Photo of Nathalie E. A. Paluch and Peter A. Lauzon

U.S. Supreme Court Weighs In On International Child Custody Case

The United States Supreme Court recently issued an opinion in a child custody case that could have broad implications for California parents involved in child custody battles across national boundaries.

Chafin v. Chafin, 568 U.S.(2013), centers on a dispute between an American father and a British mother over the custody of their daughter. The child was born in 2007 in Germany while the father, an Army sergeant, was stationed there. Shortly after the child was born, the mother and child moved to Scotland while the father was stationed in Afghanistan. In 2010, while the family was living in the U.S., the father filed for divorce and requested custody of the child. The mother, who was subsequently deported, sought and received permission from a federal judge to take the child to Scotland pursuant to the Hague Convention on the Civil Aspects of International Child Abduction.

The Hague Convention

The Hague Convention is an international treaty signed by over 80 countries, including the U.S. and the U.K., which requires that child custody decisions be made by the courts in a child’s home country. Its purpose is to protect children from international parental kidnapping by ensuring that the laws of each country are respected by the others. The treaty does not address the outcome of child custody disputes, but merely establishes which court should make the determination.

In Chafin , a federal judge ruled that the child’s residence was in Scotland and granted permission for the mother to return to the U.K. with her daughter. Within hours, the two had boarded a plane to Scotland – before the father had time to appeal the decision. At issue before the Supreme Court was the question of whether the father should be permitted to continue with his appeal in the U.S., or whether his case was moot because the child is no longer in the country.

The Supreme Court’s Decision

On February 13, 2013, the Supreme Court issued its decision that the father’s appeal of the order allowing the mother to return to Scotland with the child is not moot, even though the child is already in Scotland, and that the father’s appeal of the return order should proceed. In the opinion written by Chief Justice John Roberts, the Supreme Court noted that the lower court’s ruling in favor of the child’s mother in the Chafin case could create an unfortunate incentive for a custodial parent to flee the country with a children before the other parent has an opportunity to intervene. On the other hand, returning the child to the U.S. for an appeal would require just the sort of shuttling between nations that the treaty is intended to avoid. Balancing these concerns, the Supreme Court emphasized that, when a return order under the Hague Convention is appealed, the court should consider staying the return order while the appeal is pending based upon the individualized facts of each case.

Legal Help For International Child Custody Issues

Resolving issues of child custody during divorce can be a complicated and challenging process, particularly when the laws of multiple states or countries are involved. If your child has been taken abroad or out of state against your wishes, it is important to seek help from a skilled child custody lawyer with experience negotiating complex issues of domestic and international law. An attorney knowledgeable in these matters will work hard to protect your parental rights and fight to reunite you with your children