Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 80 C 152 -- Jesse E. Eschbach, Judge .
Before Sprecher and Cudahy, Circuit Judges, and Will, Senior District Judge.*fn*
This is an appeal from the final judgment of the District Court for the Northern District of Indiana dismissing plaintiff's petition for an injunction for failure to state a claim upon which relief can be granted. This is a civil rights case under 42 U.S.C. § 1983 by Harald Schleiffer, a minor, brought by next of friend, Ann Ker, against Edward J. Meyers, in his capacity as Judge of the Whitley Circuit Court, Whitley County, Indiana. Harald sought an injunction against enforcement of an order of the Circuit Court of Whitley County, Indiana, enforcing a Swedish decree awarding custody of Harald, a ten-year-old American citizen, to his mother, Hjordis Schleiffer, a resident and citizen of Sweden, and a subsequent order instructing Harald's father, John Schleiffer, to arrange for Harald to be returned to his mother in Sweden.
The unique nature of this action necessitates a rather detailed review of the facts. The facts, as gleaned from the briefs, the memorandum opinion below, and the opinion of Judge Meyers in the Indiana proceeding, appear to be undisputed.
Harald's parents were married in Norway in 1970. Harald was born July 17, 1970, in Sweden, where his parents had moved. At the time of Harald's birth, his father was an American citizen, and his mother was a Swedish citizen. Harald's birth was reported to and recorded by the United States Department of State on May 1, 1971. Harald's American citizenship was confirmed by a "Certificate of Birth Abroad of a Citizen of the United States" issued by the Department of State on October 25, 1978.
In May, 1976, John Schleiffer went to the Dominican Republic and commenced an action for divorce and for custody of Harald. Hjordis Schleiffer was without knowledge of these proceedings and received no notice or service of summons. On June 11, 1976, John took Harald to the United States to visit his grandparents in New Jersey. John wrote Hjordis on July 19, 1976, informing her of his desire for a divorce, but failing to inform her of the pending Dominican Republic proceeding. On July 29, 1976, a final decree of divorce and custody was awarded by default to John in the Dominican Republic proceeding. Hjordis first learned of this divorce decree in February, 1978. During the summer of 1976, John also commenced a proceeding for divorce and custody in the courts of New Jersey. Hjordis received service of process by mail. The resolution of this proceeding is unclear and appears to be immaterial to the issues before us.
Harald and his father returned to Sweden in August, 1976, and his parent's marriage was "reconciled". However, on December 18, 1977, Harald's parents filed a joint application for divorce in the District Court, Gothenborg, Sweden. It appears that in the application for divorce, the parties agreed that Hjordis should have custody of Harald. The Swedish court issued orders pendente lite that Hjordis have possession of the family residence, that Hjordis have custody of Harald, and that John pay support for Hjordis and Harald. During March, 1978, John, through his Swedish counsel, sought unsuccessfully to modify the pendente lite custody award.
On August 30, 1978, John, under the guise of taking Harald to Germany for a short vacation, brought Harald to the United States. Harald has remained in the United States in the care and custody of his father ever since.
In November, 1978, John, through his Swedish counsel, filed an application for absolute divorce in the Swedish divorce action. Harald's father sought, among other things, custody of Harald. A hearing was held in Gothenborg District Court on January 29, 1979, on the issues of divorce and custody. Harald's father appeared through his attorney, while Hjordis appeared personally and with counsel. Harald was not present at the hearing. On February 12, 1979, the Swedish court issued its decision granting the divorce and awarding custody of Harald to Hjordis. The court found, inter alia, that the parents had agreed in their application for divorce that Hjordis retain custody of Harald, that John had removed Harald to the United States without Hjordis' consent, and that these circumstances proved John to be less suitable as custodial parent. John has refused to comply with the Swedish court's award of custody and has not returned Harald to his mother's care and custody.
Even before the Swedish proceedings were final, Harald's father filed a "Motion for Provisional Order and Temporary Restraining Order Without Notice" in the Circuit Court of Whitley County, Indiana. This motion was supplemented on June 15, 1979, with a "Petition for Custody" praying that Harald be officially placed in his father's custody. The record before us is incomplete as to what proceedings were held in the Indiana action. It is clear, however, that Hjordis came to the United States to defend against the father's request.
Judge Meyers issued his decision on July 1, 1980. He concluded that the Indiana Uniform Child Custody Jurisdiction Act, I.C. 31-1-11.6-1, et seq., applied to the case. He specifically found that the Swedish custody decree should be given international recognition pursuant to I.C. 31-1-11.6-23, which gives recognition to custody decrees rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.*fn1 Judge Meyers then held that the Swedish decree was rendered pursuant to jurisdictional prerequisites substantially in accordance with Indiana law and that the Swedish court "has not declined to assume continuing jurisdiction to modify the initial decree." Therefore, Judge Meyers ruled that I.C. 31-1-11.6-14 prevented the Indiana courts from taking subject-matter jurisdiction of the custody petition. The court also refused, pursuant to I.C. 31-1-11.6-8(b),*fn2 to exercise its jurisdiction because John had removed Harald from the physical custody of his mother without her consent and in violation of the Swedish decree. Judge Meyers additionally declined to exercise jurisdiction because Indiana was an "Inconvenient Forum," and the exercise of jurisdiction would affront various purposes of the Indiana Uniform Child Custody Jurisdiction Act. He finally concluded that under I.C. (1971), were no bar to federal court consideration of Harald's claim. But, the court concluded that the Anti-Injunction Act, 28 U.S.C. § 2283, prohibited the court from granting Harald's petition for injunctive relief. The court reasoned that this case was not a civil rights case, but was only a child custody contest. To the district court, Judge Meyers' orders were nothing more than an award of custody. Consequently, since there was no civil rights violation to lift the prohibitions of the Anti-Injunction Act, the district court dismissed Harald's petition. Harald appealed to this Court. We have stayed enforcement of Judge Meyers' orders pending resolution of this appeal.*fn3
Parents have a primary constitutional right to direct the upbringing and education of their children while under their control.*fn4 "This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition." Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S. Ct. 1526, 1541, 32 L. Ed. 2d 15 (1972). But, children also have constitutional rights independent of those afforded their parents.*fn5 A child's constitutional rights, however, are not always equal to similar rights of an adult.*fn6 In Bellotti v. Baird, 443 U.S. 622, 634, 99 S. Ct. 3035, 3043, 61 L. Ed. 2d 797 (1979), the plurality opinion by Justice Powell observed:
The unique role in our society of the family, the institution by which "we inculcate and pass down many of our most cherished values, moral and cultural," Moore v. East Cleveland, 431 U.S. 494, 503-504, 97 S. Ct. 1932, 1937-38, 52 L. Ed. 2d 531 (1977) (plurality opinion), requires that constitutional principles be applied with sensitivity and flexibility to the special needs of parents and children. We have recognized three reasons justifying the conclusion that the constitutional rights of children cannot be equated with those of adults: the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.
Before considering the pertinent factors involved in the present case and then balancing the constitutional claims of the custodial parent and the child, it is important to note one additional factor that pervades the parent-child relationship. Obviously, the ordinary dispute between a parent and child does not arise as a civil rights issue since it would lack the requisite state action in support of one side or the other. In those situations where there is state involvement, the outcome of the parent-child conflict often turns on whether the state chooses to exercise its discretionary power to favor one side or the other. The result, therefore, is often determined by state law and state decision, not by constitutional mandate. The ...