Removal to Scotland Did Not Moot Custody Battle

WASHINGTON (CN) - A U.S. Army sergeant's fight for the return of his daughter from Scotland is not moot, the Supreme Court ruled Tuesday.

Sgt. Jeffrey Lee Chafin met and married Lynne Hales Chafin while the U.S. Army had him stationed in Germany in 2006.

Shortly after the birth of their daughter in 2007, identified only as E.C. in court records, the Army deployed Sgt. Chafin to Afghanistan.

Ms. Chafin, a U.K. citizen, took the girl to Scotland and raised her there until February 2010 when she moved to Huntsville, Ala., where the Army had just transferred Chafin.

Marital bliss was brief for the couple, however, and Sgt. Chafin quickly filed for divorce and child custody. Later that year, police arrested Ms. Chafin for domestic violence and federal authorities realized she had overstayed her visa.

Sgt. Chafin cared for E.C. after her mother was deported in February 2011, but Ms. Chafin returned to the United States months later as she petitioned for the return of her child to Scotland under the International Child Abduction Remedies Act and the Hague Convention on the Civil Aspects of International Child Abduction.

At the end of a two-day trial in October 2011, a federal judge in Alabama sided with the mother. The pair returned to Scotland hours after the court declined to issue a stay.

As Sgt. Chafin appealed to the 11th Circuit, a Scottish court granted Ms. Chafin interim custody and prohibited Sgt. Chafin from leaving Scotland with E.C.

A three-judge panel concluded in February 2012, however, that such issues are mooted after the child at issue returns to his country of habitual residence.

On remand, the trial court ordered Sgt. Chafin to pay his ex more than $94,000 in court costs, attorneys' fees and travel expenses.

The Supreme Court took up the case in August 2012 to settle a circuit split as to whether the return of the child to the country of habitual residence renders the appeal moot.

While the 11th Circuit relied on its own precedent, a 2001 decision in the matter of Bekier v. Bekier, the 4th Circuit made an alternate finding in 2003 with Fawcett v. McRoberts.

The unanimous Supreme Court vacated the 11th Circuit's decision on Tuesday, finding it impossible to declare the issue moot.

"This dispute is still very much alive," Chief Justice John Roberts wrote for the court. "Mr. Chafin continues to contend that his daughter's country of habitual residence is the United States, while Ms. Chafin maintains that E.C.'s home is in Scotland. Mr. Chafin also argues that even if E.C.'s habitual residence was Scotland, she should not have been returned because the convention's defenses to return apply. Mr. Chafin seeks custody of E.C., and wants to pursue that relief in the United States, while Ms. Chafin is pursuing that right for herself in Scotland. And Mr. Chafin wants the orders that he pay Ms. Chafin over $94,000 vacated, while Ms. Chafin asserts the money is rightfully owed.

"On many levels, the Chafins continue to vigorously contest the question of where their daughter will be raised. This is not a case where a decision would address 'a hypothetical state of facts.' And there is not the slightest doubt that there continues to exist between the parties 'that concrete adverseness which sharpens the presentation of issues.'"

The ruling notes that Ms. Chafin has confused mootness with the merits.

"Mr. Chafin's claim for re-return - under the convention itself or according to general equitable principles - 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," Roberts wrote.

"As to the effectiveness of any relief, Ms. Chafin asserts that even if the habitual residence ruling were reversed and the District Court were to issue a re-return order, that relief would be ineffectual because Scotland would simply ignore it. But even if Scotland were to ignore a U.S. re-return order, or decline to assist in enforcing it, this case would not be moot. The U.S. courts continue to have personal jurisdiction over Ms. Chafin, may command her to take action even outside the United States, and may back up any such command with sanctions. No law of physics prevents E. C.'s return from Scotland, and Ms. Chafin might decide to comply with an order against her and return E.C. to the United States. After all, the consequence of compliance presumably would not be relinquishment of custody rights, but simply custody proceedings in a different forum. Enforcement of the order may be uncertain if Ms. Chafin chooses to defy it, but such uncertainty does not typically render cases moot. Courts often adjudicate disputes where the practical impact of any decision is not assured. For example, courts issue default judgments against defendants who failed to appear or participate in the proceedings and therefore seem less likely to comply."

Likewise insolvency does not moot damages claims, and deportation does not bar the government from appealing a conviction reversal.

"A re-return order may not result in the return of E.C. to the United States, just as an order that an insolvent defendant pay $100 million may not make the plaintiff rich," Roberts wrote. "But it cannot be said that the parties here have no 'concrete interest' in whether Mr. Chafin secures a re-return order."

Under the same logic, Sgt. Chafin can appeal the fee award.

The court emphasized the need to expedite proceedings.

"Cases in American courts often take over two years from filing to resolution; for a six-year-old such as E.C., that is one-third of her lifetime," Roberts wrote. "Expedition will help minimize the extent to which uncertainty adds to the challenges confronting both parents and child."

In a concurring opinion, Justice Ruth Bader Ginsburg noted that Chafin's case "highlights the need for both speed and certainty in ... decisionmaking" under the Hague Convention on the Civil Aspects of International Child Abduction.

"On remand, the court rightly instructs, the Court of Appeals should decide the case 'as expeditiously as possible,'" Ginsburg wrote, joined by Justices Antonin Scalia and Stephen Breyer. "For future cases, rulemakers and legislators might pay sustained attention to the means by which the United States can best serve the convention's aims: 'to secure the prompt return of children wrongfully removed to or retained in' this nation; and 'to ensure that rights of custody ... under the law of one contracting state are effectively respected in the other contracting states.'"

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