Florida Divorce * Child Custody * Domestic Violence Law Lawyer | Boca Raton

In the criminal courts, the defendant can insist on speedy justice.

Not so the litigants in family court, which often operates in a virtual time warp.

Husband and Wife live in North Carolina. They have two children.

Wife files for divorce.

North Carolina Court grants permission for Wife to relocate to Rhode Island, but allows for visitation by Husband each month in both states.

The Wife reportedly tries to block Husband’s visitation and cut Husband out of the children’s lives by accusing Husband of everything from harsh discipline of the children to neglecting them to watch pornography on the internet.

Wife also obtains an injunction for protection against domestic violence, or order of protection, against Husband – in Rhode Island.

Not buying it, the North Carolina Court orders Wife to return with the children to live in North Carolina.

Unhappy with the North Carolina ruling, Wife tries to do an end run around the North Carolina courts and seeks emergency jurisdiction in Rhode Island.

Which Rhode Island’s family courts exercise … repeatedly.

Having apparently exhausted his remedies in North Carolina, Husband appeals in Rhode Island.

And Husband wins …

A mere seven years later.

The reasons Husband wins are because:

1. North Carolina validly exercised jurisdiction in the first place and
2. Emergency jurisdiction is inherently temporary in nature

.

Read more in this Providence Journal news blog post: R.I. Supreme Court: Mother, children must return to N.C.

Mother lives in Florida and Father lives in Ohio. Daughter is with Mother at time of events in question.

Father flies to Florida and allegedly physically collects Daughter and forces her into his car.

Father has a change of car waiting and uses second car to take Daughter to airport.

Father tries to board plane with Daughter when he is captured.

Father claims to have custody of Daughter, awarded to him by an Ohio court.

But Mother has an Order from a Florida court awarding her custody and staying the Ohio court’s order.

Conflicting custody orders from different states are typically avoided these days thanks to the Uniform Child Custody Jurisdiction and Enforcement Act, a body of laws widely adopted across the US to resolve which state has proper jurisdiction to decide custody of any particular child and mandating that other states remain hands-off.

Father is under arrest for interference with child custody.

Read more in this MS NBC article: Deputies: Ohio Dad Forces Daughter From Mom’s Tampa Home.

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.

Read more in this Los Angeles Metropolitan News article: Juvenile Court Judge Cannot Make Custody Order Regarding Missing Child—Court of Appeal.

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.

Over 200,000 children in the US alone are abducted by a parent or other relative every year, according to Melissa Hart, herself a former child kidnapping victim.

Thirty years after the fact, she still struggles with self-identity issues as a result of being compelled to assume various personas – after discarding her true identity. Because, in Ms. Hart’s opinion, her mother couldn’t come up with a better solution to the situation with her difficult father.

Once grown, Ms. Hart could find no assistance to help her deal with the aftermath of her ordeal. Ironically, all the assistance available was directed to the parents who had created the situation – not the kids twisted in the middle.

That’s why she and others who were abducted as children banded together and founded, Take Root, a non-profit association that helps abducted children heal.

Read more of Ms. Hart’s affecting story in the Oregonian’s article: Abducted by parents, children become the forgotten victims .

An unusual and sad interstate child custody jurisdiction case originates in Arkansas, where family comes from.

Mother got custody of child in the divorce. Father moved to Oklahoma to pursue a professional degree. Later, their child was diagnosed with cancer and Mother and daughter moved to Tennessee for better treatment.

For about two years, the entire family is gone from Arkansas.

Father brings motion in Arkansas for emergency visitation. Mother then requests a stay, registers the original Arkansas judgment in Tennessee, and further requests that the Arkansas court communicate with the Tennessee court.

At the time of an inital child custody proceeding, more than one state may potentially exercise child custody jurisdiction. But, typically, once one state has actually, validly exercised child custody jurisdiction, that original state which exercises jurisdiction over a child [as in a divorce], retains jurisdiction over the child until that original state says it doesn’t.

In practice, most states would likely yield (or decline to exercise) jurisdiction after both parents and the child have moved away from the state. And, according to the Arkansas appellate court, that is usually the case in Arkansas.

Clearly, Mother wanted the Tennesee courts to assume jurisdiction on that basis.

Yet the Arkansas court ruled that it retained jurisdiction. Why?

Because the Tennessee court declined to exercise jurisdiction over the child. Just because a court can do something, doesn’t mean it must – or, in certain cases, should.

In this particular case, the Arkansas court, which had had valid, original jurisdiction, merely occupied the jurisdictional vacuum left by the Tennessee court.

Read more in this Fort Smith [Arkansas] Times Record article.

Father and Mother, divorced, live in Rhode Island. Father is the primary residential parent.

Father’s parents live here in Florida. Court order reportedly bars Father from relocating daughter to Florida.

According to reports, Father tried, unsuccessfully, to modify the order so that he could relocate to Florida, to work in his parents’ business.

Father allegedly takes daughter on a car trip to Florida, during school year without advising mother. Upon investigation, Father’s landlord states that Father moved.

According to accounts, Father is caught with a do-it-yourself moving van, arrested for child snatching and sent back to Rhode Island.

Father contends that he and his daughter are just visiting her grandparents in Florida, that the court order doesn’t absolutely bar the daughter from leaving Rhode Island, just from moving away.

But Father also allegedly states that he has no Rhode Island address at the moment and that he is going to be living with his parents for “a while”.

Now Father is barred from any contact with his daughter at all, although Mother does not feel Father is a danger to their daughter. And Mother is seeking primary residential responsibility based on relocation / visit.

Father contends that his and his daughter’s rights were violated and that the current situation is not in his daughter’s best interests.

Among other facts that are unclear from this report, is why the primary residential parent and his daughter are deprived of any visitation (not even supervised visitation) – especially before any conviction and/or incarceration.

Read more in this Westerly [RI] Sun article.

Texas was the forum for a factually complicated, aggressively litigated case that painfully illustrates an important legal principle.

In the few years that they were married, the mother and father and, later, their baby, “moved” from country to country every few months, including a couple of months, here and there, spent in Texas. Most of the child’s short life had actually been spent in the country of Belarus, where his maternal grandmother lived.

While the child was in Belarus, the father filed in Texas for annulment and (apparently) for visitation rights with the child. The mother did not participate in that proceeding and the annulment was granted.

Subsequently, the mother asserted that Texas did not have jurisdiction over the child but she requested a new trial. (The report does not reconcile these two inconsistent positions; a reasonable speculation would be that the mother requested a new trial as her first choice for relief but, strictly as a fallback position if that were denied, she alternatively requested dismissal for lack of jurisdiction over the child.)

Interestingly, the mother was granted a new trial and there was no report of any ruling / finding / opinion /conclusion whatsoever regarding jurisdiction of the child.

Both mother and father fully participated in the second trial. The court thereafter granted primary custody to the mother and visitation to the father and a divorce was granted.

Needless to say, the proceedings would typically have concluded here. But the father allegedly wrongfully kept the child after visitation and the mother had to bring additional proceedings for emergency orders for the child’s return.

Next, both the mother and the father each filed their own motions for a new trial.

Then, after all of the proceedings above, the father, for the first time, filed a motion to dismiss for lack of jurisdiction over the child.

It should be noted that jurisdiction over the child and jurisdiction over the divorce may, under certain circumstances, be different, meaning that, at a certain point in time, the same state may not be able to decide both matters.

It should also be noted that jurisdiction over a child is a type of jurisdiction that lawyers call subject matter jurisdiction. This type of jurisdiction is essential for a court to decide a case.

It’s about whether a court does or does not have the power to decide a case about a certain type of “thing”, or subject. If the court doesn’t have the power, it doesn’t. Period. No agreement or error by the parties can give the court more power than it has.

The trial court denied the father’s motion to dismiss – largely, it appears, because the father never returned the child as ordered and seemed to have brought the motion to dismiss out of “sour grapes”.

In reversing, the appellate court sympathized but, in essence, held that the father’s attitude and “error” could not confer more power on the Texas courts than they had. The Texas court just didn’t have power to make custody rulings about this child under the facts of this case and under the legal rules governing child custody jurisdiction.

As for the father making this last ditch argument after all of the litigation that had already gone on, the court held that an argument so fundamental that it goes to the heart of the court’s power to rule, can still be raised even at the eleventh hour.

And in Florida too, this type of fundamental argument can be made right to the bitter end of the case.

What may be most interesting about this case is that this rather obvious issue wasn’t raised much earlier in the game – even by the court itself.

Read more in this Texas Lawyer article.

A child custody jurisdiction case on appeal to Maryland’s highest court reads like a law school final exam.

According to this Baltimore Daily Record article, the mother, father and child all lived in India from 1999 until 2002. Then the mother took the child away from India to the Baltimore metro area.

The father reportedly brought a child custody proceeding first, in India, within 6 months of the child’s removal from India. The mother later brought a child custody proceeding in Maryland, after living in Maryland with her son for six months.

India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, and no other treaty applies.

When the mother filed for custody there, the Uniform Child Custody Jurisdiction Act was the applicable law of Maryland. Maryland has since adopted the newer Uniform Child Custody Jurisdiction and Enforcement Act.

The Maryland trial court reportedly held that India had already validly exercised jurisdiction over the child by the time the mother filed suit in Maryland and, therefore, dismissed the mother’s suit there.

But an intermediate level appeals court overturned the dismissal of the mother’s Maryland case.

The key issue pressed on appeal is reported to be:

whether Maryland’s child custody jurisdiction statute requires Maryland to defer to India’s previous, presumably valid, exercise of jurisdiction in accordance with Indian law, if the mother was afforded due process of law, at least assuming that the child’s fundamental human rights would not be violated in India.

As the issue has apparently been framed narrowly on appeal (barring some unusual deviation from the uniform act in the version passed in Maryland), the answer likely should be yes.

Having said that, that still doesn’t necessarily mean that Maryland may not or should not exercise jurisdiction and proceed with the mother’s case. It just depends on all of the underlying facts of the case – and, arguably, on the status and posture of the case still pending in India, as well as the position of the judge presiding over the case in India.

It is unclear from the article whether the Maryland trial court delved that deep.

The New York Times just published Torn by Storm, [Louisiana] Families Tangle Anew on Custody. It’s a thought-provoking article that resonates with every family lawyer who practices in a hurricane zone like New Orleans – and South Florida.

The sheer scale of the disaster, the vast number of custody and visitation orders impacted and an indefinitely shut-down court system all make for a volatile, frustrating mix. Post-Wilma South Florida experienced it too, if to a lesser degree.

And now parents are giving – and should give – more thought to how evacuation scenarios should be handled.

Floridians should note that post-divorce relocations are not handled the same way in Florida as in Louisiana. And the Uniform Child Custody Jurisdiction Act is not the current law in Florida. (Florida repealed that statute when it enacted the Uniform Child Custody Jurisdiction and Enforcement Act.)

It should also be noted that the article’s brief, superficial analysis (probably by a nonlawyer) may not predict correctly the likely legal impact on jurisdiction of temporary relocations by the primary residential parent, especially subsequent to entry of the original custody and visitation order.

(Anyone caught up in a situation like this really should consult an attorney about the particular laws and facts of their particular case.)

Also, as in Louisiana, Florida statutes governing child custody, visitation and relocation do not explicitly articulate special rules in the event of hurricanes or other natural disasters.

According to a Baltimore Sun article, in 2002, a Virginia court awarded custody of his son to a divorcing father, with one catch: the father’s gay partner had to move out. According to the article, Virginia family courts may issue conditional child custody rulings like this and thereby block a custodial parent from cohabiting.

So the father (and son) and the father’s partner moved to Maryland and established separate households. (The boy’s mother moved to Florida prior to the original Virginia ruling.)

The boy’s father has been trying to modify the Virginia ruling for two years. And now a Maryland appeals court has entered an order allowing the alternative family to reunite under one roof.

To obtain a modification in Maryland, the party seeking it must first show that there has been a change of circumstances since the previous order. Here, the cited change in circumstances was that a comfortable two income household had been downsized to a less comfortable one income household.

Interestingly, the change in circumstances was the direct result of the Virginia order.

The article mentions in passing that former counsel for the mother had accused the father of forum-shopping when he brought a modification proceeding in Maryland in 2004. That may be a legitimate argument in an interstate custody dispute.

For clarity and balance though, it should be noted that the boy’s mother opened the door to a change of state jurisdiction when she reportedly moved to Florida before entry of the original order in Virginia. Accordingly, she would be hard-pressed to argue that the father was not at liberty to relocate as well, effectively leaving Virginia with no further interest in the case.

The boy’s mother did not participate in the more recent Maryland modification hearing.

It is anticipated that the Maryland ruling will have a profound impact on the nation’s gay community.

It often starts with routine visitation that begins – routinely. Only the non-custodial parent doesn’t return the child(ren) on time – or late.

And that’s how it happened when an Illinois law enforcement officer and father allegedly abducted his two daughters to a religious colony in the nation of Belize.

Thanks to the unsolved kidnapping catching the interest of TV’s Dr. Phil, the girls are now back home with their custodial mother, according to an article in the East Central Illinois News-Gazette.

The father is reportedly now under a no-contact order and faces criminal charges.

One can’t help but wonder how the many cases that don’t attract such media attention turn out.

A child custody case that is potentially far-reaching is making its way through both the Virginia and Vermont courts – despite the fact that all of the states in this nation started passing laws back in the 1960s with the specific intention of stopping parallel cases in different states from proceeding to (potentially conflicting) final judgments about custody of the same child.

The facts extracted from the articles cited below:
The dispute is between two women who were engaged in a lesbian relationship which had been formalized in a Vermont civil union before the child in the case was born to one of them by means of artificial insemination. The couple lived with the baby in Virginia for a few months, until they relocated to Vermont. After living in Vermont for about a year, the adults’ relationship broke up and they filed suit in Vermont to dissolve their civil union and to determine parental rights over the child. The Vermont court granted primary custody of the child to the birth mother with visitation to her former partner, on a temporary basis, pending further hearing(s).

After that, the birth mother relocated back to Virginia with the child. Once there, the birth mother refused her former partner the visitation ordered by the Vermont court and filed a new suit to determine parental rights over the child – this time in Virginia. The Virginia court apparently disregarded the Vermont court case and proceeded to grant the birth mother sole custody of the child without awarding any visitation to her former partner.

The case is now on appeal in both Virginia and Vermont.

Needless to say, many people have strong opinions and feelings about whether the birth mother’s former partner should or should not ultimately win permanent visitation rights. Those opinions and feelings, however, leapfrog right past the only question that I believe, strictly speaking legally, is properly before any court of law now: which state should exercise jurisdiction in this child custody action?

Admittedly, this is not intuitive, but custody / visitation cases between parents living in different states have two distinct stages. The first stage is a determination solely as to which state has jurisdiction, jurisdiction to make decisions – in the second stage – on the merits. Consideration of who should / will ultimately win custody / visitation on the merits normally should not play any part in the determination of which state has jurisdiction.

That question is simply reserved for stage two, on another day – and possibly in another state.

So, in a somewhat oversimplified, bottom-line nutshell, under the laws of the various states, the merits of who will ultimately win the custody / visitation dispute should be tackled only by one state: the one state that will have jurisdiction. Everything else is extraneous – now.

But that doesn’t seem to be reflected in the media coverage. See articles below:

• Virginia appeals court hears lesbian custody dispute – Boston Globe
• Appeal heard over same-sex custody: Previous Va. ruling took parental rights from Vermont woman – Richmond Times-Dispatch
• Virginia judges wade into same-sex custody dispute – Virginian Pilot

We live in a very mobile society. Families today move hundreds and even thousands of miles all the time, with hardly a thought.

Until divorce. After divorce, the prospect of relocation becomes more complicated for a parent who has minor children.

But relocation is a fact of modern life, and both the Florida legislature and courts have addressed it. Under current Florida law, the primary residential parent does not have an unrestricted right to relocate with the children, but neither is there anything approaching an absolute bar to such relocation.

If divorced parents get into a dispute over a proposed relocation by the primary residential parent, a Florida court will settle the dispute by considering a number of factors. The most important consideration for the court is whether, all things considered, the relocation will be in the best interests of the children.

How does the court decide what is in the best interests of the children? By reviewing all the circumstances of the case.

For example, suppose

• the primary residential parent and the non-custodial parent are constantly at war
• the primary residential parent has a pattern of making it difficult for the non-residential parent to exercise visitation and bad-mouthing the non-residential parent to the children
• then the custodial parent secretly moves the children 3,000 miles away, to an unfamiliar place to which they have no ties whatsoever
• the custodial parent takes a lower-paying job there and moves the kids into a cramped apartment in a rougher neighborhood than their Florida house was in
• further, transportation between the children’s new home and Florida is difficult, time-consuming and expensive and neither parent can really afford transportation for visitation.

As hard as the court looks, the only reason it may be able to come up with to explain this move is the custodial parent’s unjustified desire to start a new life with the children’s father out of the picture. In a case like this, there is more than a chance that the court will determine that this relocation will not serve the best interests of the children.

But suppose instead that

• the non-residential parent often fails to show up for visitation, deeply disappointing the children, to the ongoing dismay of the primary residential parent
• the non-residential parent is always behind in payment of child support, making it a constant struggle for the residential parent and the children
• the residential parent has been openly searching for a better job to pick up the non-residential parent’s financial slack
• then the primary residential parent gets offered a dream job 3,000 miles away, in the same city as the children’s grandparents and other extended family members
• the grandparents and other relatives are thrilled and offer to babysit and help out in other ways too
• with the career-enhancing job will come a big raise, plus a housing allowance.

Now, the residential parent will be able afford to move the children into a larger home in a better neighborhood, with top notch schools for the children and more cultural enrichment programs. The custodial parent will also be able to afford to pay transportation expenses for any visitation that the non-custodial parent might actually care to exercise. Further, the primary residential parent offers to pay for the non-residential parent’s long distance telephone service, high speed internet access and a web camera to facilitate meaningful contact with the children despite the distance.

The primary residential parent openly discusses the proposed move with the non-residential parent well in advance to work out an arrangement and then seeks permission from the court to move with the children. In a case like this, it would hardly be surprising if the court determines that this relocation will serve the best interests of the children.

While parents may think that they would prefer black and white rules of law to look to, in fact, such fixed, rigid rules usually don’t allow judges the flexibility they need to evaluate all the circumstances of the entire case (as in the hypothetical cases above) so as to reach a decision that will serve the best interests of the children. The best guidance in any particular case almost always comes from real court cases that have already been decided.

Imagine a couple divorced and the Florida divorce court eventually entered an order for custody of the couple’s children. Imagine one of the parents didn’t like the terms of the custody order.

Now imagine that the dissatisfied parent took the children to, say, Wyoming, during summer visitation and got a new custody order in Wyoming. The previously dissatisfied parent liked this Wyoming custody order a lot better than the Florida custody order.

This probably sounds like science fiction. But this sort of thing used to happen all the time throughout this country. Then, over time, most of the states passed one of two versions of a uniform act intended to prevent such conflicting orders from being entered by different states. (Florida now follows the second version.)

Fast forward to today. Now imagine a couple divorces and a Maryland divorce court eventually enters an order for custody of the couple’s children. Imagine one of the parents doesn’t like the terms of the custody order. Imagine both parents and the children move to Pennsylvania after the divorce.

Now imagine that the dissatisfied parent takes the children to, say, Greece, during summer visitation and gets a new custody order in Greece. The previously dissatisfied parent likes this Greek child custody order a lot better than the Maryland child custody order.

This also probably sounds like science fiction. And, yes, there are also international agreements intended to prevent such conflicting orders from being entered by different subscribing nations. Greece is one of the subscribing nations.

Still, according to a report in a Pennsylvania newspaper, a father was just arrested for allegedly absconding with his children to Greece in 2003. According to the report, the father got a conflicting Greek child custody order despite the existence of the prior Maryland custody order.