Case Update (10 Sept 2024): Nisbet v. Bridger; Oral Arguments before 9th Circuit
About 11 months after the U.S. District Court for the District of Oregon denied the return of 2 minor children to Scotland, the U.S. Court of Appeals for the 9th Circuit heard oral arguments on the Petitioner’s appeal. There were three key issues addressed on appeal. You can view the oral arguments by clicking here.
Issue 1: The district court’s conclusion that the children had “no habitual residence.”
The 3-judge panel queried Petitioner on identifying precisely where Petitioner felt the district court had committed clear error. Petitioner argued that the district court had not considered that the children had resided in the same home in Scotland for 2 1/2 years, and had all their treatment providers in Scotland. Petitioner also argued that the district court conflated the father’s lack of consent with the mother’s argument that she was coerced into remaining in Scotland. Respondent argued that she was stuck in Scotland due to circumstances beyond her control, such as the COVID-19 border closures, the inability to obtain the youngest child’s U.S. passport, and coercive control. The 3-judge panel asked whether it was clear error for the district court to not consider that the Petitioner had 100% financed the children’s lives up until their removal. The Respondent answered that the district court did consider that in the totality of the circumstances. The panel also made the point that Respondent first moved to Scotland in 2013, and hadn’t lived in the USA since her move. They also pointed out that the apartment in Scotland had been her primary home over those years (short of living with or near family in Jersey), she had received sums of money to pay all her expenses, and the children, after their father was institutionalized, still had videos with him every day. The Respondent replied that the analysis conducted by the district court was Monasky-compliant, citing to Smith v. Smith. The 3-judge panel noted that it seemed incredulous to think that this was a “nomadic” family, and that it made no sense that these children would be “without a home”. Respondent was quick to point out that, for young children, you look at the caregiver’s circumstances, which the district court did in concluding that the children had no habitual residence.
Issue 2: The district court’s conclusion that returning the children would (a) expose them to a grave risk of harm, and (b) place them in an intolerable situation.
The 3-judge panel seemed interested in whether the Respondent could legally return to Scotland for custody proceedings. Petitioner argued that there was a void of evidence saying she could not return. Respondent argued that she credibly testified that she consulted immigration counsel and concluded she could not return. This issue about the Respondent’s inability or “unwillingness” to return to Scotland permeated the arguments, with the 3-judge panel saying it was a “huge leap of faith” that the Petitioner would be out of institutionalization during the pendency of the Scottish custody action, and that the Scottish courts would be “foolish” as to not account for the Petitioner’s behavior in its custody decision. Therefore, the panel asked where the risk was. Respondent argued that it was that she could not return to Scotland, therefore the children would be placed in foster care, which the evidence showed would be detrimental to their health. The 3-judge panel, however, said that 9th Circuit precedent says that the Respondent’s ability to return is irrelevant, because considering that is a reward for having abducted one’s child. Respondent did, interestingly, note that Petitioner failed to appeal the independent ruling that the children’s return would expose the children to an intolerable situation.
Issue 3: Did the Petitioner have a right of custody over the child born in Jersey?
Jersey is a crown protectorate, and, apparently, the father did not provide evidence of Jersey law to determine his parental rights. The 3-judge panel asked Petitioner to identify what law is the applicable law for it to look at in determining this Petitioner’s right of custody for the one child born in Jersey. For example, would Scottish law refer to Jersey law? Petitioner argued that under the Scotland Act of 1995, there is a right in Scotland afforded to this father that he could veto his child’s removal from Scotland, and under Abbott, that is sufficient as a right of custody. He was recognized as a parent who had that right as the father listed on that child’s birth certificate.
