Parental Rights Across International Borders

August 17, 2012

Disputes between parents over custody and visitation are difficult enough under ordinary circumstances.  But what do you do if the other parent leaves for somewhere across the world … and takes the child with them?

The Supreme Court granted cert this week  in a case involving the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601 et seq, and the Hague Convention on the Civil Aspects of International Child Abduction.  These laws govern the return of a child to his/her country of “habitual residence” where one parent has abducted or wrongfully retained the child from another parent who has “rights of custody.”

The specific question to be addressed by the Supreme Court is whether the actual return of the child renders an appeal moot.  The mother in this case petitioned for the return of the child to Scotland.  The district court decided in favor of the mother and denied the father’s request for a stay pending appeal, and the mother left for Scotland the same day.  See the petition for certiorari, Chafin v. Chafin, 2012 WL 1636904.  On appeal, the Eleventh Circuit dismissed the case as moot because the child had already returned to Scotland, relying on Bekier v. Bekier, 248 F.3d 1051.

At first blush, it may seem strange to apply the doctrine of mootness to this situation, where the results of the district court’s order seem to be readily reversible.  The Chafin petition argues that isn’t  a situation where a remedy is impossible, like trying to un-execute a warrant, as in B&B Chemical v. E.P.A., 806 F.2d 987, (cited in Bekier). And other courts have found that an appeal is not moot just because the child has left the United States, as in Fawcett v. McRoberts, 326 F.3d 491.

The reasoning of the Eleventh Circuit in Bekier seems to be that because a parent seeking return of a child under the Hague Convention can petition the court “in the place where the child is located at the time the petition is filed,” once the child travels to the other country, the only remedy is for the other parent to file a new petition for return of the child.  The court points to language in the Hague Convention, Article 12, that “[w]here the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child” (emphasis added).

Proceedings under the Hague Convention and International Child Abduction Remedies Act are somewhat complicated by the fact that they are not custody determinations.  As stated by the Ninth Circuit in Cuellar v. Joyce, 596 F.3d 505, “A court that receives a petition under the Hague Convention may not resolve the question of who, as between the parents, is best suited to have custody of the child.”  Later on in Cuellar, the court observes that the Hague Convention is aimed at discouraging parental abduction by eliminating any tactical advantage a parent might seek to gain in their own country.  (As the court tartly observes, “The time to take such considerations into account is before undertaking the volitional acts that lead to conception.”)

To find related materials, start with a search using the name of the treaty:

“Hague Convention on the Civil Aspects of International Child Abduction”

These cases can be brought in state or federal court, or removed to federal court, so you will probably want to include both state and federal results in your search.  In addition to a wealth of case law, there are some excellent secondary sources, including Child Custody Prac. & Proc. § 3:6 on the Hague Convention,  and “Construction and application of International Child Abduction Remedies Act,” 125 A.L.R. Fed. 217.