The Tenth Circuit issued an opinion in the case of Dawson v. Dylla. Mr. Dawson appealed the U.S. District Court’s order that dismissed his Hague Abduction access petition with prejudice. The Tenth Circuit vacated and remanded with directions to dismiss his petition without prejudice. After marrying in New Mexico, the couple moved to the UK where their daughter was born in April 2013. Just over 2 years later, the couple separated, and Ms. Dylla informed Mr. Dawson that she was interested in relocating to the United States with the child. Mr. Dawson opposed the idea. In January 2016, the family court in Manchester, England determined that it was in the child’s best interest to live with Ms. Dylla in the United States. The order provided for access to Mr. Dawson in the U.S. and UK, as well as virtual access. Ms. Dylla was ordered to register the Manchester order in Colorado, which she did in early 2016. Shortly after she registered the order, she filed a petition in Colorado’s state court seeking to restrict Mr. Dawson’s parenting time, raising concerns over the child’s reactions to Mr. Dawson’s behavior. On September 22, 2016, the state court denied Ms. Dylla’s petition, assuming that the Manchester court considered the same information in reaching its custody decision earlier that year, noting no allegation that Mr. Dawson was physically or emotionally abusive towards the child since the court order, and emphasized that the Colorado court would not, in effect, act as a reviewing court for the Manchester court.
In February 2017, Mr. Dawson filed an emergency motion in Colorado, seeking to restrict Ms. Dylla’s parenting time. The state court denied the motion on February 13th. On February 22nd, the court took evidence on parenting time, and on March 27th, issued a written order finding that Ms. Dylla had violated the existing order by denying Mr. Dawson time in Colorado, thereby warranting make-up time to Mr. Dawson. On January 17, 2019, the Colorado court ordered Mr. Dawson to appear before it in February on the issue of child support the allocation of the child’s travel costs. He failed to appear. The court issued a bench warrant for his arrest and issued a temporary custody order granting Ms. Dylla custody of the child, and prohibiting the school from releasing the child to Mr. Dawson. Also in 2019, Mr. Dawson filed a motion in Colorado seeking to enforce the Manchester family court’s custody order. This request was denied on December 13, 2019, concluding that it was best for the child to not be with Mr. Dawson in unsupervised parenting until the arrest warrant issue was resolved. On December 16, 2019, the Colorado court ordered the parties to contact the clerk to schedule a status conference. No one complied, so in February 2020, the court denied all pending motions without prejudice.
On January 28, 2021, Mr. Dawson filed a Hague access petition, seeking enforcement of the Manchester family court order in the U.S. District Court pursuant to the Hague Abduction Convention and ICARA. The federal court issued a notice to the parties advising them to seek counsel and saying, “This Court’s role under the ICARA in general is simply to order that a child who has [been] taken to the U.S. by one parent and not returned for visitation as ordered by the foreign court must be returned to the foreign jurisdiction for such further orders as that court might enter. The best solution is to comply with the English court’s orders until they are changed.” The court noted that it was not going to sit as an appellate court to either the Manchester or Colorado family courts. His Hague petition was dismissed with prejudice.
Mr. Dawson argued “in his appellate brief, [that] there is a circuit split regarding whether ICARA authorizes federal courts to entertain the type of access claim that Dawson seeks to assert here, i.e., a claim seeking to secure the exercise of visitation rights that were previously afforded to him by the Manchester family court.” The Tenth Circuit ultimately concluded that, even though there is a split among circuits, and the Tenth Circuit has not yet taken a position on access claims and whether they are within the purview of a federal court, this case is precluded from resolution by the Younger abstention doctrine because of the ongoing litigation in the family courts on the precise same issue.