In an opinion written by Chief Justice Roberts, the U.S. Supreme Court recently returned a decision in favor of an American father embroiled in an international custody dispute. In the case, Chafin v. Chafin, the Supreme Court held that the jurisdiction of the American federal courts does not end when the child has been returned to another country pursuant to the Hague Convention on the Civil Aspects of International Child Abduction.
Michael E. Manely, who argued the case on behalf of the father, elaborated upon the decision in an interview for this post, "Thanks to the unanimous decision of the Supreme Court of the United States of America, every child can rest a little better tonight. No one can snatch a child from her home, cross United States' boundaries and escape our State and Federal courts. I also have little doubt that the Scottish courts will return this little girl to the United States when asked."
To briefly review the facts, the father of the 5-year old child is an American sergeant and the mother is Scottish. The mother and child lived in Scotland during the father's deployment to Afghanistan, and then moved to Alabama to reunite with the father. When the mother decided to permanently return to Scotland, she secured an order from the federal district court--under the Hague Convention on the Civil Aspects of International Child Abduction--to return with the child to Scotland, after successfully arguing that the child's habitual residence was Scotland. As soon as the district court's decision came down, the father moved for a stay pending appeal, which was denied. Within hours, the mother left for Scotland with the child. Child custody proceedings are now pending in Scotland.
When the father appealed the district court order, the U.S. Court of Appeals for the 11th Circuit dismissed his appeal after finding the issue moot on account of the child's return to Scotland. This decision created a disagreement among the federal courts of appeals regarding mootness under these circumstances.
Therefore, the main issue before the Supreme Court was whether the case was moot given that the child had already returned to Scotland. Legally speaking, a case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. Federal courts cannot hear a moot case.
Here, the mother argued to the Supreme Court that the case was indeed moot--and therefore no appeal of the district court decision in her favor was permitted--because the district court lacked the authority to issue a re-return order either under the Convention or pursuant to its inherent equitable powers. However, the Supreme Court responded that this argument confused mootness with the merits and that, in fact, the dispute in the case was still very much alive, thereby barring a determination that the case was moot.
The live dispute is that the father continues to argue that his daughter's country of habitual residence is the United States and asks for appellate relief on that question, while the mother continues to argue that the child's habitual residence is in Scotland. Furthermore, the father seeks to vacate the district court's expense orders that required him to pay the mother over $94,000 in attorneys' fees and litigation costs.
The Supreme Court also rejected the mother's argument that there was no effective relief because Scotland would simply ignore an American order to return the girl to the United States. The Supreme Court pointed out that there was no law of physics preventing the daughter's return to the United States, and, in any case, the uncertainty of a particular outcome did not render a case moot.
Finally, in its opinion, the Supreme Court emphasized the importance of the prompt return of children wrongfully remove or retained in another country, and the importance of avoiding shuttling children around the world in child custody proceedings. To prevent these events from occurring, the Court suggested using the familiar juridical tools of expediting proceedings and granting stays where appropriate.
Justice Ginsburg filed a concurring opinion joined by Justices Scalia and Breyer to emphasize the need for both speed and certainty in such Convention cases, and to bring attention to the issue to rulemakers and legislators. Indeed, the family law literature supports the Justices' proposition that this type of speed and certainty would be in the best interests of the child.