CHARLOTTESVILLE, Va. (CN) — A federal court has jurisdiction to hear a challenge to a U.S. Marine’s adoption of an Afghan child who was orphaned during war, a judge ruled Wednesday, denying most of a motion to dismiss the claims.
The child’s cousin and his wife seek $15 million in damages from U.S. Marine Major Joshua Mast and others, including Mast’s wife, for what they claim was a fraudulent scheme over nearly two years to abduct of the child, referred to as Baby Doe in court proceedings.
Virginia’s Court of Appeals declared the adoption void on July 16. The appellate court found that Mast was granted custody after misrepresenting facts to a local custody court, which also lacked subject matter jurisdiction to issue the order.
The Masts moved to dismiss all counts for lack of jurisdiction and failure to state a claim. They argued the claims stemmed from a custody dispute, a subject that falls outside federal court jurisdiction under the domestic relations exception.
U.S. District Judge Norman Moon disagreed.
“This federal case does not involve adoption or custody,” he wrote in a 97-page opinion Wednesday. “It involves John and Jane Doe’s claim that the Masts [and others] conspired to abduct Baby Doe, committing fraud and several torts in the process.”
The domestic relations exception encompasses only cases involving the issuing of a divorce, alimony or child custody decree. According to Moon, the fraud, conspiracy and inflection of emotional distress claims are fair game because they seek the traditional tort remedy of monetary damages, not prohibited relief like an award of custody.
Moon dismissed the parental rights and false imprisonment claims and motion for declaratory judgment, indicating that they would require the court to make a custody determination, which is forbidden.
He also dismissed all claims brought on Baby Doe’s behalf, contending that the Does lack standing to sue on her behalf until custody proceedings are resolved. For similar reasons, Moon denied the Masts’ contention that the court lacks diversity jurisdiction because, in their view, Baby Doe is a resident of North Carolina, where she has lived with the Masts.
“Plaintiffs have alleged in great detail how they did not knowingly or willingly relinquish their custody and care of Baby Doe to the Masts, but rather that defendants orchestrated a scheme to abduct Baby Doe,” Moon wrote.
Moon, a Clinton appointee, called Baby Doe’s story one of resilience and duplicity. She was two months old when U.S. forces found her in the rubble of her family’s home in the aftermath of a joint operation by the U.S. and Afghan militaries conducted in rural Afghanistan in September 2019. With her parents and siblings dead, U.S. forces took Baby Doe to a U.S. military hospital for emergency treatment.
Mast learned about Baby Doe when serving a short stint as an attorney in October 2019 and became concerned with the child’s wellbeing. By then, the U.S. forces had begun coordinating the child’s return to her uncle with help from the Red Cross and officials from the Afghan Ministry of Labor and Social Affairs.
Mast petitioned for custody of Baby Doe in the Fluvanna County Juvenile and Domestic Relations District Court. He testified that the child was stateless, the search for relatives was unsuccessful and the child was in urgent need of medical treatment.
The court granted him custody, but at the request of the Afghan government, Baby Doe reunited with her uncle in 2020, who transferred guardianship to his son and his wife.
Mast didn’t give up and employed fellow attorney Kimberley Motley, who was practicing in Afghanistan, and Afghan national and Tennessee resident Ahmad Osmani to convince the family to send the child to the United States for medical treatment.
“Joshua and Stephanie Mast have done nothing but ensure she receives the medical care she requires, at great personal expense and sacrifice, and they have provided her a loving home,” attorneys representing the Masts wrote in their motion to dismiss.
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.
“Through their omissions and misrepresentations, Joshua and Stephanie Mast deceived John and Jane Doe into believing that the Masts’ only interest was in helping Baby Doe access medical care that was not available in Afghanistan,” attorneys representing the Does’ wrote in their brief. “In reality, however, the Masts’ chief objective was to consummate their illicit scheme to take Baby Doe from her lawful Afghan parents.”
The child was taken from the couple when they arrived at Fort Pickett in Virginia in compliance with the Fluvanna court’s final adoption order. Baby Doe has lived with the Mast family since.
Moon dismissed the Does’ requests for declaratory relief and their claims for tortious interference with parental rights and false imprisonment without prejudice and with leave to refile upon the conclusion of the Virginia court proceedings.
In a joint statement, their attorneys Maya Eckstein and Lewis Powell of the firm Hunton & Williams said Wednesday’s ruling marked progress in their case.
“Judge Moon’s decision is a welcome step towards holding the Masts and the other defendants accountable for what they’ve done and vindicating our clients’ rights,” the attorneys said.
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