Army sergeant may pursue custody of his daughter, living with mom in Scotland, SCOTUS rules
The fight isn’t over for U.S. Army Sgt. Jeff Chafin, who is seeking custody of his daughter, Eris, in an international dispute.
The U.S. Supreme Court has ruled that Chafin’s case is not moot, though his daughter, now 6 years old, is in Scotland with her mother pursuant to a federal judge’s ruling under an international treaty. Chief Justice John G. Roberts Jr. wrote the unanimous opinion (PDF) for the court.
The Hague Convention on the Civil Aspects of International Child Abduction generally requires U.S. courts to order children returned to their countries of habitual residence. A federal judge in Huntsville, Ala., had ruled that Eris Chafin’s habitual residence was in Scotland and ordered that she be returned there. Eris is now living with mother, Lynne Chafin, in Scotland.
The Atlanta-based 11th U.S. Circuit Court of Appeals rejected Jeff Chafin’s appeal as moot last year. The U.S. Supreme Court reversed. “This dispute is still very much alive,” Roberts wrote.
Jeff Chafin is disputing that Scotland is his daughter’s habitual country of residence, he asserts that treaty defenses should have barred his daughter’s return to Scotland, and he contests a court order to pay $94,000 in attorney fees and costs. “On many levels,” Roberts said, “the Chafins continue to vigorously contest the question of where their daughter will be raised.”
Lynne and Jeff Chafin had married in Germany in 2006, and Eris was born in that country a year later. Lynne Chafin took her daughter to Scotland when Jeff Chafin was deployed to Afghanistan. He was transferred to Huntsville in 2010, and Lynne Chafin visited Alabama with her daughter in an effort to reconcile. The attempt proved unsuccessful; Jeff Chafin filed for divorce and custody. Lynne Chafin was deported in February 2011 for overstaying her visa after she was arrested on a domestic violence charge. Jeff Chafin cared for his daughter for several months until a federal court ruled against him later that year.
Lynne Chafin’s lawyers had argued that the case is moot because Scotland could ignore a federal court order to order Eris returned to the United States. But that prospect doesn’t render the case moot, Roberts wrote. “No law of physics prevents [Eris’] return from Scotland … and Ms. Chafin might decide to comply with an order against her.”
The possibility of uncertain enforcement of an order hasn’t barred courts from issuing default judgments, Roberts pointed out. “A re-return order may not result in the return of [Eris] to the United States, just as an order that an insolvent defendant pay $100 million may not make the plaintiff rich. But it cannot be said that the parties here have no ‘concrete interest’ in whether Mr. Chafin secures a re-return order.”
Justice Ruth Bader Ginsburg wrote a concurring opinion joined by Justices Antonin Scalia and Stephen G. Breyer that emphasized the need for speed and certainty in decisions under the treaty. Ginsburg pointed to a process used in England and Wales in which a return order cannot be contested unless a court grants a leave to appeal based on “a real prospect of success” or other compelling reason. She suggested legislation could adopt that approach in the United States.
ABAJournal.com: “Supreme Court Considers International Custody Dispute Involving Army Sergeant”
ABAJournal.com: “Supreme Court to Hear Army Sergeant’s Bid for the Return of His Daughter”