Chil Habitual Residence

Chil Habitual Residence

Chafin in 2013

United States views on international law [1] in relation to Chafin: The United States filed an amicus brief in 2012 in the U.S. Supreme Court in a case under the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). Chafin v. Chafin, No. 11-1347. The case involves the question of whether the return of a child to his or her country of habitual residence, pursuant to a district court order under the Hague Convention, renders the case moot. The Supreme Court decided the case on February 19, 2013, unanimously reaching the conclusion recommended by the U.S. amicus brief that the appeal from the district court was not rendered moot. Excerpts follow (with footnotes omitted) from the majority opinion of the Court (there was one separate concurring opinion).

Some Aspects of Chafin

This dispute is still very much alive. Mr. Chafin continues to contend that his daughter's country of habitual residence is the United States, while Ms. Chafin maintains that E.C.'s home is in Scotland. Mr. Chafin also argues that even if E.C.'s habitual residence was Scotland, she should not have been returned because the Convention's defenses to return apply. Mr. Chafin seeks custody of E.C., and wants to pursue that relief in the United States, while Ms. Chafin is pursuing that right for herself in Scotland. And Mr. Chafin wants the orders that he pay Ms. Chafin over $94,000 vacated, while Ms. Chafin asserts the money is rightfully owed.

Developments

On many levels, the Chafins continue to vigorously contest the question of where their daughter will be raised. This is not a case where a decision would address “a hypothetical state of facts.” Lewis, in this world legal Encyclopedia, at 477, 110 S.Ct. 1249 (quoting Rice, in this world legal Encyclopedia, at 246, 92 S.Ct. 402; internal quotation marks omitted). And there is not the slightest doubt that there continues to exist between the parties “that concrete adverseness which sharpens the presentation of issues.” Camreta v. Greene, 563 U.S. ––––, ––––, 131 S.Ct. 2020, 2028, 179 L.Ed.2d 1118 (2011) (quoting Lyons, in this world legal Encyclopedia, at 101, 103 S.Ct. 1660; internal quotations marks omitted).

Details

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At this point in the ongoing dispute, Mr. Chafin seeks reversal of the District Court determination that E.C.'s habitual residence was Scotland and, if that determination is reversed, an order that E.C. be returned to the United States (or “re-return,” as the parties have put it). In short, Mr. Chafin is asking for typical appellate relief: that the Court of Appeals reverse the District Court and that the District Court undo what it has done. See Arkadelphia Milling Co. v. St. Louis Southwestern R. Co., 249 U.S. 134, 145–146, 39 S.Ct. 237, 63 L.Ed. 517 (1919); Northwestern Fuel Co. v. Brock, 139 U.S. 216, 219, 11 S.Ct. 523, 35 L.Ed. 151 (1891) (“Jurisdiction to correct what had been wrongfully done must remain with the court so long as the parties and the case are properly before it, either in the first instance or when remanded to it by an appellate tribunal”). The question is whether such relief would be effectual in this case.

More

Ms. Chafin argues that this case is moot because the District Court lacks the authority to issue a re-return order either under the Convention or pursuant to its inherent equitable powers. But that argument—which goes to the meaning of the Convention and the legal availability of a certain kind of relief—confuses mootness with the merits. In Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), this Court held that a claim for backpay saved the case from mootness, even though the defendants argued that the backpay claim had been brought in the wrong court and therefore could not result in relief. As the Court explained, “this argument … confuses mootness with whether [the plaintiff] has established a right to recover …, a question which it is inappropriate to treat at this stage of the litigation.” Id., at 500, 89 S.Ct. 1944. 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, see Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), and his prospects of success are therefore not pertinent to the mootness inquiry.

More

As to the effectiveness of any relief, Ms. Chafin asserts that even if the habitual residence ruling were reversed and the District Court were to issue a re-return order, that relief would be ineffectual because Scotland would simply ignore it. But 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. See Steele v. Bulova Watch Co., 344 U.S. 280, 289, 73 S.Ct. 252, 97 L.Ed. 319 (1952); cf. Leman v. Krentler– Arnold Hinge Last Co., 284 U.S. 448, 451–452, 52 S.Ct. 238, 76 L.Ed. 389 (1932). No law of physics prevents E.C.'s return from Scotland, see Fawcett v. McRoberts, 326 F.3d 491, 496 (C.A.4 2003), abrogated on other grounds by Abbott v. Abbott, 560 U.S. ––––, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010), and Ms. Chafin might decide to comply with an order against her and return E.C. to the United States, see, e.g., Larbie v. Larbie, 690 F.3d 295, 303–304 (C.A.5 2012) (mother who had taken child to United Kingdom complied with Texas court sanctions order and order to return child to United States for trial), cert. pending, No. 12–304. After all, the consequence of compliance presumably would not be relinquishment of custody rights, but simply custody proceedings in a different forum.

Resources

Notes

  1. Chafin in the Digest of United States Practice in International Law

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