the Court reaffirmed the “exceptional-circum stances” test of Colorado Riverand mentioned additional factors, including: (5) whether stat e or federal law will be applied; and (6) the adequacy of the state court to protectthe parties’ rights. The Moses H. Cone Court also stated that it found “considerable merit” in the idea “that the vexatious or reactive nature of either the federal or the state litigation may influence the decision whether to defer to a parallel state litigation under Colorado River .” 460 U.S. at 18 n. 20, 103 S. Ct. at 938 n.20. Other courts have held that fede ral removal policy bars a plaintiff whose initial suit is pending in st ate court from filing the same suit against the same defendant in fe deral court. See, e.g. , Am. Int’l Underwriters (Philippines), Inc. v. Continental Ins. Co. , 843 F.2d 1253, 1260-61 (9th Cir. 1988). A district court evaluating the Colorado River “exceptional-circumstances test,”

see Moses H. Cone , 460 U.S. at 19, 103 S.Ct. at 938, must be mindful that the specific factors enumerated in Colorado River and Moses H. Cone are not exclusive, see Fox v. Maulding , 16 F.3d 1079, 1082 (10th Cir. 1994); Travelers Indem. Co. v. Madonna , 914 F.2d 1364, 1367 (9th Cir. 1990) ; Interstate Material Co rp. v. City of Chicago , 847 F.2d 1285, 1288 (7th Cir. 1988), and that the decision whether to dismiss a fede ral action because of parallel statecourt litigation does not rest on a m echanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the26 In ruling that a district court’s refusal to defer to a state court pursuant to the Colorado River doctrine was not immediately appealable under 28 U.S.C. § 1291, which provides for appeals from “final decisions of the district courts,” the Gulfstream Aerospace Court ruled that the refusal is “inhe rently tentative” and thus is not a conclusive determination, as required by the first element of the three-pronged test established by Coopers & Lybrand v. Livesay , 437 U.S. 463, 468, 98 S. Ct. 2454, 2458 (1978). See 485 U.S at 277-78, 108 S. Ct. at 1137. Notably, the Supreme Court did not address whether the denial of a mo tion to stay or dismiss an action pursuant to the Colorado River doctrine meets the third prong of the Coopers & Lybrandtest: whether the order is “effectively unreviewable on appeal from a final judgment.” Gulfstream Aerospace , 485 U.S. at 276-78, 108 S. Ct. at 1137 (citing Coopers & Lybrand , 437 U.S. at 468, 98 S. Ct. at 2458). 88 balance heavily weighted in favor of the exercise of jurisdiction. The weight to be given to any one fact or may vary greatly from case to case, depending on the particular setting of the case.
Moses H. Cone , 460 U.S. at 16, 103 S. Ct. at 937. A ccordingly, the district court must weigh all relevant considerations “in a prag matic, flexible manner with a view to the realities of the case at hand.” Moses H. Cone , 460 U.S. at 21, 103 S. Ct. at 940. A district court’s refusal to defer to a state court is not immediately appealable under 28 U.S.C. § 1291 or 28 U.S.C. § 1292(a)(1). See Gulfstream Aerospace Corp. v. Mayacamas Corp. , 485 U.S. 271, 108 S. Ct. 1133 (1988). 26 A district court’s refusal to defer to a state court is ultimately reviewable on appeal from final judgment, however. See, e.g. , Legal Econ. Evaluations, Inc. v. Metropolitan Life Ins. Co. , 39 F.3d 951, 956 (9th Cir. 1994); TransD ulles Cent., Inc. v. USX Corp. , 976 F.2d 219, 224 (4th Cir. 1992); Schneider Nat’l Carriers, Inc. v. Carr , 903 F.2d 1154, 1156-1158 (7th Cir. 1990); Hartford Acc. & Indem. Co. v. Costa Line s Cargo Servs., Inc. , 903 F.2d 352, 360 & n.7 (5th Cir. 1990).89 We review for abuse of discretion a district court’s decision not to defer to a state court under the Colorado River doctrine. See Gov’t Employees Ins. Co. v. Simon , 917 F.2d 1144, 1148 (8th Cir. 1990). Under this standard, a district court will be reversed if it has “made a clear error of judgment, or has applied an incorrect legal standard.” SunAmerica Corp. v. Sun Life Assur. Co. of Can. , 77 F.3d 1325, 1333 (11th Cir.) (citations omitted), cert. denied , __ U.S. __, 117 S. Ct. 79 (1996). Although abuse of discretion is a relatively relaxe d standard, see Dopp v. Pritzker , 38 F.3d 1239, 1253 (1st Cir. 1994), it is “not a toothless one,” see McNeil v. Lowney , 831 F.2d 1368, 1373 (7th Cir. 1987). Review fo r abuse of discretion implies neither that the district court’s judgment is unreviewable, see Moses H. Cone , 460 U.S. at 19, 103 S.Ct. at 938, nor that this court “may merely rubber-stamp a district judge’s discretionary determ inations,” Dopp , 38 F.3d at 1253. Accordingly, in certain circumstances, a district court’s decision not to defer to the state court pursuant to the Colorado River doctrine will constitute an abuse of discretion. See Microsoftware Computer Sys. v. Ontel Corp. , 686 F.2d 531 (7th Cir. 1982) (holding that the district court abused its discretion inrefusing to stay a federa l diversity action pending the outcome of an identical stat e court suit, where the state court suit was filed first and there was no indication that the state courts could not fully and fairly resolve the27 Likewise, in affirming district courts’ decisions to defer to state courts, courts of appeals have implied that such deference was mandato ry, not permissive, in light of the particular circumstances involved. See, e.g. , Am. Int’l Underwriters (Philippines), Inc. v. Continental Ins. , 843 F.2d 1253, 1260 (9th Cir. 1988) (“[I]t is clear that the rationale that prohibits plai ntiffs from removing cases to federal court under 28 U.S.C. § 1441 also bars AIU from bringing this repetitive lawsuit in federal court.”) (emphasis added); Levy v. Lewis , 635 F.2d 960, 966 (2d Cir. 1980) (“[I]n the special circumstances of this case, sound judicial administration requires refraining from exercising concurrent juri sdiction.”) (emphasis added). 90 parties’ dispute), overruled on other grounds , Gulfstream Aerospace Corp. v. Mayacamas Corp. , 485 U.S. 271, 108 S.Ct. 1133 (1988). 27
B.28 Neither the federal court nor th e South Carolina court has assumed jurisdiction over property.

29 Whether the federal forum is in convenient depends “on the physical proximity of the federal forum to the evid ence and witnesses.” Am. Bankers Ins. v. First State Ins. , 891 F.2d 882, 885 (11th Cir. 1990). Th e federal court, like the South Carolina court, was close to the relevant evidence and witnesses.

30 In Colorado River , the Court ruled that deference to the state court’s water rights proceedings was appropriate in li ght of the McCarran Amendment, 43 U.S.C. § 666, which expressed a fede ral policy against piecemeal litigation because it allowed the United States to be joined as a party in state court actions regarding water rights. See 424 U.S. at 819-20, 96 S.Ct. at 1247-48. On e could argue that the district court, by hearing Mrs. Lops’s ICARA petition, promoted piecemeal litigation because the South Carolina court had befo re it Mr. Lops’s divorce and custody complaint, as well as Mrs. Lops’s ICARA petition. Un like the McCarran Amendment, however, ICARA, does not express a C ongressional intent against piecemeal litigation. Thus, the piecemeal litigation factor does not wei gh strongly in favor of deferring to the South Carolina court.

31 Under Moses H. Cone , the inadequacy of state court proceedings may counsel against deferring to the state court. See 460 U.S. at 26, 103 S. Ct. at 942. The mere adequacyof state court proceedings, howev er, does not counsel in favor of deferral. See Noonan S., Inc. v. County of Volusia , 841 F.2d 380, 382 (11th Cir. 1988). Here, as the majority concedes, both the South Carolina court and the federal district court “adequately could prot ect the parties’ rights.” Acco rdingly, the sixth factor is rendered neutral. See Villa Marina Yacht Sales, Inc. v. Hatteras Yachts , 947 F.2d 529, 536 (1st Cir. 1991).

32 Mrs. Lops’s ICARA petition is base d on federal law, and the presence of federal-law issues weighs against surrende ring jurisdiction to state courts. See Moses. H. Cone , 460 U.S. at 26, 103 S. Ct. at 942. This factor, however, is of less significance where, as here, see 42 U.S.C. § 11603(a), the federal law in question grants concurrent jurisdiction to state and federal courts, see Moses H. Cone , 460 U.S. at 26, 103 S. Ct. at 942 (stating that “the source-of law factor has less significance 91 Although the first, 28 second, 29 third, 30 and sixth 31 factors enumerated suprado not apply and the fifth factor ordinar ily would weigh in favor of assuming jurisdiction, 32 all other relevant considerations co mpel the conclusion that the districthere than in [Will v. Calvert Fire Ins. Co. , 437 U.S. 655, 98 S. Ct. 2552 (1978)], since the federal courts’ jurisdiction to enforce th e Arbitration Act is concurrent with that of the state courts”). Moreover, courts of appeals have upheld district court decisions to defer jurisdiction to state courts even on questions of federal lawwhere the plaintiff’s federal suit is repetitive of the plaintiff’s state suit, see LaDuke v. Burlington N. R.R. Co. , 879 F.2d 1556, 1561 (7th Cir. 1989) (affirming the district court’s decision to defer to the state court where the federal plaintiff had brought the same suit initially in the state court and ha d not dismissed the state case; noting that the state and federal actions were both FELAsuits over which stat e and federal courts exercise concurrent jurisdiction), or otherwise implicates Colorado River factors, see Am. Disposal Servs., Inc. v. O’Brien , 839 F.2d 84, 86-88 (2d Cir. 1988) (affirming the district court’s dismissal of a fede ral civil rights complaint because, inter alia , the state court proceedings were farther advanced).

33 Compare Gonzalez v. Cruz , 926 F.2d 1, 4 (1st Cir. 1991) (analyzing both considerations as elements of the fourth Colorado River factor), withTelesco v. Telesco Fuel & Masons’ Materials, Inc. , 765 F.2d 356, 363 (2d Cir. 1985) (considering “vexatious or reactive natur e” of litigation to be a separate Colorado River factor), andAm. Int’l Underwriters , 843 F.2d at 1260-61 (deeming 92 court abused its discretion by failing to defer to the South Carolina court. First, Mrs. Lops’s federal suit was “reactive,” see Moses H. Cone , 460 U.S. at 18 n. 20, 103 S. Ct. at 938 n.20, because Mrs. Lops was motivatedto file in federal court by an adverse decision of the South Carolina court. See infraPart III.C. Second, Mrs. Lops’s federal suit was an attempt to circ umvent federal re moval policy, see 28 U.S.C. § 1441(a), because it was identical to her ICARA petition pending in the South Carolina court. See infra Part III.D. Courts of appeals that have addressed these two considerations have found them to be relevant to the Colorado River analysis, either as independent elements of the fourth Colorado River factor -- namely, the order in which the fora obtained jurisdiction -- or as separate Colorado River factors in their own right. 33 In light of these considerations and the fact that the South Carolina courtcircumvention of federal removal po licy to be a separate factor).

34 See Elmendorf Grafica, Inc. v. D.S. Am. (East), Inc. , 48 F.3d 46, 50, 53 n.4 (1st Cir. 1995); Gonzalez v. Cruz , 926 F.2d 1, 4 (1st Cir. 1991); Villa Marina Yacht Sales, Inc. v. Hatteras Yachts , 915 F.2d 7, 15 (1st Cir. 1990), appeal after remand , 947 F.2d 529, 534 (1st Cir. 1991); Fulle r Co. v. Ramon I. Gil., Inc. , 782 F.2d 306, 309-10 (1st Cir. 1986).

35 See Telesco v. Telesco Fuel & Masons’ Materials, Inc. , 765 F.2d 356, 363 (2d Cir. 1985).

36 See Allen v. La. State Bd. of Dentistry , 835 F.2d 100, 105 (5th Cir. 1988)

. 37 See Medema v. Medema Builders, Inc. , 854 F.2d 210, 213 (7th Cir. 1988); Calvert Fire Ins. Co. v. Am. Mut. Reins. Co. , 600 F.2d 1228 (7th Cir. 1979), citedin 93 already has held hearings on the merits of the ICARA petition, see infra Part III.E, I believe that “wise judicial administration,” Colo. River , 424 U.S. at 818, 96 S.Ct. at 1246 (quotation omitted), counsels that we vacate the district court’s judgment and direct the district court to stay Mrs. Lops’s federal action, see infraPart III.F. C. Courts must apply the fourth Colorado River factor, like all of the factors, “in a pragmatic, flexible manner with a view to the realities of the case at hand.” 460 U.S. at 21, 103 S. Ct. at 940. Although “priority should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actions,” Moses H. Cone , 460 U.S. at 21, 103 S. Ct. at 940, courts also should consider “the vexatious or reactiv e nature of either the federal or the state litigation,” Id. at 18 n. 20, 103 S. Ct. at 938 n.20. Indeed, the First, 34 Second, 35 Fifth, 36 Seventh, 37 Eighth, 38 Ninth, 39 and Tenth 40 Circuits all have stated explicitly thatMoses H. Cone , 460 U.S. at 17 n.20, 103 S. Ct. at 938, n.20.

38 See Federated Rural Elec. Ins. Corp . v. Ark. Elec. Cooperatives, Inc. , 48 F.3d 294, 299 (8th Cir. 1995).

39 See Nakash v. Marciano , 882 F.2d 1411, 1417 (9th Cir. 1989).

40 See Fox v. Maulding , 16 F.3d 1079, 1082 (10th Cir. 1994).

41 Information contained in Mrs. Lops’s re quest for attorney’s fees confirms the causal relationship between the South Caro lina’s oral custody ruling of December 2 and Mrs. Lops’s immediate decision to file suit in federal court. See Invoice of John L. Creson attached to Christine Lops’s Mo tion for Attorney Fees and Costs, January 22, 1998, at 5-6 (“12/2/97 . . . Telephone conference with Judge Nuessle’s office; Telephone conference with client and Li nda Gardener re: same. . . . Telephone conference with Dan Butler and Dave Thel en re: possible order returning child to grandmother and district court suit; Receipt and review draft U.S. District court suit.”). 94 the “reactive” character of a federal suit weighs in favor of deferring to the state court under the Colorado River analysis. On December 2, the South Carolina court informed the parties that it planned to place the children with Mr. Lops’s moth er, subject to an adequate security bond, during the pendency of the ICARA proceedings . On December 3, Mrs. Lops filed a motion to reconsider this matter in the S outh Carolina court, and, on the same day , she filed an identical ICARA petiti on in the federal district court. This timing leaves little doubt that Mrs. Lops’s federal court suit was a reaction to what she viewed as an unfavorable custody decision by the South Carolina court. 41 In my opinion, the district court should have viewed the reactive nature of Mrs. Lops’s suit to be an important consider ation in favor of deferring to the South95 Carolina court. Substantial precedent from other circuits supports this view. See Villa Marina Yacht Sales, Inc. v. Hatteras Yachts , 947 F.2d 529, 534 (1st Cir. 1991) (stating that the district court did not err in counting “the motivation factor against retaining jurisdiction” where the district court found that the plaintiff’s decision to switch to federal court stemmed from the plaintiff’s unsuccessful effort to obtain a preliminary injunction in the st ate court); Nakash v. Marciano , 882 F.2d 1411, 1417 (9th Cir. 1989) (affirming the district court’s decision to stay the federal action; stating that the plaintiff’s attempt to avoid the state court’s adverse rulings by filing suit in federal court weighed strongly in favor of deferring to the state court); Allen v. La. State Bd. of Dentistry , 835 F.2d 100, 105 (5th Cir. 1988) (a ffirming the district court’s stay where the sequence of events indicat ed that the plaintiff’s federal suit was “vexatious and reactive”); Fulle r Co. v. Ramon I. Gil., Inc. , 782 F.2d 306, 309-10 (1st Cir. 1986) (applying the Colorado River factors in the declaratory judgment context; affirming the district court’s dismissal, in part due to displeasure at the practice of filing a federal action in reaction to an a dverse ruling in the state court); Telesco v. Telesco Fuel & Masons’ Materials, Inc. , 765 F.2d 356, 363 (2d Cir. 1985) (affirming the dismissal of a federal suit filed by a stat e court plaintiff; stating that deference to the state court is appropriate where the same party is the plaintiff in both courts and sues in the federal court on the same cause of action after suffering some failures in the earlier state court action); see also Redner v. City of Tampa , 723 F. Supp. 1448, 1454 (M.D. Fla. 1989) (adopting the Magi strate Judge’s recommendation and42 The majority points to no evidence indi cating that the district court actually considered the reactive nature of Mrs. Lops ’s federal suit in reach ing its determination not to defer to the state court. 96 dismissing the case because, inter alia , the plaintiff’s federal action was “reactive” to the state court decision). The majority relies on the fact that the district court believed that it could resolve the case more quickly than the South Carolina court. 42 The district court, however, apparently did not fully consider the inevitable, time-consuming procedural tangle created by allowing the same case to proceed in two separate fora. Moreover, even if the district court reasonably be lieved that it could resolve the issue more efficiently than the state court, the distri ct court should have required Mrs. Lops to move to dismiss her state court action before the district court proceeded to evaluate the merits of the case. Allowing Mrs. Lops to litigate both the state and federal actions simultaneously was plainly contrary to “wise judicial administration.” Colo. River , 424 U.S. at 818, 96 S.Ct. at 1246 (quotation omitted); see LaDuke v. Burlington N. R.R. Co. , 879 F.2d 1556, 1561 (7th Cir. 1989) (affirming the district court’s decision to defer to the state court where the plaintiff brought the suit initially in state court and then, without dismissi ng the state case, filed the same action in federal court).
D.43 In LaDuke , the Seventh Circuit affirmed the district court’s decision to defer the exercise of jurisdiction even though the state court assumed jurisdiction only shortly before the plaintiff filed the same suit in federal court. 879 F.2d at 1561. The court concluded: The state action apparently did not make a great deal of progress prior to the filing of the federal action . . . . However, it is important to note in considering this factor in this case that Mr. LaDuke filed both the state action and the federal action. It was his choice to f ile in state court first. It was also his choice not to dismi ss the state action after he commenced the federal action. . . . [T ]he relevant Colorado River factors strongly support the district court’s decision not to exercise jurisdiction over Mr. LaDuke’s federal action . . . . Id. 97 In my view, the district court also e rred by failing to recognize that Mrs. Lops’s federal suit effectively constituted removal to federal court by a state court plaintiff , a result contrary to fede ral removal policy. See Am. Int’l Underwriters (Philippines), Inc. v. Continental Ins. Co. , 843 F.2d 1253, 1260-61 (9th Cir. 1988). Even though “priority should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actions,” Moses H.
Cone , 460 U.S. at 21, 103 S. Ct. at 940, a re petitive federal suit counsels in favor of deferring to the state court even if the federal action is filed when the state court proceeding is still in its initial stages. See LaDuke v. Burlington N. R.R. Co. , 879 F.2d 1556, 1561 (7th Cir. 1989). 43 According to the federal removal st atute, 28 U.S.C. § 1441, only defendants have the right to remove cases from state to federal court: Except as otherwise expressly provide d by Act of Congress, any civil action brought in a State court of whic h the district courts of the United44 The only relevant differe nce between the statute ex amined in Shamrock Oil and the current removal statute, 28 U.S.C. § 1441, is that the old statute allowed plaintiff removal in circumstances involving local prejudice against the plaintiff. See Am. Int’l Underwriters , 843 F.2d at 1261 (citing 28 U.S.C. § 71). The current removal statute does not have even th is limited right of removal. See 843 F.2d at 1261 (citing 28 U.S.C. § 1441). 98 States have original jurisdiction, may be removed by the defendant or defendants , to the district court of the United States . . . . 28 U.S.C. § 1441(a) (emphasis added). The Supreme Court has held that the predecessor to 28 U.S.C. § 1441, 28 U.S.C. § 71, was intended to eliminate the plaintiff’s removal right. See Shamrock Oil & Gas Corp. v. Sheets , 313 U.S. 100, 104-09, 61 S. Ct. 868, 870-72 (1941); H.Rep. No. 1078, 49th Cong., 1st Sess. 1 (1887)(“[I]t is believed to be just and pr oper to require the plaintiff to abide his selection of a forum.”), quoted inShamrock Oil , 313 U.S. at 106 n.2, 61 S. Ct. at 871 n.2. Likewise, the Ninth Circuit has held that 28 U.S.C. § 1441 “reflect[s] a Congressional intent that a plaintiff should not be permitted to alter the forum that it selects to litigate its claim against a particular defendant”. See Am. Int’l Underwriters , 843 F.2d 1253 at 1261; see also Diaz v. Sheppard , 85 F.3d 1502, 1505 (11th Cir. 1996) (ruling that 28 U.S.C. § 1441 must be construed narrowly, with doubt construed against removal). 4445 See Or. Egg Producers v. Andrew , 458 F.2d 382, 383 (9th Cir. 1972) (“A plaintiff who commences his action in a st ate court cannot effectuate removal to a federal court even if he c ould have originated the acti on in a federal court and even if a counterclaim is thereafter filed that states a claim cognizable in a federal court.”), cited inAm. Int’l Underwriters , 843 F.2d at 1260.

46 See also In re Pac. Enters. Secs. Litig. , 47 F.3d 373, 376 (9th Cir. 1995) (reasserting the rule of Am. Int’l Underwriters that a plaintiff “may not file a lawsuit in state court and then file the same suit in federal court”); accord Fed. Deposit Ins. Corp. v. Nichols , 885 F.2d 633, 637-38 (9th Cir. 1989 )(stating that removal policy was not relevant where the state suit was no longer pending when the plaintiff filed the federal action).

47 See Gonzalez v. Cruz , 926 F.2d 1, 4 (1st Cir. 1991) (stating that the filing of a second lawsuit by the same plaintiff may weigh against the exercise of federal jurisdiction, especially where the plaintiff was attempting to circumvent removal policy); Villa Marina Yacht Sa les, Inc. v. Hatteras Yachts , 915 F.2d 7, 14 (1st Cir. 1990) (“Other courts faced with second lawsuits brought by the same plaintiff have considered that factor relevant in upholding district court decisions to dismiss the federal case.”), a ppeal after remand , 947 F.2d 529, 536 (1st Cir. 1991) (stating that removal policy was not relevant where the plaintiff first dismissed a defendant from the state suit and then sued that defendant in federal court).

48 See Telesco v. Telesco Fuel & Masons’ Materials, Inc. , 765 F.2d 356, 363 (2d Cir. 1985) (affirming the dismissal of the federal suit filed by a state court plaintiff; stating that deference to the stat e court is appropriate where the same party is plaintiff in both courts and sues in the federal court on the same cause of action after 99 Relying on Shamrock and its progeny, 45 the Ninth Circuit has concluded that a plaintiff who first sues in state court may not subsequently file the identical lawsuit in federal court. See Am. Int’l Underwriters , 843 F.2d at 1261 (“After considering the rationale set forth in the removal cases discussed above, we find that AIU should not be permitted to accomplish, by the refiling of its state court complaint, what would clearly be prohibited if AIU tried to remove to state court.”)(emphasis in original). 46 Similarly, the First, 47 Second, 48 and Seventh 49 Circuits all have counseled againstsuffering some failures in the earlier state court action).

49 See LaDuke v. Burlington Northern R.R. Co. , 879 F.2d 1556, 1561 (7th Cir. 1989) (affirming the district court’s decision to defer to the state court where the federal plaintiff had brought the same suit in itially in state court and had not dismissed the state case). But see Votkas, Inc. v. Cent. Soya Co., Inc. , 689 F.2d 103, 107-08 (7th Cir. 1982) (affirming the district court’s decision not to stay a federal diversity action where the plaintiff previously had file d an identical suit in state court in the state where the district court sits).

50 See also Lorentzen v. Levolor Corp. , 754 F. Supp. 987, 993 (S.D.N.Y. 1990) (staying the federal proceed ing in light of, inter alia , the plaintiff’s attempt “to change his original choice of forum in violation of the federal policy agai nst plaintiff removal and forum-shopping”); Ryder Truck Rental v. Acton Foodservices Corp. , 554 F. Supp. 277, 281 (C.D. Cal. 1983) (“Having elected st ate court, plaintiff should be bound by its choice absent compelling reasons to s eek relief in another forum.”); Ystueta v. Parris , 486 F. Supp. 127, 128-29 (N.D. Ga. 1980) (s tating that this circuit’s precedents permit a district court to stay a federal suit that is substantially duplicated by a pending state action between the same par ties); Note, “Federal Court Stays and Dismissals in Deference to Parallel Stat e Court Proceedings: The Impact of Colorado River ,” 44 U. Chi. L. Rev. 641, 666-67 (1977) (stating that the federal removal statute arguably expresses a policy determination limiting plaintiff to initial forum, “counterbalanc[ing] the obligation to exercise jurisdiction in the subsequent repetitive lawsuit”).

51 The majority points to no authority suggesting the propriety of removal by a state court plaintiff to a federal court. 100 exercising federal jurisdiction in cases wher e a plaintiff whose state court case is still pending files the same suit in federal court. 50 I find this reasoning compelling. Acco rdingly, I would ho ld that where a plaintiff’s state court case is still pending, the plaintiff presumptively may not file the identical suit against the identical defendant in fede ral court. I therefore believe that the majority’s ruling undermines the purpose of federal removal policy. 51101 Under certain limited circumstances, a district court may be justified in exercising jurisdiction even though the federal plaintiff originally filed the same suit in state court and the state action is still pe nding. For example, consider a plaintiff who files suit in state court and then, upon being advised by the state court that no hearing on the case would occur for a year, moves in state court to dismiss. If the state court refuses to dismiss the action, the plaintiff should be able to seek relief in federal court despite the pende ncy of the state court action. No such extenuating circumstances existe d here, however. Mrs. Lops filed suit in district court without first moving to di smiss her state court case. Despite the fact that the district court reached a final j udgment on the merits of Mrs. Lops’s ICARA petition on December 22, 1997, it was not until the middle of January of 1998 that Mrs. Lops moved to dismiss her state court action, and even then she did not comply with the timing requirements of the South Carolina court. See South Carolina court’s Order of January 27, 1998, at 2 (stating that Mrs. Lops’s motion to dismiss was filed “within 48 hours” of the South Carolina court’s substantive ICARA hearing on January 16, 1997, in plain violation of the court’s “requisite 5 day notice requirement”). In my view, the district court should not have allowed Mrs. Lops to continue to litigate the same action in both fora. By failing to require Mrs. Lops to move to dismiss her state court action, th e district court condone d Mrs. Lops’s abuse52 Counsel for Mr. Lops made this veryargument to the district court on December 12, 1997. See R3: 12 (“If, in fact, Ms. Lops wanted to be in front of the federal court she has a remedy. All she ha s to do is dismiss her case, but she hasn’t done that. In fact, she is still filing mo tions in the South Carolina case . . . .”).

53 The majority seeks to justify Mrs. Lops’s attempt to circumvent federal removal policy on the grounds that Mr. Lops and his mother were the “original forum shoppers” because they “first tried to forum shop this case away from the German courts, where [Mrs. Lops] had initiated custody proceedings.” Such equitable considerations regarding antecedent pro ceedings in other courts are entirely inapplicable in the Colorado River analysis. Our sole inquiry should be whether the district court’s deferral to the South Carolin a court was required by principles of “wise judicial administration.” Colo. River , 424 U.S. at 818, 96 S.Ct. at 1246 (citation omitted). 102 of the state and federal court systems. 52 Cf. Villa Marina Yacht Sa les, Inc. v. Hatteras Yachts , 947 F.2d 529, 536 (1st Cir. 1991) (stati ng that federal re moval policy was not relevant where the plaintiff first dismi ssed a defendant from the state suit and then sued that defendant in federal court); Fed. Depos it Ins. Corp. v. Nichols , 885 F.2d 633, 637-38 (9th Cir. 1989)(stati ng that federal removal polic y was not relevant where the state suit was no longer pending when the plaintiff filed the federal action). 53
E. The Colorado River inquiry, governed by considerations of “wise judicial administration,” must give “reg ard to conservation of judici al resources.” Colo. River , 424 U.S. at 818, 96 S.Ct. at 1246 (quotation om itted). Accordingly, in reviewing the district court’s refusal to de fer pursuant to Colorado River , we must take into consideration the totality of circumst ances at the time of our decision, notsimply the situation at the time the district court refu sed to stay the stat e court action. See103 Schneider Nat’l Carriers, Inc. v. Carr , 903 F.2d 1154, 1156 n.* (7th Cir. 1990); Lumen Constr., Inc. v. Brant Constr. Co., Inc. , 780 F.2d 691, 697 n.4 (7th Cir. 1985); Bd. of Educ. of Valley View Community Un it School Dist. No. 365U v. Bosworth , 713 F.2d 1316, 1321-22 (7th Cir. 1983). For example, if the state court action remains in its preliminary stages by the time this court is ready to resolve the federal case on appeal, the fourth Colorado River factor would weigh in favor of affirming the district court’s decision not to defer to the state court. See United States v. Adair , 723 F.2d 1394, 1400-07 (9th Cir. 1984). Likewise, if the state court action ha s proceeded significantly by the time the federal case reaches us on appeal, then we mu st take this change of circumstances into account, as well. See Ill. Bell Tel. Co. v. Ill. Commerce Comm’n , 740 F.2d 566, 569-71 (7th Cir. 1984) (“The purpose of the Colorado Riverdoctrine, however, is the conservation of state and federal judicial resources. Where the progress of the state suit has changed significantly since the moti on to stay the federal suit was filed, it would defeat that purpose to ignore the subsequent events.”). The South Carolina court already has assumed jurisdiction ove r Mrs. Lops’s ICARA petition and, more important, has held its substantive heari ngs regarding the merits of her petition. Because the South Carolina court is thus poise d to issue a ruling in this matter, the factor of “how much progress has been made in the two actions,” Moses H. Cone , 460 U.S. at 21, 103 S. Ct. at 940, does not weigh against deferring to the South Carolina court.54 Because some reactive federal suits ar e brought by dissatisfied state court defendants, not all reactive fe deral suits involve the circumvention of federal removal policy. See, e.g. , Nakash v. Marciano , 882 F.2d 1411, 1417 (9th Cir. 1989). Similarly, not all federal lawsuits brought by state court plaintiffs in violation of federal removal policy are reac tive to adverse state court rulings; some such federal lawsuits simply are attempts to achie ve two bites at the judicial apple. 104 F. Although the fact that Mrs. Lops’s state and federal cases pose questions of federal law ordinarily would weigh against deferring to the South Carolina court, see
Moses H. Cone , 460 U.S. at 23-26, 103 S. Ct. at 941- 42, I believe that the reactive nature of Mrs. Lops’s fede ral suit and Mrs. Lops’s circ umvention of federal removal policy compel this court to vacate the district court’s judgment and direct it to stay Mrs. Lops’s federal acti on. To hold otherwise w ould be to condone litigation practices completely at odds with “wise judicial administration.” Colo. River , 424 U.S. at 818, 96 S.Ct. at 1246 (quotation omitted). The reactive nature of a federal suit and the circumvention of federal removal policy are independent elements of the Colorado River analysis. 54 In this case, Mrs. Lops’s federal IC ARA petition was bothreactive andin violation of federal removal policy. The relevant factor s thus weigh quite heavily in favor of deferring to the South Carolina court, see Telesco v. Telesco Fuel & Masons’ Materials, Inc. , 765 F.2d 356, 363 (2d Cir. 1985) (stating that deference to state court is appropriate where the same party is plaintiff in both courts and sues in the federal court on the same cause of action after suffering some failures in the earlier state court action), regardless of105 the fact that federal law is atissue in both proceedings, see LaDuke v. Burlington N.
R.R. Co. , 879 F.2d 1556, 1561 (7th Cir. 1989) (affirming the district court’s decision to defer to the state court where the fede ral plaintiff had brought the same suit initially in the state court and had not dismissed the state case; noting that the state and federal actions were both FELA suits over which state and federal courts exercise concurrent jurisdiction). Because Mrs. Lops’s actions constituted a sufficiently flagrant abuse of the concurrent system of jurisdiction acco rded to state and federal courts under ICARA, see 42 U.S.C. § 11603(a), I conclude that the district court abused its discretion by failing to defer to the South Car olina court. Only by vacating the district court’s judgment and directing it to stay Mr s. Lops’s federal ac tion can this court ensure that litigation practices in this circ uit remain consistent with “wise judicial administration.” Colo. River , 424 U.S. at 818, 96 S.Ct. at 1246 (quotation omitted).
IV. In my view, the Full Faith and Credit Act, 28 U.S.C. § 1738, required the district court to accept the Georgia court’ s determinations that venue and personal jurisdiction were lacking in Georgia. Evenif the district court was not precluded from hearing the case, however, I would hold that the district court abused its discretion by failing to stay the case in defe rence to the South Carolina c ourt. To rule otherwise not only undermines the authority of the courts of Georgia to issue binding judgments, but also condones Mrs. Lops’s egregious manipul ation of ICARA’s system of concurrent jurisdiction.106 Therefore, I respectfully dissent.