A Custody Case Goes to the U.S. Supreme Court

On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, December 14, 2012.

Many international child child custody cases are governed by the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The Hague Convention is a treaty signed by the United States and 88 other members. It protects children from abduction across international lines by providing a procedure to quickly return them. But after the child has been returned, how does a parent appeal if they think the trial court got it wrong?

Most people don’t know this, but it is extremely rare to have your case heard by the United States Supreme Court. In family law cases, it is even rarer. However, the U.S. Supreme Court agreed to hear a case this term: the appeal of U.S. Army Sergeant Jeff Chafin, whose wife, Lynn, left the U.S. for Scotland with the couple’s daughter after a U.S. district court allowed it.

In Chafin, the question is whether the case is moot after the child has been returned to their country of habitual residence. Mrs. Chafin returned to Scotland with the child after a federal trial judge allowed it. The trial court determined Scotland was the child’s habitual residence. Sgt. Chafin appealed the order, claiming the U.S. was the habitual residence. The 11th Circuit Court of Appeals in Atlanta dismissed his appeal as moot. The 11th Circuit happens to be the federal appeals court governing Florida.

But appellate courts are split on whether to keep jurisdiction or dismiss them as moot. For example, the 4th Circuit in Virginia has ruled that removal of the child did not make the case moot. During oral argument before the U.S. Supreme Court, Chief Justice John Roberts Jr. I think correctly observed:

It seems to me, and I may be taking the opposite position from one of my colleagues, but the — the best thing is to hold things up briefly, so that the child doesn’t go overseas and then have to be brought back, particularly if you have situations where there can be an expeditious appeal.