On February 19, 2013, the Supreme Court decided Chafin v. Chafin, holding that an appeal in a case under the Hague Convention on the Civil Aspects of International Child Abduction does not become moot merely because the child has been returned. The Supreme Court noted that many of these cases are taking two years to resolve even though the Hague Convention requires a prompt return of children. Respondents may seek to buy time in some cases, but ultimately might be hit with awards of mandatory attorneys fees against them that grow dramatically during delays.
In Chafin, the Court concluded:
Importantly, whether at the district or appellate court level, courts can and should take steps to decide these cases as expeditiously as possible, for the sake of the children who find themselves in such an unfortunate situation. Many courts already do so. See Federal Judicial Center, J. Garbolino, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges 116, n. 435 (2012) (listing courts that expedite appeals). Cases in American courts often take over two years from filing to resolution; for a six-year-old such as E. C., that is one-third of her lifetime. Expedition will help minimize the extent to which uncertainty adds to the challenges confronting both parents and child.
The Hague Convention and federal law help left-behind parents recover children from the United States in part by mandating an award of fees and costs incurred pursuing the return of the children unless deemed “clearly inappropriate.” Those fees and costs can add up, particularly when multiple forums are involved. In Chafin, the majority opinion explained “courts ordering children returned generally must require defendants to pay various expenses incurred by plaintiffs, including court costs, legal fees, and transportation costs associated with the return of the children”.
The more the forums, the greater the award of attorneys fees and recovery costs respondents may risk. A recent Hague Convention lawsuit alleged a wrongful retention of a girl in Massachusetts by her father, godmother, and Children’s Hospital Boston, where the child had been admitted after taking certain medicine belonging to her godmother. The father and godmother initially convinced a probate court to appoint the godmother as a temporary guardian on an ex parte basis. The probate court also appointed a lawyer to represent the child, and that lawyer quickly chose to work with the godmother’s and father’s counsel, without even interviewing the mother. Spinning the girl’s condition, lawyers convinced a federal trial court to dismiss the case on the pleadings. Do these sorts of apparent irregularities result in part from inherent prejudices against foreigners? Perhaps, but those and other irregularities were effectively cured through an expedited federal appeal and subsequent bench trial. See Felder v Wetzel, 696 F.3d 92 (2012). After six months, finally the young girl was heard from directly instead of only indirectly through the father’s and godmother’s lawyers, and the girl asked to go home to Switzerland. The matter was resolved near the end of a trial by way of a settlement agreement and stipulation entered as an Order of the United States District Court for the District of Massachusetts calling for the child’s return to the mother’s custody in Switzerland and a $175,000 payment from the father to the mother to cover a portion of her attorneys fees and costs incurred in pursuing the Hague Convention action.
A lesson from this recent case is clear: taking non-meritorious legal positions in multiple forums can buy some time, particularly with busy family courts pressed with other business, but ultimately doing so may cost a litigant significant money because of the additional attorneys fees and costs incurred after an appeal and full Hague Convention proceedings. In other words, buying time can be expensive.