|
« Kim Kardashian's Video - Is She A Victim Or A Promoter? |
Main
| Separating The Family Home With Clarity »
|
 |
|
Should Parents That Run Off With Their Child Have The Advantage?
|
There is nothing more important to parents than the well being of their children. The thought of having one’s children taken from them is emotionally crippling. In realization of the importance of the parent-child relationship, our legal system requires a hearing before allowing the custodial parent to change residences in a way that will significantly decrease the amount of time the non-custodial parent has with the child. This hearing is commonly known as a “Request to Move-Away.” At this hearing the non-custodial parent is afforded their due process right to challenge the move-away.
However, what if the non-custodial parent was not allowed any hearing and the other parent took the child to another state without providing any notice? This would be kidnapping, right? It depends. There is a current wrinkle within the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”) that allows this action in some instances.
The Situation
First, let me set the scene. An unmarried couple resides in California with their 3 month-old newborn child. Mother who is the primary breadwinner gets a job in Chicago and all three decide to move to the Windy City.
After five months in Chicago, Dad decides it is too cold and wants to move back to California. Mother has already made a commitment to her employer in Chicago and wants to stay. She wants her child to stay with her in Chicago. The couple argues and the next day Dad takes the child to California without telling Mother.
When Dad reaches California he files a Paternity action and also files a Domestic Violence action because he felt threatened during his argument with Mother.
When Mother learns that Dad has taken their child without informing her, she calls the police, files a Paternity action in Chicago and gets a Court Order that Dad return to Chicago with the child.
The Legal Processes
At this point, there are conflicting Court Orders. The Courts have to decide which Court has jurisdiction and which Order will stand. The law governing jurisdiction over this issue is UCCJEA. Under UCCJEA, the home state of the child has jurisdiction. The home state of the child is the state in which the child has resided for the past six months continuously.
However, in this hypo the child has not resided in either state for six months. In this situation the Courts must contact each other to determine which Court has jurisdiction. The Courts make this decision between themselves without counsel allowed to listen in or offer argument. Sometimes the Court will consider moving papers that argue as to which state is the appropriate forum. For the most part though, these decisions are made without a hearing and with each Court having very little knowledge of the facts. If there is a hearing on this issue it is usually futile as it occurs after the Courts have contacted each other and reached a consensus.
The Problem
This initial determination of which state has jurisdiction is a tremendously important issue within the case. If California claims jurisdiction, the child shall remain in California with Dad until the Court’s final determination, which could take longer than a year. Mother will be forced to travel to California to litigate the case and her time with her child will be tremendously reduced. A parent can go from seeing their child every day to seeing their child once every few months.
The impact lasts longer than a few months however. Once a Court declares jurisdiction, the parent from the other state is at a great disadvantage in terms of gaining primary custody in the future.
In the hypo above, I also mentioned that Dad alleged domestic violence. An allegation of domestic violence is one of the loopholes that parents that run away with their child use to achieve jurisdiction in a different state. Domestic violence is a very serious problem and should be treated as such. However, in these cases I have seen these accusations used strategically. Any false claim of domestic violence is a tremendous set-back for those that actually suffer domestic violence. The law should build in a penalty that takes into account the damaging consequences of any false allegations.
Author Commentary
The domestic violence exclusion to the UCCJEA law promotes false accusations. If someone is being abused they should call the police and report it within the state that it occurred. All the witnesses, evidence and the acts occurred within that state. That state is best able to try the case and prosecute the offender. It is ridiculous that someone should have to defend themselves in California for acts that occurred in Chicago. Even if California does not have jurisdiction over criminal charges, the accused must still defend themselves as the Court will make orders affecting the visitation with their children based on these charges.
I think it is very easy to vision how this process might deny someone their due process rights. In this instance the Courts are essentially granting a move-away without granting either party a chance to present their case.
To counter this, the Courts will point out that they do allow a hearing on the issue. My response is: What use is a hearing if the issue has already been decided? Often times, once the two Courts reach a determination as to which one should have jurisdiction, the other Court will decline jurisdiction. Thus, if the California Court and Chicago Court reach a consensus, the Chicago Court will agree to decline jurisdiction. Consequently, by the time this “hearing” is scheduled, Mother has no valid arguments to present. She cannot argue that Chicago is the appropriate forum as it has already declined jurisdiction during its conversation with the California Court. Effectively, the issue has been decided without a hearing and without an opportunity to present evidence.
I realize the situation before the Courts is a difficult one, as there are limited resources and logistical problems with coordinating a hearing on the issue in two different Courts. It is my opinion though that the inequities of the current method justify the costs and additional effort required to ensure that both party’s due process rights are protected.
Written By Antonio J. Fricano
|
|
|
|
|
Posted By Antonio J. Fricano on
June 25, 2007 12:27 pm |
Permalink
|
|