1Emanouil brings this action on behalf of himself and his

minor son. A non-attorney parent must be represented by counsel

in bringing an action on behalf of his child in federal court. 

See Ethan H. v. N.H., 968 F.2d 1210 (1st Cir. 1992) (unpublished)

(holding that non-lawyer parent must be represented by counsel

when bringing an action on behalf of his child); accord Cheung v.

Youth Orchestra Foundation, Inc., 906 F.2d 59, 61 (2d Cir. 1990). 

Accordingly, I construe the petition to be filed on behalf of

Emanouil only.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Stephen J. Emanouil1

v. Civil No. 07-cv-162-PB

Jennie A. Barker

REPORT AND RECOMMENDATION

Pro se petitioner Stephen J. Emanouil has filed a petition

for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254,

seeking custody and visitation rights with regard to his minor

son, Ethan W. Emanouil (document no. 1). Named as the respondent

is Ethan’s mother, Jennie A. Barker. The petition is before me

for preliminary review. See Rule 4 of the Rules Governing

Section 2254 Proceedings (“Habeas Rules”) (requiring initial

review to determine whether the petition is facially valid and

may be served); United States District Court for the District of

New Hampshire Local Rules 4.3(d)(authorizing the magistrate judge

Case 1:07-cv-00162-PB Document 2 Filed 06/14/07 Page 1 of 10
2

to preliminarily review pro s e pleadings). For the reasons

stated below, I recommend that the petition be dismissed without

prejudice for lack of subject matter jurisdiction.

Background

The claims in this action arise from state court child

custody proceedings involving Emanouil, Barker and their minor

son, Ethan. Emanouil is a United States citizen and a resident

of New Hampshire. Barker is a United States citizen who is

currently employed as a civilian employee with the Department of

Defense (“DOD”), Osan Air Force Base, in South Korea; the record

is silent as to her residency. 

In August 2002, Barker was employed as a teacher in Laconia,

New Hampshire, where she developed an intimate relationship with

Emanouil. After discovering that she was pregnant in the Summer

of 2003, she entered into a one-year employment contract with the

DOD in South Korea. She and Emanouil planned on marrying

following her return to the United States in the Summer of 2004. 

Upon her arrival in South Korea in August 2003, Barker telephoned

Emanouil and informed him that her employment contract required a

two-year term. Emanouil decided to end the relationship but

subsequently traveled to South Korea for the birth of his son,

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3

Ethan, on March 2, 2004. It appears that Emanouil and Barker

reconciled, secured a United States passport and birth

certificate for Ethan, and returned to the United States in April

2004. They never married, and on July 14, 2004 Barker left

Emanouil and applied for sole legal and physical custody of Ethan

through the New Hampshire state courts.

 On August 19, 2004, the Plymouth Family Court granted Barker

temporary physical custody of Ethan and permitted her to take

Ethan to Taegu, South Korea in order to complete her teaching

contract with the DOD. On or about November 17, 2005, the

Plymouth Family Court allegedly issued a final decree, granting

Barker primary custody of Ethan and allowing him to live with her

in South Korea. Emanouil filed a subsequent appeal with the New

Hampshire Supreme Court (“NHSC”). On December 4, 2006, the NHSC

denied his appeal and upheld the final decision issued by the

Plymouth Family Court.

Emanouil now brings the instant petition for federal habeas

corpus relief, requesting this Court to grant him custody of

Ethan or, in the alternative, to grant him overnight visitation

rights. He alleges that the denial of custody and visitation

rights constitutes a violation of his federally protected rights.

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4

Standard of Review

In reviewing a pro se petition, this Court must construe the

pleadings liberally and in favor of the pro se petitioner. See

Ayala Serrano v. Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)). At this

preliminary stage of review, all factual assertions made by a

petitioner and the inferences reasonably drawn therefrom must be

accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st

Cir. 1996)(explaining that all “well-pleaded factual averments,”

not bald assertions, must be accepted as true). This review

ensures that pro se pleadings are given fair and meaningful

consideration. See Eveland v. Director of CIA, 843 F.2d 46, 49

(1st Cir. 1988). I apply this standard in reviewing Emanouil’s

petition.

Discussion

I. Habeas Corpus Claim

Section 2254(a) provides that “a district court shall

entertain an application for a writ of habeas corpus in behalf of

a person in custody pursuant to the judgment of a State court

only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.” 28

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5

U.S.C. § 2254(a). The “in custody” requirement is jurisdictional

and is satisfied if the petition is filed while the petitioner is

in custody pursuant to the conviction or sentence being attacked. 

Spencer v. Kemna, 523 U.S. 1, 7 (1998)(citations omitted).

Here, Emanouil has not alleged that he was incarcerated

pursuant to a state court judgment or otherwise subjected to

substantial restraints upon his liberty at any time relevant to

the instant petition. Instead, he seeks to use the writ of

habeas corpus to attack a state court order involving the custody

of his minor son. His attempt to invoke federal habeas corpus

jurisdiction under 28 U.S.C. § 2254 is precluded by the Supreme

Court’s decision in Lehman v. Lycoming County Children’s Services

Agency, 458 U.S. 502 (1982). In Lehman, the Supreme Court held

that federal courts have no jurisdiction in habeas corpus to

determine a parent’s right to custody of a minor child, even if

it is alleged that custody was obtained by means that violate the

federal constitution. Id. at 510-16; accord Stratton v. Iowa,

No. C06-2069 LRR, 2006 WL 2989272 at *1 (N.D. Iowa Oct. 18,

2006). The term “custody,” as used in the habeas statutes, does

not refer to parental custody of a child or custody orders

imposed by the state courts. Id. at 514-16. “A federal habeas

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2In addition, this court may be precluded from exercising

jurisdiction over this matter under the domestic relations

exception to federal diversity jurisdiction. The exception

“divests the federal courts of power to issue divorce, alimony,

6

petition challenging a state court’s child-custody determination,

as in the situation here, simply seeks to relitigate the

petitioner’s parental rights.” Rago v. Samaroo, 344 F. Supp. 2d

309, 315 (D. Mass. Nov. 5, 2004). As the First Circuit has held,

“[i]t is settled law that federal habeas corpus jurisdiction does

not extend to state court disputes over child custody.” Hemon v.

Office of Public Guardian, 878 F.2d 13, 14 (1st Cir. 1989)(citing

Lehman, 458 U.S. at 502)). See also Sylvander v. New England

Home for Little Wanderers, 584 F.2d 1103, 1113 (1st Cir. 1978)

(holding that “child custody rulings by themselves are not

sufficient to trigger a federal habeas remedy on behalf of a

dissatisfied mother.”). Accordingly, I conclude that federal

habeas corpus relief is not available to Emanouil.

II. Section 1983 Claim

To the extent Emanouil intends to bring a claim pursuant to

42 U.S.C. § 1983 and seeks review of the actions taken by the

Plymouth Family Court, this Court is precluded from exercising

jurisdiction over his claims under the Rooker-Feldman abstention

doctrine2. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-

Case 1:07-cv-00162-PB Document 2 Filed 06/14/07 Page 6 of 10
and child custody decrees.” Ankenbrandt v. Richards, 504 U.S.

689, 703 (1992). “The doctrine where it applies governs claims

over child custody even where they are cloaked in the ‘trappings’

of another type of claim.” Mandel v. Town of Orleans, 326 F.3d

267, 271 (1st Cir. 2003)(citation omitted). Because Emanouil has

not invoked diversity jurisdiction and the relief sought here

“more clearly offends another broader constraint on federal court

authority,” see id., I apply the Rooker-Feldman abstention

doctrine.

7

16 (1923); District of Columbia Court of Appeals v. Feldman, 460

U.S. 462, 482 (1983). Although the Supreme Court recently

limited the scope of the Rooker-Feldman doctrine in Exxon Mobil

Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005), the

instant case falls within that limited reach. Under the RookerFeldman doctrine, federal district courts lack jurisdiction over

“federal complaints . . . [that] essentially invite[] federal

courts of first instance to review and reverse unfavorable statecourt judgments.” Federacion de Maestros de P.R. v. Junta de

Relaciones del Trabajo de P.R., 410 F.3d 17, 20 (1st Cir. 2005)

(citing Exxon Mobil, 125 S.Ct. at 1521; Feldman, 460 U.S. at 462;

Rooker, 263 U.S. at 413).

After Exxon Mobil, the doctrine “now applies only in the

‘limited circumstances’ where ‘the losing party in state court

filed suit in federal court after the state proceedings ended,

complaining of an injury caused by the state-court judgment.’”

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8

Federacion de Maestros, 410 F.3d at 23-24 (citations omitted). 

When “the highest state court in which review is available has

affirmed the judgment below and nothing is left to be resolved,

then without a doubt the state proceedings have ‘ended.’” Id. at

24.

Here, Emanouil, filed this federal suit on May 31, 2007,

requesting this Court to grant him custody and visitation rights

with regard to his son. On or about November 17, 2005, the

Plymouth Family Court issued a final decree, ostensibly granting

Barker primary custody of Ethan and allowing him to live with her

in South Korea. Emanouil filed a subsequent appeal with the New

Hampshire Supreme Court (“NHSC”). On December 4, 2006, the NHSC

denied his appeal and upheld the final decision issued by the

Plymouth Family Court. The instant suit, therefore, was filed

after state proceedings had ended, thus meeting the test

established in Exxon Mobil.

Besides the timing issue, deciding whether Rooker-Feldman

bars Emanouil’s federal suit also requires this Court to

“determine what the state court held and whether the relief that

the plaintiffs requested in their federal action would void the

state court’s decision or would require [this Court] to determine

Case 1:07-cv-00162-PB Document 2 Filed 06/14/07 Page 8 of 10
9

that the decision was wrong.” Hill v. Town of Conway, 193 F.3d

33, 39 (1st Cir. 1999). Here, the state courts made final

custody decisions with regard to Emanouil’s son. The relief now 

sought by Emanouil in this federal suit challenges the same

custody decisions made by the New Hampshire state courts. He

requests this Court to grant him custody of Ethan or, in the

alternative, to grant him overnight visitation rights. The

relief requested would necessarily require this Court to void the

contrary state court decisions or determine that they were wrong. 

That is precisely what Rooker-Feldman precludes; indeed this

Court is without subject matter jurisdiction to review a final

state court judgment. See Maymo-Melendez v. Alvarez-Ramirez, 364

F.3d 27, 33 n.7 (1st Cir. 2004); Mandel, 326 F.3d at 271. With a

few exceptions not applicable here, only the United States

Supreme Court is empowered to review a state court’s final

judgment. Exxon Mobil, 125 S. Ct. at 1526. As the court lacks

subject matter jurisdiction, under the Rooker-Feldman doctrine,

to review, modify or void the state courts’ judgments, and given

that Emanouil’s suit seeks that very relief, I recommend that his

claims be dismissed.

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Conclusion

For the foregoing reasons, I recommend that the petition be

dismissed for lack of subject matter jurisdiction.

If this report and recommendation is approved, the claims as

identified in this report and recommendation, will be considered

for all purposes to be the claims raised in the petition. If

petitioner disagrees with the identification of the claims

herein, he must do so by objection filed within ten (10) days of

receipt of this report and recommendation, or he must properly

move to amend. 

Any further objection to this report and recommendation must

be filed within ten (10) days of receipt of this notice. Failure

to file objections within the specified time waives the right to

appeal the district court’s order. See 28 U.S.C. § 636(b)(1);

see also Unauthorized Practice of Law Committee v. Gordon, 979

F.2d 11, 13-14 (1st Cir. 1992); United States v. Valencia-Copete,

792 F.2d 4, 6 (1st Cir. 1986). 

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: June 14, 2007

cc: Stephen J. Emanouil, pro se

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