The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Parental Rights

Interesting Custody Case Involving a Child and His Grandparents vs. the Father

As usual, at this point in the litigation the key questions focus on procedure.


From Doe v. Franklin County Children Services, decided Wednesday by Judges Stranch, Thapar & Readler (6th Cir.); you can also read the TRO opinion issued by Judge Algenon L. Marbley (S.D. Ohio), which notes that the father has allegedly "not had a relationship [with the son] for his entire life."

John Doe is a thirteen-year-old boy in the temporary custody of Franklin County Children Services. He had been living with his mother in Ohio, but Children Services suspected that he was being abused or neglected. So Children Services filed a case in Ohio state court to have Doe removed from his mother's home. The court ordered Doe removed, and it is now presiding over the resulting custody dispute.

During the proceedings, the state court gave Children Services custody of Doe. Children Services then placed Doe with his maternal grandmother in Ohio, and Doe would like to remain there. But [Children] Services decided to place Doe with his father in Florida after Florida officials determined that the father could provide Doe with a suitable home.

When [Children] Services made the decision to transfer Doe to his father's custody, Doe sued them in federal court. He alleges that Children Services denied him due process by making this placement decision without giving him an opportunity to be heard. The district court granted Doe a preliminary injunction preventing Children Services from moving him to Florida. Children Services appealed and moved to stay the injunction pending the appeal. In this order, we consider only the motion to stay the injunction.

The Sixth Circuit rejected Children Services' arguments that the district court should have abstained in favor of state proceedings:

First, only three categories of cases call for Younger abstention: ongoing state criminal prosecutions, state proceedings that are "akin to criminal prosecution," and civil proceedings "involving certain orders that are uniquely in furtherance of the state courts' ability to perform their judicial functions." … [O]nly the second category could plausibly describe the underlying state court proceeding. Children Services filed the case to remove Doe from a potentially abusive home, and "the temporary removal of a child in a child-abuse context is … in aid of and closely related to criminal statutes."

But removal proceedings are not at all "akin to criminal prosecution" as far as the child is concerned. And here, it is the child who has filed the federal lawsuit. That difference matters, because the Court has described proceedings in this second category as those that are "characteristically initiated to sanction the federal plaintiff." That does not describe this case, where the federal plaintiff is not an abusive parent, but a child. In the absence of full and thorough briefing, we will not broadly construe the Younger categories to apply to this different situation—especially given the Court's instruction that Younger "extends to the three 'exceptional circumstances' [it has identified], but no further."

Second, the Rooker-Feldman doctrine does not apply to Doe's case. That doctrine "merely recognizes" that federal district courts lack jurisdiction to review state court judgments, and it has "no application to judicial review of executive action, including determinations made by a state administrative agency." Doe is not challenging a state court judgment; he is challenging the decision of Children Services, an agency of Franklin County, Ohio….

And the court also rejected Children Services' argument that it should get a stay because it's likely to prevail on the merits of its appeal:

[I]n a motion to stay, our task is to evaluate Children Services' likelihood of success in appealing the injunction …. Doe's claim to a due process violation is not completely implausible, and the other factors seem to weigh strongly in his favor: Irreparable harm can come from uprooting a thirteen-year-old boy from his home state and sending him to live in an unfamiliar state with a parent he's only recently come to know. (Not to mention enrolling him in a new school—with new classmates and different pandemic protocols—in the middle of the semester.)

And the harm to others is comparatively low—the father has an interest in living with his child, but a temporary preservation of the status quo is less harmful to him than the destabilization would be to Doe. Finally, any public interest in moving Doe to Florida under these circumstances is also low. Thus, Children Services has not made a strong showing that the district court abused its discretion when it balanced these factors and ultimately granted the injunction.

Children Services' three merits arguments—whether considered alone or together—do not amount to a strong showing of likely success on appeal. And the balance of harms again weighs in Doe's favor: staying the injunction might cause Doe to be moved to Florida now and then shuffled back to Ohio once the appeal is decided. Any monetary and bureaucratic costs that Children Services will face are far less severe in comparison. Thus, we decline to exercise our discretion to stay the injunction.

We emphasize that this decision is limited to the unusual procedural nature of this case. The states' interest in resolving child-custody disputes is exceptionally strong, and federal court involvement in custody proceedings will almost always be inappropriate. Although we decline to stay the injunction in this case, we caution all district courts against entangling themselves in this area of traditional state concern.