The United States Supreme Court has announced that it will hear a case involving a military father’s international custody battle for his 5-year-old daughter. International custody disputes are governed by an international treaty called the Hague Convention on the Civil Aspects of International Child Abduction. This treaty determines which country has jurisdiction over the custody dispute – in other words, which country’s courts get to decide the custody dispute.
Many countries are signatories to this treaty and have created laws that reflect its provisions. In the United States, the treaty is codified as the International Child Abduction Remedies Act (ICARA).
The object and purpose of ICARA is to ensure the prompt return of children who are wrongfully removed from their country of habitual residence. The law attempts to keep a parent from fleeing with children to a different country to deny the other parent time with the children or in order to receive a more favorable custody decision in their home country.
The Facts Of Chafin v. Chafin
Sgt. 1st Class Jeffrey Chafin married his wife, a Scottish resident, in 2006, and in 2007 they had a daughter. In October of 2011, following divorce proceedings commenced in Alabama, the wife was deported out of the United States and back to Scotland without her child. The wife then started an ICARA proceeding alleging that her daughter was wrongfully removed from Scotland.
The question before the court in the ICARA proceeding was: Where is the child’s habitual residence? Sgt. Chafin alleged that the family primarily resided in Germany, where he was stationed, and then Alabama. However, the child’s mom argued it was always the intent to return to Scotland and the parties agreed that Scotland was the child’s home. The court decided that the child’s place of habitual residence was Scotland and the wife and child immediately left the country.
Chafin appealed the district court’s decision, but Atlanta’s 11th Court of Appeals declared the case moot because the child was no longer in the United States. The Court of Appeals ruling provides little recourse for parents like Chafin. It means that once the child is across the border, the appellate courts are powerless to change it – even if the lower court made the wrong decision.
Moreover, different circuit courts have come to different decisions on this issue. The 4th and the 5th circuits have held that the Constitution provides a right of appeal in ICARA decisions. A Supreme Court decision will provide uniformity on whether or not there is a right to appeal in these international custody decisions.
If you have an international custody question or concern, contact an experienced international child custody lawyer in your area to learn more.