In February 2010,  the Ninth Circuit issued its opinion in Cuellar v. Joyce, 596 F.3d 505, 508 (9th Cir. 2010) (decision available here).  It involved the Hague Convention on the Civil Aspects of International Child Abduction and a little girl stolen by her father and taken to the US.  Today, the Ninth Circuit issued its decision regarding the award of attorneys’ fees to the mother’s pro bono attorneys.  Congratulations Mr. Bak and Mr. Ashby, along with Robert R. Miller and Michael Anderson. The facts: Joyce (the college professor/father) built a boat and sailed to Panama where he met Cuellar (the poor, exotic dancer/mother).  They dated.  They got pregnant.  They had a baby girl. When the baby was just over a year and a half, Joyce arranged for both mom and baby to meet him in Australia.  Here’s where it gets nasty.  In the Sydney airport, Joyce took the baby and the Cuellar’s passport,  separated himself from Cuellar and flew to the United States leaving Cuellar alone in the airport without her daughter and without any way to get back to Panama (no money, no passport).  Cuellar, the mom, finally tracked down Joyce and her daughter in Montana.  She petitioned the district court to return her daughter.  The district court denied her request.  The Ninth Circuit reversed and ordered her daughter returned. 

 The Hague Convention: The Hague Convention seeks to deter parents from abducting their children across national borders by limiting the main incentive for international abduction—the forum shopping of custody disputes. See Mozes v. Mozes, 239 F.3d1067, 1070 (9th Cir. 2001).  A court that receives a petition under the Hague Convention may not resolve the question of who, as between the parents, is best suited to have custody of the child. See id. With a few narrow exceptions, the court must return the abducted child to its country of habitual residence so that the courts of that country can determine custody. 

Pro Bono Counsel Sander Bak

Today’s Decision Awarding Attorneys’ Fees to The Mother’s Pro Bono Attorneys: (decision available here) Generally, as the saying goes “parties to litigation pay their own way.”  Each side fronts its own costs and it doesn’t matter who started it (who sued or is being sued).  But there are reasons why the prevailing party (the winner) should get their fees paid.  Typically, the “winner” only gets their fees paid when there is a “fee shifting provision” which shifts the obligation so that the “loser”  – - in addition to losing the case, also has to pay the winning side’s attorneys’ fees and costs.  And even when a provision like this is available, pro bono attorneys many times aren’t beneficiaries.  Today, the pro bono attorneys who donated lots of time and money to help one woman get her daughter back were also compensated for the work they performed. 

The Rule Here:  Congress has provided that a court “ordering the return of a child” under the Hague Convention shall award “necessary expenses incurred by or on behalf of the petitioner . . . unless the respondent establishes that such order would be clearly inappropriate.” 42 U.S.C. § 11607(b)(3).

Here, the Ninth Circuit noted that the substantive law was easy.  You can’t abduct a child from another country to the US and then ask the US to determine that you’re the better parent, or more fit, or its better for the child to be in the US and not the country from where you stole them.  You don’t get to steal a kid so that you get home field advantage in determining what happens to the child. (See the Ninth Circuit’s criticism the district court’s handling of the issues as an example of exactly what the Hague Convention is designed to prevent). 

At the end of the day, while the case was a simple one.   It took a long, long, long time and was really expensive for both sides, because Joyce refused to surrender custody of the little girl and employed every delay tactic available. 

And here’s the lesson to all litigants who end up on the losing side of a case that has a fee shifting provision: 

That delay proved expensive, both for Joyce and for the law firm that represented Cuellar. Having caused that expense, Joyce may not turn it to his own advantage to avoid the mandatory fee-shifting provision of section 11607(b)(3).  If Joyce didn’t want to bear the cost of delay, he shouldn’t have caused it. Better yet, he shouldn’t have abducted the child in the first place.

Finally, it’s important to note that the award of attorneys’ fees goes to pro bono counsel. 

Fee awards serve in part to deter frivolous litigation, and denying fees in this case would encourage abducting parents to engage in improper delaying tactics whenever the petitioning parent is represented by pro bono counsel. Cf. Morrison v. CIR, 565 F.3d 658, 664 (9th Cir. 2009). We see no reason to give abducting parents such a perverse incentive.  Withholding fees from pro bono counsel would also discourage pro bono representation and undermine the Convention’s policy of effective and speedy return of abducted  children. See Hague Convention on the Civil Aspects of International Child Abduction art. 1, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 (“The objects of the present Convention are . . . to secure the prompt return of children . . . and . . . to ensure that rights of custody . . . are effectively respected . . . .”).

 As Joyce repeatedly emphasized to this court, Cuellar lives in poverty in Panama, Cuellar, 596 F.3d at 509, and Joyce may well have hoped that Cuellar would not have the means to hold him to account for his abduction of the child. If not for Cuellar’s pro bono counsel, Joyce most likely would have succeeded. An award of fees in this case will encourage other lawyers to advance legal services to impecunious clients in the expectation that they will be compensated if successful. This will help ensure that the Convention not go unenforced merely because a parent whose child is abducted lacks the resources to pay for counsel.

So, here’s a thank you to Sander Bak, Kevin M. Ashby and Robert R. Miller of  Milbank,Tweed, Hadley & McCoy LLP, New York, New York; and Michael Anderson, Anderson & Liechty, P.C., of Billings, Montana who FOR FREE stepped up to take on Leyda Cuellar’s case to get back her kidnapped daughter. Congratulations on a job well done. And now, as a final thank you, your fees will be paid as well.