An interesting case was recently decided by the United Supreme Court involving an international custody dispute, which has particular relevance for members of the military. For the case, click here. When there are allegations of parental kidnapping, or an unlawful removal of children to another country, there is an international treaty, known has the The Hague Convention on the Civil Aspects of International Child Abduction which provides an expeditious method intended to return a child removed by a parent from one member nation to another. The primary intention of the Convention is to maintain the custody arrangement which existed immediately before an alleged wrongful removal thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. The Convention applies only to children under the age of 16.
Unfortunately, not all countries are signatories to the treaty (most notably, the majority of Middle Eastern countries are not). However, those that are give litigants an important process to be heard when a child is unlawfully taken. The core premise of the Hague Convention is that custody disputes should be resolved in what is known as the child’s “habitual residence.” Recently, a father who had been denied relief by an American Court when it was found that Scotland was the habitual residence of his daughter had his case reinstated by the United States Supreme Court.
The Hague Conventions requires the judicial or administrative authority of a signatory country to order a child returned to his or her country of habitual residence if the authority finds that the child has been wrongfully removed to or retained in the contracting country. The International Child Abduction Remedies Act (the name of the United States law which implements the Convention in the United States) also requires defendants to pay various expenses incurred by plaintiffs associated with the return of children. Generally, once a child has been return to his or her country of habitual residence, the case is considered concluded. However, this can, as the Supreme Court concluded, lead to inequities.
In this case Mr. Chafin, a United States citizen and member of the military, had married Ms. Chafin, a United Kingdom citizen, in Germany, where they later had a daughter, E. C. When Mr. Chafin was deployed to Afghanistan, Ms. Chafin took E. C. to Scotland. Mr. Chafin was later transferred to Huntsville, Alabama, and Ms. Chafin eventually traveled there with E. C. Soon after Ms. Chafin’s arrival, Mr. Chafin filed for divorce and child custody in Alabama. Ms. Chafin was subsequently deported, but E. C. remained in Alabama with Mr. Chafin.
Later, Ms. Chafin filed a petition under the Convention in which she sought the return of E. C. to Scotland. The United States District Court concluded that E. C.’s country of habitual residence was Scotland (as that is where she had lived when Mr. Chafin was in Afghanistan) and granted the petition for return. Ms. Chafin immediately departed for Scotland with E. C. Ms. Chafin then initiated custody proceedings in Scotland and was granted interim custody and a preliminary injunction prohibiting Mr. Chafin from removing E. C. from Scotland. Mr. Chafin appealed the District Court’s order, but the Eleventh Circuit dismissed the appeal as moot, on the ground that once a child has been returned to a foreign country, a U. S. court becomes powerless to grant relief. Mr. Chafin was then ordered to reimburse Ms. Chafin for court costs, attorney’s fees, and travel expenses. Essentially, Mr Chafin was being denied his right to appeal a court’s order.
The Supreme Court held that the return of a child to a foreign country pursuant to a Convention return order does not render an appeal of that order moot. The Justices realized that because the Chafins continue to vigorously contest the question of where their daughter will be raised, this dispute is very much alive. Mr. Chafin sought typical appellate and his claim for his daughter’s return cannot be dismissed as so implausible that it is insufficient to preserve jurisdiction, and his prospects of success are therefore not pertinent to the mootness inquiry. Finally, the Court noted the Convention’s mandate of prompt return and ensuring that each case will receive the individualized treatment necessary for appropriate consideration of the child’s best interests.
These cases demonstrate the ways in which a parent can look to the courts, even outside of our borders, when a child has been taken. As we line in a society in which international marriage and travel becomes more and more common, these situations similarly become more common. Facts, such as in this case, when a child is removed when a member of the military is deployed for extended periods of time, are being litigated throughout the country and the law can expected to evolve.
Jennifer Weisberg Millner is a partner at Fox Rothschild, and a member of the firm’s Family Law Group. She is resident in the Princeton Office though she practices throughout the state.