Hague Convention

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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Golan v. Saada

Issues

When the court is deciding to return a child to their habitual residence after the child was taken to the US against parental custody rights, should the court consider measures that may make the situation safer after a definitive finding that the child is at risk of grave danger if returned?

This case asks the Supreme Court to determine whether, under the Hague Convention, a court may consider ameliorative measures, such as protective orders or custody determinations, to prevent grave danger to a child when ordering a child back to their home country. The Hague Convention requires that children abducted in violation of parental custody rights must be returned to their country of habitual residence. Narkis Golan, a United States citizen living in Italy, brought her Italian-born child to the United States, and did not return to Italy because she was a victim of domestic abuse by her Italian husband, Isaac Saada. Saada then sued Golan under the Hague Convention. Golan claims that her case falls under an exception within the Hague Convention that stops the return of the child if there is risk that the child will be in grave danger. While the lower court found sufficient ameliorative measures to prevent potential danger and granted Saada’s petition, Golan argues that the ameliorative measures are counter to the goals of the Hague Convention and should not be required or considered, especially where there is domestic violence. Saada responds that ameliorative rights must be considered to fairly assess the child’s return to their habitual residence. The outcome of this case could affect the safety of children, Hague Convention proceedings, and cooperation between foreign nations.

Questions as Framed for the Court by the Parties

Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding.

In August 2015, Narkis Golan (“Golan”), a United States citizen, married Isacco Saada (“Saada”), an Italian citizen, in Milan, Italy. Saada v. Golan II, at 3. In June 2016, Golan gave birth to her and Saada’s son, B.A.S., in Milan. Saada v. Golan I, at 6. Saada physically and mentally abused Golan for most of their relationship. Id.

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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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Monasky v. Taglieri

Issues

(1) When a parent removes a child to a foreign state in a case of disputed custody, and the child was too young to acclimate to her surroundings in the previous state, does the Hague Convention’s “habitual residence” standard require the parents to have actually agreed that they intended to raise the child in the previous state to trigger the Hague Convention’s return remedy?

(2) Must appellate courts review lower court determinations of a child’s habitual residence de novo, under a deferential version of de novo review, or for clear error?

This case arises out of a custody dispute between an Italian father, Domenico Taglieri, and an American mother, Michelle Monasky, whose marriage had deteriorated, and where the mother had removed the child to the United States before a court could determine the parents’ custody rights. To determine whether the child must be returned to Italy, the Supreme Court must decide whether to uphold the Sixth Circuit’s order to return the child based on its affirmation of the district court’s determination that the child habitually resided in Italy. Monasky argues that the Hague Convention’s text supports an actual-agreement standard for habitual residence, and that the Hague Convention does not contemplate courts imposing habitual residence on a child when the child’s situation in the state would be precarious and the child lacks meaningful connections with the state. She further argues that the statute, appellate history, and the mixed legal and factual nature of habitual residence support de novo review. Taglieri responds that the lower courts properly applied a fact-sensitive analysis of the child’s situation in Italy and, furthermore, that if “actual agreement” were required, the Hague Convention would under-protect children in hotly disputed custody cases who most need protection. He also contends that clear-error review should apply because habitual residence issues are more factual than legal, and because such review is more expedient, consistent with the Hague Convention’s aims. The outcome of this case will have implications for international child abduction and custody cases involving claims of domestic violence.

Questions as Framed for the Court by the Parties

(1) Whether a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo, as seven circuits have held, under a deferential version of de novo review, as the U.S. Court of Appeals for the 1st Circuit has held, or under clear-error review, as the U.S. Courts of Appeals for the 4th and 6th Circuits have held; and (2) whether, when an infant is too young to acclimate to her surroundings, a subjective agreement between the infant’s parents is necessary to establish her habitual residence under the Hague Convention.

In 2011, Petitioner Michelle Monasky, an American, and Respondent Domenico Taglieri, an Italian, got married in Illinois where they met. Taglieri v. Monasky at 406. Two years later, they moved to Milan, Italy to pursue their careers. Id. In March 2014, Taglieri hit Monasky in the face.

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