What law applies? Who gets to decide?
That choice-of-law question is a sometimes hard consideration that every law school student confronts and wrestles with at some point in school, and it occasionally spills into the real world of law in matters where multiple jurisdictions are involved.
An almost textbook example of that fact is provided by the litigation saga involving a child custody dispute playing out between the American father and Scottish mother of a young girl presently living in Scotland
The couple had lived apart for several years, with the father working at various locales as a U.S. Army sergeant while the mother stayed with the couple's child in Scotland. Following a failed attempt at marriage reconciliation in Alabama in 2010, the mother's visa expired and she was forced to return to Scotland. The daughter stayed with her dad following divorce pursuant to a custody award by an Alabama judge.
And then things got murky. A lower federal court judge reversed that ruling, stating that the Hague Convention mandated that the daughter be sent back to Scotland. The father appealed that ruling to the 11th U.S. Circuit Court of Appeals, which agreed with the lower court, stating that the matter was "moot" owing to the daughter's already established presence in Scotland.
The father fought on, arguing that the appellate court's ruling was not aligned with the view of other federal courts and that it unfairly circumscribed the custodial rights of a parent to a child wrongfully abducted to another country.
The next court to weigh in on that argument and pronounce judgment on whose law applies is the U.S. Supreme Court, which will hear the case in its upcoming term.
Source: Reuters, "US Supreme Court to hear int'l child custody dispute," Jonathan Stempel and Terry Baynes, Aug. 13, 2012
- Our firm represents clients across a wide-ranging spectrum of family law considerations and concerns, including matters similar to that which is discussed in this post. To learn more about our firm and practice, please visit our Georgia Child Custody page.