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This report evaluates the use of certified questions of state law between 2010 and 2018 in three U.S. circuit courts of appeal: the Ninth, Sixth, and Third Circuits. The data shows variation in the rate of certification and timing of certification events between the circuits.

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Habitual Residence | Re-Return Orders Following Reversal of Lower Court Order on Appeal

This case involved a child whose parents disagreed about his habitual residence, as well as the question whether an infant child may be a habitual resident of a country where he or she has never lived. It also addressed orders for the re-return of a child after a lower court order is reversed on appeal.[1]

Facts

Mother and father moved from Dubai, the birthplace of their child A.L.C., in 2008. When they departed Dubai in 2012, the parties left nothing behind and settled in Sweden. There their child entered preschool, played soccer, participated in swimming and martial arts, spent time with his father’s relatives, and demonstrated some fluency in Swedish. Thirteen months later, A.L.C. accompanied his pregnant mother to Los Angeles for several months. While there he participated in summer camp, preschool, and extracurricular activities. The parties differed on the reason and duration of the trip to Los Angeles. The district court found father’s intent was for the trip to last six months to allow mother to give birth to their second child. There was therefore no mutual intent for the parties to change A.L.C.’s habitual residence to the United States.

The district court also found the habitual residence of the newborn, E.R.S.C., was Sweden, despite the fact that the child had never lived in Sweden.

After entry of the district court’s order to return both children to Sweden, father relocated both children to Sweden.

Discussion

The court discussed the following questions: First, what is the habitual residence of infants? Second, may a child acquire a habitual residence in a country where he or she has never been physically present? Third, although a court may have an equitable power to order a child re-returned after the reversal of a district court order, may the appellate court decline to order the child’s re-return?

Habitual Residence. Following Ninth Circuit precedent in Mozes v. Mozes,[2] the court found that A.L.C. is a habitual resident of Sweden. It found no evidence of a mutual intent to change habitual residence to the United States and found that there was insufficient evidence of the child’s acclimatization to the United States to justify a change in the child’s habitual residence. The Ninth Circuit affirmed the district court’s order returning A.L.C. to Sweden.

The district court determined that the infant E.R.S.C.’s habitual residence was Sweden. Reversing this finding, the circuit court cited the Mozes principle that “habitual residence cannot be acquired without physical presence.”[3] The Ninth Circuit dismissed the district court’s reliance upon (1) mother’s financial situation, (2) her employment, and (3) the untenability of splitting up siblings for custody decisions, noting that these considerations spoke to the merits of custody determinations, not to issues relevant to Hague Convention analysis. The court further determined that at the time father filed his petition for return of the children, E.R.S.C. did not have a habitual residence. The court reasoned that

justifying E.R.S.C.’s habitual residence as the United States based on her contacts in Los Angeles is ineffective as “it is practically impossible for a newborn child, who is entirely dependent on its parents, to acclimatize independent of the immediate home environment.” Holder, 392 F.3d at 1020–21. When a child is born under a cloud of disagreement between parents over the child’s habitual residence, and a child remains of a tender age in which contacts outside the immediate home cannot practically develop into deep-rooted ties, a child remains without a habitual residence because “if an attachment to a State does not exist, it should hardly be invented.” Id. at 1020 (quoting Paul R. Beaumont & Peter E. McEleavy, The Hague Convention on International Child Abduction 89, 112 (1999)); see also Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir. 2003) (stating that when a “conflict [of parental intent] is contemporaneous with the birth of the child, no habitual residence may ever come into existence.”).[4]

Re-Return Orders. The Ninth Circuit recognized that although it had the equitable power to issue an order for the re-return of E.R.S.C. to the United States, it declined to do so. Quoting a portion of Justice Ginsburg’s concurring opinion in Chafin v. Chafin,[5] the court held that “‘[t]he concept of automatic re-return of a child in response to the overturn of [a Convention] order pursuant to which [E.R.S.C. went to Sweden] is unsupported by law or principle, and would . . . be deeply inimical to [E.R.S.C.’s] best interest.’”[6]


[1]. This issue is also discussed in the case analysis of Berezowsky v. Ojeda (Berezowsky II), 652 Fed. App’x 249 (5th Cir. 2016), reviewed concurrently with this case.
[2]. 239 F.3d 1067, 1081 (9th Cir. 2014).
[3]. Id. at 1080–81.
[4]. In re A.L.C., 607 Fed. App’x 658, 662 (9th Cir. 2015).
[5]. 133 S. Ct. 1017 (2013).
[6]. In re A.L.C., 607 Fed. App’x at 663 n.2 (emphasis added) (quoting Chafin, 133 S. Ct. at 1029 n. 2 (Ginsburg, J., concurring) (quoting DL v. EL, [2013] EWHC 49, ¶ 59(e))).

This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.

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Re-Return Orders Following Reversal of Lower Court Order on Appeal

In keeping with a district court order for return of the child to Mexico from Texas, mother took the child to Mexico. The Fifth Circuit reversed, remanding the case and directing the district court to vacate its order of return and dismiss the case (Berezowsky I).[1] On remand, the district court denied father’s request for a “re-return” (that is, that the child be returned back to Texas from Mexico). This decision was affirmed by the Fifth Circuit (Berezowsky II).[2]

Facts

Berezowsky I involved a complex history of mother and father’s contemporaneous child custody litigation in both Mexico and Texas, each seeking a friendly forum for their claims. In November 2012, mother filed a Hague Convention petition in the Southern District of Texas and obtained an order returning the child to Mexico, where mother had obtained a judgment granting her custody. Pursuant to the district court order, mother returned to Mexico with the child. On appeal, the Fifth Circuit found that the child’s habitual residence was Texas, not Mexico, so it reversed and directed that the district court vacate the return order and dismiss the case. In light of the Fifth Circuit’s holding that Texas was the child’s habitual residence, father requested that the district court issue a re-return order, compelling the return of the child back to Texas. The district court refused the order. Father appealed to the Fifth Circuit, contending that the district court’s refusal to grant an order compelling the child’s return was an abuse of discretion, allowing mother to possess the child by virtue of a vacated return order.

Discussion

In question were the following: first, whether the Fifth Circuit’s order on remand to the district court to vacate its order of return and to dismiss the case foreclosed the issuance of an order of re-return of the child to Texas, and second, whether the district court’s refusal to grant father’s request for a re-return order was an abuse of discretion.

The Fifth Circuit found that courts possessed inherent power to order the re-return of children, citing the Supreme Court’s decision in Chafin v. Chafin.[3]

The court also ruled that its failure to direct the district court to order the child re-returned did not foreclose the district court from issuing such an order. Although issues decided implicitly by courts of appeals may be reexamined by trial courts, a court may not proceed on matters decided by “necessary implication.”[4] Given that a re-return order was not foreclosed by the circuit court’s order on remand (to vacate the order of return and order the case dismissed), the district court was free to consider the issue of re-return and grant or deny the same. Finding no abuse of discretion in the lower court’s denial of father’s re-return motion, the judgment was affirmed.


[1]. Berezowsky v. Ojeda, 765 F.3d 456 (5th Cir. 2014).
[2]. Re-return orders are also discussed in the case analysis of In re A.L.C., 607 Fed. App’x 658 (9th Cir. 2015), reviewed concurrently with this case.
[3]. 133 S. Ct. 1017 (2013); see also In re A.L.C., 607 Fed. App’x at 663.
[4]. Berezowsky v. Ojeda (Berezowsky II), 652 Fed. App’x 249, 252 (5th Cir. 2016).

This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.

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This outline will use the term "departure" only in reference to a departure from the guideline range as calculated under the U.S. Sentencing Guidelines. The terms "variance," "non-Guidelines sentence," or "sentence outside the Guidelines" will refer to a sentence that is different from the applicable advisory guideline range-which may already include a departure-based on the application of other - 3553(a) factors. For purposes of this outline, it is assumed that readers are familiar with the basic holding and effect of U.S. v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), as well as Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). This outline does not include "cert. denied" citations. This outline was initially prepared for the 2006 National Sentencing Policy Institute.

Archival Copy on File

This pre-Booker outline identifies significant developments in federal appellate court decisions on the Sentencing Guidelines and the 1984 Sentencing Reform Act, as amended, and includes Supreme Court decisions through June 30, 2002, a comprehensive survey of appellate court cases up to December 31, 2001, and selected additional cases through July 31, 2002.

This was the final issue of Guideline Sentencing: An Outline of Appellate Case Law on Selected Issues, which was published from 1994 to 2002.

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This report was prepared at the request of the Committee on Appellate Rules as they consider proposing a uniform rule on en banc voting procedures for the courts of appeals.

In Print: Available for Distribution

This report details the varying appellate practices and procedures of the U.S. courts of appeals within the generally uniform appellate scheme imposed by the Federal Rules of Appellate Procedure. Part I of the report highlights key variations from court to court; Part II describes in detail the case management procedures of each court.

Superseded by Case Management Procedures in the Federal Courts of Appeals, Second Edition (2011).

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A newsletter with brief summaries of trends in federal appellate treatment of practical procedural problems that trial judges may face. Each Bench Comment was reviewed by federal judges with special expertise in the specific area.

1981

  • No. 1: Making Explicit Findings When Balancing Probative Value Against Prejudicial Effect Before Admitting Proof of Prior Conviction of Witness Under Fed. R. Evid. 609(a) (March 23, 1981)
  • No. 2: Need for trial court to identify contempt proceeding as being civil contempt or criminal contempt (May 15, 1981)
  • No. 3: Excluding the Defendant, his counsel, the public or the press from any portion of the voir dire examination of prospective jurors (July 8, 1981)
  • No. 4: Procedures for Dealing with Communications from the Jury (August 24, 1981)
  • No. 5: Factors to be Considered in Balancing Probative Value Against Prejudicial Effect Before Admitting Proof of Prior Conviction of a Defendant-Witness under Fed. R. Evid. 609(a)(1) (September 28, 1981)
  • No. 6: Verbatim adoption of proposed findings of fact and conclusions of law (December 31, 1981)

1982

  • No. 1: Declaring Mistrial Over Objection of Defendant in Criminal Prosecution (January 27, 1982)
  • No. 2: Procedure to be Followed when Potentially Prejudicial Publicity Has Occurred During a Criminal Trial (April 23, 1982)
  • No. 3: The Jury is not to be Instructed on the Admissibility of Co-conspirator Statements (June 10, 1982)
  • No. 4: Instructing Defendant Prior to an Effective Waiver of Right to Counsel (September 24, 1982)

1983

  • No. 1: The Right to Jury Trial in Criminal Contempt Proceedings (May 3, 1983)
  • No. 2: The Quantum of Proof Required for the Admission of Coconspirator Statements (June 30, 1983)
  • No. 3: [There wasn't an issue number 3 in 1983]
  • No. 4: The Victim and Witness Protection Act of 1982 and Pleas of Guilty or Nolo Contendere: Duty of the Court to Advise that the Defendant May Be Ordered to Make Restitution (November 8, 1983)

1984

  • No. 1: Defendants May Not Waive Requirement of Unanimous Verdicts in Federal Criminal Trial (January 25, 1984)
  • No. 2: Recent Developments Regarding Standards and Procedures for Barring the Public from the Courtroom During a Criminal Trial (August 15, 1984)
  • No. 3: Disclosure of Presentence Reports to Third Parties (September 15, 1984)

1985

  • No. 1: Procedures for Dealing with Stipulations of Fact in Criminal Trials (April 15, 1985)
  • No. 2: The Bail-pending Appeal Provisions of the Crime Control Act of 1984 (July 15, 1985)
  • No. 3: What Does Federal Rule of Criminal Procedure 32(c)(3)(D) Require a Sentencing Judge to Do when a Defendant Challenges the Accuracy of the Presentence Report? (December 4, 1985)

1986

  • No. 1: The Timing of Pretrial Detention Motions and Hearings on Such Motions under the Bail Reform Act of 1984 (January 15, 1986)
  • No. 2: When Does Rule 12(e) Require a Judge to Rule on an Evidentiary Motion Before the Trial Begins? (January 30, 1986)
  • No. 3: Application and Effect of Rebuttable Presumptions Created by the Bail Reform Act of 1984 (April 1, 1986)
  • No. 4: Limitations on a Defendant's Right under Rule 43 to be Present at Every Stage of Trial (May 30, 1986)

1987

  • No. 1: Blanket Assertions of the Privilege Against Self-Incrimination (January 23, 1987)
  • No. 2: Considering a Motion by a Recalcitrant Grand Jury Witness Who Claims His or Her Civil Contempt Incarceration Should Be Terminated Because It Has Lost Its Coercive Effect (February 23, 1987)
  • No. 3: Instructing Deadlocked Juries--The Allen Charge in Federal Courts (August 12, 1987)
  • No. 4: Bourjaily v. United States: Admission of Co-Conspirator Statements under Federal Rule of Evidence 801(d)(2)(E) (October 23, 1987)
  • No. 5: Postindictment Restraining Orders under the Comprehensive Forfeiture Act (December 1, 1987)

1988

  • No. 1: Use of Oral Testimony in an Evidentiary Hearing on a Motion for Summary Judgment-- Fed. R. Civ. P. 43(e) (January 4, 1988)
  • No. 2 Expert Testimony on Insanity and Mental State under Revised Federal Rule of Evidence 704(b) (April 13, 1988)
  • No. 3: Determining a Prima Facie Case under Batson v. Kentucky (June 16, 1988)
  • No. 4: Procedure under Batson v. Kentucky when Prima Facie Case of discrimination demonstrated (July 15, 1988)
  • No. 5: The Fifth Amendment and Production of Corporate Documents by Custodians and Compelled Consent to Release of Records by Third Parties (October 25, 1988)

1989

  • No. 1: Bifurcation of Criminal Forfeiture Proceedings: Is a Separate Evidentiary Hearing on Forfeiture Required? (March 6, 1989)
  • No. 2: Applicability of Batson to Civil Cases (July 12, 1989)
  • No. 3: Curbing Abuse by In Forma Pauperis Litigants (November 9, 1989)

1990

  • [No issues of Bench Comment were published in 1990]

1991

  • No. 1: Jury Requests to Have Transcripts of Testimony Read Back or Furnished (August 1991)
  • No. 2: What Constitutes "Just Cause" to Dismiss a Juror in a Criminal Trial after Deliberations Have Begun (October 1991)
  • No. 3: What District Courts Should Do When Defendants, at Guilty Plea Hearings, Acknowledge Having Recently Taken Narcotics or Medication (December 1991)

1992

  • No. 1: May a Court Summarily Find an Attorney in Criminal Contempt under Fed. R. Crim. P. 42(a) for Tardiness or Failure to Appear? (January 1992)
  • No. 2: What District Courts Should Do When Parties or Potential Jurors Refuse to Take an Oath or Affirmation Because of Religious Objections (February 1992)
  • No. 3: A District Court May Not Order a New Trial on the Basis of Jurors' Testimony About Factors That Influenced the Verdict (April 1992)
  • No. 4: A District Court Must Consider Less Severe Sanctions Before Dismissing a Case (June 1992)
  • No. 5: When Ruling on a Motion for Judgment Notwithstanding the Verdict, May a District Court Exclude from Consideration Evidence that Was Erroneously Admitted? (August 1992)
  • No. 6: Defendants' Rights under the Speedy Trial Act are Not Waivable (October 1992)
  • No. 7: May a Magistrate Judge Conduct Voir Dire in a Civil Case over the Objection of a Party? (December 1992)

1993

  • No. 1: District Judges May Not Participate in Plea Bargain Discussions (March 1993)
  • No. 2: The "Deliberate Ignorance" Instruction Should be Given in Rare Situations Only (April 1993)
  • No. 3: What District Courts Should Do When the Government Breaches a Pretrial Agreement (May 1993)
  • No. 4: District Courts Should Hold an Evidentiary Hearing Before Enforcing a Disputed Settlement Agreement (June 1993)
  • No. 5: What District Courts Should Do When Counsel Make Improper Comments in Closing Argument (December 1993)

1994

  • No. 1: Hypothetical Questions That Assume Guilt are Generally Impermissible (January 1994)
  • No. 2: Proper Application of the Roviaro test may require district courts to conduct in camera hearings (May 1994)

1995

  • No. 1: Failure to Give a Defendant Adequate Advice Concerning the Direct Consequences of a Guilty Plea Violates Rule 11 (September 1995)

1996

  • [No issues of Bench Comment were published in 1996]

1997

  • No. 1: A Growing number of circuits find anonymous juries do not infringe defendants' constitutional rights when genuinely needed and properly used (January 1997)
  • No. 2: Exparte communications between judge and jury often violate defendants' Rule 43 right to be present at every stage of trial, but rarely constitute reversible error (February 1997)

1998

  • No. 1: Three circuits hold that, with defendant's consent, a magistrate judge has authority to conduct guilty plea proceedings in felony cases (February 1998)

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