MARYLAND FAMILY LAW UPDATE: THE INTERNATIONAL CHILD ABDUCTION, CUSTODY AND "THE HAGUE CONVENTION" TREATY

This family law update is presented by the national general practice law firm of Charles Jerome Ware, P.A., Attorneys and Counsellors, as a public service.  The firm is headquartered in Columbia, Howard County, Maryland, and its motto is: "Still working.  Still committed.  Still here to make a difference."

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Over the years, due principally to the international diversity of its residents, the state of Maryland has certainly had its share of international diversity of its residents, the state of Maryland has certainly had its share of international child abduction and custody cases.  In fact, over the past year or so this law firm has been involved in such cases including the countries of Colombia, Canada, Mexico, Pakistan and the United Kingdom.

"THE HAGUE CONVENTION," The International Child Abduction Remedies Act, and CHAFIN v. CHAFIN.

On December 5, the Supreme Court heard oral argument in Chafin v. Chafin, a case involving the Hague Convention on the Civil Aspects of International Child Abduction. Under the Convention, a child is to be returned to his or her country of “habitual residence” if the child has been taken to another country in violation of the Convention.

 The question in Chafin is whether an appeal of a U.S. district court’s ruling in a child abduction case becomes moot if the parent who won in the district court takes the child back to the child’s country of habitual residence while the appeal by the losing parent is pending.

[see, twitter.com/CharlesJWare; Attorney Charles Ware's Blog, Wednesday, December 5, 2012, "Supreme Court Considers Immigration Deportation And International Custody Law Issues: Update by Attorney Charles Jerome Ware on Chafin v. Chafin, Docket No. 11-1347; CharlesWare.blogspot.com/2012/12]

Pursuant to the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11610 (2000) and the "Hague Convention" on the Civil Aspects of International Child Abduction, a parent may file a petition for return of their minor child/custodian to the child's country of "habitual residence" if it appears that the child has been wrongfully abducted. Once an Order has issued from the U.S. District Court returning the child to the petitioning custodian and an appeal has been filed by the respondent the Circuits are spilt as to whether the return of the child to the country of "habitual residence" renders the appeal moot.

The Eleventh Circuit, in Bekier v. Bekier, 248 F.3d 1051 (2001), held that such an appeal is clearly moot since the relief sought by petitioner has 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]''' Bekier at 1054. The Court provided that no actual affirmative relief could be provided to the appellant. However, this decision and others like it has come under great scrutiny by other Circuits. Specifically the Fourth Circuit, in Fawcett v. McRoberts, 326 F.3d 491 (2003), has held that "[c]ompliance with a trial court's order does not moot an appeal (of a Petition for Return of Custody under the aforementioned Acts) if it remains possible to undo the effects of compliance or if the order will have a continuing impact on future action." Fawcett at 494.

The Fourth Circuit in Fawcett held that even after the return of a child in compliance with the lower court's order that "this Court can [affect the matter in issue]." Id. To consider the merits of an appeal and potentially reverse the lower court's decision would have a considerable effect.

In contrast, arguably, the Eleventh Circuit's position on this particular matter eliminates the basis and purpose of the appeal process. Whether an appeal of a District Court's ruling on a Petition for Return of Children pursuant to International Child Abduction Remedies Act and the Hague Convention on the Civil Aspects of International Child Abduction becomes moot after the child at issue returns to his or her country of habitual residence.

Such is the case in the Eleventh Circuit's Bekier case, leaving the United States Court system lacking any power or jurisdiction to affect any further issue in the matter.  Or should the United States Courts retain power over their own appellate process, as in the Fourth Circuit's Fawcett case, and maintain jurisdiction throughout the appellate process giving the concerned party an opportunity for proper redress.

This law firm will continue to follow this matter to the end of the appeal process in the Supreme Court of the United States (SCOTUS).  The final decision by SCOTUS is expected in 2013.

[beforeitsnews.com/opinion/12-8-2012/ Chafin v. Chafin; www.huffingtonpost.com/2012/12/05/ Chafin v. Chafin; www.scotusblog.com/2012/08/ "Court Grants One New Case..."; jurist.org/paperchase/2012/12/ "Supreme Court Hears Argument In International Child Abduction Case"; www.abajournal.com/News/12-06-2012/ "Supreme Court Considers International Custody Dispute Involving Armgy Sergeant"; www.reuters.com/08-13-2012/ "Supreme Court To Hear..."; www.law.com, The National Law Journal/12-05-2012/ "Justices Appear Uneasy With Ramifications..."]