RICHMOND, Va. (CN) - A majority of the Virginia Supreme Court sided with a U.S. Marine on Thursday, ruling his adoption of an Afghan war orphan valid.
An Afghan couple accused Virginia-based U.S. Marine Corps attorney Joshua Mast and his wife, Stephanie, of abducting the husband's baby cousin. According to the couple, the child, referred to as Baby Doe in court proceedings, was orphaned at 2 months old after her parents and five siblings were killed during a U.S. military operation in rural Afghanistan in September 2019.
The majority agreed with the Masts that Virginia law precludes all challenges to final adoption orders after six months and determined the six-month rule is in the best interest of the children involved in custody disputes. The policy favors finality in hopes of preventing the harm that comes to children who are repeatedly subjected to custody changes.
"None of their efforts to exempt themselves from this statute of repose have the support of the circuit court's factual findings or our understanding of the governing legal principles," Justice Arthur Kelsey wrote.
The lower courts offered different rationales for voiding the adoption. The circuit court ruled that the six-month rule doesn't apply to adoption orders that were void from the beginning, but the high court majority wasn't convinced.
"Under this circular logic, the statutory bar applies only when it is unnecessary to apply it - an odd type of performative contradiction that turns back on itself," Kelsey said.
One important factor that weighed in the Masts' favor is that the Afghan couple has refused to undergo DNA testing. Despite this, the circuit court ruled the couple had a fundamental liberty interest as caretakers and physical custodians of the child, which the juvenile court did not consider when granting the Masts' custody.
The Virginia Court of Appeals voided the adoption in 2024, ruling that the Masts were granted custody after misrepresenting facts to a local custody court that lacked jurisdiction to issue the order.
Virginia's high court rebuffed the couple's argument that no American court could constitutionally sever their relationship with the child, as they are the de facto parents. The majority found that argument only applies to biological parents.
"No Virginia state or federal court has endorsed this constitutional theory," Kelsey said. "Nor has any American court applied it extraterritorially to foreign citizens living in a foreign country at the time of the alleged violation of their claimed rights under the U.S. Constitution."
Chief Justice Cleo Powell, Senior Justice LeRoy Millette and Justice Thomas Mann dissented from the majority. Mann wrote that the majority and the Masts are misinterpreting the purpose of the six-month rule.
"It would be nave to expect that there would not be, sometimes, unintended consequences to legislation. But here, the construction of the statute at play in this case legitimizes the manipulation and artifice employed by appellants," Mann said. "Put simply: This is just wrong."
One wrinkle in the case is that the federal government changed its tune, from supporting the couple's position to supporting the Masts, after President Donald Trump regained control of the White House last year. Another wrinkle that complicates the case is the regime change that occurred when the Taliban retook control of Afghanistan in 2021. The couple had asked the court to defer to an Afghan government that no longer exists.
Mast learned of Baby Doe while serving overseas and became concerned with the child's well-being. By then, U.S. forces in Afghanistan had begun coordinating the child's return to her uncle, with assistance from the Red Cross and officials from the Afghan Ministry of Labor and Social Affairs.
Despite being privy to family reunification efforts, Mast petitioned for custody of Baby Doe in the Fluvanna County Juvenile and Domestic Relations District Court. Mast testified that the child was stateless, the search for relatives was unsuccessful and the child was in urgent need of medical treatment.
At the Afghan government's request, the U.S. planned to move the child to her uncle's custody in early 2020. Mast moved for a restraining order to prevent the transfer, but the court found him unlikely to succeed on the merits. Baby Doe was put under the care of her uncle, who transferred guardianship to his son and his wife.
Mast didn't give up and employed a fellow attorney practicing in Afghanistan to convince the family to send the child to the U.S. for medical treatment. After the Afghan government collapsed on Aug. 15, 2021, and after more than a year of communication, the couple agreed to bring the child to the United States. Upon arrival, Mast presented an Afghan passport for the baby with his last name on the document, and the couple soon lost their child.
The Mast and the couple continue to litigate similar issues in federal court, with the Masts' urging the Fourth Circuit last September to vacate a protective order shielding the identities of the child's family. Attorneys representing the parties did not respond to requests for comment.
Source: Courthouse News Service
