DOCUMENT RESUME ED 472 729 PS 030 991 Levy, David L., Ed. AUTHOR Speak Out for Children, 2000-2001. TITLE Children's Rights Council, Inc., Washington, DC. INSTITUTION ISSN-1042-3559 ISSN 2001-00-00 PUB DATE 187p.; For 1999-2000 newsletters, see ED 444 708. NOTE Children's Rights Council, Inc., 6200 Editors Park Drive, AVAILABLE FROM Suite 103, Hyattsville, MD 20782 (newsletter included with $15 membership contribution). Tel: 301-559-3120; Fax: 301- 559 -3124; Web site: http://www/gocrc.com. Collected Works Serials (022) PUB TYPE Speak Out for Children; v15-16 n1-3/4 2000-2001 JOURNAL CIT EDRS Price MF01/PC08 Plus Postage. EDRS PRICE *Child Custody; Childhood Interests; *Children; *Childrens DESCRIPTORS Rights; *Court Litigation; Divorce; Fathers; *Federal Legislation; Newsletters; Parent Child Relationship; Parent Education; *Parent Rights; Parents; Public Policy Coparenting; Marital Separation; Noncustodial Parents IDENTIFIERS ABSTRACT This document compiles the six issues of Volumes 15 and 16 of the "Speak Out for Children" newsletter, published to strengthen families through education and to assist children of unwed parents, separation, and divorce. The Spring 2000 issue contains articles on Wisconsin's shared parenting law, the U.S. Senate's consideration of a fatherhood bill, and child custody jurisdiction. The Summer 2000 issue includes articles on required parent education seminars in Virginia, the Elian Gonzalez custody case, parent-child communication about difficult issues, and Equal Parents' Week. The Fall 2000-Winter 2001 issue includes articles on child abductions, connections between child support and joint custody, and relinquishing custody to get health care. The Spring 2001 issue includes articles on a compact disc produced to support the Children's Rights Council (CRC), extended overnight visits by infants with the noncustodial parent, and a graduate program on mediation. The Summer 2001 issue includes articles on the myth of the fading two-parent family, and terminology for stepfamilies. The third 2001 issue includes articles on the CRC's establishment of safe havens for children in six states, and parallel parenting strategies in high conflict divorces. Regular features of the newsletter include book reviews, notice of funding opportunities and conferences, news from individual chapters of the organization, descriptions of relevant court cases, and descriptions of pending federal legislation. (KB) Reproductions supplied by EDRS are the best that can be made from the original document. Speak Out for Children, 2000-2001. Vol. 15, No. 1-3611, 2000. Vol 16, No. 1-3, 2001. David L. Levy, Editor Children's Rights Council 2000-2001 (Y) 04 S. DEPARTMENT OF EDUCATION U Office of Educational Research and Improvement PERMISSION TO REPRODUCE AND EDUCATIONAL RESOURCES INFORMATION DISSEMINATE THIS MATERIAL HAS CENTER (ERIC) BEEN GRANTED BY KThis document has been reproduced as received from the person or organization originating it. Lew y _Jam. d Minor changes have been made to improve reproduction quality. Points of view or opinions stated in this TO THE EDUCATIONAL RESOURCES document do not necessarily represent INFORMATION CENTER (ERIC) official OERI position or policy. 1 BEST COPY AVAILABLY, Spring 2000 ISSN 1042-3559 Vol. 15-No. 1 Assisting Children of Strengthening Families Never-Married, Through Education Separated and Divorced And Advocacy Parents Waa a_ Alt A". The Quarterly Newsletter of the Children's Rights Council, Inc. 300 "I" Street N.E., Suite 401, Washington, D.C. 20002-4389 Phone (202)547-6227 Wisconsin Adopts Strong Shared Parenting Law IN THIS ISSUE: Now 26 States with Joint Custody The CRC View 4 Senate Considers Children have won avic- Fatherhood Bill 5 New Law Presumes Joint Legal Custody tory in Wisconsin. Starting and Regular, Meaningful Contact May 1, 2000, all courts in Child Custody Jurisdiction Wisconsin will be required between Child and Parents. 6 to presume joint legal cus- National Child's Day.. 9 tody is in the best interest of requiring parents to submit parenting plans; the child and to set as a goal The Elian Gonzalez "a placement schedule that reducing to 1% per month the interest on child Case 10 allows the child to have support arrears; Thompson Around the Country 11 regularly occurring, mean- limiting the liability for past child support to the ingful periods of physical placement with each time of filing of a legal action instead of the date Equal Parents' Week 12 parent and that maximizes the amount of time of birth of the child; New National penalties for interfering with court ordered the child may spend with each parent." , Organization 12 Additional changes included in a bill passed placement; and by the legislature and signed by Gov. Tommy a provision for establishing a study committee to Please Help! 13 Thompson (R) are: review the role of guardians ad litem. Inside CRC 14 similar treatment of children in paternity and divorce cases (except for temporary Meet CRC Staff 15 ramtders); Continued on page 3 Books Videos, 16-20 Buttons Please Plan on Attending Some Major CRC CRC's 13th National Conference Accomplishments 21 Chapter News 22 Washington, D.C. Upcoming Events 23 May 4-6,2001 Court Cases 24 Congressional Update26 Reception at the British Embassy President Clinton 28 National Affiliate to Benefit CRC Organizations and Chapters 30 BEST COPYAVAI LABLE P.) 5 CRC is a member of "Speak Out for Children" is published by the Children's Rights Council, Inc. Editor: David L. Levy. Contributors to this issue: Kathleen Ballard, Don Bieniewicz, Al Ellis, Julie Maggiacomo, Ed Mudrak, John Prior, Paul Robinson, ohn Prior, Ken Skilling, Lenora Williams, and college student interns Tiffany Adkins, Ohio State University; Caroline Cohen, Florida State University; Chi-Chi Nwoko, Montgomery College, Maryland. Layout by Sheila Holzberger. Children's The CRC Charities of America conciliation and mediation for the by CRC may be reprinted without per- The Children's Rights Council (CRC) is a nation-wide, non-profit IRS adversarial process, and providing for mission, provided the source ("Reprinted emotional and financial child support. 501(c) (3) children's rights organization from the Children's Rights Council news- We work to strengthen fragile families based in Washington, D.C. letter 'Speak Out for Children,' Spring CRC works to strengthen families of children whose parents are unwed. 2000") is given. For non-CRC material, through education and advocacy. We We also favor school-based programs obtain permission from the copyright owner. For further information about favor family formation and family pres- for children at risk. CRC membership, publications, cas- Formed in 1985 by concerned par- ervation, but if families break up, or are ents who have more than 40 years col- never formed, we work to assure a child settes, catalog, and services, write: CRC, the frequent and continuing contact with lective experience in custody reform and 300 "I" Street N.E., Suite 401, Washing- two parents and extended family the early childhood education, CRC has ton, D.C. 20002; phone (202) 547-6227; chapters in 32 states and two national child would normally have during a mar- fax (202) 546 -4CRC (4272). With a browser, the CRC home riage. Our motto is "The Best Parent is affiliate organizations: Mothers Without page's URL is http://www.gocrc.com Both Parents." Custody (MW/OC) and the Stepfamily For the child's benefit, CRC favors Association of America (SAA). CRC's email address: [email protected] parenting education before marriage, Prominent professionals in the fields Speak Out for Children is published four during marriage, and for parents who are times a year and is sent free to members. of religion, law, social work, psychology, unwed or separated. We work to demili- child care, education, business, and gov- Library rate: $20.00 a year. Send letters, tarize divorce between parents who are ernment comprise our Advisory Panel. comments and articles for publication to involved in marital disputes, substituting Material in this newsletter authored Editor, CRC. Jonathan M. Goodson, President Hon. Sherwood Boehlert OFFICERS AND BOARD PARENTING EDUCATION Mark Goodson Productions SPOKESPERSON MEMBERS U.S. Congressman (R-NY) David L. Levy, Esq. President Wes Unseld, VP Washington Los Angeles, California John L. Bauserman,Jr., Chairman Jim Cook, President Wizards Samuel A. Brunelli, CEO Hon. Bob Graham Member, NBA Hall of Fame Joint Custody Association Ingrid Bough-Bell Los Angeles, California U.S. Senator (D-FL) John L. Bauserman, Sr. NATIONAL SPOKESPERSONS Jennifer Isham, President Darryl Grant, Washington Teresa L. Kaiser, J.D. "Dear Abby" Judge Richard A. Waldron (ret'd) Redskins Superbowl XVII and (Abigail Van Buren) Mothers Without Custody XXII Champion Lee Yarborough (MW/OC) Los Angeles, California Dwight Twilley, Pop Singer/Author Crystal Lake, Illinois HONORARY PRESIDENT Karen DeCrow Catherine Meyer, Author Former President of N.O.W. EVALUATORS OF RESEARCH Joan B. Kelly, Ph.D. John Guidubaldi, D.Ed. Wife of the British Vice President, California Jamesville, New York Ambassador to the U.S. D. Richard Kuhn Dispute Resolution Institute Elliott H. Diamond Corte Madera GENERAL COUNSEL Co-Founder, CRC FAMILY ADVISORY BOARD Michael L. Oddenino Chairman, Reston, Virginia Elisabeth Kubler-Ross, M.D. Arcadia, California Clifton Alan Clark, Sr. Author, Psychiatrist former CRC Director of Phyllis Diller, Comedienne Scottsdale, Arizona Development DIR. OF CHILD ACCESS Los Angeles, California Vicki Lansky, Author/Columnist SERVICES Margorie Engel, president Alfred Ellis Deephaven, Minnesota ADVISORS Rabbi Mendel Abrams, M.Min Stepfamily Association of America Former President, Board of Rabbis DIR. OF INFORMATION James Levine, The Fatherhood of Greater Washington, DC Warren Farrell, Ph.D., Author Project SERVICES Ed Mudrak former Member of the Board of The Family and Work Institute Eloise Anderson Directors, New York City N.O.W. New York, New York The Claremont Institute DIRECTOR OF PARENTING Leucadia, California Sacramento, California EDUCATION PROGRAMS Hon. Debbie Stabenow Elizabeth Hickey, M.S.W. Larry Gaughan, Professional U.S. Congresswoman (D-MI) Salt Lake City, Utah Director David Birney, Actor Santa Monica, California Hon. Fred Thompson Family Mediation of Greater Washington, D.C. U.S. Senator (R-TN) Page 2 *pring 2000 Speak Out For Children t Wisconsin Many Helped opposers almost every time. Gain Passage Using data, personal stories, and support Continued from page 1 from some of the judiciary, as well as data The Parents' Rights Coalition, along Bipartisan Effort showing that children do better when with Wisconsin Fathers for Children and Succeeded both parents are allowed to stay involved, Families, Citizens for Family Law Re- the legislature moved forward. These provisions and a bipartisan ef- form, and Legislation for Kids and Dads, fort from the Budget Conference Com- worked long and hard from the begin- Sen. George Spearheaded mittee, "put Wisconsin into a leadership ning. role in dealing with the national prob- ludge James Welker of Wisconsin Effort in Wisconsin Senate lem of many fathers (and some moth- is probably the most supportive judiciary for Shared Parenting ers) being disenfranchised from their officer in the state," said Eisenbert. "He children by outdated laws and the gen- helped influence the Wisconsin State der bias which exists in our legal system," Bar's Family Law Section into making Under pressure from lawyers and said Jan Raz, president of Wisconsin Fa- sweeping reforms in the paternity sec- abuse advocates, the Wisconsin Bar Fam- thers for Children and Families, one of tion of this new law Without him and ily Law section redrafted the bill, gutting the groups that assisted the Parents' some of the bar's support, the bill may about 50% of the original bill, and Gov. Rights Coalition in getting this bill not have been signed by the governor," Thompson line item vetoed more, said passed (Raz's e-mail is said Eisenbart. Eisenbart. At best, 25 to 30% of the origi- [email protected]). Eisenbart said there is still no pro- nal bill was left. "It is a start and the new This bill had its origins almost five tection from: law is an improvement," he said. years ago, when approximately 15 grass one parent moving away with the roots groups came together under the children; Governor Wants name of "Parents' Rights Coalition" to courts obstructing or terminating Both Parents Involved discuss problems surrounding the Fam- parental relationships without ily Court System in Wisconsin. These Governor Thompson's press release compelling or significant reason; groups had many separate concerns, i.e., and October 22, 1999, stated he was signing grandparents rights, juvenile justice is- the law because he wanted "major treating children like trophies to sues, paternity cases, single parents, non- be won in an adversarial process changes to the state's child custody law custodial access to children, financial fueled by special interests and that encourage both parents to be in- child support, court discretion, family volved in raising their children." The money. rights, parents rights to help raise their Governor said "We need to do more to 'We should enjoy this program, but children, and relocation of children. not lose sight of the hard work yet to be make sure both parents are fully involved Over 16 months and lots of compro- in the raising of their children, particu- done," Eisenbart concluded. mise and discussion, all those left at the larly fathers." 26 States and D.C. table agreed on language and intent of Eisenbart, a CRC lifetime member, Have Joint Custody the original bill which revamped the and long-time advocate/paralegal for a state chapter on family law and some of child's rights to be with both parents, is According to a 1997 American Bar the children's code. concerned that the new law leaves dis- Association publication, 19 states plus "Senator Gary cretion for bureaucrats and lawyers to the District of Columbia have some form George (D) was oppose shared parenting. He says he courageous of presumption for joint custody, either and others will closely watch how the law legal, physical or legal an physical. They enough to spear- is implemented. are Florida, Idaho, Iowa, Kansas, Louisi- head the drafting Clair Wiederhold, a director of leg- ana, Minnesota, Missouri, Montana, and introduction of islation for Kids and Dads, one of the New Hampshire, New Mexico, Texas the bill into the Sen- groups that helped bring about passage and Washington, D.C. Also California, ate," said Rob of the legislation, said: "Some attorneys, Connecticut, Maine, Michigan, Missis- Eisenbart, presi- guardians ad litem, court commission- sippi, Nevada, Vermont and Washing- dent of the Coali- George ers and judges already apply many of ton. In some of those states, there is a tion. "When sup- these principles in present cases. How- presumption for joint custody only if port for the bill grew, so did concerns by ever, most don't. This legislation should both parents agree. The states that have politicians and resistance from other establish a more uniform, statewide goal added some form of presumption since groups, including Victims of Domestic of securing the best interest of children the ABA report are Alabama, Ohio, Abuse Advocates, court commissioners, by allowing children to have both par- Oklahoma, Oregon, Tennessee, West and family lawyers. Lawmakers ques- ents fully involved in their lives. Wiscon- Virginia and Wisconsin. tioned whether the bill would make too sin has begun to recognize that dads as much of a change to existing law. well as moms count in their children's At public hearings, supporters out lives." Spring 200 Speak Out For Children Page 3 5 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 7 eRe 0 0 0 0 4 Dayee t 0 Zeiset. 0 ewe 0 0 0 0 cant reduction in poverty, because the reason for the new national finan- 0 Levy "Pharaohs" who run programs keep cial child support collection system. 0 losephs"poor peopleuninvolved in 0 Now, 20 years later, despite fi- The "Divorce Industry" 0 nancial child support collections their own emancipation from poverty. 0 Results in Poverty for having quadrupled because of a 0 He tells of Washington, D.C., where Children and Parents 0 a decades-old law that prohibited "boot- huge federal and state bureaucracy, 0 0 liens, interception of tax returns, blacks" from the District was used against I read a book recently about how 0 a black entrepreneur who had set up a jailings, midnight arrests, posting of 0 difficult it is to end poverty because 0 thriving business of shoe-shine stands the "10 Most Wanted" lists, boot- there is a well-intentioned but mis- 0 throughout the city, staffed by bow-tied ing of cars, etc., the poverty rate for 0 guided "poverty industry" that serves children remains essentially un- 0 employees, many ofwhom had formerly to perpetuate poverty through top- 0 been unemployed. changed. 0 down run programs instead of en- 0 The 1999 Current Population In another case, a hair salon whose abling poor people to work toward 0 Report (website practice was limited to braiding hair was 0 their own economic self-sufficiency. threatened with termination because 0 www.childstats.gov), reports that 18 It reminded me of the "divorce 0 percent of children in all families D.C. regulations ruled that its stylists had 0 industry" that is also generally well- 0 lived in poverty in 1980, and 19 to pass the same cosmetology exams as intentioned, but whose result is the 0 beauticians whose use chemical treat- percent in 1997.51 percent of chil- 0 continued financial and emotional dren in single mother headed ments. 0 poverty of many children, because 0 As these entanglements with red tape houses lived in poverty in 1980, and 0 non-custodial parents are seen as the 49 percent in 1997. The reason 0 show, it is not the race of the "Pharaohs" problem rather than as part of the 0 poverty is essentially unchanged is but the rules of the game that determines 0 solution. Many non-custodial parents whether the "Josephs" who want to lift that America continues to encour- 0 are affected by divorce, and are im- 0 age single-parent families for the themselves out of poverty are allowed to 0 poverished emotionally and finan- do so or not. same reasons that Woodson gives 0 cially by the evils of the divorce sys- 0 for programs designed to aid the The "Pharaohs" treat the poor as cli- 0 tem. ents rather than as participants who poora bureaucratic indifference 0 Robert L. Woodson, Sr., author 0 should be involved in creating their own and hostility to involving the people 0 of "The Triumphs of Joseph", tells 0 affected by government decisions in self-sufficiency. the Biblical story of Joseph who was 0 Woodson, founder of the National the own solutions. 0 imprisoned by Pharaoh, but when the Center for Neighborhood Enterprise in The child support bureaucracy, 0 ruler had a nightmare he and his 0 Washington, D.C., and a MacArthur " family law attorneys, courts, expert 0 soothsayers could not understand, it genius" grant recipient in 1990, argues witnesses, sheriff's departments, are 0 was the young man from the dungeon 0 that the healing agents in our culture all part of the divorce industry. Tens 0 who was able to interpret it for him churches, neighborhood groups, com- of thousands of jobs and billions of 0 and thereby save the kingdom. 0 munity organizationsmust be un- dollars are at stake if this industry's 0 Woodson sees Joseph as a proto- leashed to go to work where the efforts dominance over children and fami- 0 type of the men and women who 0 of government have failed. lies is not questioned. battle daily to change lives in our 0 0 poorest neighborhoods. While many Parents Not Consulted More Awareness that 0 such modern "Josephs" exist, 0 0 on Solutions Children with Two 0 0 Woodson argues, their efforts are too Parents do Better 0 0 often ignored or disparaged by 0 0 How many times have separated, 0 0 "Pharaoh's courtiers"the people divorced or never-married parents been Fortunately, there is a change in 0 0 0 0 who have a vested interest in the ex- the wind. There is a greater aware- treated as deadbeats and outcasts uncon- 0 0 cerned with the support of their own istence of poverty and racial tension ness in Washington and elsewhere 0 0 0 children, and thus unentitled to help 0 and have drawn attention away from in the country that children do bet- 0 0 solutions to the problem. solve the problem of child impoverish- ter when they have two parents. 0 0 0 It is no wonder, Woodson writes, ment. 0 Two-parent families, preferably 0 0 Reduction of poverty was cited by that just as the expenditures of billions married, but also if the parents are 0 0 0 never married, separated or di- of dollars has not resulted in signifi- 0 Sen. Russell Long in 1980 as the main 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Page 4 Spring 2000 Speak Out For Children 0 0 In other words, public safety, the tom-up, will they involve the very par- vorced, provide the best financial and 0 0 , 0 ents who are emotionally and finan- 0 emotional insulation for children. safety of the average person in the streets, 0 0 is affected by how we treat families. cially responsible for supporting their Single parents do a super-human 0 0 children, or will they become so bu- 0 Those people are voters, and political job for their children, but generally just 0 reaucratic that we will not be able to leaders want to be seen as doing some- cannot provide as much financial and 0 0 0 recognize their worth? 0 thing for public safety. emotional support as two parents can. 0 0 I like the idea of this outreach to Thus, Congress introduces father- CRC has helped bring about this 0 0 0 parents, but I am troubled by the fact hood bills, and communities across the change over the years, as have many 0 0 0 country establish fatherhood programs other people and organizations. I be- that the divorce industry still fuels sole 0 0 0 that did not exist 5 years ago. In fact, custody adversarial battles all around 0 lieve a big reason for the change is the 0 0 the country, and that a huge bureau- these are parenting bills and parenting research that has piled up like a moun- 0 0 0 programs, because the effect will be to cracy still treats parents of separation 0 tain. 0 0 and divorce as people to be acted on This mountain shows that crime, give children both a father and a mother 0 0 rather than included in solutions to 0 in more instances. 0 drugs, academic achievement, and ev- 0 0 the problem. ery other measurement of social be- There is a big question, however, as 0 0 Children deserve better. havior by children is improved if a 0 to how these programs will be run. Will 0 0 0 they be run top-down, rather than bot- child has two parents. 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Senate Considers $150 Million Fatherhood Bill Senate Considers Bill to Help with Emotional and Financial Support of Children million a year in access (visitation) funds The Senate is considering a "Respon- sible Fatherhood" bill (S. 1364) that that Congress has provided to the states would provide $150 million to encour- since 1997. age the role of fathers as parents in low- Grants Would be for income families and to help fathers bet- Public and Private ter provide for their children. Organizations The Senate bill is a counterpart to Domenici Bayh the "Fathers Count Act" (H.R. 3073), The $150 million would be for passed by the House of Representatives Sponsors of Senate Bill grants to public and private organiza- on November 10, 1999, by a vote of 328 tions which promote marriage through to 93. CRC Prefers Passage of the House counseling, mentoring, and enhancing welfare reform and welfare-to-work ini- Bill (H.R. 3073). relationship skills. The bill will encour- tiatives. With many mothers now com- Sponsors of the Senate bill are Sens. age local efforts by requiring that 75% Pete Domenici (R-NM) and Evan Bayh ing offwelfare, Congress knows that they of the funding goes to non-governmen- (D-IN). A hearing should have been must have the financial help of fathers. tal community based organizations. Pref- held by the time you receive this news- But the legislation goes beyond welfare- erence for funding would go to organi- letter by the Senate Finance Commit- to-work incentives, and encourages the zations which promote successful tee, chaired by Sen. William Roth (R- role of fathers as parents in low- income parenting, through disseminating infor- DE). If such a hearing has not already families and to help fathers better pro- mation about good parenting practices, vide for their children. Some observers been held, it is questionable whether the including family planning, encouraging legislation will become law this year. have referred to this bill as a parenting child support payments and regular ac- Sponsors of the House version of the bill bill, because it will have the ultimate pur- cess between fathers and their children. (The "Fathers Count Act") are Reps. pose of assisting children to have more It would assist in aiding fathers and involvement by both parents in their Nancy Johnson (R-CT) and Ben Cardin their families to avoid or leave the wel- lives. Some services and programs are (D-MD), who spoke on the House floor fare system, by providing activities such expected to reach out to low-income in November, 1999 strongly in favor of as job training, subsidized employment mothers and divorced parents. its passage. and education to advance job opportu- Congress is considering this legisla- Previous legislation that helped par. nities and careers. ents to function as parents is the $10 tion as part of its continuing efforts on Page 5 Spring 2000 Speak Out For Children Child Custody Jurisdiction How to Decide Which Court Decides Michael L. Oddenino The Uniform are all designed to prevent child abduc- court among one or more state courts Child Custody Ju- tion as well as providing a mechanism has jurisdiction, or, if more than one has risdiction Act for determining which court has the right jurisdiction, which should claim it. (UCCJA) and the to decide a custody case. These laws The UCCJA and the PKPA are also Parental Kidnap- address the problems arising when one designed to facilitate and promote com- ping Prevention Act parent breaches another's right to cus- munication among courts which have or tody by removing the child from his (PKPA) are legisla- may have concurrent jurisdiction. They tive responses to the "home state" or "habitual residence" and require all states to honor prior custody takes him to another jurisdiction, or child custody juris- orders. A court that receives information Oddenino diction problem. when the parent retains the child in vio- on possible ongoing custody litigation in The Hague Convention on the Civil lation of another's custodial rights or in- another state should communicate with Aspects of International Child Abduc- terests. the appropriate court in that state. The tion is the international response. law actually calls for a judge in state A to Determining Which State The UCCJA began as a model act communicate with a judge in state B. Has Home State Status which became virtually universal state The UCCJA provides subject mat- law. The PKPA, on the other hand, is ter jurisdiction and is the exclusive The primary factor for determining federal law. method of obtaining it in child custody if a state has jurisdiction to decide a cus- The UCCJA creates a two-prong cases. Subject matter jurisdiction is de- tody case is the "home state" status, approach to determining which court termined by statutory definition (e.g., where it is assumed that one will find the decides a custody case. First, a general certain length of residence) and may maximum amount of evidence on the class of jurisdiction is established for not be conferred by consent of the par- child's interests. The "home state" is the custody cases. Second, the law provides ties. Absence of subject matter jurisdic- jurisdiction in which the child has lived a mechanism intended to vest the right tion may be raised by the trial court with his or her legal custodian for at least to exercise jurisdiction in only one state or the parties at any stage of the pro- six months or a state which was the at any given time. The UCCJA and the ceedings.' "home state" within six months of filing. PKPA supersede all conflicting or con- (For example, if a family lives in state A Home State Jurisdiction tradictory laws. for one year, state A is the home state If Predominates The UCCJA, the PKPA, and the the same family lived in state A for one Hague Convention apply only to those year and then one parent moved to state The UCCJA establishes a system of who have a right to custody.' The B with the children and filed in state B concurrent and potentially conflicting UCCJA and the PKPA each prescribe after living in state B for only four jurisdiction. The bases for jurisdiction four bases for jurisdiction: (1) home months, state A is still the home state). are hierarchical and continuing jurisdic- state; (2) significant connection, plus evi- The UCCJA also allows a state to ex- tion always prevails. Home state jurisdic- dence regarding the best interests of the ercise jurisdiction on the basis of the tion predominates over significant con- child; (3) emergency; and (4) default ju- children having "significant connections" nection jurisdiction. Emergencyjurisdic- riscliction (no other state has jurisdiction with that state. Thus, under the UCCJA, tion will trump either of those bases, but or has declined it). The bases may over- even though state A is the home state, it is temporary. Finally, if no state has ju- lap, so concurrent jurisdiction is com- state B might exercise initial jurisdiction risdiction on the basis of UCCJA or PKPA mon and conflicts of jurisdiction often on the basis of significant connections. rules, the state in which the child and a occur. The PKPA intended to eliminate this party are domiciled may claim it. For example, the "home state" may possibility by making the "home state" The law eliminates potentially end- not be the same state as the one in which the exclusive state to exercise initial ju- less procedural custody litigation by plac- the parties have "significant connections" risdiction notwithstanding that some ing the bases of jurisdiction in the afore- and where there is "substantial evidence" other state had "significant connections." mentioned descending preferential or- about the child's best interests.2 This is a major distinction between the der and by providing for virtually exclu- The UCCJA, the PKPA, and the UCCJA and the PKPA. sive continuing jurisdiction in the origi- Hague Convention on Child Abduction These laws are also designed to avoid nal decree state.4In addition, to achieve forum shopping, jurisdictional compe- fairness and cooperation, mechanisms Oddenino is CRC's General Counsel. He prac- for communication and for declining tition, and duplicative litigation. They es- tices family law in the Los Angeles area. His tablish a scheme for determining which jurisdiction were included. website address is www.oandglaw.com Page 6 pring 2000 Speak Out For Children Continuing Jurisdiction states.'7 The federal felony provides at prevails over any other basis] .8 least three affirmative defenses: (1) cus- The court also held that no treaty or Once a court properly exercises ju- tody or visitation award to defendant other source of international law pre- risdiction in a child custody matter, that pursuant to UCCJA; (2) flight from a cludes California courts from claiming state is deemed "the decree rendering pattern of domestic violence; and (3) jurisdiction in a case properly brought. state."' For example, if state A were the defendant had proper physical custody California was "home state" and the state home state and the judge in state A con- and failed to return the child for rea- "with the most significant connection" to ferred with the judge in state B where a sons beyond his control." the parents and the minor child and sub- parent filed after only four months claim- stantial evidence relating to the minor ing significant connections, and those The Hague Convention child's well-being. Some courts construe judges determined that state A should the UCCJA to apply internationally only The UCCJA and the PKPA are not exercise initial jurisdiction, state A would when a foreign custody order is at issue.' the only laws on international jurisdic- then have a hearing and render a cus- Other states apply the general policies tion over child custody. In 1980, the tody decree. Assume one parent contin- and objectives of the UCCJA to all cus- Hague Convention on the Civil Aspects ues to reside in state A while the other todyjurisdiction disputes, including those of International Child Abduction was parent resides in state B with the chil- in the international context.'° formed to complement our UCCJA and dren pursuant to state A's decree. Two PKPA in the international arena." The years later the parent in state B wants to Child Abduction Hague Convention is different from the modify the custody or visitation sched- UCCJA and PKPA in that it does not ule. What happens? Since the 1970s, the State Depart- create recognition and enforcement stan- State B is now the home state as the ment says it has been contacted for help dards, but demands the prompt resto- children have lived there for two years. in about 11,000 international child ab- ration of the custody that existed before State A is the decree rendering state as ductions where a parent was involved." the alleged abduction.2° the initial and current order was ren- The Justice Department reports some The United States ratified the Hague dered in state A. Only state A has the 354,100 cases of parental abductions a Convention in 1986. It went into effect right to exercise jurisdiction even though year, but fails to identify how many are in 1988, upon the enactment of its en- state B has home state jurisdiction be- international." The State Department abling legislation, the International Child cause state A enjoys the continuing ju- estimates an average of 400 to 500 new Abduction Remedies Act (ICARA) .21 risdiction of the decree rendering state. international cases per year, a number This Act provides that it "shall apply to Thus, state B cannot properly exercise critics charge is avast underestimate. A any child who was habitually resident in its jurisdiction unless state A specifically recent study by the American Bar As- a contracting state immediately before declines to exercise its continuing juris- sociation Center on Children and the any breach of custody or access rights."22 diction. Law shows that in 60 percent of inter- The Convention's stated purpose is "to national abduction cases, the children Continuing Jurisdiction in secure the prompt return of children are never returned even though their the International Arena wrongfully removed to or retained in any whereabouts are known." This study Contracting State," and "to ensure that The dominance of continuing juris- shows that parents spent an average of rights of custody and of access under the diction also applies to international cases $33,500 in search and recovery of their law of one Contracting State are effec- where a custody order has been ren- children, and a quarter of left-behind tively respected in the other Contract- dered under a law consistent with the parents spent $75,000 or more.' ing States."23 The Hague Convention's UCCJA.6 For instance, a California de- UCCJA section 23 provides that the underlying policy is primarily to ascer- general policies of UCCJA extend to cision decided by a California Family tain a speedy return of an abducted child Court and affirmed by the Appellate the international arena. The provisions to the state in which he or she was a ha- of UCCJA relating to the recognition Court held that the California courts had bitual resident, without undertaking a full jurisdiction, under the UCCJA, to de- and enforcement of custody decrees of investigation of the case's merits. termine the custody of a minor Mexi- other states apply to custody decrees The remedies of the Hague Conven- can national.' The minor, although a and decrees involving legal institutions tion may be invoked when two thresh- Mexican national, had resided in Cali- similar in nature to custody institutions old issues have been satisfied by a pre- fornia for several years with her Mexi- rendered by appropriate authorities of ponderance of the evidence.24 First, the can national parents. The Court stated other nations if reasonable notice and moving party must establish that he or opportunity to be heard were given to that one of the primary objectives of the she had lawful custody rights when the all affected persons. The same goes for UCCJA is to "avoid the disruption to the child was wrongfully removed or re- the general policies and objectives of life of a child involved in relitigation of tained. Second, the removal or retention ... custody matters [0] nce a custody or- the UCCJA and the PKPA.'5 must be from the child's "habitual resi- Parental kidnaping is a federal der is entered by a court with jurisdic- dence." Articles 3 and 5 (a) of the Con- tion under [the UCCJA], that court has felony, calling for up to three years im- prisonment." It is also a felony in most continuing exclusive jurisdiction [which Continued on page 8 Page 7 Spring 2000 Speak Out For Children 9 Child Custody solved the problem by declining juris- 18. 18 U.S.C. 1204 (1994) provided that the diction.); McDowv. McDow, 908 P.2d 1049, defendant make reasonable efforts to Continued from page 7 1051 (Alaska 1996) (a court may not notify the other legal custodian of the modify another state's custody decree if vention provide that the removal or re- problem within 24 hours of the end of the latter court retains jurisdiction). tention is wrongful when "(a) it is in his visitation period. 5. See, e.g., Chapoteau v. Chapoteau, 659 19. Hague International Child Abduction breach of rights of custody attributed to So.2d 1381 (Fla. Dist. App. Ct. 1995). Convention, 51 Fed. Reg. 10498 (1986); a person ... under the law of the state in 6. In re Stephanie M., 867 P.2d 706 (Cal. Department of State, Treaties in Force which the child was a habitual resident 1994); In re Fischer, 666 So.2d 724, 725 328 (1989); Exec. Order No. 12,648, 53 immediately before the removal or re- (La. App. 4th Cir. 1995); Koester V. Mont- Fed. Reg. 30637 (1988). tention; and (b) at the time of the re- gomery, 886 S.W.2d 432 (Tex. Ct. App. 20. See Martin j. Bodzin, Comment, Inter- moval or retention, those rights were 1994) (UCCJA applies internationally as national Parental Child Abduction: The actually exercised, either jointly or alone, far as due process notice and similar re- Need for Recognition and Enforcement or would have been so exercised but for quirements are concerned); Ruppen v. of Foreign Custody Decrees, 3 Emory J. the removal or retention." Custody rights Ruppen, 614 N.E.2d 577 (Ind. Ct. App. Inel Dispute Res. 205, 212 (1989). 1993) (deferred to Italy). are determined by the law of the child's 21. 42 U.S.C. 11601-11610 (1994). 7. In re Stephanie M., 867 P.2d 706 (Cal. "habitual residence," a term left unde- 22. Hague Convention on the Civil Aspects 1994), cert. denied sub nom. See also fined in the Convention and in the of International Child Abduction, Ch. I, Mendez v. San Diego County Dep't of art. 4. United States' implementing legislation, Soc. Servs., 513 U.S. 937, 115 S. Ct. 337 23. Hague Convention on the Civil Aspects leaving the issue to be decided upon the (1994). of International Child Abduction, Ch. facts and circumstances of the case.' 8. Id. I, art. 1, (a), (b); Merideth v. Merideth, United States courts have held that the 9. E.g., Ivaldi v. Ivaldi, 672 A.2d 1226 (NJ. 759 E Supp. 1432, 1434 (D. Ariz. 1991). terms of the Convention are to be con- Super. Ct. App. Div. 1996); Koons v. 24. In re Prevot, 59 E3d 556, 560 (6th Cir. strued narrowly.2° Koons, 615 N.Y.S.2d 563, 567 (N.Y. Sup. 1995). Ct. 1994). 25. Merideth v. Merideth, 759 E Supp. 1432, Conclusion 10. E.g., Black v. Black, 441 Pa. Super. 358, 1434 (D. Ariz. 1991). (1995) (applying UCCJA to international 26. E.g., Rydder v. Rydder, 49 E3d 369 (8th The framework of laws determining child custody disputes and construing the Cir. 1995). proper exercise of custody jurisdiction definition of "state" to encompass foreign is sufficient to answer most custody dis- nations); Dincer v. Dincer, 666 A.2d 281, Contact Other CRC pute problems. While some judges cre- 284 (Pa. Super. Ct. 1995); In re Stephanie Members by E-mail ate problems by not knowing or follow- M., 867 P.2d 706 (Cal. 1994); Zenide v. ing the jurisdictional guidelines, forum Superior Ct., 27 Cal.Rptr.2d 703 (Cal. Ct. Send and receive e-mail from App. 1994); Ruppen v. Ruppen, 614 shopping in custody cases is not nearly other CRC members around the N.E.2d 577, 582 (Ind. Ct. App. 1993). the problem it was before the implemen- country. 11. Timothy W. Maier, Insight on the News: tation of these laws. Armed with the If you are a CRC member, e- Kids Held Hostage, News World Com- knowledge of the "off the rack" dictates mail the following message to munications, Inc., March 8, 1999. of the jurisdictional laws, an attorney can Harry Prillaman, CRC Coordina- 12. Id. provide clients with advice well worth the tor for Georgia, who is supervis- 13. Id. fees charged. ing the email for members. He 14. Id. 1. Johnson vjohnson, 493 S.E.2d 668 (Va. reached can 15. Winton-Ibanez v. Ibanez, 690 So.2d be at Ct. App. 1997); In re Prevot, 59 E3d 556, 1344, 1346 (Fla. Dist. Ct. App. 1997) (the [email protected] 560 (6th Cir. 1995); Caban v. Healey, 634 general policies of the UCCJA apply in- Dear Harry. I am a national N.E.2d 540 (Ind. Ct. App. 1994); 42 ternationally). CRC member who would like to join U.S.C. 11603(3) (1) (A) (1994). 16. 18 U.S.C. 1204 (1994). the crc-generab@egroups. corn distribu- 2. See, e.g., In re Joseph D., 23 Ca1.Rptr.2d 17. In California, the applicable statute is tion list. 574 (Cal. Ct. App. 1994); In re Marriage Penal Code Section 278, which states Call the CRC national office of Alexander, 623 N.E.2d 921 (Ill. App. "Every person, not having a right to cus- at 202-547-6227 or fax 202 -546- Ct. 1993). tody, who maliciously takes, entices away, 3. Cordie v. Cordie, 538 N.W.2d 214, 216 4272 to make sure your national keeps, withholds, or conceals any child (N.D. 1995). membership is current. with the intent to detain or conceal that 4. See, e.g., Kessenich v. Kessenich, No. FA- child from a lawful custodian shall be We thank Bladen 96053295S, 1996 LEXIS 1517 (Conn. punished by imprisonment in a countyjail Super. Ct. June 11, 1996) (The fact that Lithography in not exceeding one year, a fine not exceed- Connecticut had become the home state ing one thousand dollars ($1,000), or both Gaithersburg, MD and had most significant connection and that fine and imprisonment, or by impris- for providing most evidence were not sufficient for Con- onment in the state prison for two, three, necticut courts to modify a Michigan cus- printing services to or four years, a fine not exceeding ten tody decree, where former husband con- thousand dollars ($10,000), or both that CRC. tinued to live in Michigan. Michigan re- fine and imprisonment." Page 8 Spring 2000 Speak Out For Children .