U.S. Supreme Court to Hear Oral Argument from Georgia Family Law Attorney Michael Manely Regarding U.S. Court’s Power to Protect American Children and a Soldier’s Right to Appeal

U.S. Army Sergeant 1st Class Jeff Chafin fears for his daughter’s welfare.
Testimony showed Scottish mother to be a heavy drinker and violent.

Atlanta, GA August 15, 2012: On October 13, 2011, Eris Chafin, just four years old, was taken from her father, U.S. Army Sergeant 1st Class, Jeff Chafin, by Federal District Court Judge Inge Johnson and turned over to her Scottish mother, who had been deported earlier in the year. In trial, Ms. Chafin argued, that even though she had requested to be and then was subsequently moved to the United States by the U.S. Army, had applied for U.S. Citizenship and had extensively written friends and family that she had relocated she and her daughter to the United States, she never really meant for the United States to be her and her daughter’s habitual residence. Within hours of Judge Inge Johnson's ruling, Ms. Chafin spirited Eris out of the United States. On Appeal, the 11th Circuit Court of Appeals refused to review the District Court’s order, finding The Federal Courts lacked any power over children once they were removed from U.S. soil. In a highly unusual move, the United States Supreme Court has mid-summer granted Sergeant Chafin’s Petition for Writ of Certiorari requesting that the U.S. Supreme Court find that a right of appeal exists even with Eris now situated in Scotland.

Testimony at trial demonstrated Eris was regularly in her father’s primary care as a result of Ms. Chafin’s multiple arrests for public intoxication and domestic violence. Eris was exclusively in her father’s care after her mother was deported to Scotland in February, 2011. International family law attorney Michael E. Manely, points out that other U.S. Circuit Courts have ruled that the Federal Courts retain authority over children removed from our shores. To hold otherwise encourages child abduction which the Hague Convention on Child Abduction is intended to prevent. Attorney Manely will make this argument before the United States Supreme Court on December 5, 2012.

Custody case is lawyer's ticket to Supreme Court

Custody case is lawyer's ticket to Supreme Court

U.S. high court to hear battle over 5-year-old daughter of U.S. serviceman and his estranged Scottish wife

By Alyson M. Palmer
Daily Report | September 21, 2012

Child custody battles are often epic, but they don't often make it to the highest court in the land.

Yet come December, a Marietta lawyer expects to make his first argument to the U.S. Supreme Court in a fight over a 5-year-old girl that spans the Atlantic Ocean.

The high court last month agreed to hear the case of Michael Manely's client, a U.S. Army sergeant battling his estranged wife, a Scottish national, over access to their daughter.

Beyond the emotions, the justices have said they are interested in a jurisdictional question — whether U.S. appellate courts can hear a parent's appeal once a child already has been taken to another country pursuant to a federal district court order.

Manely, who said about a third of his practice is international custody work, explained he has "respectfully declined" overtures from more experienced Supreme Court practitioners to take over. "They called within hours of the Supreme Court issuing its grant of cert," he recalled.

So far in the case, Manely has faced Stephen Cullen, a Washington attorney who's an expert on international custody fights. Cullen didn't respond to inquiries for this story.

Manely said his client's marriage was tumultuous — "happy to death one week and unhappy to death the next week."

According to his certiorari petition, Manely's client, Jeff Chafin, married Lynne Chafin in early 2006 when he was stationed in Germany. Their daughter was born in Germany the following year.

Jeff was then deployed to Afghanistan for 15 months, and Lynne returned to Scotland with their daughter, according to his petition. The couple did not reunite when Jeff returned to Germany, and in early 2009 he was transferred to a base in Alabama.

But Lynne and the child visited Jeff there in 2009, Lynne helping Jeff pick out a house to buy. On Valentine's Day 2010, Lynne again traveled to the United States with the couple's child. She testified she wanted to see if her marriage could be salvaged, for the sake of her child, and Jeff testified that many boxes of her belongings followed her. According to Jeff's petition, Lynne stayed in the United States on a 90-day tourist visa, so she would return to Scotland, alone, for a few days at a time to stay in compliance with immigration rules.

The relationship remained rocky, however. In May 2010, Jeff filed for divorce. According to his cert petition, however, the parties continued to live together as husband and wife, at least through the fall of 2010 when they moved into separate bedrooms.

As noted by the district court order, Lynne was arrested for domestic violence in December 2010. Jeff's petition says the arrest was based on Lynne threatening him with a knife while she was drunk.

The federal district judge who heard the case found that Lynne on occasion consumed too much alcohol. But the judge also wrote that although she "does not specifically find [Jeff] manufactured the entire event he reported to 911," she found his version of events "ranged from a point of questionable veracity to complete incredulity."

Jeff's cert petition explained that after Lynne's arrest, federal immigration officials determined she had overstayed her visa. She was detained for more than a month awaiting deportation and, according to Manely, was deported in February 2011.

On May 2, 2011, Lynne filed a legal action in a federal district court in Alabama demanding her child be returned to Scotland. Her action was brought under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. The Hague Convention, to which the United States and the United Kingdom are parties, provides that when a child who was habitually residing in one signatory state is wrongfully removed to or retained in another signatory state, the latter state "shall order return of the child forthwith."

U.S. District Judge Inge Johnson held hearings in Huntsville, Ala., on Oct. 11 and 12, with both Lynne and Jeff present to testify. The judge ruled from the bench that Scotland was the child's habitual residence and that Lynne could take the child back there. The judge wrote later that Lynne had brought her daughter to Alabama for what might be described as a trial period at most and she would have returned to Scotland with the child in May 2010 but for her husband initiating divorce proceedings and serving her with an emergency custody restraining order.

The judge also said Jeff had retained the child's United Kingdom passport, citing this as a reason Lynne had continued to live with him even after divorce proceedings were initiated. She found his testimony on this point — to the effect that he had put the passport in the garage but his wife knew it was there — was not credible.

Within 20 minutes of the judge issuing her oral ruling, Jeff filed a motion asking the judge to stay her order pending appeal. She promptly denied the motion, and Lynne and her daughter returned to Scotland that same day.

Jeff appealed to the Eleventh Circuit, where the case was handled by Judges Edward Carnes and Frank Hull. (The Eleventh Circuit allows certain motions to be decided by two-judge panels.) In February, the pair issued a brief order dismissing Jeff's case. The judges cited a 2001 Eleventh Circuit decision that said an appeal of a district court order directing the return of a child to another country under the Hague Convention was moot when the child returned home while the appeal was pending.

Manely, Jeff's attorney, filed a certiorari petition with the U.S. Supreme Court. That request contended that the circuits were split — a common argument for getting the Supreme Court's attention — over whether an appeal of a federal judge's ruling based on the Hague Convention is moot when the child has returned to his or her country of habitual residence. The petition said that although the Sixth Circuit had sided with the Eleventh Circuit on the issue, the Third, Fourth, Eighth and possibly the Tenth Circuit had gone the other way.

Curiously, Lynne's attorneys responded to the cert petition by saying they didn't object to the Supreme Court taking up the case. Led by Cullen, the lawyers from Miles & Stockbridge of Washington agreed that the circuits were split over the mootness issue, although they contended that the majority of circuits that had considered the question, including the First Circuit, had gone their way. They said the way to preserve a losing party's appeal rights was to obtain a stay pending appeal in appropriate cases.

Last month, the high court granted Jeff's certiorari petition. Although the mid-summer grant was unusual, a reporter for SCOTUSblog explained that the court hadn't filled up its December hearing schedule before recessing for the summer. The case is set to be heard on Dec. 5.

In an interview, Manely said he doesn't know why Lynne's attorneys agreed the Supreme Court should hear the case, noting lawyers who called him with offers of help all asked about that. "From Stephen [Cullen]'s perspective, it's something that comes up again and again," said Manely.

Manely said the argument that the federal courts are powerless to act now that his client's child has moved to Scotland misses that both the United States and the United Kingdom are parties to a treaty. "The thing that's disingenuous about the other side's argument is that it ignores that we're all among friends," said Manely. He said the United States' courts still could rule that the child is a habitual resident of the United States and say she should be returned here.

The federal court ruling doesn't dictate custody terms — Lynne's attorneys say in their Supreme Court filing that their client has initiated custody proceedings in Scotland. Manely said his client would like joint custody, saying that was the couple's plan until Lynne was deported, but he acknowledged her immigration issues make that difficult. "The whole dream of joint custody is not doable right now," said Manely.

Manely's client is pursuing his own battle outside the courtroom. He's pushing a legislative change to the effect that if the military moved the possessions of a service member's spouse to the United States, there would be a legal presumption that the spouse had abandoned her country of prior residence, Manely explained.

Meanwhile, Manely will be getting ready for the big legal show. He said that he's been talking to a legal clinic at the University of Pennsylvania about getting some help, and expects to do a moot argument with help from his alma mater, Georgia State University. "I understand that doing moots, as the Supreme Court parlance goes — I'm learning a lot — is par for the course," said Manely.

The case is Chafin v. Chafin, No. 11-1347.

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