CUSTODY ORDER ISSUED AFTER REMOVAL OF CHILD DOESN’T AFFECT VALIDITY OF REMOVAL UNDER HAGUE

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An important case was recently decided by the U.S. Court of Appeal for the Fourth Circuit, wherein it was held that trial court changes to child custody orders that are issued after a parent removes a child from the child’s habitual residence do not affect the validity of the removal under the Hague Convention.  Wrongful removal must be based on custody rights existing at the time of removal.

In the case of White V. White (2013 WL 2284877 – F.3d __, 2013 FA 1593), the Fourth Circuit affirmed an order, which denied the petition for return.  The pertinent facts of the case are as follows:  Husband and Wife were married in Switzerland in 2009.  A Son was born to them later that year.  In June 2010, Husband and Wife separated and Husband initiated legal proceedings in Switzerland pertaining to the separation, including the rights to the couple’s Son.  In October 2010, the Swiss Court in Geneva authorized Husband and Wife to legally separate, while custody was granted to Wife.  Visitation was also granted to Husband, “two afternoons each weekend, to be expanded to one weekend in two, in agreement with the curator when the time comes.”

That same court later ordered court-appointed psychologists to evaluate all three family members for custody purposes.  That evaluation had not been completed, when, on April 24, 2011, Wife left Switzerland with the couple’s Son.  Wife later testified that they headed for the U.S. where she had intended to visit her sister and obtain medical treatment for the Son, whom Swiss doctors had evaluated as autistic.  U.S. doctors later diagnosed Son as having a “feeding disorder,” and they began treatment shortly thereafter

Since entering the United States, Wife and Son had been continuously in the U.S. but for a brief visit to Canada.  In July 2011, when Wife and Son had been in the country for three months, Swiss court-appointed psychologists issued a preliminary report suggesting Wife had “psychological problems, which affected her ability to properly care for her son,” and that the court should transfer custody of the child to Husband if her condition did not improve after six months.

In September of 2011, a Swiss trial court issued an emergency ruling that prohibited Wife from removing Son from Switzerland.  However, in December, that same court found that it did not have jurisdiction to make such an order because Wife and Son no longer resided in Switzerland.

The following February, the Swiss tutelary court in Geneva also found that it lacked jurisdiction.  In it’s ruling, the court noted that Wife having sole custody gave her the right to remove the parties’ Son from Switzerland without prior court approval.

Upon learning that Wife and Son were now living in Alexandria Virginia, Husband brought this action in the U.S. District Court for the Eastern District of Virginia.  On April 6, 2012, Husband filed a petition under the Hague Convention, as implemented in the U.S. by the International Child Abduction Remedies Act.  In his petition, Husband claimed that mom had wrongfully removed their Son from Switzerland, and he was seeking Son’s return to Switzerland.

In June, the court found that Husband failed to establish that his Son’s removal had breached any of his custody rights, and it denied his petition.  Husband appealed, and the parties filed their appellate briefs in late 2012.  The Court of Appeals heard oral argument on March 20 of 2013.

While the appeal was pending in the Fourth Circuit, a Swiss appellate court found the trial court did have jurisdiction to rule on protective measures for Husband and Wife’s Son.  Following that finding, the Swiss trial court adjusted its earlier custody arrangements by granting to Husband sole custody of Son, with visitation rights to Wife.  Due to the undisputed fact Switzerland was Son’s habitual residence before his removal to the U.S., Swiss law applies to whether or not there was a breach of rights.

Acting on Husband’s appeal, and against Husband’s interests, the Fourth Circuit affirmed the District Court.  The appellate court justices explained that a removal or retention of a child from his or her habitual residence is considered wrongful under the Hague Convention and the International Child Abductions Remedy Act if it breaches the custody rights of the non removing parent.

In this case, there was no question that Husband’s and Wife’s habitual residence prior to the removal was Switzerland.  Therefore, the appellate court was caused to focus on whether Husband had custody rights that were breached at the time Wife took Son to the U.S.  The appellate court found that the 2010 custody order awarded to Wife custody and granted to Husband visitation rights only.  And under the Hague Convention, visitation rights equal a “right of access,” which has been defined as the “right to take the child for a limited period of time to a place other than the child’s habitual residence.”  The appellate court further noted that a right of access, by itself, will not support an order for a child’s return.

…In its ruling the court held that the only reasonable reading of the Hague Convention is that a removal’s wrongfulness depends on the rights of custody at the time of the removal.  Removal could not be considered in breach of rights of custody if those rights did not exist at the time of removal.  Moreover, the Hague Convention explicitly provides that removal is only wrongful when” at the time of removal (custody) rights were actually exercised…or would have been so exercised but for the removal.”

In conclusion, the appellate court held that the determination of whether removal is wrongful is based on rights of custody at the time of removal.  The Swiss court’s 2013 order did not act to reject the authenticity of, or retroactively alter, the previously governing October 2010 order granting to Wife sole custody of Son.  Therefore, the order put into effect in October 2010 was determined to be controlling in this case.  Wife keeps son in U.S.  Husband pays lots of legal bills from Switzerland.  And, most probably, not the end to the story.

GRANDPARENTS CAN HAVE VISITATION IF IN CHILD’S BEST INTEREST

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For those who have grandchildren, there’s an important case to be aware of that affects custody and visitation involving grandparents.  In the case of Hoag V. Diedjomahor (2011 Cal App Lexis 1307), the California appellate court ruled that a trial court property allowed visitation of two children by their maternal grandmother under Family Code §3102 over their father’s objection, when it was determined that visitation was in the children’s best interest.

The facts involved in Diedjomahor were these:  After a couple’s 2005 marriage, they initially lived with the Wife’s mother (Grandmother in this case).  The couple separated in 2007, with both Wife and child staying with Grandmother.  In 2008, during a brief reconciliation, all three (3) moved in with Father.  A second child was born.  Wife petitioned for divorce in February of 2009, then died one month later.

Grandmother petitioned for guardianship of the children in May of 2009, alleging that Father was unfit as a parent, but the local child protective services agency found no cause for concern.  In the guardianship proceeding, the court ordered the parties to agree to a visitation schedule, but initially the father was uncooperative, and the court imposed a visitation schedule in June 2009.

In October of 2009, Grandmother filed a separate petition for visitation under Family Code §3102, and two months later the guardianship matter was dismissed.  In January 2010, the visitation case went to mediation, and a trial court adopted the mediator’s recommended visitation schedule as its temporary order.  Trial was in March of 2010, wherein father conceded that the children loved their Grandmother, and he said that he would allow visitation voluntarily, while also expressing some opposition to visitation arising from her efforts to obtain custody.

The trial court granted the visitation petition and ordered a continuation of the temporary visitation schedule, with minor adjustments.  The court acknowledged that §3102 had been found “unconstitutional when applied to a surviving parent who is neither unfit nor opposed to occasional visitation,” and that there was “overwhelming evidence” that the father was a fit parent.  However, it found that the father’s offers of reasonable visitation to the Grandmother were “feigned at best without any substance,” and that visitation with Grandmother would be in the children’s best interest.  Father then appealed, with the court of appeal affirming the judgment, holding that the trial court properly found that visitation by Grandmother would be in the children’s best interest.

CHILD CUSTODY: EDUCATING THE DISABLED CHILD

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If you have custody issues involving an eligible disabled child, you should be aware that there is a federal law that governs how states and public education agencies that receive federal funds are to provide both special education services and early intervention services.   It is called IDEA, the Individuals with Disabilities Education Improvement Act of 2004, which provides other services to the eligible disabled child as well.

IDEA requires public schools to provide eligible children with disabilities with free appropriate public education.  Public schools must adhere to numerous procedural and substantive legal requirements in order to meet the legal standard of developing free appropriate public education for each eligible disabled child.  One of IDEA’s most important requirements is to ensure the rights of the parents of the eligible children with disabilities.

Nevertheless, the case of Navin v. Park Ridge School District (7th Cir. 2001) 270 F.3d 1147 dictates that nothing in IDEA overrides the state’s allocation of authority as part of any custody determination.  The parental rights established by IDEA apply to both parents, unless mandated otherwise by court order or state law.

The California Family Code requires the family law court to specify the circumstances under which the consent of both parents is required when making an order of joint legal custody, as well as the consequences of the failure to obtain mutual consent.  Family Code §3083 requires that in all other circumstances either parent acting alone may exercise legal control of the child.

Standard verbiage requiring parents to share equally in making educational decisions for their child is typically used when developing normal joint legal custody orders, which generally works out okay for both parties.  However, beware that the usage of standard language can create legal issues when it is applied to the disabled child.

CUSTODY AND VISITATION WITHIN THE MILITARY

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With America’s war machine seemingly leaving no stones (or countries unturned), we’ve seen a sharp rise in foreign deployments among military service members, especially Reservists.  This has led to much strain on military family ties.  All branches of the armed services have experienced sharp spikes in divorce rates, which since 2000 have risen nearly 40%.  And of course the main sufferers have been the children of the military who are subject to the military laws covering custody and visitation.

Factually, women military members divorce their spouses at more than double the rate of their male counterparts.  When it comes to single parents in the armed forces, the predominant arrangement has been for secondary custody – access or visitation rights – not primary physical custody.  Based on Defense Department regulations, first-term single enlisted parents cannot have custody of a minor child.  So watch out what you wish for if you decide you want to fight for the stars and stripes, while trying to raise a family, and keep it in one piece.

Peace and Blessings!

CHILDREN ARE PEOPLE TOO (WHEN IT COMES TO CUSTODY AND VISITATION)

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Did you know that in California there is no specific age where family law courts will consider the wishes of a child in deciding which parent they might desire to live with in custody matters.  Right now the issue is covered by Family Code §3042, whereby the courts are required to consider and give due weight to a child’s preference regarding custody if the child is deemed to be of such a sufficient age and capacity to be able to form an intelligent opinion on the issue.

But that’s all about to change.

Commencing January 1, 2012, California AB 1050 will amend the family code by adding that the judge must also consider the child’s wishes re visitation.  This amendment further adds that a child who is at least 14 years of age must be allowed to directly address the court regarding custody and visitation issues, unless the judge finds that it would not be in the child’s best interests to do so, whereby the reasons must be stated on the record.

Finally, the California Legislature has come to its senses in realizing that children are people too.  But they are never adults – and should never be treated as such.

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