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U.S. Supreme Court Decides Another International Abduction Case

On March 5, 2014, the U.S. Supreme Court issued its unanimous decision in Lozano v. Alvarez (572 U.S. 1, 134 S.Ct. 1224, 188 L.Ed.2d 200) - a federal case under the Hague Child Abduction Convention seeking the return of a child abducted from England and hidden in the US long enough so that Dad's petition was filed 16 months after the abduction. Under the Convention, a court must order a child returned forthwith if the petition is filed within a year of the child's abduction. After that, return must be ordered unless it is shown that the child is "now settled in its new environment." Dad argued that the doctrine of equitable tolling should extend that year in cases of willful concealment. The Supreme Court disagreed and held that the year could not be extended by equitable tolling even if the concealment was clear.
Click here to read the decision. Click here for more background.



U.S. Supreme Court Decides International Child Abduction Case

On February 19, 2013, the U. S. Supreme Court decided a case involving the Hague Convention on the Civil Aspects of International Child Abduction. The unanimous decision holds that even when an allegedly abducted child has been returned to the child's country of habitual residence pursuant to a federal district court's order, the parent who resisted that return still has a right to pursue an appeal from that return order. That is, the return does not make the appeal moot.

Back on August 13, 2012, the U.S. Supreme Court agreed to hear the appeal in Chafin v. Chafin, an international child abduction case that does not directly involve the UCCJEA. The appeal involved a relatively technical aspect of the Hague Convention on the Civil Aspects of International Child Abduction and the federal statute (ICARA) implementing that Convention. Under the Convention and its federal implementing statute, a parent may file a petition for return of his or her minor child to that child's country of "habitual residence" if it appears that the child has been wrongfully abducted. That petition can be filed either in a federal district court or in a state court. The only question in such a case is whether the child should be sent back to the child's country of habitual residence so that the courts in that country can then make a custody determination. The U.S. Courts in such a case are not permitted to decide the child's custody -- only whether the child must be returned. If the court grants the foreign parent's petition, it will issue an order directing that the child be returned to the foreign country.

An appeal can be filed from such a return order. However, if the child had been returned to the foreign country before the appeal was heard and decided, the foreign parent could seek to have the appeal dismissed as moot. In the federal courts, the federal Circuits were split as to whether the return of the child to the country of habitual residence rendered the appeal moot. In the Eleventh Circuit, for example, the 2001 case of Bekier v. Bekier held that such an appeal was clearly moot, since the relief sought by the foreign parent had been granted and the court had "no authority 'to give opinions on moot questions or abstract propositions ... which cannot affect the matter in issue in the case before [the court].' " That court reasoned that no actual affirmative relief could be provided to the appellant.

That decision and others like it had come under great scrutiny and criticism by other Circuits. For example, the Fourth Circuit, in the 2003 case of Fawcett v. McRoberts, held that "[c]ompliance with a trial court's order does not moot an appeal [from an order of return of custody made pursuant to the Hague Convention and ICARA] if it remains possible to undo the effects of compliance or if the order will have a continuing impact on future action." The Fourth Circuit in Fawcett held that even after the return of a child in compliance with the lower court's order, "this Court can [affect the matter in issue]."
The Supreme Court agreed to review the case, mainly to resolve that split among the Circuits. In its February 19 decision, the Supreme Court rejected the view that the child's return to the country of habitual residence mooted the appeal. Rather, it held that even if there were very little chance that the other country's courts might return the child to the United States, the U.S. Courts should retain power over their own appellate process and give the concerned party an opportunity for proper redress by maintaining jurisdiction throughout the appellate process.

Click Here to read the complete decision of the court in Chafin v. Chafin together with the court's official summary of the decision.

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