child abduction

Abbott v. Abbott

Issues

Whether a ne exeat order confers a right of custody to the non-custodial parent under the Hague Convention on International Child Abduction.

 

Petitioner Timothy Abbott and Respondent Jacquelyn Abbott divorced in Chile. The Chilean court granted the mother custody of their son while allowing the father only visitation rights. At the mother’s request, the Chilean court issued a ne exeat order prohibiting either parent from removing the child from Chile without the agreement of both parents. Without the father’s consent, the mother brought her son to the United States. The father asks the Supreme Court to decide whether the ne exeat order constitutes a right of custody under the Hague Convention on the Civil Aspects of International Child Abduction. A right of custody ruling would mandate return to Chile. This case will primarily impact international child custody battles where one parent abducts a child to or from the United States.

Questions as Framed for the Court by the Parties

The Hague Convention on International Child Abduction requires a country to return a child who has been “wrongfully removed” from his country of habitual residence. Hague Convention art. 12. A “wrongful removal” is one that occurs “in breach of rights of custody.” Id. art. 3. The question presented is: Whether a ne exeat clause (that is, a clause that prohibits one parent from removing a child from the country without the other parent’s consent) confers a “right of custody” within the meaning of the Hague Convention on International Child Abduction.

In 1992, Timothy Abbott, a British citizen, married Jacquelyn Abbott, an American citizen, in England. See Abbott v. Abbott, 542 F.3d 1081, 1082 (5th Cir. 2008). Their son was born in the United States in 1995, and the family moved to Chile in 2002. See id. In 2003, Mr. and Mrs.

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Additional Resources

·      Wex: Law about Child Custody

·      Hague Conference: Child Abduction

·      ConflictofLaws.Net: A Divided Opinion on the Hague Abduction Convention

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Chafin v. Chafin

Mr. Jeffrey Lee Chafin, an American, prevented his separated Scottish wife, Mrs. Lynn Hales Chafin, from leaving the United States with their daughter, E.C.. Mrs. Chafin successfully obtained a return order from the District Court for the Northern District of Alabama pursuant to the International Children Abduction Remedies Act, an Act passed by Congress as a result of the Hague Convention of the Civil Aspects of International Child Abduction. Mr. Chafin appealed the return order, but the Eleventh Circuit declared the case moot because Mrs. Chafin and E.C. had already returned to Scotland. On appeal to the Supreme Court of the United States, Mr. Chafin argues that a court’s inability to enforce its judgment does not render a case moot. Mrs. Chafin counters that allowing an appeal after a return order would conflict with the purposes of the Hague Convention. This decision implicates issues of comity between nations, and rights of American parents.

Questions as Framed for the Court by the Parties

Under 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 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, the Eleventh Circuit's unfathomable 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, as 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.

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Issue(s)

Whether an appeal becomes moot when a child returns to his or her country of habitual residence in a case involving the

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Lozano v. Alvarez

Issues

Can a district court considering a petition under the Hague Convention for the return of an abducted child to the child’s home country toll the running of the one-year filing deadline when the abducting parent has concealed the whereabouts of the child from the other parent?

In July 2009, Diana Lucia Montoya Alvarez and her daughter fled the United Kingdom for the United States without the knowledge or consent of Manuel Jose Lozano, the child’s father. In August 2010, Manuel Jose Lozano discovered that the child was in New York and filed a petition in U.S. federal district court under the Hague Convention on the Civil Aspects of International Child Abduction, for the return of his daughter to England for a custody determination.  The United States Supreme Court must decide if equitable tolling is applicable to the one-year period where the petitioner has searched for the child but only found her after the deadline had passed. The Court’s ruling will implicate the rights of the abducted child and the left-behind parent.

Questions as Framed for the Court by the Parties

The primary purpose of The Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention" or the "Convention") is to protect children from international abduction by returning an abducted child to the nation of habitual residence for adjudication of custody rights under that nation's laws. To further that purpose, Article 12 of the Convention mandates that an abducted child must be returned if the left-behind parent's petition for the child's return is filed within one year of the abduction. In doing so, the Convention deters international child abductions by removing the benefit an abducting parent would otherwise obtain or perceive under the laws of the nation to which he or she has abducted the child. If the left-behind parent is unable, or otherwise fails, to determine the situs of the child and meet this one-year filing deadline, the court must still order the return of the child unless the abducting parent demonstrates one of four affirmative defenses, including that the child is "settled" in her new environment. 

The circuit courts of appeal are split over whether equitable tolling may apply to the one-year period. While the Fifth, Ninth, and Eleventh Circuits all hold the one-year period may be equitably tolled, the Second Circuit held in this case that the one-year period is not subject to equitable tolling and the settled defense is still available even where, as here, the abducting parent conceals the location of the child. The Second Circuit also held the fact that the child and abducting parent lack legal immigration status is not dispositive on the issue of whether a child is settled under Article 12, but, rather, is merely one of several factors to consider. The questions presented are: 

  1. Whether a district court considering a petition under the Hague Convention for the return of an abducted child may equitably toll the running of the one-year filing period when the abducting parent has concealed the whereabouts of the child from the left-behind parent. 
  2. Whether an abducted child can be "settled" in the United States, within the meaning of Article 12, where it is undisputed that both the abducting parent and the child are residing illegally in the United States, and the abducting parent presents no evidence of a legitimate pending application or basis under existing law for seeking a change in their immigration status.

Note: The Court granted certiorari to Question 1 presented by the petition.

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Facts

Diana Alvarez (“Alvarez”) and Manuel Lozano (“Lozano”) met in London in 2004 and began dating. See Lozano v. Alvarez, 697 F.3d 41, 45. Although they never married, the couple had a child in October 2005. See id.at 46. Alvarez and Lozano have differing accounts of their relationship.

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Additional Resources
  • Marshall Zolla, California Family Law Monthly, Lozano v. Alvarez (Nov. 2012)
  • Gabriella Khorasanee, FindLaw, Lozano v. Alvarez: Custody Dispute Raises Issues of 1st Impression (Oct. 9, 2013)

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