Supreme Court of the United States, February 19, 2013
In Chafin v. Chafin the U.S. Supreme Court decided that an appeal procedure does not become moot if the child is returned pending appeal.
In this case the District Court in Alabama had decided that the child must be returned to Scotland. Jeffrey, the father was an American soldier. He married in Scottland to Lynne, where their daughter was born. When Jeffrey was serving in Afghanistan, the daughter went to live with the mother in Germany. Afther the father’s return, the family went to live in Alabama. In 2010 the father filed for a divorce. He also asked for temporary costudy after the mother was arrested for domesstic assault.
Habitual residence in Scotland
Afther her arrest, the mother was deported, since it became clear that she had overstayed her visa. Then the mother asked the American court to decide that the daughter must be returned to Scotland, so that a Scottisch court could decide about the custody. The mother claimed that the child had habitual residence in Scotland.
Request for the order to be stayed
The court then granted her request and ordered the father to pay for the mothers legal fees. After that, the father announced his intention to appeal the decision, and asked that the court’s order be stayed until the appeal was heard. However, the court declined to stay the ruling pending the appeal. That same day, the daughter left for Scotland.
‘The case is moot’
The U.S. Court for Appeals declined to hear his challenge. It declared that the case was moot, given that the daughter had already returned to Scotland. As a result, the appeal court denied his appeal, instead ordering the district court to vacate the return order and dismiss the entire case.
Then, the father appealed to the Supreme Court, which accepted the case. One of the reasons for accepting the case, was that another Appeal Court had ruled in 2013 that appeal courts did retain jurisdiction in such situations.
The Hague Convention does not adress this situation.
The Supreme Court concluded that the U.S. courts still maintained jurisdiction and that the America judicial system could still order the mother to return the child. It further noted that, even if the mother were to ignore an adverse result, that alone did not preclude the case from being appealed, and that the Scottish courts that were simultaneously deciding the custody dispute could be influenced by the result of the case.
It is understandable that the mother returned the daughter to Scotland as soon as she heard that the father’s request for the order to be stayed was denied. However, if the father had succesfully appealed, the daughter would have to return to the U.S. which, depending on her age, could be quit disturbing for the child (to travel back and forth). So, when a parent has to decide wether or not to leave a.s.a.p., he or she should consider the best interest of the child, since the jurisdiction of the appeal court will not be affected by the prompt return of the chid.