United States Supreme Court Takes on International Custody Dispute

GAL & PAL #2jpgIt 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

One thought on “United States Supreme Court Takes on International Custody Dispute

  1. One point that never comes up in cases like this is visa status and ability to work and reside legally in a country. I think parents should be given long term or permanent visas when they have children. In this case (and in many others) the foreign parent is unable to stay in the country legally and is either deported or leaves out of fear of never being able to return to see their child again. If parents were given long terms visas they would be able to stay in the country with their child, maintain regular contact with their child, pay child support, etc. The UN Convention on the rights of a child says kids need regular contact with both parents. If countries would give the foreign parent a long term visa the foreign parent could contribute to the economy of that country instead of being thrown out, leaving without paying bills in full, I have brought this point up with my embassy on a few occasions and the question has never been answered. It seems like there is no connection between visa status and the best interests of the child. Every year I live in fear of not being able to renew my visa in Japan. As I get older and older it becomes harder and harder to renew my visa. If I am unable to renew my visa some of my legal bills will remain unpaid and Japan will lose out on the taxes that is desperately needs for all of its citizens.

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