Navani v. Shahani

• Decision Date: 30 July 2007
• Docket Number: No. 06-2159.,06-2159.
• Citation: 496 F.3d 1121
• Parties: John NAVANI, Petitioner-Appellee, v. Bina SHAHANI, Respondent-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

496 F.3d 1121

John NAVANI, Petitioner-Appellee, v. Bina SHAHANI, Respondent-Appellant.

No. 06-2159.

United States Court of Appeals, Tenth Circuit.

July 30, 2007.

Eric S. Treisman, Santa Fe, NM, for Respondent-Appellant.

Gretchen M. Walther, Walther Family Law, P.A., Albuquerque, NM, for Petitioner-Appellee.

Before BRISCOE, SEYMOUR, and MURPHY, Circuit Judges.

BRISCOE, Circuit Judge.

Bina Shahani appeals the district court's order granting John Navani's petition that their son be returned to England, the child's country of habitual residence, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and its implementing legislation, the International Child Abduction Remedies Act. The district court concluded that Shahani wrongfully retained the boy in the United States without Navani's consent in violation of his rights of custody over the child as defined under English law, and that no exception to the mandatory return remedy under the treaty and statute applied.

During the pendency of this appeal, the English family court with jurisdiction over the child's custodial arrangements issued a new custody order concerning each parent's custodial rights. Navani argues that the new custody order moots Shahani's appeal because it effectively strips Shahani of her custodial rights over the child. We agree with Navani that the new custody order prevents us from granting Shahani any effectual relief and therefore we dismiss her appeal because it fails to present a live case or controversy.

I.

A. The Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 49 ("the Hague Convention") seeks to deter parents who are dissatisfied with current custodial arrangements from abducting their children and seeking a more favorable custodial ruling in another country. Shealy v. Shealy, 295 F.3d 1117, 1121 (10th Cir.2002). Generally, it creates an international legal mechanism requiring contracting states to promptly return children who have been wrongfully removed to, or wrongfully retained in, their jurisdiction, without deciding anew the issue of custody. de Silva v. Pitts, 481 F.3d 1279, 1282 (10th Cir.2007). A removal or retention is "wrongful" under the treaty when the removal or retention "is in breach of rights of custody attributed to a person . . . under the law of the State in which the child was habitually resident immediately before the removal or retention . . . ." Hague Convention art. 3.

The International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11610 (2007) ("ICARA"), implements the Hague Convention in the United States and grants federal and state courts "concurrent original jurisdiction of actions arising under the Convention." 42 U.S.C. § 11603(a). A petitioner who seeks an order returning a child to his country of habitual residence must show that: "(1) the child was habitually resident in a given state at the time of the removal or retention; (2) the removal or retention was in breach of petitioner's custody rights under the laws of that state; and (3) petitioner was exercising those rights at the time of removal or retention." Shealy, 295 F.3d at 1122 (citation omitted).

B. Factual and Procedural Background

Navani and Shahani were married in London, England, on December 14, 1995. Born on August 4, 1996, Jivan is the couple's only child. Navani and Shahani's marriage ended in divorce on February 16, 2004. As part of the divorce proceedings, an English family court issued a custody order ("the original custody order") concerning Jivan, which stated in relevant part:

The Court orders that: —

1. the child Jivan NAVANI shall reside with the mother Bina SHAHANI

2. the father John NAVANI shall

(i) be entitled to all information provided to parents with parental responsibility by Rosemary Works School or any other school attended by the child Jivan NAVANI

(ii) in particular John NAVANI shall be entitled to have access to the child Jivan NAVANI's attendance records held by Rosemary Works School or any other school the said child attends

3. the mother Bina SHAHANI and the father John NAVANI are prohibited from removing the child Jivan NAVANI from the jurisdiction of the Court, namely England and Wales, without the written consent of the other or order of the court

4. the child Jivan NAVANI shall not be removed from Rosemary Works School without the written consent of the father John NAVANI or order of the court

5. the father John NAVANI shall have contact with the child Jivan NAVANI as follows:

(i) during school terms, on alternate weekends, staying contact from the end of the school day on Friday to the start of the school day on Monday

(ii) half of each school holiday, including school half-terms, in the absence of agreement for the first half of each holiday, where the first half if half term does not fall on a term time contact weekend, the holiday arrangement shall prevail if there is a conflict . . . .

Aplt.App. at 13-14.

On August 16, 2004, Shahani made a written request to Navani, pursuant to the original custody order, asking for his consent to allow the mother and the boy to take a holiday in the United States. After Navani consented, and Shahani failed to return to England on the agreed upon date, Navani contacted English law enforcement. Navani did not see his son again until he located Shahani and Jivan in New Mexico more than a year later.

On March 14, 2006, Navani filed a Hague Convention petition in the District of New Mexico asserting that Jivan had been wrongfully retained in the United States in violation of Navani's custody rights as established by English law. Navani asked the court to order the boy's return to England under the Hague Convention and ICARA. After a one-day trial, the district court granted Navani's petition on March 31, 2006, finding that Shahani had breached Navani's rights of custody under English law by retaining him in the United States, thereby warranting the child's repatriation to England. The district court ordered Jivan's return to England by June 15, 2006, where he now lives. Separately, Navani moved for an award of attorney's fees and costs pursuant to § 11607. In two orders issued on May 30, 2006 and December 5, 2006, the district court partially granted Navani's two motions for fees and costs and awarded him a total of $46,779.99.

Shahani thereafter filed a notice of appeal concerning the district court's March 31, 2006, order granting Navani's petition for an order of return and the district court's May 30, 2006, order denying Shahani's motion for a new trial or to alter or amend the judgment.¹ In her opening brief, Shahani generally argued that Navani failed to satisfy his burden under the Hague Convention and ICARA to show that he possesses rights of custody over Jivan, that the one-day trial violated her right to due process of law, and that the district court's order of return was technically deficient because it ordered the child returned to Navani's personal custody rather than to England. Navani disputed each of these contentions.

On April 30, 2007, a week before the scheduled May 7, 2007 oral argument in this case, Navani filed a motion to dismiss Shahani's appeal as moot based on an order issued by the English family court on March 23, 2007 ("the new custody order"). In pertinent part, the new custody order provides:

(i) The Mother wrongfully and unlawfully, without the Father's consent or leave of the Court, failed to return [Jivan Navani] to the jurisdiction of England and Wales on the 6th September 2004, and thereafter wrongfully and unlawfully retained Jivan Navani in the United States of America without the Father's consent or leave of the Court, contrary to the terms of the Child Abduction and Custody Act 1984.

. . .

(v) By virtue of his having parental responsibility together with an order for contact (the latter made by Mr. Justice Hedley on 2nd January 2004) the First Respondent Father has and had at all material times equal rights of custody together with the Mother in relation to Jivan, including at the time of his wrongful retention in the United States in September 2004.

IT IS ORDERED THAT:—

1. The Residence Order in favour of the Mother, together with all other orders made by the Honourable Mr. Justice Hedley on the 22nd January 2004 and 28th November 2006 be, for the avoidance of doubt, discharged.

2. The child Jivan Navani shall reside with the father John Kishin Navani.

3. The Applicant Mother be forbidden to remove the child Jivan Navani from the care of the First Respondent Father and from the jurisdiction of this Court.

4. The Applicant Mother's applications for a Residence Order and an order permitting her to remove the child Jivan Navani from the jurisdiction of England and Wales be dismissed.

5. There shall be by way of Prohibited Steps Order no direct contact between the Applicant Mother and the child Jivan Navani outside the jurisdiction of England and Wales.

6. The Mother shall have indirect contact with the child Jivan Navani as follows:—

(i) Telephone contact once per week for a period of thirty minutes at dates and times to be agreed, together with such other indirect contact by telephone letter and presents as is agreed between the parties.

(ii) Direct supervised contact within the jurisdiction as may be agreed in writing between the parties.

7. The Applicant Mother shall deliver up to the Father's solicitors all travel documents, passports and applications for the same relating to Jivan Navani as may be in her possession.

8. The Mother shall be forbidden to apply for any passport or travel document or for the grant of United States Citizenship or Rights of Abode for Jivan Navani.

Mot. to Dismiss, Ex. A at 2-4. Navani argues that the new custody order moots Shahani's appeal because it grants primary physical custody to Navani and prohibits returning the child to...