Jeremiah W. Holder v. Carla R. Holder, Jeremiah W. Holder v. Carla R. Holder

305 F.3d 854 Jeremiah W. HOLDER, Petitioner-Appellant, v. Carla R. HOLDER, Respondent-Appellee. Jeremiah W. Holder, Petitioner-Appellee, v. Carla R. Holder, Respondent-Appellant. No. 01-35467. No. 01-35519. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 3, 2002. Filed September 6, 2002. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Rhea J. Rolfe, Edmonds, WA, for the petitioner-appellant-cross-appellee. A. Chad Allred, Seattle, WA, for the respondent-appellee-cross-appellant. Appeal from the United States District Court for the Western District of Washington, John C. Coughenour, District Judge, Presiding. D.C. No. CV-00-01927-JCC. Before D.W. NELSON, THOMPSON and PAEZ, Circuit Judges. OPINION PAEZ, Circuit Judge. 1 Jeremiah W. Holder ("Jeremiah"), a member of the United States Air Force stationed in Germany, appeals the order of the district court staying his petition for return of his children from Washington State to Germany under the Hague Convention on the Civil Aspects of International Child Abduction ("the Hague Convention"), Oct. 25, 1980, 19 I.L.M. 1501, as implemented by the International Child Abduction…

Jeremiah W. Holder (“Jeremiah”), a member of the United States Air Force stationed in Germany, appeals the order of the district court staying his petition for return of his children from Washington State to Germany under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), Oct. 25, 1980, 19 I.L.M. 1501, as implemented by the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. §§ 11601-11610 . Jeremiah had previously commenced divorce and custody proceedings against Carla R. Holder (“Carla”), the children’s mother, in California state court. As a result of those pending state court proceedings, the district court stayed the action pending resolution of Jeremiah’s state court appeal, invoking Colorado River Water Conservation District v. United States, 424 U.S. 800 , 96 S.Ct. 1236 , 47 L.Ed.2d 483 (1976). Carla cross-appeals the district court’s denial of her request for attorney’s fees and costs.

We conclude that the district court should have promptly adjudicated Jeremiah’s Hague Convention petition in accordance with the purposes of the treaty and its implementing legislation. The Hague Convention seeks to…

Opinion by Judge PAEZ; Dissent by Judge THOMPSON.

Dissenting.

I respectfully dissent. I do not agree with the majority’s view that Jeremiah has not waived his Hague Convention remedy. Jeremiah initiated and litigated the child custody dispute in state court in California. After pressing that court to resolve the merits of the custody dispute, Jeremiah cannot now argue that the court should have refrained from doing so, simply because he disagrees with its decision.

A case involving analytically similar circumstances was before the United States District Court for the District of Puerto Rico in Journe v. Journe, 911 F.Supp. 43 (D.P.R.1995). There, Dr. Journe filed for divorce and custody in France. His wife, Ms. Soto, thereafter left France with the children. Ms. Soto later appeared at a hearing in the French court that was handling the divorce and custody proceedings. Shortly after the hearing, Dr. Journe requested dismissal of the divorce petition, believing that he and Ms. Soto had reconciled. The French court granted Dr. Journe’s request and dismissed the divorce complaint. Ms. Soto, however, did not return to France and claimed that no reconciliation had occurred. Dr.…