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Cullen hopes high court will draw line on appealing international custody disputes

During the term that’s about to open, the Supreme Court will consider whether an international treaty and U.S. law prevent an American father from appealing a U.S. court’s order that allowed his ex-wife to take their daughter to Scotland, after the pair have already left the country.

Stephen J. Cullen and his co-counsel at Miles & Stockbridge, Kelly A. Powers, pose in front of the Supreme Court, which has been shielded with a painted scrim while renovations proceed. Cullen has at least one argument in front of the court this term, and is hoping for a second certiorari grant.

Arguing the case on Dec. 5 will be international family law attorney Stephen J. Cullen, a Scotland native with “triple citizenship,” whom the mother retained based on a referral from the Scottish government and after a telephone conversation.

“We bonded over soccer,” Cullen said of his first conversation with Lynne Hales Chafin. “She called me up and heard a Scottish accent, so I think she felt at ease.”

Cullen, a partner at Miles & Stockbridge P.C., said he took the case pro bono.

A naturalized U.S. citizen, Cullen is also a citizen of the United Kingdom (via Scotland) and Ireland, as both of his parents were born there.

Cullen said he hopes it will not be his only argument in the high court. The justices have not yet acted on his request that the court hear Paul Toland’s appeal of a Maryland high court ruling that the state’s judges lack jurisdiction to hear his plea for custody of his daughter Erika, who has lived with her maternal grandmother since the child’s mother died five years ago.

In the Scotland case, Army Sgt. Jeffrey L. Chafin is challenging a lower court’s decision that the U.S. courts lack jurisdiction over the dispute. The 11th U.S. Circuit Court of Appeals had ruled that Chafin’s challenge was rendered moot when the child returned to Scotland, saying he would have to seek custody through Scotland’s courts.

Although Cullen represents the mother, he did not challenge the father’s request for Supreme Court review.

The attorney, who heads the law firm’s family law group in Washington, said he seeks a definitive high court ruling that will assure Lynne Chafin that the U.S. litigation is over.

“We want the Supreme Court to say: ‘Once this case moved back to Scotland, you’re too late, mate,’” said Cullen, who received his undergraduate and law degrees at the University of Edinburgh and spent five years as a high school English and Italian teacher in Scotland. “If this was still dragging on for Ms. Chafin, it would continue to cause huge stress.”

But Jeffrey Chafin’s attorney voiced confidence that the Supreme Court, having granted his appeal, will reopen the federal courthouse doors to the father’s custody claim.

“I think we will prevail because the downside is so steep,” said family law attorney Michael E. Manely, who heads The Manely Firm PC in Marietta, Ga.

“When the children are taken abroad, they are gone” under the 11th Circuit’s decision, Manely said. “We have no power over them, and that is an unthinkable result.”

Cullen and Manely each said they have spoken with U.S. Solicitor General Donald B. Verrilli Jr.’s office in an effort to get the Obama administration’s support for their positions but have not heard back.

‘Habitual residence’

The federal court issued its order under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, an international treaty, and the federal International Child Abduction Remedies Act. The laws call for children to be returned to their “habitual residence” if they have been “wrongfully retained” in the United States by one of their parents.

Jeffrey and Lynne Chafin married while he was stationed in Germany in early 2006. Their daughter was born the next year, before Jeffrey’s 15-month deployment to Afghanistan and subsequent transfer to Redstone Arsenal in Huntsville, Ala.

Lynne, a Scottish national, lived with the child in Scotland during Jeffrey’s deployment and then moved with her to Huntsville. The child stayed with Jeffrey in Huntsville when Lynn retuned briefly to Scotland, coming back to Alabama in the waning months of 2009.

Jeffrey filed for divorce in May 2010, and the parties were awarded joint legal and physical custody. However, on May 2, 2011, the mother filed her claim in U.S. District Court for Northern Alabama.

Lynne alleged that Jeffrey had hidden the child’s passport to prevent her from returning with the mother to Scotland, which Lynne claimed was the child’s habitual residence. Lynne argued that her daughter was being wrongfully detained in the United States and sought an order permitting her to leave with the child for Scotland.

The U.S. District Court granted the request on Oct. 13, 2011.

Jeffrey Chapin appealed the ruling, arguing that the child’s habitual residence was Alabama and that she must be returned.

The 11th Circuit refused to hear the appeal, saying on Feb. 6 that the case was rendered moot when the mother returned to Scotland.

The 11th Circuit’s decision conflicts with a 2003 decision of the 4th U.S. Circuit Court of Appeals.

In Fawcett v. McRoberts, the 4th Circuit held that U.S. courts retain continuing jurisdiction to review the legal basis of a lower U.S. court decision.

Cullen, who argued and lost the Fawcett case in the 4th Circuit, appealed to the Supreme Court, but the justices declined to grant certiorari without comment in that case.

The Chafin case gives him the opportunity to finally present his argument to the justices.

“I’m really looking forward to it,” Cullen said. “This is an opportunity to get the law right on this very important issue.”

First time

Cullen has argued before nine federal appellate circuit courts but never in front of the justices. He said will prepare by having moot courts with members of his law firm.

Cullen added he hopes his “gift of gab” will play well before the justices, quickly adding he knows that Chief Justice John G. Roberts Jr. strictly enforces time limits at oral argument.

“Having the gift of gab is also knowing when not to speak,” Cullen said.

Manely, Cullen’s courtroom opponent, is also looking forward to his first argument before the high court, which he characterized as quite an achievement for the head of a six-person law firm.

“There’s a great difference between Miles & Stockbridge and The Manely Firm,” he said. “They certainly are the Goliath in the room.”

The high court is expected to render its decision in the case, Chafin v. Chafin, No. 11-1347, by next summer.

In the Japan case, the Maryland Court of Appeals ruled unanimously in March that decisions regarding Erika’s custody properly reside with the Japanese courts, which have awarded guardianship of Erika to the grandmother, Akiko Futagi.

Toland, while stationed in Japan, married Etsuko Futagi in March 1995, and Erika was born seven and a half years later, on Oct. 17, 2002.

In summer 2003, the mother left with Erika and filed for divorce, which the Tokyo Family Court granted on Sept. 29, 2005. The court also awarded the mother custody of Erika.

When the mother died on Oct. 31, 2007, a Japanese court awarded the grandmother guardianship of the child without providing notice to Toland, who thus did not participate in the court hearing, Toland said.

In his request for Supreme Court review, Cullen argued Maryland judges owe no deference to the Japanese court because it had awarded custody to the grandmother without affording Toland any notice or opportunity to be heard. The usual rules of giving “comity” to foreign courts do not apply when a parent, or any other litigant, has been denied such due process, Cullen added.

But Futagi’s attorney has urged the Supreme Court to deny Toland’s appeal, saying the decision to grant comity in family law cases properly rests with state courts.

Maryland’s high court considered the due-process arguments and validly deferred to the Japanese court’s award of guardianship, said Judy Dugger, a solo practitioner in Fairfax, Va.

The Supreme Court was slated to consider Toland’s request for review at a scheduled conference last Monday, but has not announced whether it will grant certiorari in Toland v. Futagi, No. 11-1549.