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].'" 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."
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]." 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.
Whether an appeal becomes moot when a child returns to his or her country of habitual residence in a case involving the Hague Convention on the Civil Aspects of International Child Abduction, or whether U.S. courts retain jurisdiction over the appeal from a custody petition despite the child's exit from the United States.
In March 2006, Jeffrey Lee Chafin, a citizen of the United States and Sergeant First Class in the United States Army, and Lynne Hales Chafin, a citizen of the United Kingdom, married in Scotland and moved to Germany, where Mr. Chafin was stationed. The couple’s daughter, E.C., was born in Germany in 2007, with dual U.S. and U.K. citizenship. Later that year, Mr. Chafin deployed to Afghanistan on a fifteen-month tour of duty, during which time Mrs. Chafin moved to Scotland with E.C.; from that time until February 2010, E.C.’s place of residence was in Scotland.
Mrs. Chafin and E.C. remained in Scotland when Mr. Chafin returned to Germany in 2008. In February 2009, Mr. Chafin was transferred to Huntsville, Alabama. In an effort to save the parties’ crumbling marriage, Mrs. Chafin and E.C. joined Mr. Chafin in February 2010—the former on a 90-day visitor’s visa, and the latter with her U.S. passport. During her time in Alabama, Mrs. Chafin was arrested for disorderly conduct for an incident related to over-consumption of alcohol.
In May 2010, Mr. Chafin filed for divorce and an emergency custody restraining order in Alabama state court, thus preventing Mrs. Chafin from leaving the United States with E.C. Mr. Chafin also removed E.C.’s passports from their customary location so that they were inaccessible to Mrs. Chafin. Unable to return to Scotland with E.C., Mrs. Chafin continued to live with Mr. Chafin and E.C. in Alabama until Mrs. Chafin was deported in February 2011 for overstaying her visa.
Following Mrs. Chafin’s deportation to Scotland, E.C. was left in the sole care of her father, Mr. Chafin. In May of 2011, a year after Mr. Chafin’s initial divorce and custody filing, Mrs. Chafin filed a verified petition for return of the child in the U.S. District Court for the Northern District of Alabama, pursuant to the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq (“ICARA”) and the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). Simultaneously, Mrs. Chafin successfully petitioned for a stay of the Alabama state court custody proceeding in favor of the federal Hague Convention petition. Mrs. Chafin also initiated custody proceedings in Scotland in December of that year. In her verified petition, Mrs. Chafin argued that Mr. Chafin had retained E.C. in the United States in violation of Mrs. Chafin’s custody rights because E.C.’s place of habitual residence was in Scotland, and Mrs. Chafin had never intended to change E.C.’s residence to the United States when they joined Mr. Chafin in Alabama. In October 2011, the district court granted Mrs. Chafin’s verified petition, holding that Mr. Chafin had been wrongfully retaining E.C. in the United States in violation of ICARA and the Hague Convention since May 15, 2010, when Mr. Chafin moved E.C.’s passports to a location unknown to Mrs. Chafin. The district court’s order allowed Mrs. Chafin to leave the United States with E.C. immediately. Mere hours later, Mr. Chafin filed a motion to stay implementation of the order; the district court denied the motion for stay. Mrs. Chafin took E.C. back to Scotland that same day.
Mr. Chafin appealed the district court’s decision to the Eleventh Circuit Court of Appeals. The Eleventh Circuit dismissed the appeal as moot, citing a previous case from that court which dismissed an appeal of a return order as moot on similar facts, reasoning that the court could offer no relief where the child had already left the United States. Accordingly, the Eleventh Circuit remanded the case to the district court with instructions to vacate its original order and likewise to dismiss the case as moot. Mr. Chafin then appealed the Eleventh Circuit’s decision to the Supreme Court of the United States, citing contrary precedent in Fawcett v. McRoberts from the Fourth Circuit. The Supreme Court granted certiorari to resolve the split between the Fourth and Eleventh Circuits.
This decision implicates issues of comity between nations and appeals rights of American parents. Mr. Jeffrey Lee Chafin, petitioner, claims that his appeal from the District Court’s adverse decision on Mrs. Lynn Hales Chafin’s petition pursuant to the International Children Abduction Remedies Act (“ICARA”) is not moot. Mrs. Chafin disagrees; she argues that the case is moot because she has already returned her child to Scotland, and as a result the United States’ courts would not be able to provide relief for Mr. Chafin in the case of reversal.
Rights of American Parents
Mr. Chafin argues that by declaring a case moot as a result of a child’s removal from United States’ soil, the Eleventh Circuit has restricted American parents’ access to the courts. Specifically, Mr. Chafin argues that under the Eleventh Circuit’s ruling, a foreign parent is empowered to restrict the American parent’s ability to appeal through unilateral action (namely, returning home with the child), but the American parent has no such equivalent power. A decision in favor of an American parent, Mr. Chafin believes, would be subject to an appeal, but a decision in favor of a foreign parent would not. Because losing litigants in federal court generally have a right to appeal, the United States further argues that not allowing American parents to appeal ICARA decisions would be too great an intrusion into United States domestic law.
Mrs. Chafin argues that although litigants generally have the ability to appeal adverse decisions, there is no constitutional due process right to an appeal. Mrs. Chafin continues, arguing that because a right to appeal is only provided through statute and because neither ICARA nor the Hague Convention mentions such a right, litigants like Mr. Chafin are not denied due process if they are not permitted to appeal. Mrs. Chafin asserts that in order to address the potential inequitable nature of the ability to appeal, stays may be issued strong cases but whereas in her case a stay has been denied, an appeal should also not be allowed.
Effectuating the Purposes of the Hague Convention and ICARA
Mrs. Chafin argues that allowing Mr. Chafin to appeal the District Court decision would run contrary to the purposes of the Hague Convention and ICARA. Mrs. Chafin focuses on two such purposes: promoting the welfare of the child, and promoting consistency amongst international judgments regarding the same case. Regarding the child’s welfare, Mrs. Chafin suggests that regardless of who is doing the appealing, lengthy appeals are detrimental to the child. Mrs. Chafin particularly criticizes appeals through the United States’ system, which can be notoriously lengthy and dragged out by a disgruntled party. She asserts that prolonged proceedings are contrary to ICARA’s emphasis on prompt resolutions, especially when—as Mrs. Chafin argues—tangible relief is impossible. Though the United States may not be able to enforce a re-return order, Mrs. Chafin argues that even an ineffective reversal on appeal is undesirable under ICARA, because it controverts the Hague Convention’s aim to promote comity between nations. She contends that ongoing proceedings on the merits in the United States could undermine the finality of the custody proceedings in Scotland, which is harmful to the goal of consistency of judgments.
Mr. Chafin and amici address the same purposes of the Hague Convention and ICARA, but disagree with Mrs. Chafin on the best way to effectuate those purposes. Regarding the welfare of the child, the National Center for Missing and Exploited Children (“NCMAEC”) as amicus argues that the best way to effectuate the purposes of ICARA is to allow automatic stays in all cases followed by an expedited appeals process in strong cases. NCMAEC argues that this is the least disruptive to the child’s life; when an order of return is carried out, it is final. In regards to promoting consistency between judgments, Mr. Chafin argues that Scottish Courts will also work towards comity between nations, giving weight to judgments rendered by the United States. A related issue to comity between nations is the notion that ICARA should be applied uniformly throughout the United States. The United States as amicus argues that the best way to ensure accurate application of ICARA and the Hague Convention is to allow courts of appeals and the Supreme Court of the United States to review district court decisions. The United States contends that without the ability to appeal a District Court decision, the application of ICARA throughout the country could become inconsistent and fragmented, which would controvert the purpose of the Convention.
The Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) promotes two goals: to prevent parents from abducting their children in order to avail themselves of more advantageous custody laws abroad, and to promote comity, or mutual respect, between the courts of member states. The Hague Convention directs the prompt return of a child who was been “wrongfully removed or retained” in one state party to the Hague Convention when that child was a “habitual resident” of another state party. Return of the child allows custody determinations to proceed in the state of habitual residence, which has undisputed jurisdiction over the matter. A removal or retention of the child from his or her state of habitual residence breaches actual or exercised rights of custody and such removal or retention is considered wrongful. A determination of habitual residence thus functions as a threshold choice-of-law and choice-of-forum determination. Both the United States and the United Kingdom, including Scotland, are parties to the Hague Convention. The United States subsequently passed the International Child Abduction Remedies Act (“ICARA”) to implement the Hague Convention in U.S. domestic law.
Under U.S. law, the constitutional doctrine of mootness prevents courts from considering cases that lack a live controversy. Petitioner Jeffrey Lee Chafin argues that a case is only moot when relief is literally impossible for the court to effectively grant, such that he should be permitted to appeal a U.S. court’s grant of a Hague Convention return order in favor of his child’s mother. In contrast, Respondent Lynne Hales Chafin contends that a case becomes moot, and thus ineligible for appeal, when the affected child exits the state in which the case was brought and returns to his or her state of habitual residence.
Appealability of Hague Convention Return Orders
Citing the Hague Conference on International Law’s Guide to Good Practice, Mr. Chafin notes that the Conference—which promulgated the Hague Convention—recommends postponement of physical enforcement of a return order until the order is final and subject to no further appeals. Mr. Chafin also points to a study of a majority of Hague Convention signatories, most of which authorize appeals of return orders, to underscore the importance of ensuring the correctness of habitual residence determinations. Mr. Chafin argues that ICARA similarly contemplates challenges to Hague Convention return orders, including appeals; further, because the United States law makes return orders immediately enforceable, the right to appeal must be allowed to survive the child’s exit from the country.
In contrast, Mrs. Chafin points out that there is no right to an appeal under the U.S. Constitution. Indeed, Mrs. Chafin contends that appellate review is entirely statutory, and that neither the Hague Convention nor ICARA mentions the right to an appeal. As a matter of legislative interpretation, Mrs. Chafin argues that if Congress had intended to require an appeal as of right under ICARA, surviving even after a child had exited the United States, then it would have explicitly said so. Mrs. Chafin emphasizes the fact that the only available remedy under the Hague Convention is return of the child to his or her state of habitual residence, and that once such return has occurred, it cannot be undone.
While Mrs. Chafin does not dispute that appeals may be allowed under either the Hague Convention or ICARA, she asserts that a stay of enforcement of the return order is necessary to preserve the losing party’s ability to appeal; otherwise, a child’s return to his or her state of habitual residence would render the appeal moot. Mrs. Chafin argues that any discretionary right to appeal must be balanced against the Hague Convention’s controlling interest in speedy resolution of return petitions. To tip the scales against Mr. Chafin’s right to appeal, Mrs. Chafin cites Mr. Chafin’s failure to seek a temporary stay from the district court until the Eleventh Circuit could rule on its own motion to stay.
In response, Mr. Chafin argues that failure to obtain a stay would only be relevant to the issue of appealability in cases where the court could and would have granted such a stay; in a Hague Convention petition, stays are not guaranteed. Further, Mr. Chafin contends that he had no meaningful opportunity to pursue either a temporary stay from the district court, nor a motion to stay in the Eleventh Circuit, because Mrs. Chafin took E.C. back to Scotland hours after the district court denied his initial motion to stay.
Further, Mrs. Chafin argues that even if a discretionary right to appeal exists, the constitutional doctrine of mootness would restrict the appellate court’s jurisdiction.
Standard for Mootness
Mr. Chafin argues that an appeal is not moot unless it is impossible for the court to grant relief. Mr. Chafin cites three possible outcomes of an appeal that would constitute some form of relief: if an appellate court reverses the order of the trial court, then on remand the trial court could order the return of the child to the United States. Alternatively, a reversal of the order would allow the Alabama state custody case to proceed. Additionally, a reversal of the order could favorably influence the custody proceedings in Scotland. Further, Mr. Chafin insists that a child’s return to his or her country of habitual residence does not moot appellate review of a trial court grant of a Hague Convention petition. Mr. Chafin argues that if the effects of compliance can be reversed, then compliance with a trial order does not render an appeal of that order moot.
Mrs. Chafin urges an “actual effect” standard for mootness, as set forth in Mills v. Green, 159 U.S. 651 (1895), which inquired “whether any further decision may actually be carried into effect in the case currently before the court.” Mrs. Chafin asserts that Mr. Chafin and the United States as amicus curiae erroneously overlooked the provision in the Mills test that the case be “currently before the court.” Mrs. Chafin contends that there is no issue left to adjudicate before U.S. courts, because the act that Mr. Chafin wants restrained has already come to fruition. Mrs. Chafin also rejects Mr. Chafin's argument that favorable influence over the Scottish courts would constitute actual relief, arguing that the effect of an order on future proceedings is not the same as effecting relief in the matter currently before the U.S. court.
Mrs. Chafin relies on the Eleventh Circuit case of Bekier v. Bekier, 248 F.3d 1051 (2001), to argue that requesting a stay of a return order is not a prerequisite for granting an appeal, but failing to do so may lead the prevailing party to treat the order as final.
This decision will affect how ICARA is administered throughout the country. Mr. Chafin argues that a court need not be able to guarantee enforcement of a judgment in order to decide the merits of a case. Mrs. Chafin, on the other hand, contends that once a child is returned to their country of habitual residence, there is no longer a case or controversy for a court to decide. How the Supreme Court decides this issue could also affect how other nations interpret the Hague Convention as well, and will also implicate issues of comity between nations and the rights of American parents.
- Jonathan Stempel & Terry Baynes, Reuters, Supreme Court to Hear International Child Custody Dispute.
- Charles T. Kotuby, Jr., LettersBlogatory.com, Chafin v. Chafin: New Hague Abduction Convention Case before the United States Supreme Court., http://articles.chicagotribune.com/2012-08-13/news/sns-rt-us-usa-courts-supremecourt-childcustodybre87c11i-20120813_1_scotland-custody-terry-baynes