Michael Manely Interview on taking Chafin v. Chafin to the Supreme Court. Here’s more about the case that grabbed headlines for its international dimension.
An Interview with Michael Manely, Family Lawyer
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Michael Manely has practiced divorce and family law for more than 24 years, providing a wide range of services throughout the United States, the U.S Supreme Court and in foreign national jurisdictions. The Manely Firm is a progressive practice with a reputation for winning difficult, controversial, and high profile cases, and successfully representing thousands of mothers and fathers in state, federal and international divorce, custody and child support cases. Mr. Manely is one of a handful of family law attorneys to ever argue a case before the U.S. Supreme Court and the only one practicing in the Southeastern United States to win a unanimous decision from the Supreme Court of the United States.
Family Lawyer Magazine:
Tell us a little bit about the high profile case Chafin v. Chafin, how you got involved in it and what the outcome of it was.
A large part of our practice is Hague work, and by that, I mean the International Child Custody Abduction Treaty, of which there are presently 89 signatories in the world. Family lawyers who are perhaps not familiar with the international arena should think of it from the standpoint of the UCCJEA, Uniform Child Custody Jurisdiction and Enforcement Act. The Hague is intended to be a jurisdictional treaty, not a custodial treaty. It’s become about 100% of the work that I personally do within the firm for about 12 years or so now.
The background of the case is that the couple were married in Germany. They met in Germany because our client, Sergeant First Class Jeffrey Chafin, was stationed there at the time and he met this young lady from Scotland and they fell in love and decided to get married and start their family there. They had a little girl, named Eris and not long after, our client got stationed in Afghanistan for 15 months. As the case often is, the wife says, honey, I want to go home, to my roots, my family. Sergeant Chafin, of course, consented. He was going to be gone for more than a year, so mom up and moved to Scotland with the little girl. Fifteen months later, Sergeant Chafin, fortunately still quite healthy, is stationed in Hunstville, Alabama.
He says to mom, I have a very healthy signing bonus, how about we buy a house in Huntsville. Fifteen months have passed and they’re still not certain that they want to be together, but mom decides to give it a shot. She comes to Huntsville, they pick out a house and she decides how she’s going to remodel it. During the course of that time, she goes back to Scotland, still contemplating whether she wants to carry on a relationship with this fellow.
Around November 2009, she makes plans to move all of her worldly possessions. They secure a military order to move everything that she and the child have in Scotland to Huntsville. She says goodbye to all of her friends. She posts everywhere on Facebook about how she’s moving to the United States, and then on Valentine’s Day, 2010, she and the little girl arrive to set up their home.
The couple is very much on-again, off-again in terms of their relationship so one day in May, they’re off again, having a nasty little battle and mom says something which a lot of family lawyers will be used to hearing: I’m leaving and you’ll never see your child again.
In an international context, that makes one even more nervous than it otherwise does. Sergeant Chafin hires a family law attorney in Hunstville, files for divorce, and seeks an emergency hearing to resolve the immediate issues: whether or not the little girl can be whisked out of the United States. The judge goes ahead and sets an emergency hearing for a week later. By the time the week has passed and they’re before the judge, they’re back in the honeymoon phase and everything is lovely. The judge doesn’t have a hearing. He’s told there’s no need.
They go on home with the divorce still pending. What happened when mom originally threatened to take off with the child is that Sergeant Chafin took the child’s two passports out of the family safe, the same place where mom stores her passports. The child has two passports because she has dual nationality. She’s both British, and therefore has a British passport, and an American, with an American passport.
So dad, in an abundance of caution, takes both passports out of the safe and hides them. After the hearing, the judge says to put them back. This becomes very dispositive to the trial of our Hague case. Our client puts only the United States passport back in the safe, leaving the British one in the garage where he had stored them both at one time. That becomes important later because mom contends she could never find the British passport.
Throughout the rest of the summer, some times are good, some times are bad, they get along, they don’t get along, all while mom’s still putting down roots. She applies for permanent residency and goes so far as to get to her very last meeting with ICE before she’s granted her Green Card. At the same time, mom is getting herself into a whole host of problems with the local authorities because she has a rather significant drinking issue and gets picked up twice for beating up cab drivers and attempting to assault the police officers who respond to the scene.
On Christmas Eve, according to mom’s testimony, she was downstairs drinking another bottle of wine and dad had gone upstairs to do as he did every night, read to his little girl and put her to bed, and then went on to bed himself. He woke up that night to find mother standing over him with a knife, saying he would never get out of the room alive. He did get out of the room alive, long enough to call 9-1-1. The police came, took mom to jail and while there, discovered that she had overstayed her visa. To her mind it was okay because she was applying for permanent residency but it was not okay in I.C.E.’s mind.
She was held in federal lockup, awaiting deportation, and was eventually deported in February of 2011.
The day she lands in Scotland she decides that her child should not be in the United States. Suddenly, she’s a Scottish child, she’s supposed to be back in Scotland and it was dad that had prevented her from being able to take the child back to Scotland because she had no passports. Remember there’s the issue about one passport versus passports.
Mom files a Hague application for the return of the child that results in a federal case being filed in Alabama which went to trial in October of 2011. The judge found that Sergeant Chafin had deprived the mother of the ability to return to Scotland because he had taken both passports, even though there was no testimony to that effect. The testimony was that he had taken one passport, had returned the United States passport and the only reason why the mother didn’t return to Scotland on the United States passport was because it would have been inconvenient.
After a trial which did not go our way, the Supreme Court judge awarded the child back to the mother in Scotland. Within 20 minutes, we filed a motion for a stay. Within 16 minutes, the court came back with a written order, denying our motion to stay and reiterating that the mother could leave for Scotland. The mother did within the next few hours, giving our client 30 minutes in the motel parking lot to say goodbye to his little girl.
The reason that happened is because the 11 Circuit at the time had a rule, we called it the Bekier after the case. It said that when children are removed from the boundaries of the United States, the United States courts lose all jurisdiction over them. Too bad, too sad, nothing we can do about it.
Opposing counsel knew that as soon as that plane door closed, his client was safe and that little girl was going to be outside of the province of the court, and our appellate court would do nothing about it.
We appealed and the 11 Circuit in a very short order followed the Bekier Rule and said, too bad, too sad. We were powerless to do anything about it. That is the issue we took up before the Supreme Court of the United States.
Is this is an actual case you’re involved in, Michael, or are you pitching me for a story for a movie? It’s got love, hate, threats with a knife, people leaving. It’s an exciting case to be involved in from a legal point of view.
That’s why we can almost unanimously tell you that’s why we love family law. There is nothing more real, more vital, more exciting, oftentimes.
Were there any unanticipated issues that came up during the Supreme Court case, and would you handle things differently now with what you know?
The thing that I did not anticipate is how popular a Supreme Court case is. We were literally overwhelmed, not just with the press, but also with offers from large firms to take the case on for free. I was out when I got a call from the Supreme Court clerk’s office telling us that they’ve granted Cert. I was back at the office within an hour: the phone was just lit up, all lines, with offers from firms left and right, east coast and west coast, saying we’ll take your case on for free if you’ll just let us argue it. Which is a bizarre thing to think about. In the greater scheme of how large firms can be, we are a small firm. We have ten attorneys here, we knew that was a daunting prospect. When you got a Madison Avenue firm or Wall Street firm saying we’ll take your case on for free, that gets your attention.
When they’re saying we’ll offer you a million dollars in attorney time for free, the first thing as the owner of the firm I think about is, is it worth a million dollars?
I hear that from a business perspective. How can we afford to hang on to this case then, because people brighter than I are offering to invest a million dollars in it. I was completely unprepared for what the competition was going to be like to hang onto the case post the granting of Cert.
You must have been working at managing your client’s expectations, perhaps some of them being unrealistic. How does that tie in?
We had eight total people testifying, seven of them were literally for our side and almost every single thing mother said worked for us, yet we lost within minutes.
With the 11 Circuit telling you in a few paragraphs that there’s nothing they can do about it, you know the client’s expectations are pretty dimmed. When thinking about the petitioning for a new Cert, you’re looking at a very nasty split in the circuits on the Bekier issue. Most of the other circuits that have weighed in on that issue excoriated the 11 Circuit’s first decision that we didn’t have jurisdiction.
You’re seeing a plausible reason to apply for Cert but there’s something like 10,000 cases petitioned for Cert per year and they only take up 80 cases. It’s pretty easy to manage a client’s expectations there to not hold out a whole lot of hope. All that changes when they do grant Cert though, because they don’t tend to take a case up on Cert without there being a higher probability that they want to do something about the underlying opinion.
Managing the expectations when you didn’t think you were going to be on Olympus and all of a sudden you are, is a curious place to be. It’s not something that we have a whole lot of training to do. In fact, we have none.
You mentioned that other firms were willing to put a million dollars towards his case, so that says that this is an expensive case to work on. For a person who’s a serviceman, he’s not likely to have the funds necessary for this case. How did you manage that for your firm?
You’re absolutely right. Sergeant Chafin’s got a great network of friends and support and all the way up through the 11 Circuit, they’ve been able to continue to fund our litigation of it through fundraising. But when we hit the Supreme Court, we knew we were in a different financial ballgame and we agreed to take the case on without cost to him for our attorney fees.
Basically, it was working with our vendors to try to get a little bit of leniency while I was spending almost every waking minute working on his Supreme Court case, and many of my associates were as well, trying to devote resources, getting the buy-in from my other attorneys so that they were willing to put in the extra people hours, attorney hours, to get the work done. But just as importantly, when I was talking about firms beating our doors down, we also had a couple of offers from Supreme Court clinics from universities, law schools. We decided to go with one at University of Pennsylvania Law School, and I would say that that had as much to do with anything with our eventual success because very gifted, very talented people devoted all their resources that year to our work.
A professor named Stefanos Bibas runs that clinic there and we had his help, other professors help, and student’s help. Between my firm and their students and his work, we were able to craft the briefs that prevailed before the Supreme Court and that made a world of difference, and made it much more fiscally manageable.
Do you have any idea in terms of the number of people hours that were put into working on this case?
No. But in terms of dollars, which is more real to me, we do know that we probably lost somewhere between $150,000 and $200,000 worth of attorney time that we personally put into the case.
I’m assuming that this is the most expensive for the least financially productive case that you’ve been involved in, but what did you learn from the case? Expensive learning, but was it valuable? Did you feel that your firm benefited and matured as a team?
There were many different takeaways from it. From a firm level, it was a wonderful bonding experience for the entire team and everybody now can say that they’ve had a case that’s gone to the Supreme Court. That’s something that we rarely get to claim. Everybody got a lot wiser. Personally, I have had training that I never thought I’d have the privilege of receiving. Part of what is done when you’re going to the Supreme Court is a process they call moots. Moots are basically moot court. You prepare your argument and you go before a body of folks that are assembled to make your life miserable, and for the next hour, two hours, three hours, they make your life as miserable as possible by asking you the most impossible, difficult questions and follow-up questions.
I had three moots. The first one was at my alma mater, George State University, and the next one was at the university that was defending our brief, University of Pennsylvania. That was probably the most difficult one because they knew the brief inside and out. And the third one was just before the Supreme Court argument at Georgetown. That experience in and of itself, was life-changing in terms of the quality of argument I think that I can present.
I would say that the biggest thing that I have learned from all of this is from the big firms calling us and saying, we’ll take the case on. Their argument uniformly was, we’ve done this, this is what we do. We know everything about the Supreme Court. It would be risky if you try to take the case on yourself because this is not what people do anymore. What I learned is that that’s just not true.
This country was founded on certain bedrock principles that root themselves in egalitarianism. That principle is alive and well in American jurisprudence as evidenced by this relatively small town law attorney being able to go up before the greatest court in the nation and have their attention. They all gave me just rapt attention, they were all invested in the case. They knew the facts forward and backward. And for them to come out with this decision, to me, is a great testament to that third leg of the American government judicial branch.
Did any of their positions or opinions or questions that they presented to you at the Supreme Court surprise you or were you prepared for everything?
There was one level of inquiry that I was surprised at. I was prepared in the sense that family lawyers are the ones that go to court more often than anybody else. My attorneys, myself, we’re in court probably three to four times a week. From the standpoint of having had this argument before, I was prepared. But from the standpoint of receiving these questions from the Supreme Court, I was not.
Justice Ginsburg was particularly keen on the ping-pong theory of child custody. Here this little girl was in Germany for a while. Then she was in Scotland and she’s been in Alabama in the United States for a while. Now she’s back in Scotland. Wouldn’t it be unfair to ping-pong her back to the United States? That is definitely a critical custody question. But again, The Hague is not a custody statute or custody treaty. ICARA is not a custody statute. That kind of surprised me. And the attention that she gave to it and how powerful she felt about it, how passionate she was about that argument, I wasn’t prepared for.
I had to stop and think about where she was coming from and shift my paradigm again to being in Supreme Court somewhere making the ping-pong argument before a judge, and how Justice Ginsburg wanted to hear it.
That was another difference that I learned from this. The paradigm going into the Supreme Court argument was, you want to have your agenda and you want the justices to stay on your agenda. Whenever they ask you a question, odds are it’s not going to be on your agenda. You need to either dodge or respond to them quickly and get right back on your agenda. Basically, a tug of war. It didn’t make sense to me.
My theory on it was that they granted Cert because they had some important things they wanted to resolve. The best thing I could do, because we had confident briefs in front of them, was listen to the questions that flowed from those briefs and answer them as earnestly as I possibly could. Justice Ginsburg was asking me the custody questions and it certainly would have been appropriate to say let’s get back to the subject at hand which is jurisdiction. But that wouldn’t have resolved her concern.
Interestingly, when we left the argument, I thought we were going to have 3/6 or maybe even a 7/2 decision and I figured Justice Ginsburg was going to pend the dissent. Instead, we got a 9/0 with Justice Ginsburg pending the concurring opinion and what was important to her, and Justice Scalia and Justice Breyer joined on this, really driving home Justice Roberts’ majority opinion about timeliness of decisions. The Hague puts a laudatory six-week goal on resolving litigations start to finish and we don’t have the kind of mechanism to get that set up, shy of Congress re-enacting and redrafting some of the elements of The Hague.
So Justice Ginsburg was saying time is important here. The girl had been in Scotland for a long time now, since October 2011. She’s not getting any younger and her experiences are still altering her, and there are custodial, or at least, best interests of child implications to be considered here.
Taking the time to not fight with Justice Ginsburg, but to hear her out and try to respond to her earnestly helped with that decision becoming a concurring one rather than a dissenting one.
How are things going for your client and the custody case now?
I wish I could tell you that things are lovely. I had predicted that once we had the decision back in February with Justice Roberts and Justice Ginsburg making it clear that there has to be a quick resolution, that the 11 Circuit would say, get your briefs in, we’ll have a decision to you by the end of May.
We got our briefs in immediately and scheduled oral argument for this case, but not until November. Somewhere, the message that this was supposed to happen very, very quickly got lost. In the meantime, Sergeant Chafin travels to Scotland to see his daughter on a far less regular basis than he would like to, making it over there about three times a year. There isn’t a resolution to this.
Some folks say to go have a custody battle in Scotland. But that is surrendering the idea that we have a way of resolving this. The nations have said we need to resolve this on a jurisdictional basis, which takes us right back to UCCJEA. We need to not get embroiled in the best interest because there’s going to be such a tendency to argue in terms of which country is better. If we just leave it jurisdictionally, then we’ll come up with the right answer and it will go to the correct court who we have conferred jurisdiction upon.
That’s why we remain committed to the process of going through the 11 Circuit. I trust still overturning the district court’s decision because it wasn’t based on anything that happened at trial. And then we’ll go to Scotland and see if Scotland is willing to honour its obligations under The Hague and send the little girl back.
Are there any other changes that need to be made to the state, federal or international law in terms of the procedure in relation to domestic family law issues?
Yes. Federal law in particular. The Hague, of course, is an international treaty and there are processes in place to modify that and regular meetings that take place for that. But ICARA uses the federal statute that implements the treaty. It was important to the nations to leave as much as possible to the home countries to determine things like the keyword ‘habitual residence.’ In UCCJEA parlance, we would call that home state. In UCCJEA, that’s six months. When they come to the state, you look six months into the future and say, okay, now, home state has been obtained for the child there.
In Hague parlance, habitual residence has no such time frame. It is completely left open to the way individual nations tend to resolve that. We think it would be helpful if the Congress would go ahead and decide what habitual residence means. We think it would be helpful because The Hague can be heard both in federal and in state court. If Congress were to use the UCCJEA standard of six months, it’s one that family lawyers already know, already work with on a day-to-day basis. So it would be well within the ability of the United States to say, habitual residence is conferred after the child has been in a state, or in the nation, for six months.
As I mentioned earlier, the mother applied for and obtained army orders to transfer all of her worldly possessions to Huntsville, Alabama. As a matter of law, it should be that when a military family obtains United States government help through the service of moving their stuff to relocate, that that in and of itself confers habitual residence upon the United States. That’s another change that we’re looking for.
The biggest change we’re looking for is the one that the Supreme Court was particularly concerned about and that has to do with expedited judicial action. We all agree that the six weeks is laudatory and it’s impossible to do. It’s not impossible to do on a trial basis and we compete, we cooperate in a lot of trials that take place, start and finish, within that six week period. But when we start talking about appellate work, six weeks is not possible, but something in the neighborhood of another three months or so, is. That isn’t going to happen until Congress enacts some laws that say the federal courts are required to handle the appeals within three or four months so that we have uniformity throughout the United States.
Scotland is a stable country but I would imagine where there’s political uncertainty that would have a great effect on international family law litigation and would be near impossible in some cases to do even what you accomplished in this case.
It does. The issue is whether or not the child is here and we’re trying to prevent the child from going to one of those countries or if the child is there and we’re trying to extract them from that country. If the child is here, of course, it makes our argument so much easier.
If it’s an unstable country, it’s fairly likely that it’s not going to be a member, a signatory to The Hague anyway. We think about some of the places, Syria, not a signatory. Egypt I don’t think is a signatory. The problems that we really run into are places that are signatories but aren’t complying. The State Department has a list that countries can fall onto of non-complying countries. Costa Rica, for the second year in a row, has been adjudged non-compliant. So they’ve signed onto the treaty, said they’ll abide by it, but then they don’t. They just flaunt it. They say, no, we aren’t going to send them back anyway. Surprisingly the Bahamas is another one. There are a lot of people that travel to the Bahamas. As I told a group of attorneys in Cayman Island, if you want to deprive your spouse of their custody, just come on down to the Cayman Islands on vacation much like you are right now, and stay. There’s nothing that they can do about it. They’re just stuck. The child stays here. Of course, that means you have to be willing to live in the Cayman Islands for the rest of your life, but some people are.
Interestingly, Great Britain right now is faced with that issue. There was a case that came out of Texas, Larby v. Larby; it has a different name in England. Long story short, they’re a military family going through a divorce. Mother took the child to England and held up the child there. The trial court said that was fine. Federal trial court said that was fine. The appellate court, second circuit said, no, that’s not fine. Bring that child back now. That case is taking place in consideration in the English court. The English High Court said, we aren’t so certain we want to return the child, because the EU has a different treaty. This is what was scary about it, while we have The Hague treaty with Great Britain, the EU has a different treaty and it looks somewhat like The Hague except for one very, very important difference. It allows the courts to take the best interest into account.
The High Court said, okay, we have this treaty with the United States, but we really like our other treaty, which allows best interest to be taken into account. Rather than this court having to operate under two different treaties, we’ll just operate under the EU treaty.
This completely flaunts its responsibility under international law with the United States. That case has been appealed. I don’t think there’s been a decision handed down on that yet, but it’s kind of odd to think that Great Britain may also be walking into rogue nation status with us.
Michael Manely is the founding attorney of The Manely Firm, P.C., a law firm that specializes exclusively in family law. He has won arguments before the U.S. Supreme Court, and has represented clients in both Georgia family courts and federal courts across the US.