Category: Interstate custody

An Interstate Custody Marriage Story

The new Netflix divorce drama, Marriage Story, is an excellent movie which has brought critics and audiences together – with divorce attorneys! Largely overlooked in the detail it deserves is the legal implications of Nicole and Charlie’s interstate child custody fight which develops when Nicole moves to California from New York with their son Henry.

interstate custody

Act 1: Whose Fault is It?

Nicole is the one who moves to Los Angeles with their son. She doesn’t have to – they are a New York family, despite her having been raised on the west coast. The movie makes a lot of their having married in Los Angeles and their son was born there, but for the past 10-years, they’ve lived and worked in New York.

The reason for Nicole’s relocation to Los Angeles is a job offer, she gets hired to be in a TV pilot. Job offers are a common source for needing to relocate interstate with a child. However, there is no indication that she can’t find acting work in New York. Surely there are other work opportunities she could have in New York, had she really looked.

Then she makes her husband’ efforts to see their son in Los Angeles difficult when he visits. She steered Charlie away from sleeping for the night on the day he’s arrived – even though he has no idea she filed for divorce. Worse yet, he’s served with divorce papers in her parent’s house. Then Halloween becomes a sad, lonely time.

Act 2: Interstate Custody

I’ve written and spoken about interstate custody cases before. Generally, when two parents reside in a state, like Florida for instance, Florida custody laws will apply. However, when one of the parents and the child move across state lines, you have an interstate custody problem.

That’s exactly the problem Charlie faced after Nicole moved with their son to California from New York. But which law applies? Historically, family law is a matter of state rather than federal law. So, you would look to state law in deciding an interstate case; not Federal law. As will be seen below, there are some conflicts with different state laws.

To help with confusion between different laws in different American states, the Uniform Law Commission is tasked with drafting laws on various subjects that attempt to bring uniformity across American state lines. With respect to family law, different American states had adopted different approaches to issues related to interstate custody, visitation, and time-sharing. The results were that different states had conflicting resolutions to the same problems.

To seek harmony in this area, the Uniform Law Commission promulgated the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA), which Florida and almost all U.S. states passed into law. The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child.

That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say New York for the Nicole and Charlie example. The ultimate determining factor in a New York case then, is what is the “home state” of the child. New York has initial jurisdiction to hear Nicole and Charlie’s case, for example, if New York was the Home State of their son on the date Nicole filed her case.

Alternatively, New York could possibly hear their case if New York was the Home State of the child within 6-months before Nicole filed her case, and their son was absent from New York, but one of the parents still lives in New York. This usually happens when a parent takes a child across state lines.

There is a good reason for the ‘home state’ approach under the UCCJEA, which has been adopted by most state laws. That is that Florida, California and New York – and the other states – all have a strong public policy interest in protecting children in their states.

Act 3: The Big Decision

Charlie does face a serious interstate child custody problem, and has a few weaknesses too. Charlie cheated and feeling guilty, allowed Nicole and their son to move to California for at least a year. We don’t know how long after Nicole moved to California she filed for divorce. Nicole has always done more of the childcare and has extended family in California – a luxury that Charlie doesn’t enjoy.

The stakes in the movie are extremely high for interstate parents facing a custody problem. The big issue is whether Charlie will need to move to Los Angeles to keep up regular contact with his son or be able to force Nicole to return their son to New York so she can timeshare there.

I won’t give a spoiler as to how their interstate child custody case is finally resolved. Instead, know that the movie does an amazing job of portraying the high stakes and anxiety involved in an interstate child custody divorce.

The new Netflix movie, Marriage Story, is great, and stars Scarlett Johansson, Adam Driver, Laura Dern, Alan Alda, Ray Liotta, Azhy Robertson, Julie Hagerty, Merritt Wever, and Wallace Shawn and basically follows a married couple going through a coast-to-coast divorce.

Highly recommended!

*Gage Skidmore photo credit

International Child Custody just got Bigger in Japan

Japan’s legislature, the National Diet, just enacted a law to force parents to comply with child custody orders. Seems simple enough, but this is a game changer in Japan, as enforcement in Japan has been, and can be in other countries, one of the biggest obstacles to resolving international child custody cases.

International Child Custody

Lost in Translation

I’ve written about international child custody cases in Japan before, specifically Japan’s compliance with abducted children under the Hague Convention.

Many have found that international child custody cases in Japan was a Battle Royale. People have long suspected that Japan is not really compliant with The Hague. Although Japan signed the Convention in 2013, a lot of people thought Japan did so only because of international pressure.

For example, people have pointed out that Japan has expanded Hague Convention exceptions making some of them mandatory and requiring Japanese courts to consider more things when defenses are asserted.

There were many Tokyo Stories about Japanese courts considering if it was “difficult for parents to care for a child” – a factor outside the scope of the Convention – which allows Japanese parents to complain about the challenges of being away from home.

Enforcement was always a huge problem in international child custody cases in Japan. Japan cannot enforce their orders. The law Japan passed to implement The Hague forbids the use of force and says children must be retrieved from the premises of the parent who has taken them.

According to research, about 3 million children in Japan have lost access to one parent after divorce in the past 20 years – about 150,000 a year.

For foreign fathers fighting international child custody cases, “this poses major problems, because they have a different mentality and they can’t comprehend losing custody or the right to visit their child. So, even when foreign parents win their case in a Japanese court, enforcement is patchy.

The State Department’s 2018 report described “limitations” in Japanese law including requirements that “direct enforcement take place in the home and presence of the taking parent, that the child willingly leave with the taking parent, and that the child face no risk of psychological harm.”

Spirited Away

Before the revision, the civil implementation law had no clear stipulation regarding international child custody cases. Court officials had to rely on a clause related to asset seizures to enforce court orders, a tactic that was criticized for treating children as property.

The legislation originally required a parent living with a child to be present when the child was handed over to the other parent. With the revision, however, the law allows custody transfers to take place in the presence of just one parent, rather than both.

The revision removes this requirement to prevent parents without custody rights from thwarting child handovers by pretending they are not at home. In consideration of the children’s feelings, the revision requires in principle that parents with custody rights be present during handovers.

The amended law urges courts and enforcement officials to make sure handovers do not adversely affect children’s mental or physical well-being. The new rules will take effect within one year of promulgation.

Last Samurai

The National Diet also enacted an amendment specifically to its legislation implementing the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

The new amendment was drafted in response to criticism about Japan’s international child custody cases, mentioned above: that handovers of children from Japan could not be carried out, even though Japan singed the Hague Convention designed to prevent parental abductions of children.

Historically, Japan maintained a system of sole custody. In a large majority of cases, when a dispute reaches court, mothers are typically awarded custody after divorce. It is not unusual for children to stop seeing their fathers when their parents break up.

The civil implementation law was also amended to allow Japanese courts to obtain information on debtors’ finances and property. The change is aimed at helping authorities seize money and property from parents who fail to meet their court-ordered child support obligations and from people who do not compensate victims of crime.

Ran

The U.S. Department of State ran to remove Japan from its list of countries said to be showing a pattern of noncompliance with the Hague Convention as a result of the Diet’s new laws. In its annual report, the department noted Japan’s legislative efforts to better enforce the Hague Convention on the Civil Aspects of International Child Abduction, which Japan joined in 2014.

But the department “remains highly concerned about both the lack of effective mechanisms for the enforcement of Convention orders and the sizable number of pre-Convention abduction cases”.

U.S. Rep. Chris Smith, a New Jersey Republican, criticized the department’s removal of Japan from the list:

“It cannot be denied that the Japanese government has done little to help reunite those American children who have been separated from their left-behind parents.”

The Japan Times article is available here.

 

Strike!: Interstate Custody and Pro Sports

Chicago Cubs Ben “Zorilla” Zobrist and his wife, singer Julianna Zobrist, have each filed for divorce in separate states on the same day, according to court records. How is a court supposed to figure out which state you should file your divorce in is the place where interstate custody and pro sports collide.

Interstate Custody

Batter Up!

Ben Zobrist filed for legal separation Monday in Williamson County, Tenn., where the couple — married since December 2005 — keep an offseason home in a Nashville suburb.

But, Julianna Zobrist filed in Cook County, Illinois on the same Monday. Julianna, a 34-year-old Christian pop singer, did not provide a reason for seeking a divorce in her petition. She also recently deleted her Twitter account.

Zobrist is a baseball second baseman and outfielder for the Chicago Cubs. He is one of seven players in MLB history to have won back-to back World Series championships on different teams. But being on many teams in different states means that choosing jurisdiction isn’t always easy for professional athletes.

The Zorilla used to play for the Tampa Bay Devil Rays/Rays, his first MLB club and where he spent most of his career. Then he briefly for the Oakland Athletics and Kansas City Royals.

Interstate Custody

I’ve written about interstate custody cases before. Generally, when two parents reside in Florida, Florida custody laws will apply. However, when one of the parents and the child move across state lines, you have an interstate custody problem.

But which law applies? Historically, family law is a matter of state rather than federal law. So, you would look to the state law of Florida, for example, in deciding an interstate case; not Federal law. As will be seen below, there are some conflicts with different state laws.

For various reasons, people travel more. As a result, family law has to take on an interstate, and international component. Accordingly, the conflicts between states can be amplified.

To help with confusion between different laws in different American states, the Uniform Law Commission is tasked with drafting laws on various subjects that attempt to bring uniformity across American state lines.

With respect to family law, different American states had adopted different approaches to issues related to interstate custody, visitation, and time-sharing. The results were that different states had conflicting resolutions to the same problems.

To seek harmony in this area, the Uniform Law Commission promulgated the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA), which Florida and almost all U.S. states passed into law.

The UCCJEA: Initial Actions

The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child.

That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say Florida for this example.

The ultimate determining factor in a Florida case then, is what is the “home state” of the child.

There is a good reason for the ‘home state’ approach under the UCCJEA, which has been adopted by most state laws. That is that Florida – and the other states – all have a strong public policy interest in protecting children in their states.

Foul Ball!

According to the Tennessean, Ben Zobrist’s filing contends that his wife “has been guilty of inappropriate marital conduct which render further cohabitation impossible,” though the article didn’t elaborate.

“Husband is unsure if the marriage can be salvaged,” the filing says, according to the Tennessean.

When asked whether Julianna Zobrist would like to respond to her husband’s assertions, an assistant said, “Not at this time,” and added on behalf of her Chicago-based law firm, “We don’t have any information right now to release to the public.”

The Cubs granted Zobrist, 37, a leave of absence a week ago. Manager Joe Maddon, whose association with Zobrist dates to 2006 with the Rays, wasn’t sure when the valuable infielder-outfielder would return.

The Chicago Tribune article is here.

 

Speaking Engagement

For readers who may be interested, I will be speaking at the prestigious Marital & Family Law Review Course in Orlando on Friday, January 26, 2018. I will be addressing the issues of interstate child custody, interstate support, and international child abductions under The Hague Convention.

The Review Course

The 2018 Marital & Family Law Review Course is considered the premier advanced, continuing education opportunity for marital and family law attorneys and judicial officers in Florida.

It is a privilege to be asked to address interstate custody and international child abductions at the annual Family Law Board Certification Seminar again. The seminar is the largest, and most prestigious advanced family law course in the state. Last year’s audience included 1,600+ attorneys and judges.

The review course is co-presented by the Family Law Section of The Florida Bar, and The American Academy of Matrimonial Lawyers.

Interstate Custody

I’ve written about interstate and international custody cases before. Generally, when two parents reside in Florida, Florida custody laws will apply. However, when one of the parents and the child move across state lines, you have an interstate custody problem.

But, which law applies? Historically, family law is a matter of state rather than federal law. So, you would look to the state law of Florida, for example, in deciding an interstate case; not Federal law.

For various reasons, people travel more. As a result, family law has to take on an interstate, and international component. Accordingly, the conflicts between states can be amplified.

To help with confusion between different laws in different American states, the Uniform Law Commission is tasked with drafting laws on various subjects that attempt to bring uniformity across American state lines.

With respect to family law, different American states had adopted different approaches to issues related to interstate custody, visitation, and time-sharing. The results were that different states had conflicting resolutions to the same problems.

To seek harmony in the area of interstate custody, the Uniform Law Commission promulgated the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA), which Florida and almost all U.S. states passed into law.

The UCCJEA: Initial Actions

The most fundamental aspect of interstate custody under the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child.

That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say Florida for this example.

The ultimate determining factor in a Florida case then, is what is the “home state” of the child.

There is a good reason for the ‘home state’ approach under the UCCJEA, which has been adopted by most state laws. That is that Florida – and the other states – all have a strong public policy interest in protecting children in their states.

You can register for the 2018 Marital & Family Law Review Course here.

 

Should You Marry Someone From Another State?

When Wisconsinites choose a spouse, there’s just something about those Minnesotans that they find irresistible. Time magazine looked at over 100 million interstate marriages to make the analysis. The analysis also raises the issue of interstate custody.

Do We Marry Local?

Time magazine recently did an analysis of which states were most compatible when it comes to marriages. To figure this out, Time examined data on 116 million “interstate marriages” in which the partners were born in different states.

For people from each state, they looked at the most common home states for their spouses compared to the national average.

While people are generally most likely to marry someone from the same home state as themselves — eat local, and “marry local,” you might say — those who choose a spouse born in a different state don’t tend to drift very far.

To be clear, while Texans are much more likely than most other people to marry a Louisianan, there are still more total marriages between Texans and Californians, since California is such a large state. Whether you’re from California or your spouse is from Texas, if you have a child, this could have an interstate custody issue.

Your Interstate Child

I’ve written on the issue of interstate custody before, and was recently invited to speak at a state-wide presentation. There are two major interstate, uniform acts that have been adopted by almost every state in the U.S. The first, UIFSA, deals with interstate children support. The Second, UCCJEA, deals with custody.

UIFSA is a uniform act drafted by the Uniform Law Commission, and forcibly adopted by all U.S. states by federal law. Historically, multiple orders, issued by different states, created confusion; courts were unsure which orders were to be enforced, and it was easy to reduce, delay and evade enforcement by moving across state lines.

The purpose of UIFSA is to improve and extend the enforcement of duties of support so that once a foreign support order is registered in Florida, it has the same effect as a Florida order.

The UCCJEA, like the UIFSA, is another uniform act drafted by the ULC, and adopted by all U.S. states except Massachusetts. Different states have different approaches to issues related to custody, and inconsistent rulings about custody could create major problems.

The UCCJEA and the UIFSA share common features and concepts, and in places, the two acts have nearly identical provisions. However, they deal with different family law issues (custody and support) which can strongly impact how the two Acts are implemented.

The general purposes of the UCCJEA are: to avoid jurisdictional competition and conflict with other courts in child custody matters; promote cooperation with other courts; insure that a custody decree is rendered in the state which enjoys the superior position to decide what is in the best interest of the child; deter controversies and avoid re-litigation of custody issues; facilitate enforcement of custody decrees; and promote uniformity of the laws governing interstate custody issues.

Idahoans Love Utahans

According to Time, some of these bonds are stronger than others. While Michiganders are about equally likely to pair off with someone from Wisconsin, Ohio or Indiana, people from Utah and Idaho share a deep, mutual connection.

If you were born in Utah, for example, you are 15 times more likely to marry an Idahoan than someone from elsewhere — a bond that may be strengthened by the fact that they have the largest concentrations of Mormons, according to a 2013 Gallup poll.

On the other hand, most connections between states are not mutual. A person from South Dakota has the most disproportionate chance of marrying someone from North Dakota.

However, the North Dakotans have a slightly higher penchant for marrying Minnesotans, as do those from Wisconsin.

Likewise, Mississippi is the soul state for those born in Tennessee, Louisiana and Alabama.

The Time magazine article is available here.

 

Starting an Interstate Custody Case

Actor David Schwimmer, and his wife Zoe Buckman, announced they plan to take some time apart. David is American, Zoe is British, they relocated to California, and their daughter was born in New York. Where would they start an interstate custody case?

The Schwimmers

The Friends star, Schwimmer aged 50, is married to London-born artist, Buckman aged 31. They share one child together, a daughter named Cleo who is about 5.

The couple, who have been together for 10 years, said that during this time their family is still their main priority, and also stating their full attention will be on the happiness of their daughter.

In a statement released to Mirror Online on Wednesday, the Friends star confirmed that they will spend a period of time trying to “determine the future” of their relationship.

Interstate Custody

I’ve written about interstate custody cases before. Generally, when two parents reside in Florida, Florida custody laws will apply. However, when one of the parents and the child move across state lines, you have an interstate custody problem.

But, which law applies? Historically, family law is a matter of state rather than federal law. So, you would look to the state law of Florida, for example, in deciding an interstate case; not Federal law. As will be seen below, there are some conflicts with different state laws.

For various reasons, people travel more. As a result, family law has to take on an interstate, and international component. Accordingly, the conflicts between states can be amplified.

To help with confusion between between different laws in different American states, the Uniform Law Commission is tasked with drafting laws on various subjects that attempt to bring uniformity across American state lines.

With respect to family law, different American states had adopted different approaches to issues related to interstate custody, visitation, and time-sharing. The results were that different states had conflicting resolutions to the same problems.

To seek harmony in this area, the Uniform Law Commission promulgated the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA), which Florida and almost all U.S. states passed into law.

The UCCJEA: Initial Actions

The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child.

That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say Florida for this example.

The ultimate determining factor in a Florida case then, is what is the “home state” of the child.

Florida has initial jurisdiction to hear the Schwimmer case, for example, if Florida is the Home State of their daughter Chloe on the date they start their case.

Alternatively, Florida can hear the case if Florida was the Home State of Chloe within 6-months before they filed their case, and Chloe is absent from Florida, but one of the parents still lives in Florida. This usually happens when a parent takes a child across state lines.

There is a good reason for the ‘home state’ approach under the UCCJEA, which has been adopted by most state laws. That is that Florida – and the other states – all have a strong public policy interest in protecting children in their states.

The Schwimmer’s divorce announcement went on to read:

“It is with great love, respect and friendship that we have decided to take some time apart while we determine the future of our relationship,” the said in a joint statement.

The U.K. Mirror article is here.

 

Interstate Custody

According to the U.S. Census Bureau, international marriages are rising. Child custody issues are complex under normal circumstances. If the parents move to different countries, those interstate custody problems can multiply.

The U.S. Census Bureau report on the increase in international marriages is not really a surprise given our increasingly mobile and global society. The uptick in cross-border relationships has also led to an increase in international child custody disputes.

International & Interstate Custody

I’ve written about international and interstate custody cases before. You may find yourself in this situation right now, or you fear that your ex partner or soon to be ex could take your children out of the country against your will.

There are various laws and statues you should know about which can protect you and your children, and possibly help you resolve an international custody battle quickly and safely.

Consult a family law attorney with experience resolving international child custody cases. He or she will be able to represent your interests across international borders and help to ensure fair and timely court proceedings.

In some cases, an experienced attorney can also help determine where your ex currently lives and proactively negotiate to secure the prompt, voluntary, and safe return of your children.

The Hague Convention

Become familiar with the Convention on the Civil Aspects of International Child Abduction, also known as the Hague Convention. This international treaty exists to protect children from international abductions by requiring their prompt return to their habitual residence.

The Hague Convention applies only in jurisdictions that have signed the convention, and its reach is limited to children ages 16 and under. Essentially, the Hague Convention helps families more quickly revert back to the “status quo” child custody arrangement before an unlawful child abduction.

If your ex has taken your children out of the country against your will, the Hague Convention can help you get them back as it is best used as a “return mechanism” to take wrongfully abducted or retained children.

Uniform Child Abduction Prevention Act

Most U.S. states, including Florida, have adopted the UCAPA. The UCAPA offers protections to parents who are concerned about the possibility of custody-related parental abduction. If you already have a child custody order in place, or you have a custody hearing coming up, you may be able to file a petition under the UCAPA to address your specific concerns.

There are several risk factors that you should be aware of to determine if there should be put in place prevention measures for abduction. Prevention measures can include things like: orders not to remove a child from the court’s jurisdiction and the ability to require a bond or other security as a deterrent to abduction.

Foreign Courts

In addition to the local and international treaties and laws, it is important to understand the cultural and/or religious beliefs that could impact your case. Countries can have religious courts, and customs, which can drive the outcome of your case.

For example, some international jurisdictions may have a preference for granting sole physical custody mothers. However, judges in other countries are required to always grant custody to fathers. Knowing about these issues up front can help you more effectively prepare for your case.

Florida law currently provides some preventative measures to deter domestic and international child abductions once a custody proceeding has begun, or there is a court order regarding custody or visitation.

The U.S. Census article is here.

 

Scarlett Johansson’s Divorce & Interstate Custody

Scarlett Johansson filed for divorce in New York this week, and is asking for custody of their daughter. Her husband, Romain Dauriac, also wants custody, but lives in France. This creates an interstate custody issue.

For many reasons, a new job, a new love interest, family, it is common for parents to move after separating. If they have children, they want to bring them too. If they want to live out of state or the country, that makes it an interstate custody case.

The Interstate Custody Problem

According to US Weekly, Scarlett’s husband Romain plans to fight for custody of their daughter, which could set up an ugly court battle. He’s French and his attorney states his client plans to move back to France:

He would like to move to France with his daughter and Ms. Johansson does a lot of traveling, it will be an interesting process.

I’ve written about interstate custody issues, and recently spoke on the subject. So, what laws govern, and where could Romain file for divorce and custody?

Interstate Custody Laws

Several laws govern where to file your interstate custody case. In a recent New York case, an appellate court had to reconcile two laws governing interstate custody: the UCCJEA and Hague Convention.

In the New York case, a husband, wife and child moved from Canada to New York. After about five months in New York, the mother took the child back to Canada without the father’s consent and she promptly filed for custody there.

The father filed his own custody action in New York, applied for the return of the child under the Hague Convention, and instituted a Hague Convention case in Canada.

The Canadian court ruled that the child had been “habitually resident” in New York on the day that she was taken back to Canada, and ordered that the mother return the child to New York.

The mother brought the child back to New York but asked New York to dismiss the New York case because New York was not the “home state” of the child under the UCCJEA.

The “home state” is generally defined under the UCCJEA as “the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding.

The mother claimed that the child had been in New York for only five months before being taken back to Canada.

The New York court determined that the Mother’s stay in Canada was only a “period of temporary absence”, and added it to the prior five months to constitute the required six-month period.

Additionally, the New York court noted that even if the six-month rule had not been satisfied, New York had initial custody jurisdiction because Canada declined the case.

The US Magazine article on the Scarlett Johansson divorce can be found here.

Madonna and Interstate Custody

Madonna is locked in an interstate custody battle over her son, who is refusing to leave his father’s home in London, and return to her home in New York City. Sadly, these disputes happen more frequently as people become increasingly mobile.

Madonna’s interstate custody case is interesting on several levels, because it involves domestic (meaning American) family law and international family law issues.

The complex nature of the issues are why I have previously written about the education problems in Madonna’s interstate custody disputes.

Madonna and Guy Ritchie were divorced in 2008. They have a son together. A New York court judge ordered the son to return to Madonna in New York. The 15-year-old has been living with his father at his London home.

So, what happens if Guy ignores the New York court order? Madonna may be able to rely on various international and American statutes to help resolve their interstate custody dispute.

The Uniform Child Custody Jurisdiction and Enforcement Act

American courts are governed by the UCCJEA, a state law every U.S. State has adopted except for Massachusetts. The UCCJEA generally provides the basis for determining which state’s court should resolve custody disputes, and also governs the enforcement of other states’ custody and parenting time orders.

The UCCJEA sets out the rules for which state can establish a new custody order, enforce your rights under an existing order, or modify the terms of another state’s child custody decree. The UCCJEA also has rules for determining when a state can take Emergency Jurisdiction over an interstate custody case.

The Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty the U.S. turned into a U.S. federal law. The Hague Convention provides remedies for a “left-behind” parent, like Madonna.

By filing a Hague petition for return in another signatory country, a left behind parent may be able to obtain the return of a wrongfully removed child to the country of the child’s habitual residence.

The Hague Convention seeks to deter abducting parent by eliminating their primary motivation for doing so: to “deprive the abduction parent’s actions of any practical or juridical consequences.”

So, when a child under 16 who was habitually residing in one signatory country is wrongfully removed to another Hague Convention signing country, the Hague Convention provides that the other country must: “order the return of the child forthwith” and “shall not decide on the merits of rights of custody.”

The Huffington Post article is here.

Interstate Custody Hague and UCCJEA

Parents move from state to state. Sometimes, children are moved by parents wrongfully, creating interstate custody problems. The Uniform Child Custody Jurisdiction and Enforcement Act and the Hague Convention on Child Abduction can work together in those cases as a recent New York case shows.

In New York, an appellate court recently reconciled the UCCJEA and Hague in the interstate custody case of Krymko v. Krymko. A husband and wife and child moved from Canada to New York.

After about five months in New York, the mother took the child back to Canada without the father’s consent and she promptly filed for custody there.

The father filed his own custody action in New York, applied for the return of the child under the Hague Convention, and instituted a Hague Convention case in Canada.

The Canadian court ruled that the child had been “habitually resident” in New York on the day that she was taken back to Canada, and ordered that the mother return the child to New York.

The mother brought the child back to New York but asked New York to dismiss the New York case because New York was not the “home state” of the child under the UCCJEA.

I have written on custody issues before, and I will be speaking at the Marital & Family Law Review Course in January on the UCCJEA and the Hague. The Review Course is the premier advanced, continuing education opportunity for marital and family law attorneys in Florida.

The “home state” is generally defined under the UCCJEA as “the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding.

The mother claimed that the child had been in New York for only five months before being taken back to Canada.

The New York court held that, even if the time in New York was less than the required six months, the subsequent stay in Canada, was found by a Canadian court to be wrongful.

Accordingly, the stay in Canada would be deemed to be a “period of temporary absence” within the meaning of the UCCJEA, which should be added to the prior period of five months so as to constitute the required six-month period.

Additionally, the New York court noted that even if the six-month rule had not been satisfied, New York had initial custody jurisdiction because Canada declined the case.

The case illustrates the interplay between the UCCJEA and the Hague Convention when dealing with interstate custody issues.