US Supreme Court Holds Return of a Child to a Foreign County Pursuant to an Order Issued Under the Hague Convention Does Not Render an Appeal Moot

Last week the US Supreme Court issued an initial opinion in Chafin v. Chafin, holding that the return of a child to a foreign country pursuant to an order under the Hague Convention on the Civil Aspects of International Child Abduction does not render an appeal of that order moot (meaning that the child’s father can now proceed with a full appeal of the trial court’s decision that allowed the child’s mother to return to Scotland).

The underlying case involves an international child custody dispute between an America father and a Scottish mother. Under the Hague Convention on the Civil Aspects of International Child Abduction, a parent whose child is wrongfully removed to another country can file a lawsuit in that country seeking to have the child returned to her home country to resolve any custody disputes. After divorce proceedings were initiated in Alabama (where father resided), mother filed a lawsuit in federal district court pursuant to the Hague Convention, asking that court to issue an order returning her daughter to Scotland. When the district court ruled in her favor, the mother immediately left the country with her daughter. When father attempted to appeal, the Eleventh Court of Appeals found his appeal to be moot since the child had already moved to Scotland – leaving father with no appellate remedies and no way to challenge the trial court’s order.

So father sought relief from the Supreme Court. The Opinion issued on February 19, 2013 and authored by Chief Justice Roberts, determined that an appeal from an order requiring the return of a child to their home country under the Hague Convention is not moot simply because the child is returned to another country. The Court explained that the case would be moot “only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” “As long as the parties have a concrete interest, however small, in the outcome of the litigation,” the Court continued, “the case is not moot.” That standard is met in this case, according to the Court, because the parents “continue to vigorously contest the question of where their daughter will be raised.” At this stage, the father is simply seeking the opportunity for “typical appellate relief” – a decision from the Court of Appeals reversing the trial court’s order allowing mother to take the child to Scotland.

We will continue to monitor developments in this case in the Eleventh Court of Appeals and will provide an update to our readers. This case has wide-reaching implications for anyone involved in an international custody dispute. The decision of the trial court allowing a parent to take the child to a foreign country is not absolved of appellate review by mootness – like the father in Chafin, the losing party can pursue a full appeal.

Here is the Supreme Court’s Opinion: http://www.supremecourt.gov/opinions/12pdf/11-1347_m648.pdf

Here is a link to a CNN article/clip: http://www.cnn.com/2012/12/04/justice/court-custody

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