Milbank Helps Reunite Mother With Her Abducted Daughter
Unanimous Pro Bono Victory in the Ninth Circuit
NEW YORK, March 8, 2010 – The international law firm of Milbank, Tweed, Hadley & McCloy LLP has helped bring a joyous ending to an emotional 16-month battle of a mother to reunite with her young daughter who had been abducted by her father several years ago in an Australian airport. Milbank client Leyda Cuellar, a citizen and resident of Panama, was jubilant when a unanimous panel of the United States Court of Appeals for the Ninth Circuit reversed a Montana district court decision and ordered Richard Joyce, Cuellar’s estranged husband, to return their child to her.
The Court accepted every one of Milbank’s arguments under the International Child Abduction Remedies Act (“ICARA”)—the federal statute implementing the Hague Convention on the Civil Aspects of International Child Abduction—to reject the trial court’s findings and conclusions, and to order that the mandate issue immediately and without a remand to the trial court.
According to the extraordinary opinion written by Chief Judge Alex Kozinski, "We order Richard to transfer custody of K.C. to Leyda by 1:00 p.m. MST on the third business day following the issuance of this opinion. Within 10 days of receiving custody, Leyda shall return to Panama with K.C.; Leyda may request a limited extension upon a convincing showing of good cause. The district court shall provide Leyda with all of K.C.’s travel documents and take all steps necessary to ensure that Richard complies with this order, including, if necessary, ordering intervention of the United States Marshals Service."
Leyda Cuellar and Richard Joyce had met and married in Panama where she gave birth to a baby girl, referred to as K.C. in the litigation. Cuellar lives in Neuva Livia, a neighborhood that Joyce described as "slum-like," "beyond the end of the road" and "very dangerous," although, as the Ninth Circuit observed, Joyce never complained when they were dating. When K.C. was 19 months old, Joyce arranged for Cuellar and K.C. to meet him in Australia. At the Sydney airport, Joyce separated himself and K.C. from Cuellar and flew to the United States, leaving Cuellar behind without her passport. Cuellar tracked Joyce down in Montana, where he was residing with K.C., and petitioned the district court there for K.C.’s return. The district court denied relief and Cuellar appealed.
Following the Ninth Circuit’s unanimous decision, Joyce delivered K.C. to Cuellar on Sunday, February 21st, and made an “emergency” motion later that night, seeking to “recall the mandate and stay the order of return.” At 7:41 p.m. EST on Monday February 22nd, the Ninth Circuit denied Joyce’s motion in all respects, saying: "We will entertain no further motions for stay, recall of the mandate or other interlocutory relief filed by Joyce. Any such motions will be returned to Joyce unfiled." The next day, Cuellar and KC departed the US on a flight to Panama, and mother and child are now safely back home.
Kevin Ashby, Adlin Castro, Robert Miller and Brendan Riley were the principal associates who worked on the pro bono matter, and the appeal was argued by Mr. Ashby. Sander Bak was the partner in charge of the matter, with a legal team that included various Milbank lawyers, legal assistants, and summer associates. The district court proceedings were handled by Michael B. Anderson, of the firm Anderson & Liechty P.C., based in Billings, Montana. Mr. Anderson also appeared as co-counsel on the appeal before the Ninth Circuit.
This case was also featured in the McGuire Coats blog, "the Ninth". Click here to view the full article.