Custody Agreements Valid Internationally

In this day of World travel, as well as corporate and military movement, if one of a child"s parents lives abroad, the U.S. courts do not lose jurisdiction.

On February 19, 2013 the United States Supreme Court unanimously held that a case was not rendered moot when a child in a child custody action was returned to a foreign country pursuant to the provisions of the International Child Abduction Remedies Act (ICARA).

In the case, father, Jeffrey Chafin was a citizen of the United States and a sergeant first class in the United States Army. Chafin was stationed in Germany where he met, and married, mother, Lynne Chafin, a citizen of the United Kingdom. Their daughter, E.C. was born a year after the parties married.

Following the marriage, Father was deployed to Afghanistan and Mother returned to Scotland with the child. Eventually Father was transferred to Alabama and in February 2010, Mother traveled to Alabama with the child. Shortly after Mother"s trip to the United States, Father filed for divorce and custody of the child in Alabama state court. Near the end of 2010, Mother was arrested for domestic violence which alerted the U.S. Citizenship and Immigration Services that Mother had overstayed her visa. As a result, Mother was deported and the child remained in the custody of Father.

Following deportation, Mother filed a petition in Northern District of Alabama seeking return of the child under the International Child Abduction Remedies Act (ICARA) a treaty ratified in 1988. The District Court held a bench trial and concluded that the child"s country of habitual residence was Scotland and therefore granted Mother leave to return to Scotland with the child. Within hours of the decision, Mother returned to Scotland where the child has remained since.

ICARA was ratified “to secure the prompt return of children wrongfully removed to, or retained in, any Contracting State” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” ICARA further provides that it is wrongful to remove or retain a child if “it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention” and “at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” ICARA also provides several exceptions or defenses to the return of the child to the country of habitual residence.

The issue in the case was whether the matter was rendered “moot when the child had been returned to the foreign country, because the court „became powerless" to grant relief.” The Court held that the case was not rendered moot because Father continues to argue that the United States was the child"s country of habitual residence, and, even if Scotland was the country of habitual residence, Father continues to argue that ICARA"s defenses apply. In ruling the Court rejected Mother"s arguments that the case was rendered moot because Scotland may simply ignore any “re-return” order because, the Court reasoned, uncertainty typically does not render cases moot. More specifically the Court noted, “Courts often adjudicate disputes where the practical impact of any decision is not assured.” The Court also noted, “[i]f these cases were to become moot upon return, courts would be more likely to grant stays as a matter of course, to prevent the loss of any right to appeal.”

Justice Ginsburg, joined by Justices Scalia and Breyer, authored a concurring opinion emphasizing the need for speed and certainty in ICARA determinations. While this case is not headline making news, it does present an interesting question about the intersection between family law and international law. At this intersection there is a constant battle between the sovereignty of a nation and the respect for the laws of other countries. Chafin v. Chafin certainly demonstrates this concept well.


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