Wednesday, December 05, 2012 1:31 pm
Justices struggle with international custody law
By JESSE J. HOLLANDAssociated Press
The justices are trying to determine whether Army Sgt. 1st Class Jeffrey Lee Chafin can appeal a federal judge's decision to let Lynne Hales Chafin take their daughter back to her native Scotland. The 11th U.S. Circuit Court of Appeals ruled that Chafin's appeal was moot because the girl has now been in Scotland for more than a year, and that his only remedy is in Scotland's courts.
But several justices seemed concerned by the idea that a foreign-born parent could escape U.S. court jurisdiction by simply getting on a plane. Chief Justice John Roberts said that would encourage such parents in custody disputes "to leave immediately" following a favorable decision even though it's not a final decision in the U.S. court system.
"Once she does, it's all over," Roberts said, calling that a "very unfortunate result."
But if the child makes it on an international flight, the jurisdiction of the U.S. court system is over, said Lynne Chafin's lawyer, Stephen J. Cullen. "There can be no re-return" order from the U.S. courts, Cullen said.
Chafin can plead his case in Scottish courts, Cullen said.
The Chafins married in Scotland in 2006; their daughter was born in 2007. The family lived in Germany until Chafin was deployed in Afghanistan, and mother and daughter moved to Scotland. Chafin transferred to Alabama in 2009, and was joined by his family the next year.
The Chafins agreed to divorce in 2010, and Lynne Chafin was deported in February 2011.
She sued to take her child with her, citing the 1980 Hague convention on international child abductions, which is designed to return children illegally taken from member countries. She said their daughter's residence was Scotland, and that her husband illegally retained the child in the United States. A federal judge agreed, and ordered the girl be taken to Scotland. The judge also refused to stay the order. The mother and child boarded a plane and left the U.S.
Chafin appealed to the circuit court, which said the case was moot because the girl was in her official residence of Scotland.
Justice Ruth Bader Ginsburg told Chafin's lawyer and the Justice Department that the point of the Hague Convention was to stop the shuttling of children from country to country during custody disputes.
"What you're urging is exactly what this Convention was meant to stop. This child has been in Scotland for 14 months. Now, you say bring it back to the United States, and we start over. The whole object of the return procedure is so that you get the child to a place that's a proper place to determine custody," she said.
The justices will likely make a decision in the spring.
The case is Chafin v. Chafin, 11-1347.