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Jeffrey Lee Chafin v. Lynne Hales Chafin

Oral argument transcript · No. 11-1347 · October Term 2012 · argued December 5, 2012 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

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From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument this morning in Case 11-1347, Chafin v. Chafin. Mr. Manely. ORAL ARGUMENT OF MICHAEL E. MANELY ON BEHALF OF THE PETITIONER

Michael E. Manely: Mr. Chief Justice, and may it please the Court: United States courts have the power to effectuate relief in the Hague Convention cases under circumstances presented here in this international treaty. Sergeant First Class -- First Class Chafin's appeal from the district court's decision is not moot because reversal of the district court's judgment could grant Sergeant Chafin relief in three ways, each sufficient to preclude mootness. First, a reversal would mean that the United States is the child's habitual residence. Second, the district court or court of appeals should order Ms. Chafin to bring the child back to the United States and overturn the monetary award. And, third, it would effectuate relief in the ongoing Alabama case and the Scottish case by, one, letting Alabama courts proceed to Alderson Reporting Company Official determine custody and, two, cause the Scottish court to stay or dismiss its proceeding.

Justice Ginsburg: Why would it make any difference? Once -- once the decision -- the district court decision is vacated, then the State court can go forward. There is nothing that inhibits it from doing so. There is no Federal court order. So your third point, I think, is --

Michael E. Manely: Yes, Your Honor. Under the UCCJEA, which is what the State of Alabama would use, there is a home State requirement that the child must be presently -- six months before the action is commenced. Not so much from the district court order, but coming down from the Alabama Supreme Court, but premised upon the original district court order, it was determined that Alabama was not the home State of the child. So it's sort of like the traffic light that we talk about in our brief. It would allow the Alabama courts to say --

Justice Ginsburg: Now, I don't understand that. The child is now in Scotland.

Michael E. Manely: Yes.

Justice Ginsburg: So how would these six months be satisfied?

Michael E. Manely: It would toll because the Alderson Reporting Company Official child, we would argue, is wrongfully in Scotland based upon an errant district court --

Justice Ginsburg: But you can argue that on the basis of the vacation of the district court's Hague Convention order. You -- you're not inhibited by anything, as far as I can see, that the Federal court has done. Since it's been vacated, it's as though it never happened.

Michael E. Manely: Except for the fact that there is an error in the determination of habitual residence. And I understand what you're saying, but the -- the res of the controversy needs to be brought back here. That -- that would be the appropriate remedy here, so that we have not only the habitual court -- or habitual residence determination in the district court because of reversal, but that we have the child brought back here. And then that six --

Justice Ginsburg: But you don't have -- you don't have that individual -- the residence -- habitual residence determination because it's been wiped out.

Michael E. Manely: Yes, Your Honor. I understand. What our argument is, is that there is an ability to grant a remedy here, and that is the reversal of that determination, so that we go back to habitual residence in the United States. That's what avoids Alderson Reporting Company Official mootness in this case. There is a remedy that can be provided here. It is not impossible.

Justice Alito: Wouldn't the Alabama --

Justice Sotomayor: What you're saying is the return of the child, essentially, back to Alabama?

Michael E. Manely: Bring the child back. Yes, Your Honor.

Justice Sotomayor: And so once the child is back in Alabama, that's the remedy, then the State court would be seized of jurisdiction sufficient then to determine the habitual residence.

Michael E. Manely: Yes, Your Honor.

Justice Sotomayor: Whatever the State -- well, presumably, the child only comes back if you win.

Michael E. Manely: Yes.

Justice Sotomayor: So presuming you win, the child would come back, and the Alabama courts could then seize the custody determination.

Michael E. Manely: Right. Proceed under --

Justice Scalia: And the Alabama court would not have jurisdiction if the child had been wrongfully removed?

Michael E. Manely: The Alabama --

Justice Scalia: Is that what you're saying?

Michael E. Manely: No, the Alabama court would Alderson Reporting Company Official have jurisdiction under the UCCJEA presently, unless this Court should determine that it is moot when a child is removed from the boundaries of our -- of our nation. The Alabama --

Justice Scalia: Wait, wait, wait. The opinion below has been vacated.

Michael E. Manely: Yes, sir.

Justice Scalia: So there's -- there's nothing which says that this child -- this child's habitual residence was -- was in the U.K.

Michael E. Manely: Yes, sir. Yes, Your Honor.

Justice Scalia: That being the case, the only question is will the Alabama court proceed, even -- assuming that it finds the child's habitual residence was in Alabama, would it proceed, even if the child had been taken out of the jurisdiction? And I understand that it would.

Michael E. Manely: If there never had been a district court determination in the first place, certainly --

Justice Scalia: There hasn't been. There hasn't been. It's been vacated. It's as though it never happened.

Michael E. Manely: The posture below is that the Eleventh Circuit vacated the opinion in February; but, Alderson Reporting Company Official as recently as July of this year, the Alabama Supreme Court said, well, since the matter was determined moot, then only the divorce can proceed. What we hope to do is, by going back down to the Eleventh Circuit, obtaining a reversal --

Justice Scalia: Well, that's bad law. I mean -- you mean the Alabama court is bound by a vacated decision of a Federal court? My goodness, I never heard of anything like that.

Michael E. Manely: Yes, sir. It goes --

Justice Sotomayor: Was their reasoning that the child was initially removed properly because there had been an order permitting the mother to go?

Michael E. Manely: Yes.

Justice Sotomayor: So it was a lawful removal at that moment.

Michael E. Manely: At that moment, yes. And by --

Justice Sotomayor: And what they're saying is, since the case is moot, nothing has vacated the order, but it didn't make her action illegal?

Michael E. Manely: Correct. And by reversing, then we're going back to what was argued to make the case moot in the first place. We can bring the child back, and we'll reverse --

Justice Ginsburg: When you say, "bring the Alderson Reporting Company Official child back," there's an impediment to that because now this court in Scotland has told her don't -- the child stays here. There's an order that the child not be removed from Scotland, and there is also -- doesn't the mother have -- wasn't this mother deported?

Michael E. Manely: The mother --

Justice Ginsburg: So if she -- she -- if she -- the mother comes back into the United States, she's committing a criminal offense.

Michael E. Manely: Yes, Your Honor. Absent -- and she was present at the trial in the district court. So there are provisions that would allow her to return for that particular reason. And, of course, she can reapply, I think, after something like five years. She was deported because she had overstayed her visa. But --

Justice Ginsburg: But what about the order of the court in Scotland?

Michael E. Manely: The order of the court in Scotland, we would refer to on a State level, as being a standing order. And what it does is tell Sergeant First Class Chafin that he can't remove the child. There is no prohibition to the mother. There is no sense that Scotland has assumed authority over this child -- should become a ward of the country. Alderson Reporting Company Official It's more that, since the mother has filed a custody action there, it's a -- Dad, you can't remove the child from Scotland.

Justice Sotomayor: It's a stand-still order there.

Michael E. Manely: Yes.

Justice Ginsburg: How long has the child been -- now since -- since the return, pursuant to the Federal court's order, how long has the child been residing in Scotland?

Michael E. Manely: October 13th of last year, I believe, so approximately 14 months now.

Justice Alito: What if the Alabama courts were to conduct a custody proceeding? Since the child has now been in Scotland for over a year, would they consider the child's habitual residence to be Scotland?

Michael E. Manely: The Alabama courts --

Justice Alito: And if they did that, wouldn't they defer to the Scottish courts for custody determination?

Michael E. Manely: No, Your Honor, I don't think so. Again, applying UCCJEA, which all of the States have, but for one, they are to look at Hague orders in the same way that they would apply UCCJEA, and there is a tolling provision. If a child has been wrongfully Alderson Reporting Company Official removed from that jurisdiction, then the child is still presumed to have retained a home State status with Alabama.

Justice Sotomayor: Counsel, there is a judgment against your client, isn't there, for $94,000 or so?

Michael E. Manely: Yes, Your Honor.

Justice Sotomayor: Could you break down that figure?

Michael E. Manely: The lion's share of it is attorneys' fees, but, also, within the Hague, there is a mandatory provision for costs; not just costs of court, but the costs of mother's flying over here from Scotland, staying here for approximately a week and a rental car. So while that isn't the predominant share of the $94,000, it was a substantial portion of that.

Justice Sotomayor: So --

Justice Kennedy: So have the State proceedings been dismissed? Or are they in suspense?

Michael E. Manely: Neither, Your Honor. Where they are is the trial level court is waiting to grant a divorce, but that is kind of effectively held up by the parties, in hoping that we can use Alabama Rule of Civil Procedure 60(b)(5); that, if we get a reversal from the Eleventh Circuit saying habitual residence is the United Alderson Reporting Company Official States, we can reopen the custody matter.

Justice Kennedy: So it would be your position that the Alabama courts still have jurisdiction over the child and the mother?

Michael E. Manely: Certainly, if the Eleventh Circuit reverses, yes, sir. Yes, Your Honor.

Justice Sotomayor: Counsel, that cost that you have to pay for the mother, even though the case was mooted, that judgment is still outstanding for the monies you have to pay?

Michael E. Manely: It still is, Your Honor.

Justice Sotomayor: If you win on this appeal, is that wiped out?

Michael E. Manely: We believe that it is. The energy of our case is thrust into having habitual residence determination reversed and bringing the child back; but we think that when -- the provision of ICARA that allows for the costs, the travel costs and the attorneys' fees to be awarded, is also obliterated. So that is also --

Justice Ginsburg: Is that done in a separate judgment? The --

Michael E. Manely: It's a separate order, same case.

Justice Ginsburg: And is there any problem Alderson Reporting Company Official about the time to appeal from that having run?

Michael E. Manely: We don't think so, but, again, that's not the thrust of our case. I understand the government's argument, and we certainly agree with that. Our energy, all along, has been spent exclusively on reversing habitual residence determination.

Justice Ginsburg: But, as far as mootness is concerned, if you have not appealed from that order and the time has run from your appeal, you can't rely on that to avoid mootness.

Michael E. Manely: Your Honor, I believe I understand your question, and I -- and I think you're correct. If we're talking about a determination that the United States loses power over children when they're removed from our borders, then the rest kind of falls in line.

Justice Sotomayor: Counsel, what's -- what happens --

Justice Scalia: I don't understand your answer.

Michael E. Manely: I'm sorry.

Justice Scalia: What is your -- I don't understand that answer. Are you -- are you saying that -- that your failure to appeal that in a timely fashion makes it impossible for the Court of Appeals to Alderson Reporting Company Official obliterate that award?

Michael E. Manely: No, sir. And it may be --

Justice Scalia: Well, that's -- that's what I thought the question was.

Michael E. Manely: I apologize. And it may be just the -- the tunnel vision that we have in this case. We're solely focused on reversing the district court order on habitual residence and returning the child. The rest is --

Justice Scalia: Well, then -- then retain your tunnel vision. And don't say that the case remains non-moot simply because of this other issue. The other issue is either in the case or out of the case. Now, is it part of your case?

Michael E. Manely: We agree with the government's position that it keeps this case alive, and it is not moot. But I certainly understand the -- the issue, particularly since our focus on the case is otherwise.

Justice Alito: Well, if you -- if you could take an appeal and got a reversal of the decision -- of the order removing the child to -- allowing the child to be removed to Scotland, wouldn't that undermine the -- the judgment for costs? I don't understand why that would be a separate order -- why that would be something that has to be appealed separately. Why wouldn't that Alderson Reporting Company Official be included with the final order in the case?

Michael E. Manely: Yes, Your Honor. I agree. And the -- allowing the child to leave was the linchpin that allowed the costs. Removing that impediment also removes the costs.

Justice Scalia: Well, I mean, that's lovely, but -- so you are saying that you don't have to appeal that separately; is that what you're saying?

Michael E. Manely: I'm saying I trust that that is the resolution of this; but, again, our focus is on the child, not costs.

Justice Scalia: But you've got to answer my question.

Michael E. Manely: Yes.

Justice Scalia: Do you have to appeal that separately or not? If -- if the way you answered Justice Alito's question was -- was the way you did, you are saying that it's unnecessary to appeal that monetary aspect of the judgment separately, that it goes -- it goes with the rest of it. Is that -- is that your position?

Michael E. Manely: Your Honor, I think that it is correct that if the -- the basis for the award is removed, then the award is removed; but, if the basis for the award remains, then it would be difficult to Alderson Reporting Company Official assert that there is some reason to appeal that award. I don't think there is any great answer.

Justice Scalia: I think you're saying it doesn't have to be appealed separately.

Michael E. Manely: Yes, sir. Yes, Your Honor.

Justice Sotomayor: Can you tell me what's happening -- what is the status? Given the vacated return custody order -- return order, will the Scottish court ever determine habitual residence?

Michael E. Manely: The Scottish court has no need to determine habitual residence because that was determined by the -- by the district court.

Justice Sotomayor: But that order has been vacated, so can they revisit that question is really the -- the issue.

Michael E. Manely: I don't -- they wouldn't revisit within the context of a Hague proceeding, unless a Hague proceeding were brought there. Within the context of their own custodial determination, like the Alabama court would in the divorce, there is a determination of -- of jurisdiction over the child.

Justice Scalia: But you could bring a Hague proceeding there, right?

Michael E. Manely: We could bring a Hague proceeding there. Alderson Reporting Company Official

Justice Scalia: You could say -- you know, there having been no decision in the United States, we want you to decide what habitual residence is, and we think it's the United States. You could do that.

Michael E. Manely: We could do that. The problem with that is that we're talking about different points in time. For our Hague -- actually, the mother's Hague proceeding, she's the one that filed it -- for the mother's Hague proceeding, the time period that we're looking at was February of 2010 until the child left in October of 2011, that is the time frame we'd really like to stay with. That's an important time frame. If we go to Scotland, we're talking about a different time frame. It's a different animal.

Chief Justice Roberts: I thought you said that that time period was tolled -- the period that she was in Scotland would be tolled.

Michael E. Manely: From a United States perspective, more specifically an Alabama perspective, yes. Yes, Your Honor.

Justice Ginsburg: But in Scotland, it's -- it would be a custody proceeding. Forget about the Hague. The child is there. The mother is bringing a custody proceeding. And the question for that court is Alderson Reporting Company Official where is the child's habitual residence now?

Justice Sotomayor: And at the Hague, it's what was it then.

Michael E. Manely: Yes. Yes. And -- and the Scottish court -- our -- our briefs are filled with the citations of authority, but the Scottish court -- there is no reason to believe that the Scottish court wouldn't honor what the United States court has said about habitual residence, the case brought by the mother in the Federal district court in Alabama. So that if that was the linchpin to allow --

Justice Ginsburg: But that was only for determining the Hague Convention; and, if the Hague Convention is out of it, then there is a custody proceeding. The idea of the Hague Convention is just to get the case to a forum that's an appropriate forum to decide the custody question, right?

Michael E. Manely: Yes. Custody is the second and crucial element of the Hague Convention as well. If -- if there are no further questions, I'd like to reserve the balance of my time.

Chief Justice Roberts: Thank you, counsel. Ms. Saharsky. ORAL ARGUMENT OF NICOLE A. SAHARSKY, FOR UNITED STATES, AS AMICUS CURIAE, Alderson Reporting Company Official SUPPORTING PETITIONER

Nicole A. Saharsky: Mr. Chief Justice, and may it please the Court: Put simply, this case is not moot because an appellate decision on the merits would matter. What the Court has been discussing today is there are various ways in which the appellate decision might matter. There are ways that there would be a judgment that the father either did or did not wrongfully retain the child. Part of the wrongful retention determination is the 900 -- or the $94,000 in money damages. There is a question of whether the child might remain in the U.K. or be brought back to the U.S. And then there's the question of which courts are going to decide custody, Alabama or Scottish courts. And we don't need to know precisely -- and this Court doesn't need to figure out all of the different details of Alabama State law or of custody law under the Scottish proceedings. All the Court needs to decide is that the appellate court's decision would make a difference here. And it's -- it's just not the case that you could say it's moot because it doesn't make a difference.

Justice Scalia: But we don't know it'll Alderson Reporting Company Official make a difference without answering those questions.

Nicole A. Saharsky: Well, I'm glad --

Justice Scalia: I mean, you want us to -- to say it might make a difference, and that's enough, right?

Nicole A. Saharsky: Well, this Court has said that, as long as there's any possibility of effectual relief, that the case is not moot. So --

Justice Scalia: Well, you should put it that way, then. It doesn't -- you don't know that it makes a difference, but you don't have to know, right?

Nicole A. Saharsky: That's what I would say is that you don't have to know. But just, if there is nothing else but a declaratory judgment that the father either did or did not wrongfully retain the child in the U.S., that is a piece of paper in the world that has consequences to these parties. It has consequences in terms of the money judgment that's been entered, and it has consequences in terms of where custody will be determined. The whole point of bringing a Hague Convention case is to get the child in the place of habitual residence, so that those courts, under their own law, can decide custody. Alderson Reporting Company Official

Justice Ginsburg: Ms. Saharsky, not to -- I mean, the whole object of the Hague Convention is to stop this shuttling the child back and forth. But, because of this unfortunate situation we have, where the district judge wouldn't give a stay, you're -- what you're -- what you're urging is exactly what this Convention was meant to stop. This child has been in Scotland for 14 months. Now, you say bring it back to the United States, and we -- we start over. The whole object of the return procedure is so that you get the child to a place that's a proper place to determine custody; isn't that right?

Nicole A. Saharsky: Yes. We share your concerns about not wanting the child to be shuttled back and forth. And we think that the way to accommodate those concerns are by stays in appropriate cases, where the four factor test that -- with respect to a likelihood of success on the merits and a balancing of the equities is met; and that, when stays are put in place pending appellate proceedings, that those proceedings be expedited, the decisions made quickly.

Justice Kennedy: And would you go further and say that, if a stay is not in place, that that still does not deprive the Court of Appeals of jurisdiction to Alderson Reporting Company Official resolve the case on the merits?

Nicole A. Saharsky: Yes. That's what we would say, that the case is not moot. The court of appeals should be able to go forward with the case. But if the case for a stay has not been made by the losing party, then the child should be returned to the country of habitual residence because a determination has been made that that's the country where the child should be, and there's not a good argument that the other side has put forth for a stay.

Justice Ginsburg: You agree that the ideal -- the ideal procedure would be, and I quite agree, that you have a very fast track stay pending appeal and an expedited appeal. But there is no rule that -- that requires that, so how -- how could that sensible procedure be put in place?

Nicole A. Saharsky: Well, we think that just, under the normal court appellate rules, that that effectively is what happens using the American stay standard for a four factor test, not that there would be a stay in every case, but, when the showing -- the appropriate four factor showing is made for a stay, that then a stay would be appropriate, and an expedited appeal would be appropriate. But you can't --- Alderson Reporting Company Official

Justice Scalia: Well, that's lovely, but there wasn't a stay here. So what do you do when that procedure hasn't been followed? That's the issue that we're presented with.

Nicole A. Saharsky: That's exactly right.

Justice Scalia: And do we even know that a stay would have been appropriate here?

Nicole A. Saharsky: Well, the district court denied a stay, and Petitioner did not go to the court of appeals, so we don't know --

Justice Scalia: So presumably, a stay would not have been appropriate.

Nicole A. Saharsky: Well, then, if that's the case, but -- but it -- but this decision actually went to the court of appeals, and the court of appeals reversed on the merits. It would be up to the district court on remand to determine how to fix its prior erroneous decision. And it would use the equitable authority that it has in every case to fix a wrong decision and determine what the right thing is --

Justice Ginsburg: But we wouldn't go back to what should have happened, that is, the district judge applying the four factor test -- or did the district -- there was an application for a stay. It was denied, right? Alderson Reporting Company Official

Nicole A. Saharsky: Yes. And the district court entered a brief order; so the district court did not go through the various factors, but, presumably, that is the standard the district court would have used.

Justice Sotomayor: Could I ask a question? Does it matter? Meaning, whether a stay is granted or not, you are, I don't think, taking the position that only if the stay is granted is the court of appeals seized of jurisdiction. You're saying the case is not moot, correct?

Nicole A. Saharsky: That's exactly right. The mootness question and the stay questions are two separate questions. And you don't want to have to say the person has to get a stay in every single case; otherwise, their case becomes moot. They lose their appeal.

Justice Sotomayor: All right. Now, under the Convention, if the child -- if it goes back to the district court now to fashion a remedy, it could order return, it could decide under the Convention that bringing the child back after 14 months presents a great risk to the child under the Convention and not order the return, correct?

Nicole A. Saharsky: We don't think the Convention addresses that; but the district court could make that Alderson Reporting Company Official determination using its equitable discretion.

Justice Sotomayor: So we just don't know what the court's going to do, but some form of relief is possible. That's why you used the word "possible."

Nicole A. Saharsky: That is exactly -- that is exactly our position. We don't know what the courts would do. We're glad to discuss the possibilities with the Court; but the standard is the possibility of relief, it doesn't need to --

Justice Sotomayor: But they have the power, if they choose it, but they don't have to choose it; that's the bottom line, correct?

Nicole A. Saharsky: That's exactly right. The position of the other side is that there is absolutely nothing that the courts can do in these circumstances once the child leaves. And we just think that the Convention doesn't say that. It doesn't mandate that. It's a question of U.S. mootness law. And this Court has said, as long as there's --

Justice Sotomayor: Are you aware of -- I happen to be because I know this area very well -- the English courts have an amici filed with us yesterday, and they are sort of sensibly keeping track of what we're doing and trying to adjust their proceedings accordingly and in the manner they think is most helpful Alderson Reporting Company Official to us. Whether it is or not, I can't comment on. Is this common in the custody area? Is there discussions between courts about what they're doing and the why of it?

Nicole A. Saharsky: Well, in the Convention, there is kind of two aspects of this. One is in child custody proceedings, under the UCCJEA, and one is in the context of the Convention. The UCCJEA, which deals with competing States and potentially competing countries' custody determinations, has specific provisions that address cooperation and communication. They are, like, Section 110, 111, and 112 --

Justice Sotomayor: And it's required. There is a whole system set up now, right?

Nicole A. Saharsky: There is a whole system for that. In the Convention, that type of comity and cooperation typically occurs through the Central Authorities. Each country has a Central Authority that communicates with each other. So, for example, if the U.K.'s Central Authority would like something to be brought to the U.S. courts' attention, it might enlist the help of the U.S. Central Authority in, for example, getting the parties to -- Alderson Reporting Company Official

Justice Scalia: Counsel, that's very nice. What does that have to do with this case? I don't understand that.

Nicole A. Saharsky: Well, the question is just what -- what might happen in this case, in terms of if there would be competing court orders or whether the courts would -- what the courts would do in response to each other. And I think the point, at least, that I was getting from Justice Sotomayor's question is that there is a measure of cooperation here, so that the Court need not be particularly concerned about parallel proceedings or competing proceedings in other countries. The way that, for example, this case has played out is that, while the Hague Convention dispute has been litigated in Federal court, the Alabama custody court has appropriately stayed its hand, as it's required to do under Article 16 of --

Chief Justice Roberts: Counsel, do you agree with your -- with the Petitioner, just reading a sentence from its brief, that "mootness requires that relief be impossible"? Do you think that's the right standard?

Nicole A. Saharsky: Well, we -- we think that the Court essentially said that in Knox, that it said -- Alderson Reporting Company Official that asked whether there is a possibility of relief, if the question is one of literal impossibility, we don't think that the Court needs to ask --

Chief Justice Roberts: What this Court -- Court has always said, if it's an Article 3 inquiry under standing, and it said that it's not supported by injury that is speculative or conjectural. It seems to me, when you start talking about, well, the Scottish court might do this or the Alabama courts might do this, that -- that sounds pretty speculative and conjectural.

Nicole A. Saharsky: Well, I think the Court has made those comments more in the context of the standing inquiry at the beginning of a case, as opposed to the mootness inquiry after a case has gone on for a while, and the burdens there are different. At the standing -- at the beginning of a case in the standing inquiry, the party coming into court really has a burden of showing that this case -- that there's something to be adjudicated in court. As the case continues, it's the party who doesn't want the case to be in court anymore to show that there's nothing the court can do; that even though the court has put those resources --

Justice Scalia: Well, the burden is different, but I don't agree that the standard changes. Alderson Reporting Company Official It's just who has to prove it, one side or the other. But I --

Nicole A. Saharsky: Right. And our position with respect to the standard is simply from language taken from this Court's decision, going back to Mills, but also repeated in Church of Scientology and Knox, is there any effectual relief, whatever; is it possible to grant relief? Relief can be partial, it doesn't need to be complete. That's things that the Court has said. You know, we don't interpret that to be a -- you know, literal impossibility standard. We just understand that to be asking the question, is there something the courts can do, even if it's not complete --

Chief Justice Roberts: So do you think it's -- I mean, I know you've got a laundry list of things, but, as I understand it, you think it's enough that, if the Court issues an opinion, the Scottish court might do something as a result of that?

Nicole A. Saharsky: Well, I think that the Court issuing an opinion has effects in America, regardless of what happens in Scotland, because you have a declaratory judgment that sets out the rights of the parties.

Chief Justice Roberts: I thought one of the arguments, maybe it was the Petitioner's and not yours, Alderson Reporting Company Official was that one reason it wasn't moot is because the Scottish courts might look at the case differently.

Nicole A. Saharsky: Well, that's -- I think it's a set of interrelated reasons. I mean, they're really all connected because -- can I finish the sentence? -- you have a judgment in the United States about the rights of the parties. It affects the money judgment. It affects what might happen with custody. I mean, it's all part and parcel of the same dispute. Thank you.

Chief Justice Roberts: Thank you, counsel. Mr. Cullen. ORAL ARGUMENT OF STEPHEN J. CULLEN ON BEHALF OF THE RESPONDENT

Stephen J. Cullen: Mr. Chief Justice, and may it please the Court: Mr. Chief Justice, the effect that any appeal court could give would be zero in the Scottish court, nothing. There is nothing a court can -- can do in this judicial process --

Justice Sotomayor: Why can't they order the mother to come back with the child? Because the Scottish court stops her? There is competing orders all the time.

Stephen J. Cullen: Which -- well, they can't, Alderson Reporting Company Official first. The answer to that is, no, they cannot.

Justice Sotomayor: Why not? She was here. She submitted to the court's jurisdiction. Doesn't her -- jurisdiction over her now continue until the end of the case?

Stephen J. Cullen: Well, the case did end because there is one remedy, and one remedy only, in this treaty, and that is return.

Justice Sotomayor: That doesn't matter. The question is, isn't she seized -- doesn't the court have jurisdiction over her until the case ends? The case doesn't end until there has been an appeal and a judgment and the judgment affirmed or reversed. That hasn't happened.

Stephen J. Cullen: No, that's not correct. I can't agree with that because then we're ignoring Article 3 and the constitutional doctrine of mootness because that's where the constitutional doctrine comes into central --

Justice Sotomayor: You are suggesting that the Convention deprives a party, after the remedy's been ordered and effected, of the right to appeal; not because of mootness, but because the Convention takes away a fundamental right to appeal?

Stephen J. Cullen: No, the Convention says you Alderson Reporting Company Official must exercise the most expeditious remedies available because --

Justice Sotomayor: You're not going to suggest all those countries that permit appeals explicitly and stop removals until appeals are finished, that those -- that those those treaty -- contracting treaty parties are breaching the Convention, are you?

Stephen J. Cullen: No, they're not. There are 88 countries, and this is a very, very good convention. It works. It works for the countries, Justice Sotomayor, that do immediate enforcement, and it works for the countries that don't do immediate enforcement, pending an appeal. But the -- the question presented here is what a court could do in this country once the sheriff court in the Hamlet of Airdrie is seized with jurisdiction because what this treaty has done is -- has taken jurisdiction from the United States and said, Scotland, you now have jurisdiction.

Chief Justice Roberts: One thing -- one thing the Court can do is give him back $94,000.

Stephen J. Cullen: No, it cannot. It cannot. I was very --

Chief Justice Roberts: He has no -- his ability to challenge the propriety of the order that he Alderson Reporting Company Official pay $94,000 is gone?

Stephen J. Cullen: It's gone in this case, Mr. Chief Justice, because, in the Joint Appendix, pages 16 and 17, you'll see -- I believe it's docket entry 52, on page 16, an appeal was taken off those fees. If you go on -- I believe it's page 17 of the Joint Appendix, docket entry 57, you'll see that the Petitioner voluntarily dismissed his appeal of the fees. So having taken an appeal of the fees and having dismissed, there is nothing left for any appeal court now to do with respect to fees.

Justice Kennedy: Well, except he might have assumed that the issue of fees would still be alive if the Eleventh Circuit ruled on the merits.

Stephen J. Cullen: Right. So --

Justice Kennedy: And he -- he was just trying to have a single appeal.

Stephen J. Cullen: Right. But the test that the Court would apply in -- in that hypothetical fees determination is totally different from the test the appeal court would apply in looking at habitual residence. All it would look at is, is it --

Justice Kennedy: Well, appellate courts all the time have issues where they apply different standards to multiple issues in the case. Alderson Reporting Company Official

Stephen J. Cullen: Right. So if we assume that the fees survives -- they can pursue the fees issue. The problem, Justice Kennedy, is that there -- there is no habitual residence to be determined back in time. What this treaty does is it exercises a one-way return.

Justice Kennedy: Well, that, of course -- on your premise, that's right. On their premise, it's wrong, that -- the issue of custody is still alive under their perspective. That's what we are arguing about, so you're just assuming your own premise.

Stephen J. Cullen: Well, the premise, though, is based in the purpose of this treaty because, back in the '70s, before this treaty, Justice Kennedy, there was chaos. And, in fact, the government is suggesting we should go back to possibly competing custody orders between Scotland and Alabama, but --

Justice Breyer: I don't think that's -- you've won a judgment in lower court that says that the habitual residence of the child is Scotland. So if they appeal, they might win one that says that was wrong, the habitual residence was the United States, but the child is in Scotland. You understand Scottish law better than I, but they are also bound by this treaty. So I would imagine a Scottish court, just as we would do, when they Alderson Reporting Company Official are trying to decide what's the habitual presumptive then, and now, what's the habitual residence, they would look at what the United States courts decided. They are not absolutely bound by it. But just as we, in the last case we had, were very interested in what the Chilean courts said. Of course, it was relevant to us what the Chilean courts had held was the proper law of Chile in respect to that child. Wouldn't the Scottish courts do the same? Wouldn't it matter to a Scottish court, after all, that an American court had decided that the residence was not bound? I'd certainly give it – won’t they give it consideration?

Stephen J. Cullen: With -- Justice Breyer, with respect to the lower court's opinion, there is, as Justice Ginsburg said, there is no opinion. There is nothing. There's --

Justice Breyer: I'm assuming they win. The reason that they want to appeal is they want to win. If I were looking at the case as you present it, I would say, of course, you'll win, don't worry. What are you worried about? But -- but they have a different view. So they think they are going to win. Now, it means nothing if they lose. But if they win on appeal, they then have Alderson Reporting Company Official their order that says that this child's habitual residence was the United States. And my question is where we started, armed with that piece of paper, they walk into the Scottish court and they say, oh, Scottish judge, please read this paper. Of course, he will read it, and I would think that that judge would take it into account in his decision. That's what we do with the foreign -- similar foreign orders of other foreign courts, and I think we should do that, and I think the Scottish courts should and will. Now, you tell me where I'm wrong in that.

Stephen J. Cullen: Justice Breyer, the sheriff in Airdrie would say, why are you handing me a finding about what habitual residence was 2 years ago? The child's habitual residence 2 years later is clearly Scotland, and we -- we don't look back in time with respect to that.

Justice Breyer: Or -- then argument as to why they shouldn't give in to this hypothetical American judgment. That isn't my question. My question is won't they consider it and give it -- and the Scottish courts, to my knowledge, are not so narrow-minded. I think they would pay attention to what other courts have said.

Justice Ginsburg: You're -- I think you're -- you're -- Alderson Reporting Company Official

Justice Breyer: Am I right or wrong? I want to know if I'm right or wrong.

Justice Ginsburg: We -- we have a brief in -- in the case telling us that the question Justice Breyer is posing, would they look at it; they would say it's irrelevant.

Justice Breyer: They would?

Justice Ginsburg: Because what her habitual residence was then doesn't matter one whit to us. We want to know where she is residing now, and that's the reason why the Scottish court would say it's not relevant to the question before us. Their question is not a treaty question. Their question is custody of this child.

Stephen J. Cullen: Justice Ginsburg, that's correct. Justice Breyer --

Justice Breyer: Well, thank you for Justice Ginsburg's answer. She is quite helpful. (Laughter.)

Justice Scalia: I thought he had said the same thing, that the reason --

Justice Breyer: I was there, but I didn't understand it as fully, and now, I do.

Justice Scalia: Well, good. Alderson Reporting Company Official (Laughter.)

Stephen J. Cullen: Justice Breyer --

Justice Kennedy: But I am -- I am quite surprised that you would say that prior residence can never bear on present residence. In custody disputes, this happens all the time. The child spent 5 years in this country, 4 years in that country; now, for the last 2 years, the child has been in this country -- the previous experience of the child has a tremendous bearing on custody. To say that it's only now, prospective only, after the child has been removed, I just think is wrong, as a matter of custody law.

Stephen J. Cullen: Well, with respect to custody law versus Hague law, Justice Kennedy, there -- there is a difference. The relevance of the Hague determination 2 years in the past is not, Justice Breyer, helpful, but I agree.

Justice Breyer: Unless there is some accommodation here, what worries me is this: If you win this case, it's not going to be better. Maybe for your client, it will be, but for others in your position, it's not going to be better. And what's worrying me, to put it on the table, so you can respond, is that, in similar Alderson Reporting Company Official situations, district judges will think this child belongs in England; this child belongs in France; this child belongs in China, wherever they belong. But in the back of their mind will be the possibility that they are wrong, and they know there is a right to appeal. And so instead of being able in these border cases -- borderline cases, instead of being able to send the child back home, they will think, I've got to keep the child here, so that the other party has the right to appeal. Now, it seems to me, in general, that would be bad for the child. It would be -- and it's bad for our system. And it would be better to work out a system that you can send the child back, and then if you're reversed on appeal, it does matter to the other country's courts.

Stephen J. Cullen: But, Justice Breyer, if -- we say, as you know, you can't have conditional returns, but you can have, with respect to stays, there is a panoply of different types of stays. Now, what's happened in the district court in this instance --

Justice Sotomayor: Counsel, that -- that actually is not accurate. The Convention is full of conditions for the return, the safety of the child, the support of the parent who is returning -- there is a Alderson Reporting Company Official whole set of conditions that have to be met before the child is returned.

Stephen J. Cullen: Justice --

Justice Sotomayor: I happen to think that -- that one could argue that returning back to the court that had -- was making the decision after an appeal is raised, that that's an inherent condition of a return order. But that -- you're arguing against that. But there are plenty of conditions that could be imposed.

Stephen J. Cullen: We don't -- we don't agree with that, Justice Sotomayor. There are affirmative exceptions that can be asserted by a respondent, but there are no conditions. In fact, Article 19 of the treaty, as you know, says you cannot, as a Hague court, step into any sort of custody determinations at all.

Justice Sotomayor: No. You can't -- the Court can't order custody issues, but it can set conditions for the nature of the return. It could say the father pays the cost, the father has to pay for certain expenses in the country the child is being sent to. Those kinds of conditions can be imposed.

Stephen J. Cullen: Those would be limited undertakings. As you know, Justice Sotomayor, those limited types of undertakings came about because of the Alderson Reporting Company Official 13B exception and the 13B exception only, where a judge felt there was some risk in the return, but the risk did not rise to the great risk.

Justice Kagan: Mr. Cullen -- Mr. Cullen, it's often true, in international litigation, that enforcement is very difficult. I mean, take a commercial litigation case where somebody is going after assets and the assets are not in the United States, and somebody looks and says, well -- you know, a court can do whatever it wants, but nothing is going to happen afterwards. So why is this case any different from -- you know, a very frequent problem in international litigation, which is, sometimes, judgments are difficult to enforce? And if you look at it practically, it may -- may never be enforced, but we don't put courts to the job of saying, oh, well, let's check out the various enforcement options and make predictions about who's going to do what.

Stephen J. Cullen: Justice Kagan, not to state the obvious, but this is different because it's a child. It's a child in question, and that has to be a consideration in this treaty.

Justice Kagan: Well, it's different -- that might be -- it's certainly different in terms of the Alderson Reporting Company Official interests at stake, and that might be a very good reason for Congress to step in and try to fix this system, so that you don't have children shuttling back and forth. But -- you know, at the risk of sounding hard-hearted, in terms of the law, what is different?

Stephen J. Cullen: Well, what is different is -- and I need to answer the question -- two Justices have asked me about these stays, and I need to answer that, so I can answer your question. The -- the district court was presented with a single request for a stay in this case. The request was we may or may not file an appeal. We haven't filed a notice of appeal, so give us a stay, so we can decide what we want to do. What should have happened and what usually happens is you say, give us a stay, but if you're not going to give us a stay, give us a temporary stay. Give us 48 hours, to see if we can get a stay from the appellate court.

Chief Justice Roberts: Well, that's not quite fair to say we -- we haven't decided whether we're going to appeal. I mean, the -- the stay motion was made immediately upon the determination of the merits by the district court, and the district court said no. So, I mean, didn't they do everything they could have done Alderson Reporting Company Official to -- to get a stay?

Stephen J. Cullen: No. It was a peculiar halfhearted request for a stay. The stay was we don't even know if we're going to appeal this.

Chief Justice Roberts: Well, that's out of respect to the district judge, who's just issued a ruling on the merits. I mean, saying -- you know, we have to consider your -- your ruling, not -- you know, we're taking you up right away.

Stephen J. Cullen: Right. And this was a Wednesday. And what should have happened is, at a minimum, a 24-hour or 48-hour request for a temporary stay. And, Mr. Chief Justice, this happens all the time in Hague cases. Hague practitioners ask for stays and, if a stay is not going to be granted, ask for a temporary stay. The notion presented to -- to this Court that there was some rush to justice here is not what happened on the ground in Alabama. That is not what happened.

Chief Justice Roberts: It seems to me -- and I may be taking the opposite position from one of my colleagues, but the -- the best thing is to hold things up briefly, so that the child doesn't go overseas and then have to be brought back, particularly if you have Alderson Reporting Company Official situations where there can be an expeditious appeal. And I think most appellate courts would appreciate the -- the benefit of that. It seems to me, if you -- if you're correct that the decision is moot, it's not going to be a -- there is going to be a rush to judgment by the individual that wants to take the child away.

Stephen J. Cullen: No, we don't agree with that, Mr. Chief Justice, because that doesn't take account of the four factors any district court judge is supposed to exercise in her discretion, in determining whether a stay should be granted or not.

Justice Kennedy: Well, again, you're just assuming that the district judge is right, but that's the whole issue. And as the Chief Justice indicates, under your position, we give a premium to the very sort of precipitant action that the Hague Convention is designed to avoid.

Stephen J. Cullen: Justice Kennedy, no, what we're doing is we are following the letter and the text of the convention and the implementing legislation in this country. Time and again, this peculiar word "forthwith" is used. It means right now. Time and again, the treaty tells us you must act expeditiously Alderson Reporting Company Official because the idea, Justice Kennedy, is we avoid competing litigation in countries. We must have one country that is deciding this. And it's --

Justice Scalia: So are you arguing that the effect of the statute implementing the treaty, which uses "forthwith" and all of this, is to, in effect, require that, unless there is a motion for a stay pending, the decision of the trial court be carried out?

Stephen J. Cullen: Yes, Justice Scalia.

Justice Scalia: You -- you think the -- the mere word "forthwith" in the statute is enough to alter our normal process of appeal?

Stephen J. Cullen: It's the -- as a treaty, it's the supreme law of the land. It says, if you decide to issue a return, the child is to be returned forthwith. And the plain meaning of those words is you must act immediately.

Justice Breyer: But I can't -- I don't understand why you want a treaty where the best interest of the child is what's at issue, and you interpret it in a way that the court of one nation with the child, where you have parents from both nations, pays no attention at all to what courts in other nations are saying. I mean, my experience out of that is Chile, Alderson Reporting Company Official where, of course, we wanted to know what the law of Chile was and how the Chilean domestic relations judge understood the relations between the parents. That was important. And similarly, I think the Scottish judge should want to know the same thing about the courts deciding in the United States. And the same thing is true of the United States judge wanting to know about Scotland and so forth. I don't see how we're going to get harmony, in other words, unless you let appellate processes go forward, too. And -- and I don't know what the treaty drafters would have had in mind if they wanted some other regime.

Stephen J. Cullen: Justice Breyer, it's not that we enter into these communications and agreements with any country. By ratifying this particular treaty and by the United States saying, we are going to ratify it with the United Kingdom or Scotland or Brazil, we are saying much more than there's no comity here. We are saying we trust this other country to do the right thing. And that's, Justice Breyer, why we lodged the Scottish papers because the Scottish papers should satisfy you that Scotland was very satisfied there was a Alderson Reporting Company Official valid return.

Justice Breyer: I trust Scotland to do the right thing. And I think, to help Scotland do the right thing, it would be nice for Scotland to know what American judges have decided. That's all. And the reverse is equally true.

Stephen J. Cullen: But the -- but it doesn't matter, Justice Breyer, because there's been a vacatur. There is no underlying decision. The child is back in Scotland, and now, one court can proceed. And in fact, by continuing -- Justice Breyer, by continuing the litigation, the effect of that is to undermine the treaty because the idea behind the treaty, particularly for military families, was to enable mobility. And by having ongoing litigation in the United States, the only thing we can guarantee this Court is this child is not coming to America until the litigation is over. So now, we're talking two, three, four years.

Justice Sotomayor: Excuse me, can I just --

Justice Kagan: Mr. Cullen, may I ask -- I'm trying to figure out what exactly your argument is. So let me give you two options, and you tell me what your argument is, all right? Alderson Reporting Company Official One -- you can tell me it's neither, I suppose. But one is this case is moot because there's no practical way to enforce any relief that's ordered by the Eleventh Circuit, all right? That's what I came in thinking your argument was. The second is -- is just no, it's just improper for the Eleventh Circuit to enter any order granting relief. So which is it? Is it that it's improper to enter any order at this point? Or is it -- you know, you can enter an order, but it's just not going to be enforced, and, therefore, this case is moot?

Stephen J. Cullen: Justice Kagan, I'm going to take your third non-offered offer. (Laughter.)

Stephen J. Cullen: And the answer is because the Constitution tells us there is no case. We cannot -- we cannot -- and I see Justice Alito --

Justice Kagan: I don't understand the third option.

Stephen J. Cullen: Because -- because Article 3 says we have to be able to grant some effectual relief in the judicial process. And since the Mills case in 1895, right up to the Knox case this year, this Court has always said it's effectual relief in this judicial process. Alderson Reporting Company Official So I have to pose the question, Justice --

Justice Alito: Well, then you seem to be saying that if the -- if the law does not permit the issuance of a particular kind of order, and that's what the -- THE plaintiff is seeking -- or that's what the appellant is seeking, then the case is moot. Is that your argument? I thought that's a merits question, not a mootness question.

Stephen J. Cullen: It is a mootness question because it goes -- it's not -- it goes to the heart of Constitutional mootness. It goes to the issue of this may be uncomfortable, and this may be inconvenient, but once we've effected a remedy -- the only remedy, Justice Alito, under this treaty -- and once it's been carried out and once that child is home in Scotland, no matter what another court does in this judicial process, it can have no effect on the Scottish custody proceeding --

Justice Ginsburg: Mr. Cullen, are you saying that the -- under the treaty, there can be no rereturn order? Is that what you're saying? Whether the -- whether the return order was wrong or right, there can be no rereturn?

Stephen J. Cullen: There can be no rereturn. There was a lawful order returning the child to the jurisdiction of Scotland. Alderson Reporting Company Official

Justice Kagan: And there could be no rereturn by the terms of the treaty. So this is an argument that hangs on what the treaty's terms say; is that correct?

Stephen J. Cullen: Well, it is -- it is very textual, which is, of course, what surprised us so much in the government's position in this case because, as you know, Justice Kagan, the last time the government presented this position, they said exactly the opposite in Janakakis. Now, they tried to deal with this, Justice Kagan, in this footnote in their brief saying, well, we touched briefly on this point before. They didn't touch briefly on it. They said, in absolute terms, that nothing in the Convention -- so this is our government talking about the text, and we may give some compelling deference to -- to the government on text, but we don't give any deference to them we say or what the founding fathers meant. But with respect to this Janakakis case, the government said nothing in the Convention requires courts or other authorities -- and this was in Greece -- to give binding effect to any judgment --

Justice Breyer: It does equate, but now, you've got me -- I think I'm on the same wavelength. Alderson Reporting Company Official

Stephen J. Cullen: Good. (Laughter.)

Justice Breyer: And I think it was back just as well, let me see, because Justice Ginsburg -- I see the point of her answer now. It's really fact-specific to this case that you're talking about. So it just happens that the child has now been in Britain or in Scotland for 18 months. And so the question of current habitual residence where they have been there for 18 months is a question of what's been happening over these 18 months, and what happened before the 18 months has absolutely nothing to do with it. And the most that the court of appeals could say is that it was resident in America 18 months ago, and that's no more relevant than saying that the cow jumped over the moon or some other thing. Is has -- is that the point? Is that the point? Is that the point?

Justice Scalia: I thought -- I thought that's what you were saying.

Justice Breyer: If that's the point -- yes, that is the point. Okay. If that's the point --

Stephen J. Cullen: I would say it is the point because the Convention says it's the point.

Justice Breyer: Well, the Convention Alderson Reporting Company Official doesn't know whether it's 18 months or 6 months or what counts as habitual residence, does it?

Stephen J. Cullen: The Convention says you look to the place where the child was located immediately prior to the --

Justice Breyer: That's true, but you have to decide whether that's the habitual residence. And it seems to me that you're adding a factual thing, that what happened in 18 months earlier has nothing to do with whether the child is now a habitual resident of Scotland. And what I want to know -- and I'm not going to find this in the treaty, I don't think, because it's not going to say whether it's 11 months or 12 -- but I want to know what source I look to, to show that you're right and that what happened 18 months previously has nothing to do with the child's habitual residence as of the place where he has lived for 18 months.

Stephen J. Cullen: Well, habitual residence being fact and law --

Justice Breyer: Yes. Fact.

Stephen J. Cullen: Right?

Justice Breyer: Yours is fact. I want to know what I look to, to find out that fact.

Stephen J. Cullen: You look to 1895, you look to Alderson Reporting Company Official the Mills decision, and the Mills decision that tells you, under Article 3, a case is moot when the issues presented are no longer live and the parties lack a legally cognizable interest in their -- the live issue of habitual residence 18 months ago is dead.

Chief Justice Roberts: So everything turns, under your view, on whether or not the district court gives the losing party the 48-hour stay or whether the mother in this case decides to stay in the United States until the U.S. proceedings are done. The incentives if you prevail are for the custodial or the parent with control over the child to leave immediately. Even after a motion has been filed -- if a motion for a stay has been filed, that's not a stay. Get on the first plane out, and then you're home free. That seems, to me, to be a very unfortunate result.

Stephen J. Cullen: Mr. Chief Justice, we don't agree, and here's why: We don't agree because, initially, the district court judge did not order the instantaneous departure of this child. She only did that after considering the motion to stay. It was not --

Chief Justice Roberts: No, no. I know, but the point is that the other side says that the decision Alderson Reporting Company Official was wrong.

Stephen J. Cullen: And it's --

Chief Justice Roberts: And -- you know, most -- not most, but many district judges don't like to immediately say, after they have issued a decision, well, there is a good likelihood that I'm wrong, and therefore, I'll issue a stay. (Laughter.)

Chief Justice Roberts: So there has to be at least a period before somebody can go up to the court of appeals and get a stay, and if you're right, what's happening during that 48 hours or 24 hours is that the parent with control of the child is trying to find the first flight out, and once she does, it's all over.

Stephen J. Cullen: It is all over once -- once the doors close on that plane and that child arrives back in Scotland, unless the plane turns around and comes back again, it is all over. And it --

Justice Alito: Well, if I understand your answer to Justice Kagan, your argument is dependent on the proposition that, under the Convention, that once the child has left this country, a U.S. court no longer has any power to order the child to come back; is that right?

Stephen J. Cullen: Yes, Justice Alito. Alderson Reporting Company Official

Justice Alito: And I don't see where that was decided, either by the court in this case or in the Beckier case that the Eleventh Circuit panel here cited. There is no discussion in either of those opinions of the -- how the Convention -- what the Convention says on this question.

Stephen J. Cullen: Well, the Beckier case goes back to Mills and relies on Church of Scientology and Mills --

Justice Alito: No, no. This is not a -- this is not a question about our general standard of mootness. This is a question of the meaning of the Convention. As I understood your argument to Justice Kagan, your position is dependent on a particular interpretation of the Convention. And I don't see any discussion of that interpretive issue in either of those opinions.

Stephen J. Cullen: Well, this is the -- this is what makes constitutional mootness uncomfortable because it's an answer that Justices and judges typically don't want to hear, but it is the answer. The answer is there is nothing left to be done. The one remedy has been effected, Justice Alito, and what -- what brings all this into sharp contrast now is what we lodged last week. Alderson Reporting Company Official The Petitioner, Justice Alito, himself, is fully participating in the Scottish proceedings.

Justice Alito: If the -- if the Convention said explicitly that a court in this country or whatever other sending countries involved could order the child back, this case would not be moot; is that correct?

Stephen J. Cullen: Yes.

Justice Alito: And you -- but you say that the Convention, in effect, says exactly the opposite; once the child leaves, there can't be an order requiring their return.

Stephen J. Cullen: Right. And there would be a problem, Justice Alito, if we didn't have the motion to stay concept, if we didn't have all of the alternatives for district courts to enter different types of motions to stay. What -- what at least will happen from the Chafin case, I'm sure, will be everyone will know that you need to ask for a motion to stay, everyone will know you need to ask for different types of motions to stay --

Justice Sotomayor: But asking is not enough.

Stephen J. Cullen: Well, ask --

Justice Sotomayor: Because the mother can get on the plane the moment she hears that someone's Alderson Reporting Company Official asked.

Stephen J. Cullen: The mother can get on the plane when she is allowed to get on the plane, and in this particular case, probably because she had to come in under humanitarian parole, there was considerable urgency in this case. And it was a very young child, and the Scottish court was ready to beseize the jurisdiction. Why would Judge Johnson not do what the treaty was telling her to do? Get the child back to Scotland, I found habitual residence in Scotland, and let's let Scotland move forward.

Chief Justice Roberts: Thank you, counsel. Mr. Manely, you have four minutes remaining. REBUTTAL ARGUMENT OF MICHAEL E. MANELY ON BEHALF OF THE PETITIONER

Michael E. Manely: Thank you, Your Honor. With that, I'd like to touch on four points. First of all, these courts have inherent authority to order the child be brought back. It is a way of reversing the wrong decision of the district court. When we are talking about the object of the Convention, it is, in part, rapid return, but that is kind of putting the cart before the horse. The critical issue is where is the Alderson Reporting Company Official appropriate habitual residence of the child, and that is the place that then needs to make the custodial decision --

Justice Breyer: Well, what he says is that, after 18 months in Scotland, the Scottish court will decide where is the habitual residence of the child. We are now in August of year 2, and what happened before January of year 1 is now totally irrelevant. So even if the American courts decided prior to January of year 1 the correct habitual residence was Alabama, when the -- when the Scottish courts decide what is his habitual residence as of 18 months later, they won't pay any attention at all to that American decision because it is not relevant. That, I take it, to be his argument, which depends on the long time, 18 months. So what is your response?

Michael E. Manely: I think that may well be his argument. I disagree with it entirely. As was pointed out earlier, courts are quite used to having children have to transfer from one place to another. The closest case on point I can think of --

Justice Ginsburg: But that was the purpose of the Convention, was to cut that out. That's the whole reason for the Convention, that they wanted to Alderson Reporting Company Official stop the shuttling of children. Do you -- are you aware of rereturn? Your -- your thesis is that the -- that, now, the court of appeals could tell the district judge, you were wrong. And then the father, armed with that, can go and get a rereturn order from the Scottish court under the Convention. Have there been instances under the Convention, was this question of rereturn -- is rereturn authorized, assuming that there was a valid return order, at least valid when it was entered and when the child was returned --

Michael E. Manely: Your Honor --

Justice Ginsburg: What is the incidence of rereturn under the Hague Convention?

Michael E. Manely: There are no cases because we don't run into this problem, quite frankly. And -- and rereturn is a catch phrase that was created here. Bringing the child back would be a part of the court's inherent authority -- part of the district court or the court of appeals' inherent authority, and it's the basis upon which Scotland has the child in the first place.

Justice Sotomayor: Isn't there a Spanish case?

Michael E. Manely: I'm sorry? Alderson Reporting Company Official

Justice Sotomayor: Isn't there a Spanish case?

Michael E. Manely: There is a Scottish custody case pending --

Justice Sotomayor: Not a Scottish, Spain, a case from Spain.

Michael E. Manely: A Spain -- a Spanish case, yes, Your Honor, there is.

Justice Sotomayor: Where the child was, in fact, returned when --

Michael E. Manely: The child was sent to Poland based upon the trial court's decision in that case, and the child returned from Poland, based upon the Supreme Court of Spain's decision in that case. So there is a confusion between --

Justice Ginsburg: Was the child returned? Or was it just a decision that the appeal could not be avoided? Was the child returned by Poland?

Michael E. Manely: Well, I don't know, ultimately, if the child was returned from Poland, so much as the Supreme Court --

Justice Ginsburg: That's -- see, that's the whole problem, is that you -- you're going to have rival decrees of two countries, which is what -- exactly what the Convention was meant to avoid. Alderson Reporting Company Official

Michael E. Manely: Except that we never have. I mean, this is a fairly young convention. We haven't had it that long. But we never have had that problem before. It's been easy enough -- Ohlander v. Larson out of the Tenth Circuit is a great case to look at, for where the United States has been very giving in sending children back. We have not had this problem before.

Justice Sotomayor: Counsel, there is an amici brief here that says that the Scottish courts will not pay attention to the habitual residence of a child at the time of the removal. The amici brief that was filed with us yesterday, if I'm reading it correctly, suggests that the court believes that hasn't been settled in English law; is that correct?

Michael E. Manely: That's my reading of it as well, Your Honor.

Justice Sotomayor: That that -- so that proposition is not as settled as the amici suggests?

Michael E. Manely: Correct. I think they are waiting to see what -- what we want to do. So you've got Villamonte v. Marquez, where the issue there is it's not moot because it's possible an extradited person could one day voluntarily return, so it's not moot. Alderson Reporting Company Official But in this case, there is nothing preventing the mother, who filed the case before the district court and is still a party to the case, from voluntarily returning. That enough is -- is enough to survive this --

Chief Justice Roberts: Well, that sounds awfully speculative and conjectural. That doesn't sound -- whether you're analyzing it under standing in the first instance or mootness later, that doesn't sound to be the sort of concrete injury that's required.

Michael E. Manely: The concrete injury has to do with the habitual residence determination in the district court, which switches if the appellate court reverses and grants habitual residence here and orders the child be brought back. That is the concrete interest.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:03 a.m., the case in the above-entitled matter was submitted.)