General legal information furnished as a service of Fort Lauderdale / West Palm Beach family law attorney Janet Langjahr
Sadly, child snatching is a fact of modern life. Even in Tupelo, Mississippi.
A local birth mother recovered her baby from adoptive parents-to-be. Custody disputes between parents. Fights between a parent and extended family members.
Then there are the abductions to another country.
With 200 cases of parental child abduction per year, the problem is epidemic.
And all of the above happens despite child custody jurisdictional acts enacted throughout the US and intended to, among other things, deter abductions.
The left-behind parent often feels frustration, however, because, in many instances of reported “kidnapping”, law enforcement is powerless to do anything - because it isn’t kidnapping in the eyes of the law, just in the eyes of the left-behind parent.
Read more in this Northeast Mississippi Daily Journal article: Kidnapping - Why do people steal their own children?.
There is a common misconception that, after the final judgment, if the custodial parent relocates with the children, in time, their new home state gains jurisdiction of the children for purposes of hearing post-judgment custody and visitation issues.
Generally, that is not the case.
The state that entered the final judgment in the first place, normally retains child custody jurisdiction, until it says otherwise. (Of course, just because a state has jurisdiction, doesn’t mean that it must exercise it.)
Of course, there are common exceptions to this rule. For example if both parents and the children move out of the state, that would typically justify a change of jurisdiction.
Although jurisdiction may not change when the custodial parent moves, the custodial parent may wish to enforce the original judgment in the children’s new home state. That may be possible and desirable.
To do so, the custodial parent should obtain a certified or exemplified copy of the original judgment entered in the original home state and register it in their new state of residence.
Read more in this Honolulu Star Bulletin Q&A piece: Register your custody order with court.
Two poor, underage kids have a baby together in the state where she is from, South Carolina.
After the baby was born, they all spent time in Texas where he is from. Rough patch. Father files custody suit in Texas, but drops it.
Threesome returns to South Carolina.
Texas grandmother files custody suit in Texas and reports parents to social services in South Carolina. She alleged that the parents used drugs around the baby and that the maternal grandparents were drug dealers and worse. The parents couldn’t make the Texas hearing on just 3 days’ notice - so the Texas judge awarded custody to the paternal grandmother.
The maternal grandmother asked that the baby go into foster care rather than to the paternal grandmother in Texas. And that’s what happened.
The parents did get to visit their baby. The parents took all required parenting classes and drug education classes in an effort to get their baby back.
They hired a lawyer to challenge the Texas order based on lack of subject matter jurisdiction. Legally, the grounds for challenge were strong.
A South Carolina judge ruled that the Texas court did not have jurisdiction and that the Texas order was not valid. At a later South Carolina hearing, the baby was returned to her parents’ custody.
And then the Texas court held another hearing, again without the parents, and awarded custody to the baby’s paternal grandmother.
The Texas grandmother visited South Carolina. The parents allowed her to take the baby overnight to a motel for a visit.
And the paternal grandmother allegedly absconded with the baby to Texas.
The two states’ courts never communicated with each other in an effort to resolve the jurisdiction dispute. The parents never participated in the Texas proceedings. The grandmother never appealed the South Carolina proceedings.
If nothing else, this article illustrates the nightmare of “dueling custody orders”, which used to happen quite often. The uniform child custody jurisdiction statutes were intended to put an end to that though and, for the most part, have.
Unfortunately, for whatever reasons, neither the parties and their respective counsel, nor the judges in either state, fully utilized the tools made available under the child custody jurisdiction statutes to resolve the jurisdictional dispute early on.
Leading to chaos and confusion for all concerned.
Read more in this GoUpstate article: Part 1: Caught in the middle and Part 2: For area family, the legal wars begin and Part 3: Texas justice system now in control.
A Texas judge presiding over the divorce of a Canadian citizen ordered her not to remove the couple’s children from the area.
Despite that order, the woman was allegedly caught on a northbound bus in Kansas with the children - and arrested for interference with a custodial order. She was believed to be headed out of the country, to her native Canada.
As result of the woman’s disobedience of the court’s order, the court reportedly awarded temporary custody of the couple’s children to the children’s uncle.
Read more in this Star-Telegram article on the Bradenton Herald website: Azle woman held in child-custody.
Imagine living in a country where parents with children are absolutely barred from leaving the country - even for a short vacation to visit relatives abroad.
Every reader surely cringes at the prospect of such a prohibition on two parents of an intact family traveling together with their common children.
So, are we imagining a third world country? An extremist regime?
Try democratic Israel.
And maybe, just maybe, where US policy may be heading regarding relocation (or routine travel) with children born of now-broken relationships - even to another state in this country.
Read this chilling article on Israel’s Haaretz.com: When your new homeland becomes your prison.
In many states across the US, custodial parents today are finding it increasingly difficult to escape (either temporarily or permanently) the particular state where their divorce happened to have been entered, let alone the country.
Often, in practice, without any real regard to the circumstances imposed on the family in that particular state, the likely degree of risk of abduction or denial of access to children, or competing risks to the children and/or custodial parent. Certainly not without great expenditure of time and resources in the courts.
Does this policy serve the best interests of children?
The Hatikvah Foundation is fighting the prohibition in Israel. They are assembling an international panel of social workers and advocates of children’s and women’s rights to review and tackle the problem.
But what about here in the US?
Internationally, the Hague Convention on the Civil Aspects of International Child Abduction already provides legal recourse in case of child abductions. Domestically in the US, there is legal recourse in the Parental Kidnapping Prevention Act and a host of federal and state kidnapping and custodial interference statutes.
Is the “cure” growing worse than the disease?
An American woman lived in France with her husband and son for an extended period of time.
When the woman divorced her husband in France, she was awarded custody of their son, but she was enjoined from taking him out of France for an extended period of time such as would interfere with his father’s visitation.
Later, the mother moved with the boy to California.
The father brought suit to enforce the French order in a California court.
At trial, the court held that, if the mother did not timely return the boy to France, custody of the boy would be transferred to the father.
The mother appealed, arguing that the trial court’s order, which conditionally modifyied custody, violated the original custody order of the French court. Since the French court had continuing exclusive jurisdiction under the UCCJEA, the California court did not have jurisdiction or authority to modify the French custody order by ordering that the boy be returned to his father’s custody in France.
On appeal, the court reversed, agreeing with the mother. The court then ordered that the boy be returned back to his mother’s custody in California.
There was no report as to whether the father had taken any enforcement action in France, which retained jurisdiction over the boy.
Read more in this Metropolitan-News Enterprise article: C.A.: Courts May Not Modify Foreign Child Custody Order.
Some of the most challenging cases for parents and their attorneys are international kidnapping cases.
Unfortunately, it can take months and years to guide these cases through the court system. And ultimate success - getting your child back - is not guaranteed, even if you win a court order.
Some people give up on the legal system before they get that far. Some never bother trying it.
The Akron (OH) Beacon Journal publishes a chilling yet compelling series of articles about the “child recovery industry”, snatchback-ers.
This is not an endorsement of extra-legal methods of child retrieval. But the article is thought-provoking and eye-opening for parents who may someday face such a nightmarish situation.
Read the first article in the series: Seeking a lost daughter, one woman is introduced to the world of snatchbacks.
Nearly a year ago, I posted about the Interstate Child Custody / Visitation Dispute by Lesbian “Second Mother”. Child custody rulings in both Vermont, where the homosexual couple and child had lived, and Virginia, where the birth mother moved the child after the civil union dissolved, were on appeal.
Now, the highest court in Vermont, the state in which a child custody case was first filed and a ruling first entered, has held that it has exclusive child custody jurisdiction of the child and that the Virginia courts proceeded in an improper exercise of jurisdiction.
This ruling seems perfectly sound under child custody jurisdiction statutes.
But the birth mother appears to be taking the position that the federal Defense of Marriage Act, which does not address jurisdiction at all, somehow deprives the Vermont courts of jurisdiction.
Now, interested parties are waiting to see whether Virginia yields jurisdiction or the jurisdictional dispute is referred to the US Supreme Court.
Read more in this Associated Press article: Court rules lesbian has joint custody of child and this WorldNetDaily article: Case challenging civil union laws likely headed to U.S. Supreme Court.
In a California juvenile dependency case, the trial court ordered long-term foster care and continuing protective custody of a baby born in California.
The only problem was that the baby was reportedly removed from the state of California when he was two days old and has since lived in Georgia with his father for more than a year.
The California Court of Appeal reversed because, under the applicable uniform child custody jurisdiction acts, there was no valid basis for California to exercise child custody jurisdiction over the baby and therefore the trial court exceeded its power.
The appellate ruling was quite correct, because the baby’s life is and has been in Georgia and, if any rulings about the baby’s custody and care are needed, Georgia is clearly the place which can be best informed for making them.
Sometimes, complex cases have to be oversimplified, to put the focus on the core that is of legal significance.
Other times, simple cases have to get made complicated, by a party looking to obscure and hide that core, behind a lot of irrelevant “stuff”. Unfortunately, sometimes that works.
Such a case was recently reported in the New Jersey Lawyer.
The parents were divorced in the Dominican Republic, where they had lived for several years. Both were represented by counsel there.
The mother and children remained in the Dominican Republic after the divorce, but the father returned to New Jersey.
When the children were with the father for summer visitation, the father filed for a modification of custody, seeking sole custody of the children.
Generally speaking, under the law of most (if not all) of the states in the US, once a state (or country) has exercised valid jurisdiction over a child, that state keeps jurisdiction. Period.
Of course, there can be changes of circumstances that will justify a change of jurisdiction. But none was alleged or applied in this particular case.
So the father reportedly made unsupported allegations of abuse and neglect by the mother, in an apparent attempt at obfuscation.
In response, the mother introduced a good deal of evidence to contradict those allegations. Further, a court appointed psychologist reportedly could not find any support for the allegations.
Good try, but case closed? Well, no.
The father also alleged that the mother was going to move the children to another country, Norway.
And, if and when that happened, then there would be no place that would have jurisdiction. So, his argument went, New Jersey should exercise jurisdiction based on those speculations.
But where things get really interesting is here. The New Jersey court ruled - quite correctly - that New Jersey did not have jurisdiction.
Yet, having so ruled, the NJ court, in effect, inexplicably proceeded to exercise jurisdiction, enjoin the removal of the children from New Jersey and order that the children’s passports be held by the father.
If you’re confused, you’re not alone. This case illustrates yet again that obfuscation really does work sometimes.
Fortunately, it was all straightened out on appeal, with the father’s case in New Jersey being dismissed.
If you’re up for some obfuscation, read more in this New Jersey Lawyer article: Custody plans issued abroad.
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