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By Dolan Media Newswires Virginia Lawyers Media
Published: October 4, 2012
8:41 am Thu, October 4, 2012
Tags: Domestic Relations, Federal Courts, U.S. Supreme Court
During the term that opened Oct. 1, the U.S. Supreme Court will consider whether an international treaty and U.S. law prevent an American father from appealing a U.S. court’s order that allowed his ex-wife to take their daughter to Scotland, after the pair have already left the country.
Arguing the case on Dec. 5 will be international family law attorney Stephen J. Cullen, a Scotland native with “triple citizenship,” whom the mother retained based on a referral from the Scottish government and after a telephone conversation. Cullen said he took the case pro bono.
“We bonded over soccer,” Cullen said of his first conversation with Lynne Hales Chafin. “She called me up and heard a Scottish accent, so I think she felt at ease.”
A naturalized U.S. citizen, Cullen is also a citizen of the United Kingdom (via Scotland) and Ireland, as both of his parents were born there.
In the Scotland case, Army Sgt. Jeffrey L. Chafin, who is stationed at Fort Lee in Virginia, is challenging a lower court’s decision that the U.S. courts lack jurisdiction over the dispute. The 11th U.S. Circuit Court of Appeals had ruled that Chafin’s challenge was rendered moot when the child returned to Scotland, saying he would have to seek custody through Scotland’s courts.
Although Cullen represents the mother, he did not challenge the father’s request for Supreme Court review.
The attorney, who heads the law firm’s family law group in Washington, said he seeks a definitive high court ruling that will assure Lynne Chafin that the U.S. litigation is over.
“We want the Supreme Court to say: ‘Once this case moved back to Scotland, you’re too late, mate,’” said Cullen, who received his undergraduate and law degrees at the University of Edinburgh and spent five years as a high school English and Italian teacher in Scotland. “If this was still dragging on for Ms. Chafin, it would continue to cause huge stress.”
But Jeffrey Chafin’s attorney voiced confidence that the Supreme Court, having granted his appeal, will reopen the federal courthouse doors to the father’s custody claim.
“I think we will prevail because the downside is so steep,” said family law attorney Michael E. Manely, who heads The Manely Firm PC in Marietta, Ga.
“When the children are taken abroad, they are gone” under the 11th Circuit’s decision, Manely said. “We have no power over them, and that is an unthinkable result.”
Cullen and Manely each said they have spoken with U.S. Solicitor General Donald B. Verrilli Jr.’s office in an effort to get the Obama administration’s support for their positions but have not heard back.
‘Habitual residence’
The federal court issued its order under the 1980 Hague Convention on the Child Aspects of International Child Abduction, an international treaty, and the federal International Child Abduction Remedies Act. The laws call for children to be returned to their “habitual residence” if they have been “wrongfully retained” in the United States by one of their parents.
Jeffrey and Lynne Chafin married while he was stationed in Germany in early 2006. Their daughter was born the next year, before Jeffrey’s 15-month deployment to Afghanistan and subsequent transfer to Redstone Arsenal in Huntsville, Ala.
Lynne, a Scottish national, lived with the child in Scotland during Jeffrey’s deployment and then moved with her to Huntsville. The child stayed with Jeffrey in Huntsville when Lynn retuned briefly to Scotland, coming back to Alabama in the waning months of 2009.
Jeffrey filed for divorce in May 2010, and the parties were awarded joint legal and physical custody. However, on May 2, 2011, the mother filed her claim in U.S. District Court for Northern Alabama.
Lynne alleged that Jeffrey had hidden the child’s passport to prevent her from returning with the mother to Scotland, which Lynne claimed was the child’s habitual residence. Lynne argued that her daughter was being wrongfully detained in the United States and sought an order permitting her to leave with the child for Scotland.
The U.S. District Court granted the request on Oct. 13, 2011.
Jeffrey Chapin appealed the ruling, arguing that the child’s habitual residence was Alabama and that she must be returned.
The 11th Circuit refused to hear the appeal, saying on Feb. 6 that the case was rendered moot when the mother returned to Scotland.
The 11th Circuit’s decision conflicts with a 2003 decision of the 4th U.S. Circuit Court of Appeals.
In Fawcett v. McRoberts, the 4th Circuit held that U.S. courts retain continuing jurisdiction to review the legal basis of a lower U.S. court decision.
Cullen, who argued and lost the Fawcett case in the 4th Circuit, appealed to the Supreme Court, but the justices declined to grant certiorari without comment in that case.
The Chafin case gives him the opportunity to finally present his argument to the justices.
“I’m really looking forward to it,” Cullen said. “This is an opportunity to get the law right on this very important issue.”
By Steve Lash
Very interesting article.
Tucker Griffin Barnes
Charlottesville, VA (434-973-7474)
Inquire@TGBLaw.com
www.TGBLaw.com
