Another Look at International Child Custody Disputes

Several years ago, I wrote about a child custody dispute in which one parent took a child out of the country and filed for divorce in Brazil without notice to the other parent. After the first parent’s death and extended litigation between the second parent and the first parent’s second spouse, the child was eventually ordered to be returned to the second parent in the United States under an international treaty governing child custody disputes.


Earlier this year, the Supreme Court ruled on a different dispute involving the treaty: what rights does a parent have to appeal a trial court’s ruling that a foreign country has jurisdiction over the child?


The newly decided case involved an American father and a British mother, who married when the father, a soldier on active duty, was stationed in Germany. The father was then deployed to Afghanistan, and the mother took the child to Scotland for several years. When the father was reassigned to a base in Alabama, the mother and child joined him. Unfortunately, the marriage soon fell apart, and the father filed for divorce. While the divorce was pending, Immigration and Customs Enforcement learned that the mother had overstayed her visa, and she was deported.


The mother then filed a claim in federal court that the child should be returned to her in Scotland under the treaty. The trial court ruled for the mother, deciding that the child’s regular residence was in Scotland, and refusing to stay its ruling so the father could appeal. The mother then took the child back to Scotland.


The father appealed the trial court’s ruling, but the Court of Appeals ruled that because the child was gone, it couldn’t rule on the case any more. Meanwhile, the mother sued for custody in Scotland, and the Scottish court gave the mother interim custody and ordered the father not to remove the child from Scotland pending a final ruling. The question that was eventually presented to the Supreme Court was whether the American courts still had jurisdiction after the child was removed from the United States.


That question deals with when cases become moot. The general rule is that if a court’s ruling can no longer potentially be enforced, there is no reason for the court to get involved. As applied to this case, the court decided that an order of “re-return” based on a decision that the child’s regular home was in Alabama could be enforced. Even if the Scottish court ignored the American court’s order, the mother’s actions were within the reach of the American court, and she could be ordered to take whatever steps were necessary to have the child brought back to Alabama, with sanctions if she did not obey. Based on this, the Supreme Court ruled that the Court of Appeals should have decided the appeal.


The Supreme Court also pointed out that taking away the availability of appeal probably would result in trial courts ordering more return orders to be stayed pending appeal, which might harm other children, and might increase the number of appeals in cases under the treaty from the current 15 percent rate.


If you are one of the rare parents who may find himself or herself in an international dispute over child custody, and both countries are parties to the treaty, ask your lawyer about what information you can bring to the court about which country should rule. If you think the trial court might make the wrong ruling, consider asking your lawyer whether appealing a ruling against you should be considered, and whether the case might be one of the rare ones that the court might issue a stay of its ruling pending the appeal.


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