WASHINGTON — The Supreme Court on Wednesday struggled to decide whether it was capable of doing anything to affect the outcome of a custody dispute before the Sheriff Court in Airdrie, Scotland.
The case arose from the breakup of a marriage between Jeffrey L. Chafin, an Army sergeant and an American, and Lynne H. Chafin, a British citizen. The couple had a daughter in 2007 while Sergeant Chafin was stationed in Germany. Later that year, Ms. Chafin and their daughter moved to Scotland while Sergeant Chafin was deployed to Afghanistan.
Shortly after the family was reunited in 2010 in Alabama, Sergeant Chafin sought a divorce in state court and asked for custody. Ms. Chafin, for her part, asked a federal judge in Huntsville to allow her to take her daughter to Scotland under the Hague Convention, which requires courts to make sure that custody decisions are made in the country of the child’s “habitual residence.”
“The idea of the Hague Convention is just to get the case to a forum that’s an appropriate forum to decide the custody question,” Justice Ruth Bader Ginsburg explained on Wednesday.
The federal judge ruled that the child’s residence was in Scotland, and mother and child returned there 14 months ago.
The question for the justices was whether Sergeant Chafin should be allowed to appeal to the federal appeals court in Atlanta or whether the exercise would be pointless.
“Why would it make any difference?” Justice Ginsburg asked Michael E. Manely, a lawyer for Sergeant Chafin.
Mr. Manely listed several possible consequences of an appellate ruling in favor of his client, including that the Scottish court might decide to stand down and allow the Alabama state court to determine custody.
In making his case that an appeals court ruling would not be moot, Mr. Manely received repeated assistance from Justice Sonia Sotomayor, who wrote an influential dissent in an international child custody case while a federal appeals court judge in New York. (“I know this area very well,” she said Wednesday.)
Justice Sotomayor noted, for instance, that Sergeant Chafin had been ordered to pay about $94,000 in legal fees, court costs and other expenses by the federal judge.
But Mr. Manely resisted relying on his client’s financial exposure as a way to show that an appeals court ruling in his case could have real-world consequences. That aspect of Mr. Manely’s argument seemed to mystify several justices. “I don’t understand your answer,” Justice Antonin Scalia told him.
Mr. Manely finally embraced the argument that the possibility of wiping out a $94,000 award against his client meant the case was not moot. But he did so gingerly, noting that the federal government had pressed the point in a brief supporting his client.
Nicole A. Saharsky, a lawyer for the federal government, made a more vigorous argument on Sergeant Chafin’s behalf. An appellate decision could matter in several ways, she said, and that was reason enough to let an appeal go forward. A ruling from an appeals court, she said, “is a piece of paper in the world that has consequences.”
Stephen J. Cullen, a lawyer for Ms. Chafin, made a simple and emphatic argument in the case, Chafin v. Chafin, No. 11-1347. Mr. Cullen was educated in Scotland and once practiced law there, and his accent seemed to lend authority to his position. “The effect that any appeal court could give would be zero in the Scottish court,” he said. “Nothing.”
Justice Stephen G. Breyer initially resisted the argument, saying that Scottish courts, like American ones, should and would take account of the views of foreign courts on questions relevant to cases before them.
Justice Ginsburg interceded, saying that the Scottish court would say of the child that “what her habitual residence was then” — in October 2011, when the judge in Huntsville made her decision — “doesn’t matter one whit to us.” Rather, Justice Ginsburg said, the Scottish court would want to know only where the child is living now, 14 months later.
Justice Breyer appeared persuaded. “Thank you for Justice Ginsburg’s answer,” he told Mr. Cullen, jokingly. “She is quite helpful.”