Last week the US Supreme Court issued an initial opinion in Chafin v. Chafin, holding that the return of a child to a foreign country pursuant to an order under the Hague Convention on the Civil Aspects of International Child Abduction does not render an appeal of that order moot (meaning that the child’s father can now proceed with a full appeal of the trial court’s decision that allowed the child’s mother to return to Scotland). 

The underlying case involves an international child custody dispute between an America father and a Scottish mother.  Under the Hague Convention on the Civil Aspects of International Child Abduction, a parent whose child is wrongfully removed to another country can file a lawsuit in that country seeking to have the child returned to her home country to resolve any custody disputes.   After divorce proceedings were initiated in Alabama (where father resided), mother filed a lawsuit in federal district court pursuant to the Hague Convention, asking that court to issue an order returning her daughter to Scotland.  When the district court ruled in her favor, the mother immediately left the country with her daughter.  When father attempted to appeal, the Eleventh Court of Appeals found his appeal to be moot since the child had already moved to Scotland – leaving father with no appellate remedies and no way to challenge the trial court’s order.   

So father sought relief from the Supreme Court. The Opinion issued on February 19, 2013 and authored by Chief Justice Roberts, determined that an appeal from an order requiring the return of a child to their home country under the Hague Convention is not moot simply because the child is returned to another country.  The Court explained that the case would be moot “only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.”  “As long as the parties have a concrete interest, however small, in the outcome of the litigation,” the Court continued, “the case is not moot.”  That standard is met in this case, according to the Court, because the parents “continue to vigorously contest the question of where their daughter will be raised.”  At this stage, the father is simply seeking the opportunity for “typical appellate relief” – a decision from the Court of Appeals reversing the trial court’s order allowing mother to take the child to Scotland. 

We will continue to monitor developments in this case in the Eleventh Court of Appeals and will provide an update to our readers.  This case has wide-reaching implications for anyone involved in an international custody dispute.  The decision of the trial court allowing a parent to take the child to a foreign country is not absolved of appellate review by mootness – like the father in Chafin, the losing party can pursue a full appeal. 

Here is the Supreme Court’s Opinion:  http://www.supremecourt.gov/opinions/12pdf/11-1347_m648.pdf 

Here is a link to a CNN article/clip:  http://www.cnn.com/2012/12/04/justice/court-custody

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.