Recently in Family Law Category

Custody disputes are typically state court matters, but the Supreme Court will consider Chafin v. Chafin, an international child custody dispute, on Wednesday.

Jeffrey Chafin is a U.S. Army sergeant who lives in Alabama. Lynne Chafin is his Scottish ex-wife who resides in Glasgow. Lynne and the couple's daughter have lived in Scotland, apart from Jeffrey, since 2007 due to the Jeffrey's job with the military. In 2010, Lynne moved stateside to try to save her marriage. When the couple failed to reconcile, she decided to return to Scotland.

That led to an international custody battle.

Supreme Court cases often seem removed from our daily lives. We may not like the outcome of a prison strip search case, or agree that grand jury witnesses should receive absolute immunity (even when they lie), but most of us can’t imagine ourselves being personally affected by such decisions.

So most people — lawyers excluded — tend to ignore what happens in the Court. (The healthcare case was a rare exception.)

A Supreme Court child custody case, however, is likely to grab the attention of families and family law practitioners alike.

While most of our attention this week has been dedicated to the individual mandate challenge, the Supreme Court granted cert on Monday in a Social Security benefits case that has also been generating buzz.

In Astrue v. Capato, the Supreme Court will decide whether a child who was conceived after the death of a biological parent, but who cannot inherit personal property from that parent under applicable state intestacy law, is eligible for Social Security survivor benefits.

Abbott v. Abbott, No. 08-645, concerned a petition seeking an order requiring petitioner's son's return to Chile under the Convention and the implementing statute, the International Child Abduction Remedies Act (ICARA).  The Court reversed the Fifth Circuit's affirmance of the district court's denial of the petition, holding that petitioner had a right of custody under the Convention by reason of that parent's ne exeat right under Chilean law, because: 1) Chilean law determined the content of petitioner's right, while the Convention's text and structure resolved whether that right was a right of custody; 2) that the child was wrongfully removed from Chile in violation of a right of custody was shown by the Convention's text, by the U.S. State Department's views, by contracting states' court decisions, and by the Convention's purposes; and 3) while a parent possessing a ne exeat right has a right of custody and can seek a return remedy, return will not automatically be ordered if the abducting parent can establish the applicability of a Convention exception.

As the Court wrote:  "This case presents, as it has from its inception in the United States District Court, a question of interpretation under the Hague Convention on the Civil Aspects of International Child Abduction (Convention), Oct. 24, 1980, T. I. A. S. No. 11670, S. Treaty Doc. No. 99-11. The United States is a contracting state to the Convention; and Congress has implemented its provisions through the International Child Abduction Remedies Act (ICARA), 102 Stat. 437, 42 U. S. C. §11601 et seq. The Convention provides that a child abducted in violation of "rights of custody" must be returned to the child's country of habitual residence, unless certain exceptions apply. Art. 1, S. Treaty Doc. No. 99-11, at 7 (Treaty Doc.). The question is whether a parent has a "righ[t] of custody" by reason of that parent's ne exeat right: the authority to consent before the other parent may take the child to another country."

Related Resources

• Full Text of Abbott v. Abbott, No. 08-645