Age of Child | Attorney Fees and Costs
In this case, the Seventh Circuit addressed the loss of jurisdiction when a child turns sixteen years of age and whether sanctions were warranted for a frivolous appeal.
Holdings
The Seventh Circuit held that (1) when a child reaches the age of sixteen, the 1980 Convention no longer applies, even if the case is pending appeal. The court also held that (2) the father’s repeated filing of meritless actions warranted the imposition of sanctions.
Facts
The mother took the parties’ teenage son from Switzerland to Illinois in 2016. The father petitioned in Illinois state court for the return of the child. Dissatisfied with the pace of the state action, he filed a similar case for return of the child in federal court. Because the federal action was parallel to the state case, the federal court stayed the father’s action for return under the authority of Colorado River[1] and denied his subsequent motion to lift the stay. In 2018, the father requested the federal court to issue emergency “protective measures,” believing the mother planned to remove the child to Mexico. The federal court denied this motion as inconsistent with its previous stay.
In 2019, the child turned sixteen, and the mother moved to dismiss the federal action for lack of jurisdiction. Confirming that the Convention does not apply to children above the age of sixteen, the court granted the mother’s motion. The father filed an appeal with the Seventh Circuit; the mother moved to dismiss and moved for an award of sanctions, arguing that the father’s appeal was frivolous.
Discussion
The Seventh Circuit found that the case was moot, citing Article 4 of the Convention,[2] the Department of State Legal Analysis,[3] and Custodio v. Samillan,[4] an Eighth Circuit case dismissing an appeal because the child turned sixteen during its pendency.[5]
The Seventh Circuit granted the mother’s request for sanctions consisting of attorney fees and costs. The court noted that since 2016, the father filed fifteen suits against the mother, her family, employer, lawyers, and the child’s therapist. The court also noted that the father had been designated a restricted filer by an executive committee order.[6] This prohibited him from filing pro se actions without the permission of the district court’s executive committee.[7]
[1]. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 813–14 (1976).
[2]. “The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.” Article 4, Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89.
[3]. Hague Int’l Child Abduction Convention, Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,504 (Mar. 26, 1986).
[4]. Custodio v. Samillan, 842 F.3d 1084, 1088 (8th Cir. 2016).
[5]. Id. at 1088.
[6]. In re Antoine Guy Jean Paul Bordelais, 20 C 4165 (N.D. Ill. July 20, 2020).
[7]. “If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.” Fed. R. App. P. 38.