Friday, June 17, 2011

Circuit Split Watch: Going Hague

This article first appeared in the June 16, 2011, issue of the National Law Journal's Supreme Court Insider.

At first, the facts in Heydt-Benjamin v. Heydt-Benjamin (10-1303), a pending petition for certiorari, seem commonplace: a marriage, two kids, a divorce filing, and a custody battle.

Add concepts like “international child abduction,” “treaty obligations,” and “habitual residence,” though, and the case becomes more complex—complex enough, according to the petition, to create a clear and well-developed circuit split. The U.S. Supreme Court is scheduled to consider the petition in its June 23rd conference.

Thomas and Ava Heydt-Benjamin, American citizens, were living with their two children in Switzerland, where Thomas was studying in a three-year graduate program. While there, the couple split. With custody proceedings ongoing in Switzerland, Thomas took the children, then ages two and four, to the United States, without Ava’s knowledge. He had been advised that Swiss law would favor his wife on custody.

Ava sued in the United States for the children’s return under the Hague Convention on the Civil Aspects of International Child Abduction, to which the United States is a signatory, and implementing law, 42 U.S.C. §§ 11601-11610. The Convention “establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained.” Such children must be returned to “their habitual residence.”

Amy Howe of Goldstein, Howe & Russell, along with Stanford Law School’s Supreme Court Litigation Clinic, and others, filed a petition for certiorari on the mother’s behalf, after she lost in both the federal district court and the U.S. Court of Appeals for the 2nd Circuit.

Last term, Ms. Howe argued and won Abbott v. Abbott, another international child abduction case under the Convention, again collaborating with the Clinic. The issues are different, though. In Abbott, the focus was on Chilean custody law, whereas Heydt-Benjamin involves more general interpretation of Convention language.

The Heydt-Benjamin petition asks the Court to resolve a circuit split about children’s “habitual residence,” which the Convention does not define. Six federal appellate courts rely on the parents’ last shared intent for residence, one disregards parental intent and looks to the child’s experiences, and two others use a hybrid approach, the petition explains.

In Heydt-Benjamin, the 2nd Circuit followed the majority view and its own precedent, finding that the parents had intended to return the family, all U.S. citizens, to the United States after temporarily staying in Switzerland. Therefore, the court held, the United States is the children’s “habitual residence” and they need not return to Switzerland.

An analysis under the children’s experiences may have been more favorable to the mother, since the children were living in Switzerland and had spent much of their young lives there.

The brief in opposition, filed by prominent New York divorce attorney Allan Mayefsky of Aronson, Mayefsky & Sloan, and others, reframes the split and maintains that the 2nd Circuit got it right. All circuits except one consider parental intent to some extent in determining “habitual residence”—a sound approach, the brief argues, particularly with very young children, like the Heydt-Benjamins, who are not yet capable of selecting a residence for themselves.

If the Supreme Court grants certiorari in Heydt-Benjamin, it will be the third grant for Stanford Law School’s Supreme Court Litigation Clinic for next term and the fourth for the law school overall. The Court has also agreed to hear a case from Stanford’s Center for Internet and Society.

The case also involves another high-profile clinic. The University of Virginia Law School’s Supreme Court Litigation Clinic, which argued four cases during the current term, filed a petition-side amici brief in Heydt-Benjamin, representing two child abduction scholars. Respondent did not consent to its filing and was unswayed by its “elaborate hypotheticals,” as he termed them in his brief in opposition.