Alumnus prevails in Supreme Court of Virginia
By Spenser Solis
Michael E. Kinney secured a landmark ruling from the Supreme Court of Virginia in an international child abduction case recognizing the fugitive disentitlement doctrine for the first time in Virginia’s history. That doctrine holds that a fugitive from justice “cannot seek relief from the same judicial system whose authority he evades.”
Kinney, an attorney at Hunton & Williams LLP in McLean, Va., and litigation partner, Stephen M. Sayers, accepted the case pro bono publico after the client had exhausted her financial resources in litigation involving the physical custody of her 3-year-old son.
The legal dispute began when the mother’s ex-husband, a Mexican citizen, prevented Kinney’s client from returning with their son to the United States from a temporary sojourn in Spain.
“When my client discovered her husband’s intention to reside permanently in Spain, instead of returning together to the United States as they had agreed, she was astonished. When she confronted him, he said, ‘You’re stuck here,’ ” Kinney related.
Her husband then hid the child’s passports and cut his wife off from her financial resources.
After the U.S. Consulate issued an emergency, replacement passport for her son, Kinney’s client was able to leave Spain, and returned with her son to Fairfax, Va. Her husband filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction, a treaty to which the United States and Spain are signatories. The General District Court of Fairfax County initially granted the petition and permitted the child’s return to Spain. That decision was subject to de novo retrial in the circuit court, however, under Virginia’s two-tier trial system in matters involving a child.
“Ultimately the circuit court ruled against the father and required him to return the child to the United States for further proceedings,” Kinney explained. Although he appealed the circuit court’s order, the father did nothing to suspend enforcement of those orders pending his appeal.
“He simply disobeyed the Court’s orders,” Kinney said. “The Hague Convention issues were new to me, but we regularly practice in appellate courts,” Kinney said. “It seemed to us that we were more concerned with issues of appellate procedure and, most importantly, the rule of law.”
Kinney first filed a motion to dismiss the husband’s appeal on the basis of his fugitive status with the Court of Appeals of Virginia. That court granted the motion, applying the fugitive disentitlement doctrine for the first time in Virginia. On Oct. 31, 2008, an unanimous decision of the Supreme Court of Virginia affirmed the Court of Appeals. That decision sends an unambiguous message to litigants in Virginia courts. “Any litigant who wants to be heard by a Virginia appellate court must be in compliance with the trial court’s order,” Kinney said.
Kinney attributes his interest in appellate practice to experiences as a judicial law clerk for Judge Earle Zehmer with the Florida First District Court of Appeals. “Judge Zehmer always stressed the importance of counsel’s preparation for oral argument,” Kinney recalled.
Kinney urges future lawyers to pursue areas of law that most interest them, but to be open to unexpected opportunities.
“Every case raises something new and you’re given opportunities to educate yourself on different areas of the law, and different aspects of human experience.”