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Sol Tucker v. Adena Ellenby

November 4, 2011

SOL TUCKER, PETITIONER,
v.
ADENA ELLENBY, ET AL, RESPONDENTS.



The opinion of the court was delivered by: Edwin G. Torres United States Magistrate Judge

ORDER ON RESPONDENT'S MOTION FOR ABSTENTION

This matter is before the Court on Respondent Adena Ellenby a/k/a Adena Tucker's ("Respondent") Motion for Abstention [D.E. 39] and Petitioner Sol Tucker's ("Petitioner") Response in opposition thereto [D.E. 40]. On October 4, 2011, we held an evidentiary hearing on Petitioner's Verified Petition for Return of Child to Petitioner ("Petition"). [D.E. 1].*fn1 At the conclusion of the day-long hearing (during which Petitioner completed the presentation of his case), we sua sponte raised the issue of the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), and the appropriateness of our abstaining from adjudicating the merits of the Petition in light of the ongoing divorce and custody proceeding between Petitioner and Respondent in the state trial court.

With the Court's permission, Respondent formally moved for abstention under Younger as well as Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). Petitioner argues that abstention is not warranted under either Younger or Colorado River.

We have considered the parties' arguments on the abstention issue in light of the evidence in the record before us. We conclude that abstention is not warranted for the reasons discussed below. Accordingly, we Deny Respondent's motion for abstention and will set this matter for hearing in order to conclude the evidentiary portion of the case and to hear argument from counsel on the merits of the Petition.

I. BACKGROUND

A. Petition Filed in This Court Pursuant to the Hague Convention and ICARA

This case involves Petitioner's claim that Respondent wrongfully removed their two-year old son, Mateo Robinson Tucker ("the child"), from his habitual residence of Belize and is, with the assistance of her parents, Respondents Marc J. Ellenby and Kiki Ellenby ("the Ellenbys"), wrongfully retaining the child in the United States, without his consent and in violation of his custody rights over the child. Through the Petition filed in this court on August 8, 2011 pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980 ("Hague Convention"), T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, and its implementing legislation, the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601, et seq., Petitioner seeks the return of the child to Belize.

Respondent and the Ellenbys dispute the allegations of wrongful removal and retention. They also raise two affirmative defenses to the Petition, alleging that (1) Petitioner consented to or subsequently acquiesced in the removal or retention of the child and (2) there is a grave risk that returning the child to Belize would expose him to physical or psychological harm or otherwise place him in an intolerable situation. [D.E. 18, 21, 24]. Accordingly, they urge us to deny the Petition.

B. Divorce and Custody Proceeding in State Court

Prior to the filing of the Petition in this court, on March 29, 2011, Respondent filed a petition for dissolution of marriage in the Circuit Court of the 11th Judicial Circuit in Miami-Dade County, Florida, seeking in part sole parental custody of the child. See Ellenby v. Tucker, No. 2011-009819-FC-04 (Fla. Cir. Ct.). The case was pending until very recently.*fn2 Parental time-sharing was ordered but final determinations on dissolution and custody have not yet been made. It is undisputed that Petitioner did not ask the state court to order that the child be returned to Belize based on allegations of wrongful removal and retention pursuant to the Hague Convention and ICARA or on any other basis.

II. ANALYSIS

Respondent argues that we should abstain from deciding the Petition and allow the issues raised therein to be decided in the state custody proceeding pursuant to the Younger and Colorado River abstention doctrines. The parties recognize that federal and state courts have concurrent original jurisdiction over international child abduction cases such as this one. 42 U.S.C. § 11603(a). But Respondent contends that the Hague Convention issues should have been raised in the state court action, for the financial benefit of the parties, the convenience of state witnesses, and in the interest of judicial economy. Moreover, she asserts that there are no extraordinary circumstances here such that deference to the state court would present a significant and immediate potential for irreparable harm to the federal interests asserted.

A. Younger Abstention

Federal courts have a "virtually unflagging obligation . . . to exercise the jurisdiction given them." 31 Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir. 2003) (citing Colorado River, 424 U.S. at 817)). "Virtually" is not "absolutely," however, and in exceptional cases federal courts may and should withhold equitable relief to avoid interference in state proceedings. Id. "The Younger doctrine, which counsels federal-court abstention when there is a pending state proceeding, reflects a strong policy against federal intervention in state judicial processes in the absence of great and immediate irreparable injury to the federal plaintiff." Moore v. Sims, 442 U.S. 415, 423 (1979).*fn3 This doctrine is an exception to the general rule of non-abstention and derives from "the vital consideration of comity between the state and national governments." 31 Foster Children, 329 F.3d at 1274 (internal citation omitted). Under Younger, abstention is warranted when (1) there is an ongoing state judicial proceeding with which the federal ...


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