International Custody Dispute

The opinion spent about as much space emphasizing the need for quick resolution of international custody issues as it did tackling the merits of the fight between Jeff and Lynne Chafin. Manely, Jeff Chafin's attorney, noted that the Supreme Court had urged as much in sending the case back to the Eleventh Circuit, something he said he took as “a very dire sign.”

The Case

According to the certiorari petition Manely filed with the Supreme Court in the case, Jeff Chafin, a U.S. Army sergeant, married Lynne Chafin, a Scottish national, in early 2006 when he was stationed in Germany. Their daughter was born in Germany the following year. Jeff Chafin was then deployed to Afghanistan for 15 months, and his wife returned to Scotland with their daughter. In early 2009, Jeff was transferred to a base in Alabama, and Lynne and the child visited Jeff there in 2009, and again in 2010.

Lynne testified that she wanted to see if her marriage could be salvaged for the sake of her child, and Jeff testified that she brought many boxes of her belongings. The relationship remained rocky, however. In May 2010, Jeff filed for divorce. As noted by the district court order, Lynne was arrested for domestic violence in December 2010. Federal immigration officials determined Lynne had overstayed her visa, according to the cert petition, deporting her in February 2011.

On May 2, 2011, Lynne filed a legal action in a federal district court in Alabama demanding her child be returned to Scotland. Her action was brought under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. The Hague Convention, to which the U.S. and the UK are parties, provides that when a child who was habitually residing in one signatory state is wrongfully removed to or retained in another signatory state, the latter state “shall order return of the child forthwith.”

After an October 2011 hearing in Huntsville, AL, U.S. District Judge Inge Johnson ruled from the bench that Scotland was the child's habitual residence and that Lynne could take the child back there. Within 20 minutes of the judge issuing her oral ruling, Jeff filed a motion asking the judge to stay her order pending appeal. She promptly denied the motion, and Lynne and her daughter returned to Scotland that same day.

The Appeal

Jeff appealed to the Eleventh Circuit, which issued a brief order dismissing his case. The judges cited a 2001 Eleventh Circuit decision that said an appeal of a district court order directing the return of a child to another country under the Hague Convention was moot when the child returned home while the appeal was pending ' because in that scenario an American court would be powerless to grant any relief even if it found the underlying order to be incorrect. Jeff's certiorari petition with the U.S. Supreme Court said the federal courts of appeal were split on the mootness issue. Stephen Cullen of Miles & Stockbridge in Washington, DC, who represents Lynne, explained that he had not objected to the cert petition being granted because the issue of mootness “absolutely had to be sorted out” in light of the circuit split. He said he had not been worried that European courts would return his client's child to America, and his firm was handling the case pro bono so there was no financial hardship on his client.

In February 2013, the Supreme Court sent the case back to the Eleventh Circuit with instructions to look at the merits of Jeff's appeal, saying the appeal was not moot because U.S. courts continue to have personal jurisdiction over Lynne and may command her to take action under threat of sanctions, and she could decide to comply with an order against her. The court emphasized that courts should handle Hague cases as quickly as possible.

Although seven months passed between completion of briefing on the case at the Eleventh Circuit and oral arguments, the panel of Senior Judge Joel Dubina, Judge Charles Wilson and visiting U.S. District Judge Donald Middlebrooks of Florida issued its decision in less than a month.

The Opinion

The unsigned opinion said the duration of the federal proceeding was “not what the [federal law implementing the Hague Convention] contemplated.” The opinion said that of the approximately 145 Hague Convention cases filed in the circuit since 2000, district courts have resolved the matters within an average of 2.2 months, compared with 6.8 months for all civil cases in the fiscal year 2011. The opinion said district courts should try to abide by the six-week period provided for in the Hague Convention.

Citing the district judge's findings in the Chafins' case, including what the opinion characterized as her decision to find credible Lynne's testimony that she could not leave the United States without her daughter's UK passport, the Eleventh Circuit said Johnson's factual finding that the Chafins did not have a “settled intent” to change the child's habitual residence from Scotland to Alabama was not clearly erroneous. That finding means Jeff had a heavy burden, one he did not overcome, the panel said.

“Here, there are objective facts pointing to each country, and our de novo review confirms that it is not unequivocally clear that [the child]'s habitual residence in Scotland was abandoned for a new habitual residence in Alabama,” said the Eleventh Circuit panel.

Manely said he thinks his client should ask the full Eleventh Circuit to look at the case. He said Johnson's decision was based on an erroneous finding of fact that the Chafins' child could not travel to the UK with only her U.S. passport. Manely said not only was that not true, but Lynne had not testified to that effect, saying merely it would have been inconvenient to take the child without the UK passport. Manely added that at oral argument in the case, Dubina had questioned the notion that he could travel to Scotland on his U.S. passport.

But Manely said it was unlikely that an en banc review would be granted, adding that he was being cynical. “It is sometimes very difficult to get a judge to take a family law case as seriously as some other cases that come before him,” said Manely, explaining he was talking about judges generally, not just appellate judges. “But we know how far-reaching and important these cases are to people's lives.”

Meanwhile, the Chafins have divorced. Each has claims for custody pending in the Scottish courts, which, according to Cullen, have awaited resolution of the U.S. proceedings.

Alyson M. Palmer writes for The Daily Report, an ALM sister publication of this newsletter in which this article also appeared.

A Marietta, GA, lawyer who won a 9-0 jurisdictional victory at the U.S. Supreme Court on behalf of a client in an international custody dispute has lost the battle on the merits before a federal appeals panel.

Background

In February 2013, the Supreme Court said the U.S. Court of Appeals for the Eleventh Circuit should hear the appeal of Michael Manely's client, an American serviceman who is quarreling with his Scottish ex wife over custody of their child, now 6 years old. In December 2013, an Eleventh Circuit panel affirmed a district court ruling that allowed the child's mother to take the child to Scotland.

The opinion spent about as much space emphasizing the need for quick resolution of international custody issues as it did tackling the merits of the fight between Jeff and Lynne Chafin. Manely, Jeff Chafin's attorney, noted that the Supreme Court had urged as much in sending the case back to the Eleventh Circuit, something he said he took as “a very dire sign.”

The Case

According to the certiorari petition Manely filed with the Supreme Court in the case, Jeff Chafin, a U.S. Army sergeant, married Lynne Chafin, a Scottish national, in early 2006 when he was stationed in Germany. Their daughter was born in Germany the following year. Jeff Chafin was then deployed to Afghanistan for 15 months, and his wife returned to Scotland with their daughter. In early 2009, Jeff was transferred to a base in Alabama, and Lynne and the child visited Jeff there in 2009, and again in 2010.

Lynne testified that she wanted to see if her marriage could be salvaged for the sake of her child, and Jeff testified that she brought many boxes of her belongings. The relationship remained rocky, however. In May 2010, Jeff filed for divorce. As noted by the district court order, Lynne was arrested for domestic violence in December 2010. Federal immigration officials determined Lynne had overstayed her visa, according to the cert petition, deporting her in February 2011.

On May 2, 2011, Lynne filed a legal action in a federal district court in Alabama demanding her child be returned to Scotland. Her action was brought under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. The Hague Convention, to which the U.S. and the UK are parties, provides that when a child who was habitually residing in one signatory state is wrongfully removed to or retained in another signatory state, the latter state “shall order return of the child forthwith.”

After an October 2011 hearing in Huntsville, AL, U.S. District Judge Inge Johnson ruled from the bench that Scotland was the child's habitual residence and that Lynne could take the child back there. Within 20 minutes of the judge issuing her oral ruling, Jeff filed a motion asking the judge to stay her order pending appeal. She promptly denied the motion, and Lynne and her daughter returned to Scotland that same day.

The Appeal

Jeff appealed to the Eleventh Circuit, which issued a brief order dismissing his case. The judges cited a 2001 Eleventh Circuit decision that said an appeal of a district court order directing the return of a child to another country under the Hague Convention was moot when the child returned home while the appeal was pending ' because in that scenario an American court would be powerless to grant any relief even if it found the underlying order to be incorrect. Jeff's certiorari petition with the U.S. Supreme Court said the federal courts of appeal were split on the mootness issue. Stephen Cullen of Miles & Stockbridge in Washington, DC, who represents Lynne, explained that he had not objected to the cert petition being granted because the issue of mootness “absolutely had to be sorted out” in light of the circuit split. He said he had not been worried that European courts would return his client's child to America, and his firm was handling the case pro bono so there was no financial hardship on his client.

In February 2013, the Supreme Court sent the case back to the Eleventh Circuit with instructions to look at the merits of Jeff's appeal, saying the appeal was not moot because U.S. courts continue to have personal jurisdiction over Lynne and may command her to take action under threat of sanctions, and she could decide to comply with an order against her. The court emphasized that courts should handle Hague cases as quickly as possible.

Although seven months passed between completion of briefing on the case at the Eleventh Circuit and oral arguments, the panel of Senior Judge Joel Dubina, Judge Charles Wilson and visiting U.S. District Judge Donald Middlebrooks of Florida issued its decision in less than a month.

The Opinion

The unsigned opinion said the duration of the federal proceeding was “not what the [federal law implementing the Hague Convention] contemplated.” The opinion said that of the approximately 145 Hague Convention cases filed in the circuit since 2000, district courts have resolved the matters within an average of 2.2 months, compared with 6.8 months for all civil cases in the fiscal year 2011. The opinion said district courts should try to abide by the six-week period provided for in the Hague Convention.

Citing the district judge's findings in the Chafins' case, including what the opinion characterized as her decision to find credible Lynne's testimony that she could not leave the United States without her daughter's UK passport, the Eleventh Circuit said Johnson's factual finding that the Chafins did not have a “settled intent” to change the child's habitual residence from Scotland to Alabama was not clearly erroneous. That finding means Jeff had a heavy burden, one he did not overcome, the panel said.

“Here, there are objective facts pointing to each country, and our de novo review confirms that it is not unequivocally clear that [the child]'s habitual residence in Scotland was abandoned for a new habitual residence in Alabama,” said the Eleventh Circuit panel.

Manely said he thinks his client should ask the full Eleventh Circuit to look at the case. He said Johnson's decision was based on an erroneous finding of fact that the Chafins' child could not travel to the UK with only her U.S. passport. Manely said not only was that not true, but Lynne had not testified to that effect, saying merely it would have been inconvenient to take the child without the UK passport. Manely added that at oral argument in the case, Dubina had questioned the notion that he could travel to Scotland on his U.S. passport.

But Manely said it was unlikely that an en banc review would be granted, adding that he was being cynical. “It is sometimes very difficult to get a judge to take a family law case as seriously as some other cases that come before him,” said Manely, explaining he was talking about judges generally, not just appellate judges. “But we know how far-reaching and important these cases are to people's lives.”

Meanwhile, the Chafins have divorced. Each has claims for custody pending in the Scottish courts, which, according to Cullen, have awaited resolution of the U.S. proceedings.

Alyson M. Palmer writes for The Daily Report, an ALM sister publication of this newsletter in which this article also appeared.