Tuesday, February 19, 2013
A unanimous Supreme Court ruled today that a district court's order that a child return to his or her home country is not moot on appeal just because any relief ordered on appeal is unlikely to get the child back to the U.S. The ruling means that the lower court can determine whether the district court's return order was in error--potentially resulting in a re-return order that may or may not have any practical effect.
The case, Chafin v. Chafin, arises out of an international custody dispute between a U.S.-citizen-dad and a U.K.-citizen-mom. Under the Hague Convention on the Civil Aspects of International Child Abduction, which is designed to work these things out, a federal district court ordered the return of the child to her country of "habitual residence," Scotland, and mom took her there. Dad appealed, but the circuit court dismissed the case as moot, saying that it "became powerless" to grant relief. What it meant was that it couldn't reverse the district court and order it to re-return the child (because the courts don't have authority for re-return), and in any event a re-return order wouldn't be effective
The Supreme Court disagreed. Chief Justice Roberts wrote for a unanimous Court that a case doesn't become moot just because a court may not have authority to grant the requested relief (in this case a re-return, which goes to the merits, not mootness, according to the Court) or just because the court's order is unlikely to have any practical effect.
Mr. Chafin's claim for re-return--under the Convention itself or according to general equitable principles--cannot be dismissed as so implausible that it is insufficient to preserve jurisdiction . . . and his prospects of success are therefore not pertinent to the mootness inquiry.
As to the effectiveness of any relief . . . even if Scotland were to ignore a U.S. re-return order, or decline to assist in enforcing it, this case would not be moot. The U.S. courts continue to have personal jurisdiction over Ms. Chafin, may command her to take action even outside the United States, and may back up any such command with sanctions. No law of physics prevents E.C.'s return from Scotland . . . and Ms. Chafin might decide to comply with an order against her and return E.C. to the United States.
Op. at 8-9 (citations omitted).
Justice Ginsburg, joined by Justices Scalia and Breyer, wrote in concurrence that international shuttling is no good for a child, and that Congress and the courts might work out a more streamlined procedure to protect against putting a child in this position in the first place.