High Court Does and Does Not Clarify Return and Appeals Under ICARA

On behalf of The Marks Law Firm, L.L.C. posted in Child Custody on Tuesday, February 19 , 2013

On Tuesday, the U.S. Supreme Court handed down its decision in Chafin v. Chafin, an important case involving the Hague Convention on the Civil Aspects of International Child Abduction. The “Hague Treaty” seeks to provide a uniform method of adjudicating international child custody disputes and international child abductions. It provides that a parent who unlawfully removes or retains a child from the child’s place of habitual residence in violation of an existing custody order must promptly return the child to the habitual residence. Typically, a parent seeking the return of the child must file a petition in the proper court where the child has been unlawfully removed or retained. After a hearing, if the court finds that the child has in fact been unlawfully removed or retained, the court must order the prompt return of the child.

Chafin involved an important part of the litigation process – the statutory appeal of right to a decision of a federal district court in the absence of a stay order (an order that delays return until the end of the appellate process).

The facts in Chafin are very straightforward. The parents met and married in Germany. Father is an American serving in the military overseas; mother is a native of Scotland. Shortly after getting married, the couple had a child. When father was deployed to Afghanistan, mother took the child to Scotland. When father was sent to Huntsville, Alabama, mother and child joined father in Alabama. Not long thereafter, father filed for divorce in Alabama. Several months later, an incident of domestic violence brought to light that mother’s visa had expired and she was deported to Scotland while the child remained in Alabama with father. Mother filed a Hague petition in federal district court in Alabama, claiming father wrongfully retained the child in Alabama and that the child should be returned to Scotland. The district court found habitual residence in Scotland and ordered return of the child to Scotland. Father sought a stay pending appeal but the district court denied the request. Mother immediately took the child to Scotland and secured temporary custodial rights and a ne exeat order that would prohibit father from taking the child out of Scotland. The court of appeals denied father’s appeal as moot on the basis that the child had already been returned to Scotland and no American court could order a “re-return” of the child.

The Supreme Court reversed, finding the appeal was not moot. The question of whether the district court erred in finding return appropriate is an issue on the merits that would impact the appropriate jurisdiction for all custody matters. Mother essentially argued that even if the appellate court ordered a “re-return” that Scotland would simply ignore it. Chief Justice Roberts, writing for a unanimous Court, rejected this proposition as the definition of mootness. First, because the United States retains personal jurisdiction over mother, any re-entry to the United States would allow for enforcement. Second, a reversal would negate the obligation of husband to pay $94,000 in attorney fees and travel expenses. Mootness turns not on probability or impracticability of relief, but on impossibility of relief. The Chief Justice also noted that a ruling for mootness would likely have increased the number of stays granted and therefore the number of appeals, all of which would contribute to delaying a process that should be expeditious so as not to leave a child in limbo between competing international jurisdictions. Also, a ruling for mootness would encourage victorious parties to flee from the jurisdiction to secure a more favorable forum and end the jurisdiction of the American court. Noting this case had taken two years already, the Chief Justice made a plea for more expeditious handling of Hague cases, a point made more forcefully by Justice Ginsburg in her concurring opinion.

The Court clarified that the district court is not the final word on the return of a child in a wrongful retention case – that the losing parent has an absolute right to appeal. However, whenever the victorious parent at the district court resides outside the United States, should the district court not grant the losing parent a stay, what will prevent the same result as in the Chafin case? This question remains very much unresolved.

We can easily play out the next rounds of the Chafin saga should father successfully win on appeal. Father would return to Alabama and reopen his divorce proceedings and secure a divorce by default. Mother will have a default divorce in Scotland. Both parties have no incentive to visit the country of the other, and the child loses. Eventually, father would attempt to take his “re-return” and litigate in Scotland to undo the proceedings in Scotland, an expensive prospect that may not succeed. Alternatively, father may choose to simply litigate in Scotland and try to see his child before that child becomes an adult.

Sadly, the practical impact of the Chafin decision is that, unless federal courts automatically issue stays, a win at the district court under similar factual circumstances will force the losing parent to play on foreign soil for custodial rights – even if the district court clearly made a mistake. Justice Ginsburg, in her concurrence, suggests legislation that would follow some European models that only grant leave to appeal when the appellant has a “real prospect” of success. She also encourages we follow the quick pace of European resolution, a matter of two months, not two years. While we can agree with the latter, the former seems much more problematic. It would make more sense to allow an automatic right to appeal but track it so that resolution must take place within a matter of 90 days. Quickening the pace of federal court resolution seems much more fair, and a course that creates more favorable incentives, than depriving a party of appellate review and forcing that party to play out custody on foreign soil in error.

Having handled numerous international child abduction cases, we know how difficult the length of the process can be on both parents and particularly the children. It can be very expensive to secure some type of continued custody in one country, more so when the process runs long. We feel that fairness with an expedited process that includes the right of appeal would best serve the interests of all parties and the interests of justice.

If you have questions about international child custody or abduction, contact us – we can help.

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