A custody battle that wound up in the U.S. Supreme Court is not over, after the court sided with the father and reversed the Eleventh Circuit's decision that his appeal of a custody ruling was not moot because the mother took the child back to Scotland. The unanimous Court found that merely because it was unlikely that the mother would comply with the order did not end the controversy and make the case moot.
For a court to hear an appeal there must be an active dispute between the parties and the possibility that a court could order relief. Because the mother had removed the child from the U.S., the Eleventh Circuit determined the case was moot. Mootness in legal cases generally means there is no longer a dispute in question. Because the father still contests the child custody award, the question is not moot.
The Chief Justice, writing for the Court, noted that the lower court had mistaken a question of the merits of the case with mootness. Courts often order remedies that may have little likelihood of being fulfilled, such as ordering a $100 million dollar judgment against a party that is insolvent.
Justice Ginsberg concurred in the ruling, but noted that the Hague Convention's purpose is to prevent this kind of occurrence, where a child who has lived for two years in Scotland, is suddenly forced to return to Alabama.
She recommended that Congress amend the law to control when and how an appeal has to be filed, to ensure an appalled court quickly decides the case and when return orders should be stayed to prevent a parent from removing a child prior to a final court decision.
Source: Reuters, "Supreme Court rules for Army father in custody battle," Lawrence Hurley and Jonathan Stempel, February 19, 2013