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.

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