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

On Behalf of | Jan 13, 2013 | International Family Law

“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)

Michael Manely