News and comments on case law and other developments in child custody jurisdiction law.
By Arlington, Va. family lawyers Richard Crouch and John Crouch, who specialize in inter-state and international cases, especially child custody jurisdiction and child abduction.
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unpublished, 23 VLW 301 (8/12/08).
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.”
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."