Posted on August 13, 2012 at 10:05 am by Lyle Denniston
UPDATED 12:01 p.m., with the addition of a Plain English description at the end of the post.
The Supreme Court on Monday added one new case to its decision docket for the new Term, a test of federal court power to resolve issues under the Hague Convention on abduction of children to a foreign country. The case is Chafin v. Chafin (docket 11-1347). The specific question is whether an appeal in a Hague case becomes moot if the child involved has returned to his or her home country.
Ordinarily, the Court’s summertime orders are routine. That is changing this summer, at least to a degree, because the Court last Term had not granted enough cases to fill its December hearing schedule. The grant Monday does not fill that list, so presumably there could be more grants on the remaining summer order list, due on August 31. After that, grants could come following the first formal Conference on the new Term, on September 24.
The newly granted case involves a U.S. Army sergeant, Jeffrey Lee Chafin, and the Scottish woman, Lynn Hales Chafin, he had married while stationed in Germany. The couple later moved to Alabama, but the marriage fell on hard times, and the couple’s dispute involved the care of their daughter, now five years old. Mrs. Chafin returned to Scotland with the child, after gaining a federal court order under the Hague Convention declaring that Scotland was the girl’s normal residence. Sgt. Chafin appealed that decision to the Eleventh Circuit, but that court dismissed the case as moot because of the child’s return to Scotland.
In taking the case on to the Supreme Court, Sgt. Chafin argued that the federal appeals courts are split on the mootness issue under the Hague Convention. The Fourth Circuit Court, the petition said, had ruled that an appeals court should retain jurisdiction over such a case to resolve the parents’ competing legal rights. Presumably, it was that conflict that led the Supreme Court to take on the case.
Under the Hague Convention on the Civil Aspects of International Child Abduction, a child is to be returned to the country of “habitual residence” if the child has been taken to another country in violation of that treaty. One part of the treaty specifies that, until a court has decided that the child is not to be returned to the homeland, a court is not to decide the merits of the rights of custody. Both the U.S. and the United Kingdom are parties to that treaty. There is a dispute in the Chafin case over where the daughter’s country of habitual residence was.
The Court’s other orders on Monday mainly consisted of denials of rehearings, along with a few administrative orders.
Monday’s order on child abduction, in plain English:
A 1980 treaty, which the United States signed onto in 1988, provides a remedy when parents are in dispute about the country where a child of theirs is to live. That treaty is known as the ”Hague Convention.” If one parent abducts a child from its home country and moves elsewhere, the other parent has a right to challenge that move and seek the return of the child to its normal country of residence. The new case the Court will review at its next Term, starting in October, involves a dispute between an Army sergeant and his Scottish-born wife. After troubles developed in their marriage, the wife got a court order under the Hague Convention and returned to her home country of Scotland to live. The husband, however, tried to appeal that order to a higher U.S. court, but that appeals court ruled that the case ended when the child was taken to Scotland, which was found to be the child’s normal place of residence. The husband, seeking to revive his claim to cusody of the child and his argument that the child’s normal place of residence is the U.S., is challenging that conclusion in his Supreme Court appeal.