Tenth Circuit rules that it cannot order child to be
returned to U.S. under Hague Convention on Child Abduction (1) where Respondent
took child from U.K. to U.S. in violation of English custody order, and (2)
where new English custody order limiting Respondent’s custody rights prevents
U.S. courts from granting relief
Bina Shahani (Respondent) and John Navani (Petitioner) were
married in England in 1995. They had one son in 1996 named Jivan. After the
marriage ended in divorce nine years later, an English family court gave
primary custody to Respondent and visitation rights to Petitioner. Pursuant to
Respondent’s written request, Petitioner consented that Respondent take Jivan
to the U.S. for a trip.
Respondent, however, did not return to England. Petitioner
next filed a proceeding under the Hague Convention on the Civil Aspects of
International Child Abduction [Oct. 25, 1980, T.I.A.S. No. 11,670, 1343
U.N.T.S. 49] in federal district court in New Mexico. The Court ordered Jivan
returned to England. Thereafter an English court gave Petitioner primary
custody of Jivan and limited Respondent’s access to the child. Respondent filed
an appeal in the U.S. Court of Appeals for the Tenth Circuit. Petitioner’s
motion to dismiss this appeal as moot is granted and this appeal is dismissed.
“The Hague Convention seeks to deter parents who are
dissatisfied with current custodial arrangements from abducting their children
and seeking a more favorable custodial ruling in another country. [Cite].
Generally, it creates an international legal mechanism requiring contracting
states to promptly return children who have been wrongfully removed to, or
wrongfully retained in, their jurisdiction, without deciding anew the issue of
custody. [Cite].” [Slip op. 2]
The Circuit Court first turns to the issue of Petitioner’s
motion to dismiss the appeal on mootness grounds. “In the event that we would
conclude that the district court erred in granting Petitioner’s Hague
Convention petition and in ordering Jivan’s return to England, Petitioner
argues that the new custody order nonetheless precludes us from granting Respondent
any effectual relief and therefore moots her appeal ... in two ways.”
“First, the English family court concluded in the new
custody order that Respondent wrongfully retained Jivan in the U.S. in
violation of Petitioner’s rights of custody. Petitioner contends that the
English family court’s ruling on wrongful retention settles the issue that
Respondent raises in this appeal: whether Petitioner had rights of custody over
Jivan sufficient to trigger the Hague Convention’s mandatory return remedy.”
“Second, Petitioner argues that Jivan cannot be ordered to
return to Respondent’s custody because the English family court has determined
that custody should now be with Petitioner, not Respondent.”
“We agree with Petitioner ... If we conclude that the
district court should not have ordered Jivan’s return to England because
Petitioner failed to make his threshold showing that he possesses rights of
custody over Jivan, the only way to remedy the error would be to order Jivan’s
return to the U.S. to be reunited with Petitioner.”
“Yet the new custody order ... forbids Respondent from
removing Jivan from his father’s care and the jurisdiction of the English
family court.” [Slip op. 7]
“Although the Full Faith and Credit Clause does not require
us to recognize judgments, such as the new custody order, which are rendered in
foreign countries, [cite], the new custody order should be given effect in
American courts for two reasons. First, general principles of comity normally
counsel giving ‘considerable deference’ to a foreign judgment.”
“Second, and more fundamentally, factors unique to the Hague
Convention suggest that the English family court should be given the final
word, through the new custody order, in this matter¼ The Hague Convention attempts to
prevent an international version of forum shopping. ... [Cites].” [Slip op. 8]
“Neither party disputes that England is Jivan’s country of
habitual residence. [Cites]. As a result, the English family court had, and
continues to have, plenary jurisdiction over Jivan’s custody.” [Slip op. 9]
“¼Granting
Respondent the relief she seeks would create the evil that the Hague Convention
was intended to prevent: dueling custody orders issued by separate national
courts.” [Slip op. 10]
The Court next addresses Respondent’s arguments. “First, she
contends that the issue in her appeal remains whether Respondent breached
Petitioner’s rights of custody under the original custody¼the fact remains that we
cannot grant her any effectual relief, even if we decided the issue in her
favor¼”
“Second, Respondent asserts that the new custody order
violates principles of English family law in determining that Petitioner had
equal rights of custody at the time of the allegedly wrongful retention.” The
Circuit Court, however, holds that “the only way for us to remedy the error
would be to hold that the English family court incorrectly interpreted its own
law in deciding custody. The Hague Convention explicitly forbids us, however,
from determining the merits of custody.” [Slip op. 11]“Third, Respondent suggests
that the new custody order should have no effect in American courts because it
was issued ex parte without her participation. [Cite]. It is true that
principles of comity generally require us to examine the fairness of the
foreign country’s judicial procedures ¼
[a]lthough Respondent wishes to leave us with the impression that the English
family court is a renegade body that routinely issues orders without hearing
from both sides, Respondent’s affidavit makes clear that Respondent’s failure
to participate in the English family court proceedings was her choice, not the
result of the inherent unfairness of the English judicial system.” [Slip op.
12]
“Fourth and finally, Respondent asserts that this appeal is
analogous to [cases] in which the Third and Fourth Circuits concluded that an
appeal of an order granting a Hague Convention petition is not mooted by the
child’s return to his country of habitual residence during the pendency of the
appeal. ... [T]he Fourth Circuit explained that it retained the power to grant
meaningful relief because the district court could order the child’s return to
the U.S. following a reversal and remand.”
“Furthermore, it noted (because the case involved Scottish
law) that the courts of the UK are required by statute to recognize another
contracting state’s Hague Convention orders ‑‑ meaning that if a federal court
of appeals reversed a district court’s granting of a return petition, the
courts of the UK would recognize that reversal and provide for the child’s
return to the U. S.” [Slip op 12‑13]
The Case is: Navani v. Shahani, WL 2171355 (10th
Cir.).
*** Janet Pittman Reed has been licensed for more than 16 years and handles cases in Divorce & Separation. This attorney works in Jacksonville, NC and attended University of Florida, Fredric G. Levin College of Law. She was admitted in North Carolina in 1997.
References:
Attorney Profile: https://solomonlawguild.com/janet-p-reed
