Max Joseph Leser v. Alena Berridge, No. 11-1094 (10th Cir. 2011), involved an analysis of the Hague Convention on the Civil Aspects of International Child Abduction. In the decision below, the district court granted a petition for the return of children from the U.S. to the Czech Republic based on the stipulation of the parents that the children would return to the country of their habitual residence for a custody hearing there. The problem arose from the fact that the Court of Appeals questioned whether it could grant any meaningful relief in the circumstances.
In the district court, the court concluded that the issue was not whether the Respondent had improperly removed her children to the U.S.; rather, the issue was whether a Czech or U.S. court should interpret a custody order to determine if the Respondent violated them. Based on the stipulation of the parties that the children would be presented in the Czech Republic for a hearing there, the District Court granted the petition for the return of the children (rather than denying it as moot based on the stipulation). Respondent did not seek to vacate the District Court’s order but did seek to stay it on appeal. That stay motion was denied, and the children were removed from the U.S. to the Czech Republic.
On appeal, the Court of Appeals determined that the appeal was moot because the District Court made no finding of wrongful removal. The problem is that, when they went to the Czech Republic, the courts there seized their passports and forbade them from leaving the Czech Republic or returning to the U.S. So the predicate of the Court of Appeals’ reasoning — that the petitioner would not be precluded from bringing a second petition in the district court if the petitioner believed a subsequent removal of the children was wrongful — was entirely missing and could not occur, since the children could not return to the U.S. The Court of Appeals acknowledges the split in the Circuits on the question whether the “return of a child to the country of his or her habitual residence after a finding of wrongful removal” moots an appeal. In this case, however, no U.S. court or court of appeals addressed the merits of the question whether the children should be in the U.S. or in the Czech Republic, which we had thought is what the Hague Convention provided would be available in the U.S.