Interstate Child Custody Jurisdiction Blog

Bennett v. Bennett-Smith -- emergency jurisdiction and guardianship proceedings

The workings of the newly-minted UCCJEA provisions on temporary emergency jurisdiction, which replaced the simpler UCCJA provisions, are elucidated by the Court of Appeals in Bennett v. Bennett-Smith, unpublished, 23 VLW 301 (8/12/08).

Foster v. Foster: JURISDICTION – CUSTODY – UCCJEA – FORUM NON-CONVENIENS – HOME STATE – CONTINUING JURISDICTION – EMERGENCY.

An example of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) working just as it is supposed to, to discourage opportunistic forum shopping and child snatching, is provided by an opinion called Foster v. Foster, ___ Va. App. ___, ___ S.E.2d ____, 23 VLW 299 (8/12/08) from the Court of Appeals.  After a mother took three children from Virginia to Maine and there got a ex parte protective order and, using the “emergency” provisions of the UCCJEA got a temporary custody order by alleging domestic violence by the father, she responded to the Virginia custody order that the father had meanwhile gotten from the local JDR court by appealing it to circuit court. There she argued that under the UCCJEA, Virginia should give up its home state jurisdiction and continuing jurisdiction because it was an “inconvenient forum.”

Court says unwed father's rights natural, inherent

In this week's "Family Law Reporter," I  see that a high school classmate of mine,  a deputy county attorney in Missoula, Montana, was on the right, and winning, side of a significant criminal/family law case, State v. Young, at http://pub.bna.com/fl/060382.pdf.

The court opinion says that an unwed father's rights as a parent are natural rights, not just rights granted by a court. In this case, the mother disappeared in order to keep the father out of the child's life. At that time, the parents were not married and there had not been a formal establishment of paternity under the paternity statute. Therefore, when she was caught and prosecuted, the mother argued that the father had had no rights that she violated at the time when she disappeared.

Va. Supreme Court will review Miller-Jenkins case

A summary of the decision below is at Virginia Family Law Appeals: Miller-Jenkins v. Miller-Jenkins, 49 Va. App. 87, 637 SE2d 330, 21 VLW 746 (11/28/06).

Swalef v. Anderson: UCCJEA — CUSTODY — INTERSTATE — TRIBAL COURTS — CONTINUING JURISDICTION — FORUM NON CONVENIENS (DEFER AND DECLINE) — APPEALS — SELECTIVE APPELLATE REVIEW.

Taking a very practical approach to an appealed UCCJEA case involving Indian tribal courts in Minnesota, the Court of Appeals declines to review the validity of the Norfolk Circuit Court’s discretionary decision to decline and defer exercise of child custody jurisdiction over a child then in Minnesota, because whether or not this Virginia court had jurisdiction, its decision to defer the case to the Minnesota Tribal Court was authorized and correct.

HOME STATE – “PERSON ACTING AS A PARENT” – LORD MANSFIELD FATHERS.

Is a married, legal, but non-"biological" father "a parent" under the UCCJEA's definition of "home state"? Or "a person acting as a parent"?

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) meets Lord Mansfield’s rule in an important holding by the Virginia Court of Appeals in O’Rourke v. Vuturo, 638 S.E.2d 124, 49 Va.App. 139 (12/19/06)

UCCJA AND UCCJEA – REMANDS – CHILD’S COUNSEL.

A decision of the Maryland Court of Appeals in Garg v. Garg, ___ Md. App. ___, ___ A.2d ___, 31 FLR 1508 (2005), was reversed by the Maryland Court of Appeals at ___ Md. ___, ___ A.2d ___, 32 FLR 1363 (6/8/06). The original trial court decision was under the UCCJA, and when the intermediate Court of Special Appeals remanded the case with directions to decide it under the new UCCJEA, it erred. The UCCJEA itself provides that it does not apply to any case commenced before its effective date. Thus what must be applied on remand is the UCCJA. The intermediate court also erred when it reversed the trial court’s denial of the mother’s motion to appoint independent counsel for the child in the arguments over the jurisdictional issues. The state’s highest court couldn’t figure out why the Court of Appeals thought it had the right to vacate the trial court’s refusal to appoint this extra lawyer. It certainly was not an abuse of discretion, and nothing in the statute which allows such appointments of counsel makes it in any way mandatory. The court patiently explained that interstate jurisdictional decisions are preliminary decisions having nothing to do with the best interests of the child, and are in fact supposed to be expedited so that those best interests issues can be got to by whichever state’s court is the proper one. The trial judge could very well have reasoned that since each parent was ably represented by chosen counsel, “it did not need another lawyer to weigh in on the purely legal issue of jurisdiction.” The decision to deny that appointed counsel certainly “was not unreasonable, much less arbitrary, capricious or beyond the letter or reason of the law.”

“NO OTHER STATE” JURISDICTION & DEFERRAL

Hurtado v. Sampson, ___ NYLJ ___, QDS:32701716 (Sup. Ct. Bronx Co. 10/29/99).

    UCCJA — “NO OTHER STATE” JURISDICTION — LONG RESIDENCE AND     CONTINUED PRESENCE IN FOREIGN COUNTRY — WHETHER TO DEFER TO     FOREIGN COUNTRY.

New York has jurisdiction over  a child born there who has lived in Nicaragua for 11 years with an aunt and uncle — and still does — under the fourth prong of the UCCJA’s jurisdiction test: where “no other state would have jurisdiction under the [first three prongs] … and it is in the best interests of the child … .”  The court referred to this last prong as “‘safety net’ jurisdiction.”  It noted that the “no other state” jurisdiction provision has no requirement that the child be present in the forum state.

The child was born in the Bronx in 1986. The parents separated in 1988. Father moved to Florida. Mother kept the child in the Bronx. Later that year, she sent the child to live with his uncle and aunt in Nicaragua, where he still remains. Father claimed not to have known of or consented to this. None of these events involved any  custody litigation nor order. Father filed for custody  in the Bronx in 1999.

In New York, a foreign country is not a “state” for UCCJA purposes, the court said, citing Koons v. Koons, 161 M2d 842, 847 (N.Y. Co. Sup. Ct. 1994). The child had lived in no other U.S. state, so there was no other home state. Neither New York or any other state had a significant connection to the child, or substantial  evidence, the court said.

As for the best interests element of the “no other state” prong, the court said, it is in a child’s best interests that there be a custody  order. Although New York adjudication would be “cumbersome” in this situation, the court said there was no proof that Nicaragua had jurisdiction to  do anything. Neither parent was subject to personal jurisdiction in Nicaragua. Father had no remedy under the Hague Convention because Nicaragua has not ratified it. The court distinguished this case from one where the foreign country’s courts  had assumed jurisdiction (Zwerling v. Zwerling, 167 M2d 782 (Sup. Ct. Queens 1995)).

Question:  This decision and Koons,  especially, are contrary to the rule in my state (Middleton), which I believe is the majority rule, and to UCCJA §23. Most states treat most foreign countries as states regardless of the definition of “state” in the definition section.  But how  absolute is the Koons  rule in practice, considering  the numerous other justifications the court found it necessary to rely on in this case, and the contrary outcome in Zwerling?

Custody Jurisdiction Under Canadian Law

Huber v. Huber, 1999 Ont. Sup. C.J. LEXIS 1273, (Ont. Super.  11/15/99).

CUSTODY JURISDICTION – “UNDERTAKINGS” IN HAGUE CASES — AFFIDAVITS
FROM FOREIGN-LAW EXPERTS

Where mother took the children to Germany two years ago and stayed, Ontario retains jurisdiction over everything but the divorce itself, as Germany has already granted one.

The parents and children were German natives and citizens, but immigrated to Canada. Both sides agree that this was intended to be permanent; but after two years mother desired a divorce, and moved back to Germany with the children. Father then filed for custody in Ontario, but mother was never served. He also filed a Hague return petition, and the German court made an order which alluded to an agreement (or “undertakings”) that the children would be returned in three weeks.

Before that time was up, mother filed for divorce, pension rights and custody in Germany, in a different court from the one that heard the Hague petition. Father again field for custody in Ontario, and mother contested jurisdiction. The German court eventually refused to rule on custody, because by then father had filed another Hague petition, which stayed custody litigation (Art. 16).

Ontario’s child custody jurisdiction law is clearer than our UCCJA and UCCJEA, and bears quoting:

“(1) A court shall only exercise its jurisdiction to make an order for custody or access to a child where, (a) the child is habitually resident in Ontario at the commencement of the  application . . .
“(2) A child is habitually resident in the place where he or she resided, (a) with both parents; [or] (b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order . . . whichever last occurred.
“(3) The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child.

Under this definition, Ontario clearly remains the habitual residence. Citizenship is irrelevant, the court noted.

Significant connection is the mother’s only colorable claim, the court said, but equity bars her from profiting from her own misconduct. The court used language that we used to hear all the time in law school, but so rarely hear in U.S. family courts: “It does not lie in the mother's mouth now to assert a re-established connection as a result of her unilateral act. … Now she seeks to rely on the further year of residence in Germany that [she] has created.” The court also discounts the significant connection because it “was intended to be permanently changed (if not severed) by the couple jointly” when they moved to Canada. Besides, “The closeness of the connection to a place is not the only or even a predominant factor, or else the Hague Convention and its implementing legislation would be for nothing.”

On other forum non conveniens arguments, the court remarked, “if a parent has fled across the Atlantic in an attempt to defeat the claim of the other parent to custody or access, it hardly lies in that parent's mouth to complain about a disadvantage from having to travel.”

Ontario was the proper forum for property division, the court found. On property division issues, there was no statute on jurisdiction to divide property, but Ontario’s choice-of-law rules say to use the law of “their last common habitual residence”, and the only marital property was in Ontario. “Nationality and the place of marriage” are irrelevant.

Mother tried to use a German law student working in Ontario as her German law expert in the Ontario case, but the court rejected his affidavit because there was no evidence of his expertise or admission to a German bar. (Such students often have completed law school and are working abroad as part of a series of internships that are required before taking the final bar exam).

Abuchaibe v. Abuchaibe

Abuchaibe v. Abuchaibe, ___ So.2d ___, 26 FLR 1266 (Fla.App. 3/15/00).
UCCJA -- SIGNIFICANT CONNECTION vs. HOME STATE -- MOTHER'S RESIDENCE. 
Merely having a parent who lives in Florida does not mean that the parent and child have a UCCJA Section 3 "significant connection" with that state, and so a Florida court should not have exercised jurisdiction over a child whose home state was Colombia.  The child in this case was 33 months old, and had lived in Colombia for 22 of the 33 months of his life, and that was not at the time of filing but at the time of the trial court's initial custody ruling.  The child had lived in Colombia with his father for the past 10 months. The mother was residing in Florida in order to get her resident alien status, and when she was given six days of visitation, she kept the child and refused to give him back.
This is an interesting contrast to the Miami family division ruling three months earlier, exercising jurisdiction on “no other state” and other grounds in a case where Cuba was the home state (Gonzalez v. Gonzalez Quintana, Fla. Circuit Court No. 00-00479 FC 29 (Family Division, Miami-Dade County 1/10/00)). That case was reversed

ENFORCEMENT OF RUSSIAN ORDER

Bliss v. Bliss __ A2d. ___ (DC App 7/22/99)

UCCJA — ENFORCEMENT OF RUSSIAN ORDER — NOTICE AND OPPORTUNITY — FEES — SIMILAR LAW

A Russian custody order is enforceable in DC where the DC father had due process, no-tice and an opportunity to be heard. The par-ties were living in Moscow together when the father took the child to DC. The mother fol-lowed and filed for custody there, asking the DC Superior court to exercise emergency ju-risdiction. It refused, so she returned to Moscow and filed for custody, and won, then asked the Superior Court to enforce the Rus-sian order.

Notice and Opportunity. The court carefully examined the extent of the opportu-nities the father had to participate in the Rus-sian trial and found that he had been granted continuances, was represented by counsel of his own choosing, and had unsuccessfully ap-pealed the decision in the Russian courts. It also looked at whether he had the time and ability to obtain a visa to attend the hearing, and found that he did.

Fee award. The DC trial court’s fee award was upheld, as UCCJA Section 15b allows fee and cost awards for litigation result-ing from the violation of another state’s order. The father argued that he should not have to pay fees for litigation to determine whether the order was enforceable, and also that the trial court did not explicitly find that he had vio-lated the Russian order. The appeals court said that father’s proposed doctrine was “inconsistent with the purpose of the overall statutory scheme of the UCCJA to provide an efficient mechanism for mutual recognition and enforcement of custody decrees”, and “would give every parent unhappy with a for-eign custody decree one initial free pass at vio-lating it.” Also, the UCCJA “does not require an explicit finding” of violation, and anyhow, “there could have been no other basis for” the fee award other than a violation, which the record showed that the father obviously had committed, so the trial judge must have based the award on that.

Similar law. In the trial court, but not the appellate court, the father argued that Russia should not get comity because it has a “tender years” preference.  However, the DC court noted that this  Russian order said on its face that it was made solely using the best in-terests standard. Also, the “tender years” pref-erence was only one factor in an overall best interests framework, the DC court pointed out, citing the similar reasoning of  Hosain v. Ma-lik, 671 A.2d 988 (Md. Ct. Spec. App. 1996).

Elian Gonzalez cases

    Gonzalez v. Gonzalez Quintana, Fla. Circuit Court, No. 00-00479 FC 29 (Family     Division, Miami-Dade County 1/10/00).

    UCCJA — EMERGENCY JURISDICTION — WHAT CONSTITUTES EMERGENCY     — TEMPORARY PROTECTIVE ORDER — ‘PARENS PATRIAE — “NO OTHER     STATE”.

A Miami family court finds that it has emergency jurisdiction over a child who lived in Cuba his whole life until about a month ago, and whose father still lives there, under the "emergency" and the "no other state" prongs of the UCCJA's jurisdiction test for initial custody determinations. 

It also claims under a "parens patriae" theory, wholly outside of the UCCJA, that it has "limited jurisdiction" to preserve the status quo with a temporary protective order "when confronted with a petition ... alleging that the minor may be subject to serious and unnecessary emotional harm in returning the child to the custodial parent."  In this case, the court found that the great-uncle's petitions contained "sufficient verified allegations" that the child "would be subjected to imminent and irreparable harm including loss of due process rights and harm to his physical and mental health and emotional well being" if he were returned to Cuba.

In Re Gonzalez, (Florida Circuit Court No. 00-00479-FC-28, Miami 4/13/00), http://pub.bna.com/fl/00479.htm

CUSTODY JURISDICTION — FEDERAL PREEMPTION BY I.N.S. ACTION — GREAT-UNCLE'S STANDING TO SEEK CUSTODY. 

The Gonzalez case is not a custody case but an immigration case, a Miami state trial court now decides, and thus anything Florida courts can do is preempted by U.S. immigration laws and the actions of immigration authorities.  In this case "field preemption" and "conflict preemption" are both present.  "Field preemption" arises where Congress has so thoroughly regulated an area that there is no room for states to take any action, as for example in the case of aviation.  "Conflict preemption" arises where there are conflicting state and federal laws or orders in a particular case.  The court noted that were it not for preemption, it could rule upon custody, but its rulings would have no effect on deportation proceedings or other INS actions.

    This is a case, which the court initially should have refused to get into on UCCJA grounds, but the refusal to exercise jurisdiction because of federal preemption is troubling.  In many custody and abduction cases involving foreigners, the INS has done or could do something.  Will defendants in such cases be encouraged to seek INS action so that preemption can be argued? Does the absence of INS action give grounds to argue preemption, for example, of a Hague Convention return petition, or a state-court enforcement of a foreign custody order?  Does a child's or a parent's status as an illegal alien, by itself, mean that state courts should not get involved in their cases, or should order them returned?

    The court also found that Florida's statute giving relatives standing to pursue temporary custody does not include great-uncles in its definition of "extended family."  The court observed that if it let just any "relative" sue for temporary custody, that would open up the field in such cases far more widely than the legislature intended, and it would directly contravene the definition given in the statute.

    The court's January 10 temporary custody order was thus vacated for lack of subject-matter jurisdiction due to federal preemption and the uncle's lack of standing.  The court also observed of the media treatment of the case, "we are losing sight of him as a child and starting to treat him as a thing."