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U.S. Supreme Court hears international child custody case

WASHINGTON — The Supreme Court justices appeared divided Wednesday in an international custody dispute that tests whether an American man can appeal a ruling in favor of his foreign-born wife once she and their daughter legally moved to Scotland.

Now that his client and her daughter are in Scotland, attorney Stephen J. Cullen says, any challenge to the court order that allowed them to go must be brought in that country.

Chief Justice John G. Roberts Jr., voicing support for the father, said depriving the non-custodial parent the chance to appeal would spur the custodial parent to “find the first flight” out of the United States upon receiving an otherwise appealable custody order.

But Justice Ruth Bader Ginsburg, in backing the mother, said an international treaty was designed to bring finality to such disputes and “stop this shuttling of the child back and forth” between countries.

Army Sgt. Jeffrey L. Chafin hopes to appeal an order by a federal judge in Alabama, which permitted Lynne H. Chafin to take their child to Scotland in October 2011. A federal appeals court found the order could only be challenged in Scotland.

The Obama administration and Sgt. Chafin’s attorney both argued Wednesday that the father should be allowed to appeal the order in the U.S.

But Stephen J. Cullen, lead attorney for the mother, told the justices that any further custody proceedings must occur in Scotland, where the child is now lawfully located under the district court’s order, the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the federal International Child Abduction Remedies Act.

Scottish courts would now have the legal authority to give “zero effect” to a ruling by U.S. courts that the child be returned, Cullen said. He and co-counsel Kelly A. Powers are with the Washington office of Baltimore-based Miles & Stockbridge P.C.

Their argument drew criticism from Justice Stephen G. Breyer, who said he would be surprised if Scottish judges did not at least weigh a U.S. court’s decision in their deliberations.

“Wouldn’t [a U.S. decision] matter to the Scottish court?” Breyer asked.

“Wouldn’t they give it consideration?” he added. “The Scottish courts are not so narrow-minded.”

Cullen responded that the Scottish court’s primary consideration would be the best interests of a child who has lived in Scotland for the last 14 months.

“We trust this other country to do the right thing,” Cullen said. “The challenge is back in Scotland and now one court can proceed.”

But Roberts said the legal fight might not have left the United States, citing the father’s asserted right to appeal.

The chief justice expressed concern that depriving the father access to a U.S. appellate court might lead parents in future international custody disputes “to get on the first plane out and then you’re home free.”

Justice Anthony M. Kennedy also was troubled, saying a ruling for Mrs. Chafin might “give a premium to the [mother’s] precipitous action that the Hague Convention is designed to avoid,” Kennedy said.

But Cullen said the lesson is not that custodial parents should bolt upon receiving a district court order but that non-custodial parents should be prepared to immediately move for a stay of the custody order pending appeal. Such motions, generally granted, prevent a parent from leaving the country with the child, Cullen said.

In the Chafins’ case, the court denied the sergeant’s oral motion for a stay.

Pressing the father’s case, Georgia lawyer Michael E. Manely argued that the lower court’s order did not become final until the federal appellate court had an opportunity to review it.

Assistant U.S. Solicitor General Nicole A. Saharsky agreed with Manely in voicing the Obama administration’s support for the father’s right to appeal the order.

‘Habitual residence’

The Hague convention and federal law 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.

The Chafins married in 2006, while he was stationed in Germany. Their daughter was born the following year, prior to Sgt. Chafin’s 15-month deployment to Afghanistan and subsequent transfer to Redstone Arsenal in Huntsville, Ala.

Mrs. Chafin and the girl lived in Scotland during the deployment but moved to Huntsville when Sgt. Chafin was transferred there. The child stayed in Huntsville when Mrs. Chafin returned briefly to Scotland, coming back to Alabama in late 2009.

Sgt. Chafin filed for divorce in May 2010 in state court and the parties were awarded joint legal and physical custody.

However, in May 2011, the mother filed a claim in the U.S. District Court for Northern Alabama, alleging that her daughter was being wrongfully retained in the U.S. because Sgt. Chafin had hidden the girl’s passport. She sought an order permitting her to leave with the child for Scotland, which Mrs. Chafin claimed was the child’s habitual residence.

The district court granted the request on Oct. 12, 2011, and rejected Sgt. Chafin’s motion for a stay. Mother and daughter left for Scotland later that day.

Sgt. Chafin appealed the ruling, arguing that the child’s habitual residence was Alabama.

The 11th U.S. Circuit Court of Appeals refused to hear the appeal, holding on Feb. 6 that the case became moot when the mother and daughter returned to Scotland.

Manely, though, said the U.S. case is not moot because appellate courts “have inherent authority” to review and overturn district court decisions and orders.

A U.S. court can also press for the return of a child if it determines, on appeal, that his or her habitual residence was in the United States, said Manely, who heads The Manely Firm P.C. in Marietta, Ga.

But Ginsburg disagreed.

“The whole point of the Hague Convention is to stop this shuttling of the child back and forth,” she said.

The Supreme Court is expected to decide the case, Chafin v. Chafin, No. 11-1347, before the end of its term in June.