It is not often that the United States Supreme Court intervenes in a custody case, but this month the Supremes heard arguments in the case of Chafin v. Chafin, an international custody dispute between parents Lynne and Jeffrey Chafin.
The Chafin’s married in Scotland in 2006 and had a daughter in 2007. Mr. Chafin was a member of the United States military, Army Sgt. First Class, and the family lived in Germany until he was deployed to Afghanistan. At that time, Ms. Chafin and her daughter moved back to Scotland. In 2009 Mr. Chafin was transferred to Alabama where his wife and child took up residence with him.
However, with his lengthy absence from family life, he and his wife encountered marriage difficulties and the couple separated in 2010. Ms. Chafin wished to return to Scotland with their daughter, a move that was opposed by her husband.
In the meantime, Ms. Chafin’s irregular legal status in the United States was such that she was deported back to Scotland paving the way for Mr. Chafin to retain custody of his daughter.
Ms. Chafin applied to the Alabama Supreme Court for an order that their child be returned to her in Scotland.
The issue before the Court was a determination of the child’s “habitual residence”, a key concept in the Hague Convention on International Child Abduction. The law provides that where there is a contest over where a child should live, the child’s best interests favours the child’s “habitual residence”.
She was successful in the lower court and within hours of the court ruling, the child was on a plane to Scotland. Mr. Chafin applied for a stay of the order, an order that would put a hold on the child’s return to Scotland pending an appeal, however, the stay was denied. As a result when the Court of Appeal heard the case they held that the issue was moot as the child was already gone and was now outside the jurisdiction of the American courts.
On December 5, 2012, the case was argued in the US Supreme Court. Some of the judicial comments at the hearing were encouraging to Mr. Chafin, particularly when Chief Justice John Roberts voiced his concern that a parent could “leave immediately” thus thwarting the appellate jurisdiction of the US Courts. Madam Justice Ginsberg, however, suggested that this jurisdictional struggle was exactly what the Hague Convention was meant to address, thus the significance of a child’s habitual residence.
A decision is expected in the next six months. By that time, the child will have been in Scotland for more than two years.
Lawdiva aka Georgialee Lang