Monday, October 8, 2018

Ayn Traylor-Sadberry, Tenth Circuit rules that it cannot order child to be returned to U.S. under Hague Convention on Child Abduction

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]

Granting 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 custody the fact remains that we cannot grant her any effectual relief, even if we decided the issue in her favor

“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]

Case: Navani v. Shahani, 2007 WL 2171355 (10th Cir.).

*** Ayn Traylor-Sadberry is a domestic relations, probate & criminal attorney in Birmingham, Alabama. Ms. Traylor-Sadberry received her B.A. degree in 1966 from the University of Oklahoma, her M.A. in 1973 from the University of Oklahoma, and her Juris Doctor from Howard University in 1981. She was admitted as an attorney in Alabama in 1989. Website: