Justia International Law Opinion Summaries

In this termination of parental rights case, the Supreme Court considered two separate appeals pertaining to a mother’s and father’s respective rights to their two daughters, seventeen-year-old R.W. and thirteen-year-old N.W. The case presented novel jurisdictional questions because the parents and children are citizens of Sri Lanka and, although mother and the children have been residents of Vermont for a number of years, father resided in Sri Lanka and has never been to Vermont. The Department for Children and Families (DCF) petitioned to terminate both mother’s and father’s residual parental rights. The family division granted the request as to mother, but concluded it lacked personal jurisdiction over father. Mother appealed termination of her parental rights, arguing that the superior court applied the incorrect standard of proof with respect to changed circumstances and engaged in a faulty best-interests analysis. DCF filed a separate appeal as to father, arguing that even though father lacked minimum contacts with Vermont, the court had jurisdiction to adjudicate the status of his children, who were within the court’s jurisdiction. Upon review, the Supreme Court concluded that the termination of parental rights was a determination of status and could be adjudicated when the forum state has a sufficient connection to the children, even absent minimum contact jurisdiction over a parent. Further, in this case, the Court held that exercise of jurisdiction was authorized by the UCCJA and was reasonable given the strong interests of the state and the children in resolution of father’s rights as well as the lack of any conflicting jurisdictional claims by another state or country. The Court affirmed the termination of the mother's parental rights.View "In re R.W. and N.W." on Justia Law

Alvarez and Lozano lived with their daughter in London until November 2008, when Alvarez and the child moved to a women’s shelter. In July 2009, they left the U.K., ultimately settling in New York. Lozano did not locate them until November 2010. He filed a Petition for Return of Child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. Under the Convention, if a parent files a petition within one year of the child’s removal, a court “shall order the return of the child forthwith.” When the petition is filed after that period, the court is to order return, “unless it is demonstrated that the child is now settled in its new environment.” Because it was filed more than one year after removal, the district court denied the petition, finding that the child was now settled. The Second Circuit and Supreme Court affirmed. There is no presumption that equitable tolling applies to treaties and the parties to the Convention did not intend that it apply to the one-year period. The International Child Abduction Remedies Act, 42 U. S. C. 11601–11610, enacted to implement the Convention, neither addresses equitable tolling nor purports to alter the Convention and, therefore, does not affect this conclusion. Even if the Convention were subject to a presumption that statutes of limitations may be tolled, the one-year period is not a statute of limitations. The remedy available to the left-behind parent continues to be available after one year; expiration of one year simply mandates consideration of a third party’s interests. The drafters did not choose to delay the period’s commencement until discovery of the child’s location. View "Lozano v. Montoya Alvarez" on Justia Law

The Hague Convention on the Civil Aspects of International Child Abduction requires contracting states to order a child returned to her country of habitual residence upon finding that the child has been wrongfully removed to or retained in the contracting state. The International Child Abduction Remedies Act, 42 U. S. C. 11601, implements the Convention. Chafin, a U.S. citizen, married a United Kingdom citizen (mother), in Germany, where they had a daughter, E. C. When Chafin was deployed with the military to Afghanistan, mother took E. C. to Scotland. When Chafin was transferred to Alabama, mother traveled there with E. C. Chafin filed for divorce and custody. Mother filed a petition under the Convention and ICARA. The district court concluded that E. C.’s country of habitual residence was Scotland. In Scotland, mother was granted interim custody and a preliminary injunction prohibiting Chafin from removing E. C. The Eleventh Circuit dismissed Chafin’s appeal as moot. The Supreme Court vacated and remanded. Return of a child to a foreign country does not render appeal of a return order moot. The Chafins continue to contest where their daughter will be raised. Chafin’s claim for re-return cannot be dismissed as so implausible that it is insufficient to preserve jurisdiction; his prospects of success are not pertinent to mootness. Even if Scotland were to ignore a re-return order, U. S. courts would continue to have personal jurisdiction over mother and could command her to take action under threat of sanctions. Enforcement of the order may be uncertain, but that does not typically render cases moot. If cases were to become moot upon return of a child, courts would be more likely to routinely grant stays, to prevent loss of any right to appeal, conflicting with the Convention’s mandate of prompt return. View "Chafin v. Chafin" on Justia Law

Alvarez and Lozano lived with their daughter in London until November 2008, when Alvarez and the child moved to a women’s shelter. In July 2009, they left the U.K., ultimately settling in New York. Lozano did not locate them until November 2010. He filed a Petition for Return of Child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. Under the Convention, if a parent files a petition within one year of the child’s removal, a court “shall order the return of the child forthwith.” When the petition is filed after that period, the court is to order return, “unless it is demonstrated that the child is now settled in its new environment.” Because it was filed more than one year after removal, the district court denied the petition, finding that the child was now settled. The Second Circuit and Supreme Court affirmed. There is no presumption that equitable tolling applies to treaties and the parties to the Convention did not intend that it apply to the one-year period. The International Child Abduction Remedies Act, 42 U. S. C. 11601–11610, enacted to implement the Convention, neither addresses equitable tolling nor purports to alter the Convention and, therefore, does not affect this conclusion. Even if the Convention were subject to a presumption that statutes of limitations may be tolled, the one-year period is not a statute of limitations. The remedy available to the left-behind parent continues to be available after one year; expiration of one year simply mandates consideration of a third party’s interests. The drafters did not choose to delay the period’s commencement until discovery of the child’s location. View "Lozano v. Montoya Alvarez" on Justia Law

The Hague Convention on the Civil Aspects of International Child Abduction requires contracting states to order a child returned to her country of habitual residence upon finding that the child has been wrongfully removed to or retained in the contracting state. The International Child Abduction Remedies Act, 42 U. S. C. 11601, implements the Convention. Chafin, a U.S. citizen, married a United Kingdom citizen (mother), in Germany, where they had a daughter, E. C. When Chafin was deployed with the military to Afghanistan, mother took E. C. to Scotland. When Chafin was transferred to Alabama, mother traveled there with E. C. Chafin filed for divorce and custody. Mother filed a petition under the Convention and ICARA. The district court concluded that E. C.’s country of habitual residence was Scotland. In Scotland, mother was granted interim custody and a preliminary injunction prohibiting Chafin from removing E. C. The Eleventh Circuit dismissed Chafin’s appeal as moot. The Supreme Court vacated and remanded. Return of a child to a foreign country does not render appeal of a return order moot. The Chafins continue to contest where their daughter will be raised. Chafin’s claim for re-return cannot be dismissed as so implausible that it is insufficient to preserve jurisdiction; his prospects of success are not pertinent to mootness. Even if Scotland were to ignore a re-return order, U. S. courts would continue to have personal jurisdiction over mother and could command her to take action under threat of sanctions. Enforcement of the order may be uncertain, but that does not typically render cases moot. If cases were to become moot upon return of a child, courts would be more likely to routinely grant stays, to prevent loss of any right to appeal, conflicting with the Convention’s mandate of prompt return. View "Chafin v. Chafin" on Justia Law

Petitioner (Father) brought this suit under the International Child Abduction Remedies Act (ICARA), 42 U.S.C. 11603(b), seeking the return of his two minor children to Turkey, as well as an order enforcing his rights under Turkish law to visit the children as long as they stayed in the United States with their mother. The court held that the Father had demonstrated that he retained custody rights under Turkish law and that the Mother's removal of the children from Turkey in 2011 interfered with the exercise of his custody rights. With regard to visitation claims, the court held that section 11603(b) created a federal right of action to enforce "access" rights protected under the Hague Convention. With regard to costs, however, the court concluded that in light of the particular circumstances of this case, an award of full costs would be "clearly inappropriate." Accordingly, the court affirmed the district court's return order and vacated the costs award. View "Ozaltin v. Ozaltin" on Justia Law

Iain and Norene were married in Chicago in 1993. They lived in Seattle until 1998 when they moved to Australia. Their eldest child was born in the U.S. in 1997; two younger children were born in Australia. Although Norene and Iain initially intended to stay in Australia for five years, they stayed 12 years. In 2010, they traveled to the U.S., planning that Norene and the children would remain for six months to one year, but Norene filed for divorce in Illinois. Iain offered Norene primary custody, but wanted to be guaranteed custody of the children for nine weeks of their summer vacation and for two weeks over the Christmas holidays, and asserted that the couple’s residence was Australia. Norene did not accept Iain’s offer of settlement. Iain immediately filed a request for the return of the children with the Australian Central Authority charged with administering the Hague Convention, then filed a petition for return in Illinois (International Child Abduction Remedies Act, 42 U.S.C. 11601), which the district court denied. The Seventh Circuit remanded, stating that further fact-finding was necessary to determine which court should resolve custody. View "Walker v. Walker" on Justia Law

Two now-separated parents dispute whether courts in the United States or the United Kingdom should decide who has custody of their five-year-old child. At issue was the interpretation of Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction, 51 Fed. Reg. 10,494. The court held that courts could not equitably toll the one-year period before a parent could raise the now settled defense available under Article 12 of the Convention, and that when making a now settled determination, courts need not give controlling weight to a child's immigration status. The court also considered and rejected petitioner's objections to the district court's findings of fact. View "Lozano v. Montoya Alvarez" on Justia Law

Mota and Castillo married in Mexico, where their daughter, Elena, was born. In 2007, when Elena was six months old, Castillo entered the U.S. illegally and began sending financial support to his wife and daughter. In 2010 Mota and Castillo decided to reunite. They hired a smuggler to take Elena across the border. After Elena had entered the U.S., Mota tried to cross the border, but was repeatedly blocked by American border guards. Meanwhile, the smugglers had transported Elena to New York, where she began living with her father. After one attempt to enter, Mota was arrested and prosecuted for use of false identification. Castillo began living with another woman, no longer sent financial support, and declared that he would keep Elena. Mexican authorities applied to the U.S. government for the child’s return. Castillo then instituted custody proceedings in New York. Having obtained no relief through official diplomatic channels, Mota filed a petition seeking an order requiring Castillo to return Elena to her in Mexico under the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act, 42 U.S.C. 11601. The district court granted the order. The Second Circuit affirmed. View "Mota v. Castillo" on Justia Law

Plaintiff Evelyn Larbie filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction (the Convention), seeking the return of her son, K.L., to the United Kingdom. The district court granted Evelyn's petition and ordered Defendant Derek Larbie to turn K.L., who resided in the United States, over to Evelyn's care. The district court's application of the Convention here, however, effectively reversed a custody order entered after length proceedings, culminating in a final divorce and custody order, in which neither party objected to the state court's jurisdiction. Accordingly, the Fifth Circuit Court of Appeals vacated the district court's order and rendered judgment in Derek's favor, holding (1) Derek satisfied his burden under the Convention to show that Evelyn consented and acquiesced to the Texas court's authority to make a final custody adjudication; and (2) K.L.'s habitual residence at the time of the alleged retention remained the United States. View "Larbie v. Larbie" on Justia Law