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This is HUGE!

On Behalf of | Aug 13, 2012 | International Family Law

I won’t even attempt to make this announcement with so much as a shred of modesty.

The Supreme Court of the United States of America has accepted our Petition for Writ of Certiorari on the Hague case we tried last autumn, Chafin v Chafin!  They told us to expect to present oral argument on December 5.  In family law terms, in international law terms, in attorney terms, this is huge as in monumental.

You may recall the trial: our client, Sgt. First Class Jeffrey Chafin came home from the war.  Soon his Scottish wife and his little girl came to the US to live with him where he was stationed, just outside of Huntsville.  The wife did everything she could to establish permanent residency in the United States. Every word she wrote and everyone she spoke to heard the same story, she and the little girl had relocated to the good ol’ US of A and were darn proud of it.

Before long, the couple fell out.  Our client filed for divorce.  Even then at the first hearing, Ms. Chafin contended that all was well and she was staying put. Even months later when the Alabama Court set the divorce case down for trial, the wife hired an attorney who sought and obtained a continuance.

Meanwhile, the wife’s drinking problems were catching up with her.  She had several run-ins with the police and was repeatedly arrested for public intoxication.  It all came to a head when, on Christmas Eve, Sgt. Chafin called for police intervention because Ms. Chafin, again intoxicated, had threatened him with a knife.

This time the police not only picked up Ms. Chafin, they kept her.  She had not yet finished her permanent residency paperwork (her final interview was but days away) and had overstayed her visa upon, she contends, U.S. Immigration and Custom’s Enforcement’s advice.  She was eventually deported back to her native Scotland.  Even as she awaited deportation, she wrote that she wanted to come back to the US.

As soon as she landed back in Scotland, she contended that the parties’ daughter was being unlawfully retained in the United States by Sgt. Chafin.  That assertion found its way to the United States District Court in Huntsville, Alabama where, despite reviewing Ms. Chafin’s copious writings attesting to her desire to remain and hearing from many, many witnesses that Ms. Chafin repeatedly expressed her intent to remain in the US with the child, Judge Inge Johnson decided that Ms. Chafin never really meant it and therefore the child’s Habitual Residence was Scotland.  Judge Inge Johnson ordered the child returned to Scotland.

Within 20 minutes of Her Honor’s bench ruling, we filed a Motion requesting that she stay her Order so that we could appeal it.  While the ink was still damp on our page, within minutes Judge Inge Johnson had denied our Motion.  Within a few hours, the little girl was already on a plane and spirited out of the United States.

The 11th Circuit Court of Appeals, the Federal Appellate Court for Georgia, Alabama and other southeastern states, has created precedent that says once a child leaves our shores our appellate courts are powerless to do anything about it.  The United States Government, the reasoning goes, becomes literally incompetent, without the competence to affect any change in that now absent child’s future.  Too bad.  The 11th Circuit summarily denied our appeal because, after all, the little girl was gone and, they contend, there was nothing they could do about it.

But that’s not the end of the story.  Almost every other circuit has also addressed this issue and almost every single one of them vociferously disagrees with the 11th Circuit. They do not share the 11th Circuit’s view that the United States is powerless. 

So we asked the Supreme Court of the United States of America to take up this issue and resolve for the people all across our great land: whether our courts are powerless beyond our shores to affect the lives of our children when they are taken from us.

Today, in an unprecedented mid-summer move, the United States Supreme Court said they would take on that question, they would hear oral argument in December and they will likely rule before the last southern frosts of 2013. 

Today, parents of children born to foreign spouses can breathe a much more hopeful sigh of relief that, should the worst case scenario arise and their spouse take off with their child, the United States Supreme Court may well say that our government is not without power to do something about it.

Come December, I will have the great priviledge and honor to breathe that rarified air of arguing my case in the hallowed halls of the Supreme Court of the United States of America.  And truth be told, I am quite humbled by that.

Michael Manely