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The Supreme Court of the United States of America, Part II

On Behalf of | Dec 11, 2012 | International Family Law


As I said on CNN, “the term miscarriage of justice comes to mind.”  

Mom, the opposing party, filed a Hague Convention Petition in May, 2011.  The “Hague Convention” is the practitioner’s short way of identifying the Convention on International Child Abduction.  There are many Hague Conventions, but that is the one that we mean when we use that phrase.

The Hague Convention is designed to return children to the country of their Habitual Residence when a child has been removed from that country or is being retained in a new country.  Straight forward enough, right?  If a parent snatches a child from their home country, or at the conclusion of a visit to a new country, refuses to allow the child to leave, the Hague Convention is there to sort it all out and make it all right.  

But in our case, neither of those scenarios applied.

The shortest way to tell the story is that Mom, a native and then resident of Scotland decided in November, 2009, to reconcile with Dad, a native and resident of the USA.  Dad had just returned from 15 months in Afghanistan and was now stationed at Redstone Arsenal in Huntsville, Alabama.  To everyone Mom wrote and to everyone Mom spoke, she said she was moving to Alabama.  Mom arranged for the United States Army to move all her worldly possessions from her place in Scotland to their place in Alabama. 

In February, 2010, Mom and their daughter, who had just turned three and had been living with Mom while Dad was deployed, arrived in Alabama.

Mom and Dad were volalite.  During one argument, Mom threatened to take the child away where Dad would never see her again.  Dad filed for divorce, sought an emergency hearing and removed the child’s two passports, one Scottish and one US (the child is a dual citizen) from the family safe.

By the next week when the Divorce Court heard the emergency hearing, Mom and Dad had patched things up and told the Court they didn’t need a hearing. According to Mom, Dad kept the Scottish passport but returned the US passport to the family safe.  According to Dad, he put the Scottish passport on a stack of papers in the garage.  According to a letter Mom wrote the Alabama Divorce Judge several months later, she had the passport and she had a truck.  If she had wanted to leave with the child, she could have done so.

Weeks turned into months.  Mom returned to Scotland to renew her 90 Visa, writing friends at the end of her stay in Scotland that she was sorry to leave Scotland but she was happy to be returning home to Alabama.  Mom applied for permanent residency in the US and took all but one of the necessary steps to obtain residency.

The parties had not dismissed their divorce petition.  When the Divorce Court set it down for a  hearing in September, 2010, the parties obtained a continuance. When the Court set it down again in December, 2010, Mom hired a local attorney to obtain a continuance so that the matter would not go forward.

But on Christmas Eve, 2010, Mom’s plan to live out the rest of her life in the United States came to a screeching halt.  

In September and again in early December, 2010, Mom had been arrested for being publicly drunk.  She had been out drinking, without Dad (he was home putting the child to bed) and had gotten into an altercation with the cab driver and, subsequently, the police officer who had to threaten to shackle her to keep her from kicking him.  I doubt this won the hearts and minds of the local constabulary.

On Christmas Eve, Dad contends that he read the child to sleep and went off to sleep himself only to awaken to find Mom in the bedroom with a large kitchen knife, extremely intoxicated and threatening that Dad would never make it out of the bedroom alive.  Mom agrees that Dad read the child to sleep as he did every night and went to bed himself.  She denies that she went to the bedroom with a knife.  She admits that she was drinking, at least a bottle of wine. The police who arrived on the scene found Mom extremely inebriated. 

Mom was arrested.  While in lockup, the police discovered that Mom had overstayed her 90 day visa (she hadn’t yet finished obtaining her permanent residence) and notified the federal officials who held her until she was deported.

While awaiting deportation Mom wrote to Dad that she had messed up and she wished she could stay in the United States.

When Mom arrived in Scotland, for the first time anywhere she contended that she had been essentially held a prisoner in the United States by Dad’s taking the child’s passports, preventing Mom from ever leaving the US.  

Despite all the evidence above, and quite a bit more that I didn’t bring up, the trial judge bought Mom’s 12th hour assertion and allowed the child to be taken back to Scotland.

Dad had 45 minutes in a hotel parking lot with his little girl before Mom whisked the child away and boarded the first international flight out of Huntsville that she could find.

By the time the child was taken, she had lived in the United States for 18 months.  The last 10 of those months, was with Dad alone.

As I said, a miscarriage of justice.

As bad as all of 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?”

(To be continued…)

Michael Manely