"As bad as all this was, 'at least' you're thinking 'Dad
has a right to appeal. The Federal Circuit Court will review the trial
judge's bad ruling and fix all this, right?'" (from The Supreme
Court of the United States of America, Part II)
Would that it were so.
The reason Mom's attorney got Mom and child not only out of town but
on the first flight out of the country within two hours of the Court's
ruling was the Bekier Rule.
The Bekier Rule comes from Bekier v Bekier, an 11th Circuit case decided
about a decade ago. The Rule is largely peculiar to the 11th Circuit,
which is the Federal Circuit Court that governs Alabama, Florida and Georgia.
The 11th Circuit Court sits in Atlanta. In a nut shell, the Bekier Rule
says that when a child is taken from the borders of our country, courts
in the United States lose jurisdiction over her, in other words, become
powerless to do anything about it.
Now how absurd and dangerous is that? The basis for the Bekier Rule is
that the child is gone from the US therefore anything a court in the United
States could say about that would be merely advisory to a foreign power.
If true, we would call that problem moot and that's exactly what the
11th Circuit claimed. The Court claimed that it was powerless to do anything
about the child having been taken and the rampant miscarriage of justice
at trial because the child was no longer on United States soil.
Not all Circuits (there are 11) have decided this issue. Most have and
almost every one that has disagrees with the 11th Circuit, some of them
vitriolically. This means that when your child is taken from the US, whether
a court in our land can say boo about it depends upon where you live.
If you live in Georgia, too bad, so sad. But if you live in Texas, for
example, hooray, the
courts are there to help.
Mootness is a hard argument to make. The Court has to trully be powerless,
emasculated from being able to have any effect on the parties at all.
There are a wealth of cases in other circumstances that are applicable
here and all of them strongly assert that US courts in this circumstance
are far from powerless, the issue far from Moot. There is much that can
be done. An order from a court in the United States has far reaching effect.
But the 11th Circuit held to its precedent. The 11th Circuit did not help
itself in failing to articulate any reason why it felt it was powerless;
it just claimed that it was. As a matter of precedent, it is hard to know
what to do with that. If you have to argue that the decision was correct
(which Opposing Counsel had to argue) you have nothing to base the conclusion
on. At best you can grasp at possibilities.
In a one paragraph decision on the appeal, the 11th Circuit cited the Bekier
Rule and thus denied the appeal. It did determine that, since the case
was moot, the trial court's Order had to be vacated as though it never
existed. Of course, pretending that the trial court never made its Order
didn't bring the child back and, pursuant to other 11th Circuit precedent,
didn't vacate the $94,000 in almost mandatory fees and costs assessed
against Dad for his temerity in providing a home to his little girl (and
at one time, his wife) in the USA.
When we received the 11th Circuit's one paragraph decision, we did
what any red blooded American attorney would have done, we made a Supreme
Court case out of it.
And despite the overwhelming odds of the Supreme Court finding this issue
one that merited their attention (approximately 1% of the cases which
seek review before the Supreme Court are granted review), in late summer
the Supreme Court of the United States of America granted Certiorari and
told us to submit our briefs on the merits.
And did we ever.
(to be continued)