Saturday, December 14, 2013

Supreme court sympathetic to kidnappers

The US Supreme Court usually avoids any cases involving child custody or parental rights, but is now hearing Lozano v. Alvarez:
Issue: Whether a district court considering a petition under the Hague Convention on the Civil Aspects of International Child Abduction for the return of an abducted child may equitably toll the running of the one-year filing period when the abducting parent has concealed the whereabouts of the child from the left-behind parent.
They just had the oral argument:
But several Justices – including Justices Ruth Bader Ginsburg, Samuel A. Alito, and Stephen Breyer – expressed concerns that, because Regan’s rule would require near-automatic return, it would preclude courts from considering the best interests of children who had spent enough time in their new location to form attachments there, effectively punishing the children for the sins of the abducting parent.
ConcernS? What concerns? So kidnappers should be able to get away with it because they hide for a year and end up in a friendly jurisdiction?

I occasionally here of fathers rights groups and even mothers who hope to get a parental rights case to the US Supreme Court so that they can declare a constitution right to force family courts to let all fit parents have joint custody.

Forget it. Look how confused these justices are in the transcript:
JUSTICE BREYER: Well, what is the answer? I'd like a straight answer in your opinion, because Justice Kagan's case, the mother kidnaps the child. They live in a grain elevator, a nicely refurbished grain elevator, in Peoria for a year. And after the year, a month later the father finds both of them, goes to a family judge -- a very tough job by the way -- and the family judge reads this and he says, well, I have to admit the child is settled here now in Iowa. All right. Is settled. ...

The father says this is the most unfair thing I've ever seen. She hides out for a year. The child could be just as well back in London. Almost as well. Who knows? Maybe better. But now, what can the family court do -- judge do? That's the straight question we've been trying to get your answer to that, and it isn't an answer to say -- you could say, if that's the answer, I don't know.
Family court judges have very easy jobs. It only becomes a "very tough job" if the judge tries to micromanage parents and make crazy decisions like giving a child to a kidnapper on a theory that the child's best interests will be served by cutting him off from a fit parent.

Our Supreme Court is unfit to hear a parental rights case.


Anonymous said...

This isnt a custody case, its a federal treaty vs constitution case. If there is an international abduction involving two treaty signatories, the child is determined to be well settled AFTER 1 YEAR. What that means is that before 1 year, the child is automatically returned to the original country (unless there is proof of some sort of danger or fraud, etc) and after 1 year, custody is determined in the country where the child is now.

anyone interested should probably read the solicitor general brief .

State courts have the right to determine the fitness of one parent vs the other at ANY time. The Hague just determines if the state court in the US has jurisdiction.

The Hague Treaty has automatic triggers that remove/return a child to another country for custody determination. Not HOW custody should be determined but WHERE custody should be determined.

The ONLY reason this case is in the Federal courts and now SCOTUS is because of the treaty.

and a good rule of thumb is to ignore SCOTUS oral arguments and wait for the decision unless you are paid to forcast the outcome. Its maddening and unimportant especially in this case because SCOTUS has zero constitutional authority over child custody and parental kidnapping unless its international and (rarely) inter-state.

Anonymous said...

The part of the case that is interesting/disturbing and that the court may ultimately ignore is that both the abducting parent and child are illegal immigrants/undocumented.

So our courts are determining custody for this child when the mom fled here and has no right to be here.

There have been lots of calls to deport the parent and child.

Here is a good recap and a good Hague/ child abduction blog in terms of federal court action.

George said...

Thanks for the clarifications, and the link to I had not noticed the illegal alien angle. I don't know how illegal aliens can be considered "well-settled" in the USA.

I will wait for the supremes to rule, but I bet that they screw it up, just as they did with grandparent visitation and Indian removal.

Anonymous said...

Grandparent visitation ... do you mean Troxel v Granville? While SCOTUS held that grandparents have a right to visitation, they were clear that parents are deemed fit and fit parents act in best interest of a child and a decision by a fit parent must be given "special weight"

The "Indian" custody cases are more about treaties and tribal sovereignty. SCOTUS didnt err so much as the law was written to be one-sided but one-sided laws are constitutional.

Anonymous said...

BTW, it might be too hard to listen to but the SCOTUS arguments are taped and available to listen to. worth listening to if you have an interest in Hague cases.

Well settled is a Hague Treaty term, it means that the child is "well settled" if the abduction has gone beyond a year.

Simply put "well settled" means that the left behind parent has no right of return and that the child cannot be automatically returned unless there is some proof barring such return.

So there isnt much to screw up. The court isnt deciding if the parent is a kidnapper.

George said...

I praised Troxel in 2004, but noted that some states were not following it in 2006, 2006, 2011, and 2013. The Supreme Court apparently lacks a majority to do anything about it. I criticized the Baby Veronica (Indian adoption) case in June and Sept.

Anonymous said...

Lisa, the way I read the solicitor general brief, it's like this:

if "< 1 year", return child;
else if "well-settled", take jurisdiction;
else return child

">= 1 year" is not the definition of "well-settled" -- that's to be determined in the judgment of a court.

Anonymous said...

I dont want to put words in the USSG's mouth, you are correct in theory that there is a hearing to decide if the child is "settled"

In practice, US Federal Judges tend to like American children to be raised in America by Americans. and you go to your local Federal courthouse so a Texas judge is going to rule about a Texas mom who flees from France and will likely decide the child ought to be in Texas and look at schools and family etc and rule.

In the US, it is a US Federal court, with (almost always) a US citizen parent and a US citizen child (often some sort of dual citizenship) and the practical application is that the Judge looks at the 1 year and decides the child is settled.

Statistically, children almost never get returned (due to a Hague action) to the US from a Hague signatory if a Hague action is not filed within a year. It might be never, my friend who does this for a living cannot remember a case.

US Federal Courts almost always side with the citizen if its been longer than a year. Again, my friend was not able to find a case where the Hague action was filed 366+ days from illegal return/retention and the child was not deemed well settled.

Anonymous said...

Lisa, the case seems to be even more obscure. It's about whether there should be "equitable tolling".

There's a case in my town going on where a property owner discovered a utility pipe through the center of her land and there was no easement. Now it affects her ability to use the land. There's a law saying a lawsuit about improper construction must be started within three years. The pipe has been there for at least thirty-five years. She only discovered the pipe about a year ago, so her successful argument (based upon case law) was that there needs to be "equitable tolling" of the three-year limitation.

In the child custody case, the argument against "equitable tolling" seems to be that the issue of whether the child is "well-settled" is one of equity, and since the court will be using its judgment regarding that, there is no need for a separate determination of whether the one-year limitation should apply.

Anonymous said...

With respect, no, prior to one year, "well settled" NEVER applies and the child is returned to his/her habitual residence.

A US court, under the Hague Treaty, must order the return of an abducted child if the abduction is less than 1 year. The abducting parent must prove that he/she was fleeing some sort of harmful situation and even then, the abducting parent has to show why the local authorities could not assist him/her with any harmful situation.

Well settled applies on the 366th day.

Anonymous said...

You missed the point. If you read the program a few posts up, yes I understand that the court doesn't get into the issue of "well-settled" unless it's been more than one year. If it's been less than one year, the case is one of law not equity.

So in this case the question is should the court have a hearing to determine whether there should be "equitable tolling" of the one year and then depending on that outcome a second hearing on the issue of "well-settled"? Or should the court ball both issues up into one hearing since the case has turned into one of equity not law? Similar to the case of the buried pipe, the father did not know the child was in the U. S. in order to file in the U. S. until it had been more than one year.