Good to go… Family law/military

Family Law and military lifestyle: Not Perfect Together The problem: Family law and the Military lifestyle , two oncoming trains. Train 1: Operational needs and Global war on terror makes geographic change virtually certain. Guard and Reserve mobilizations at an all time high. Military members wish to actively parent their children, often in non-traditional family units.

The changing nature of Family Law Family law reflects the societal changes in the status of family: Joint custody, shared parenting, third party custodians, blended families, single parents. Federalization of Family Law: UCCJEA, UIFSA, VAWA, IPKPA, ICARA. Train 2: Family law reflects at its core the basic premise that changes in geography and career responsibilities are VOLUNTARY/ global economy

Troxel v. Granville In 2000 the United States Supreme Court rendered a rare decision addressing the Constitutional rights of a biological parent in the parent/child relationship. Troxel v. Granville, 530 US 57, 147 L.Ed 49, 120 Sup.Ct. 2054 (2000).

Airfield dawn

Don’t Ask Don’t Tell: Avoiding Conflict and Family Law Reasons family law issues become emergencies “Going home to Mother” and interstate/ international law Misunderstanding on the part of Service members, Bench and Bar of limitations on Military Legal Assistance Judicial inexperience with military and SCRA; Conflict avoidance means the issue isn’t addressed until a crisis ensues either pre or post deployment

C-17 Formation

Preventative Law: opportunities to prevent a melt down Military Family Care Plans : Best preventative tool Anticipating International issues and law in Separation and Parenting Agreements Agreements reduced to Judgments and Orders: UCCJEA Effective client counseling

Navy Family Care Plan Instructions By far the most comprehensive and preventative version of the services Requires inclusion of proof of consent, and/or ORDER conferring custody to non biological parent.

Military Custody Statutes States have begun to enact statutes consistent with their substantive and procedural law which address child custody related issues impacting on military members active duty and deployment issues. We are now beginning to see the cases developing between the interplay of SCRA and Military Custody Statutes

Components of Statutes Contains provisions to insure legitimate family care plan for minor children during deployment in some states family care plan has legal effect; Provides automatic process for resumption of custody/ appointment of GAL; Insures continued SCRA protections (few have explicit reference); Consistent with the UCCJEA, ; Delegated access during deployment;

UNIFORM CHILD CUSTODY AND JURISDICTION ACT (U.C.C.J.E.A.) Rules of Engagement for Interstate Custody Slide -2-

UCCJEA Prepared by National Conference of Commissioners on Uniform State Laws in 1997 to supersede U.C.C.J.A. (1968) Slide -4-

Rule No. 1 Subject matter jurisdiction for an initial child custody determination can NEVER be conferred by agreement where it does not exist. See Medill v. Medill 179 Ore. App. 630, 40 P.3d 1087 (Ore.App.2002)

Refuel over afghanistan

Rule No 2 Do not confuse personal jurisdiction and subject matter jurisdiction . Unlike UIFSA this is not about service of process, personal jurisdiction is conferred because of either the current or immediate past presence of the children in the jurisdiction. Notice in a method “reasonably calculated” to provide actual notice.

Changes to the UCCJA Home State is given a priority. Establishes concept of Exclusive Continuing Jurisdiction Simultaneous proceedings International Application Removes “Temporary Emergency” and “Best Interest” from consideration in Initial determination jurisdiction. Process for Registration.

Applying the Act Is this the first custody order? Step 1 How long has the child been in NJ? Step 2 6 months prior to filing Step 3 Home state A note here on “step 2” the Act requires that initial pleadings provide under oath representation of the where the child has lived for the last five years, or since birth, if younger than 5. Whether there are any other proceedings in any court related to this child. Whether there are any proceedings that could “impact” on this one, enforcement, dv, protective orders, tpr, adoptions, and provide the case numbers. Who should be involved in the proceeding . IF not voluntarily provided the court should sua sponte, stay the proceedings .

Initial Determination (1) Except in the case of a Temporary emergency , a Court has jurisdiction to make an initial child custody determition ONLY if: The date the proceeding was commenced Rhode Island was the “home state” OR Rhode Island served as the home state of the child within 6 months before the commencement of the proceeding and the child is absent from Rhode Island but a parent, or person acting like a parent continues to live here.

2A:34-65 Initial determination (2) There is no state serving as the “home state” The previous “home state” of the child has declined ( after an application has been made there ) to exercise jurisdiction because RI is the more appropriate forum : either Because one of the 8 or so enumerated statutory factors is present in RI OR,

Initial Determination Because a party has engaged in improper conduct. AND The child and at least one parent have a significant connection with RI other than simply physical presence, AND There is substantial evidence in RI concerning the child’s care, protection, training and personal relationships.

Initial determination (4) No State would have “home state” jurisdiction or have significant , evidence based connection , or otherwise have jurisdiction based upon another state’s determination of forum non conveniens . Note: Physical presence , and personal jurisdiction over a party neither necessary nor sufficient …. ( cannot voluntarily confer jurisdiction )

Applying the Act: In RI less than 6 months Is the parent a military member? Is there an existing home state? Are there other proceedings filed? If the child has been in New Jersey, on the face of the Petition less than 6 months, and this is an initial child custody determination you have to look at a number of issues simultaneously 1. Were there “temporary” absences 65: (1) 2. NJSA 9:2-12.1 Military Custody Statute 3. 2A:34-67 , Temporary Emergency Jurisdiction NJSA 2A:34-69.

Applying the Act : Is there another case going on? Is RI the home state ? Is it an international proceeding? Is the other state exercising jurisdiction in keeping with the act? Judicial communication

Simultaneous Proceedings (A) Except in the case of a Temporary Emergency, a RI may not exercise its jurisdiction if ,( at the time a proceeding is commenced in RI) , a custody proceeding has already been commenced in a court of another state ( which is exercising jurisdiction substantially in conformity with this act.) If terminated or stayed RI proceeds

Simultaneous Proceedings (B) Once a RI court determines that there is a child custody proceeding first commenced in another state proceeding in substantial conformance with the Act, the RI Court must STAY its proceeding. Then the RI Judge has the affirmative obligation to initiate communication with the Judge conducting the first filed and conforming proceeding . The Judge in the original proceeding then gets to decide whether to defer. Unless she defers to RI, RI must dismiss their proceedings.

International Application (A) A RI Court shall treat a foreign country as if it were a State of the United States for the purposes of applying the jurisdictional analysis of this Act IF, The foreign court gives notice and opportunity to be heard to all parties before making child custody determinations.

International Application (B) A child custody determination made in a foreign country under factual circumstances ( ie. Not how it should work, in theory or based upon the statute, but how did it actually work in THIS case) in substantial conformity with the jurisdictional standards of this Act, shall be recognized and enforced under the Enforcement Process of this Act.

International Application (c) Even so, a RI need not apply this act any time it finds: That the child custody law of a foreign country violates fundamental principles of human rights OR, The foreign process does not base custody decisions on an evaluation of the “best interests” of the child.

Applying the Act : Is there already a child custody determination Is this a modification application? Does anyone live in the original state? Was the order entered by an International court?

IS this an application to Modify? Absent a temporary emergency… A RI Court cannot modify another court’s order. UNLESS RI has become the “home state”, or the significant contact state…AND The ORIGINAL STATE makes the determination that it no longer exercises Exclusive continuing jurisdiction, OR That RI is the more convenient forum. BUT Has Elvis left the building?

Exclusive Continuing Jurisdiction Except in the Case of a Temporary emergency… Once RI renders a child custody determination consistent with this Act, RI continues to exercise exclusive and continuing jurisdiction UNTIL RI decides that neither the child, nor either of the parents have a significant connection with RI and the necessary evidence (For the application ) is no longer available. If both parties and the child leave the State, than either RI or another state may make a determination “Elvis has left the building” and exercise jurisdiction , provided they have become the “home” or significant connection state.

Is this an enforcement application? Has this order been registered? Has this order been modified? Was there jurisdiction when entered? Is there another proceeding commenced?

Is this an emergency? Is this child here? Has the child been abandoned ? Is the child, a sibling or parent in danger of abuse? Is there a prior order or a pending proceeding?

Temporary Emergency Jurisdiction A RI court has temporary emergency jurisdiction when: The child is present in RI AND Has been abandoned , or: The child, a sibling or parent of the child is subjected to or threatened with mistreatment or abuse .

What if there is no other proceeding or previous determination? The RI order remains in effect until a proceeding is commenced in the “ home state” jurisdiction. In the event that no such proceeding is commenced, the emergency order becomes final when: 1) It provides that it will become a final order AND 2) RI becomes the home state.

Has there been a previous determination? If so, A RI court must immediately communicate with the court of the ECL to resolve the emergency, protect the safety of parties or child and determine the duration of the RI order ( based upon when the ECL court can address the issue) Any order the court enters MUST specify in the order an expiration date adequate to allow the person who has sought the order to obtain one in the ECJ state. The RI order is only good until the new order is entered , OR the time lapses.

Inconvenient Forum (1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; (2) the length of time the child has resided outside of the state; (3) the distance between the court in this state and the court in the state that would assume jurisdiction; (4) the relevant financial circumstances of the parties; (5) any agreement of the parties as to which state should assume jurisdiction; (6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child; (7) ability of each state to decide case expeditiously and evidence procedures (8) familiarity of court of each state with facts and issues of pending litigation Slide -26-

UCCJEA Jurisdiction Declined By Reason of Conduct If this state has UCCJEA jurisdiction because a person invoking the jurisdiction has engaged in unjustifiable conduct, this court shall decline to exercise jurisdiction unless: (1) the parents and all persons acting as parents have acquiesced in the exercise of jurisdiction; (2) a court of the state otherwise having UCCJEA jurisdiction determines that this state is a more appropriate forum under the Act; or (3) no other state would have UCCJEA jurisdiction Slide -28-

UCCJEA Jurisdiction Declined By Reason of Conduct (cont’d) b. If this court declines jurisdiction, it may fashion an appropriate remedy to ensure safety of child and prevent repetition of the wrongful conduct, including staying the proceeding until an action is initiated in the UCCJEA state. c. If this court dismisses a petition or stays a proceeding because it declines to exercise jurisdiction, court may assess fees and costs against petitioner. (No fees assessed against a party who is fleeing as a result of an incident of domestic violence). Slide -29-

Hague Convention on the Civil Aspects of International Child Abduction 42 USC 11601 et seq. International Child Abduction Remedies Act. Concurrent Federal and State Court Jurisdiction Limited remedy: return Court answers only one question: Has the child been wrongfully removed or retained from their habitual residence.

The Powerful Power of Attorney A power of attorney is NEVER effective for the transfer of rights of custody of a minor child. NEVER EVER

A word about the Service Members Civil Relief Act and Child Custody 50 USC App. Sec 501 et. seq. Family Law vs. Pre-emptive Federal Law Prior version 1940 SSCRA updated in 2003 to reflect the post-September 11th world. Applies to all civil cases including custody Mandatory means Mandatory. Section 591.

New Cases : 31 Nebraska Court of Appeals Collins v Collins : application of military custody statute Court of Appeals Indiana : Guardianship termination / military service In re Puckett, Court of Appeal Louisiana decided Thursday Issues: SCRA, Military Custody statute

SCRA Case law Bradley v. Bradley 137 P.3d 1030; 282 Kan. ; (Kansas Supreme Court, 2006) (issue: child custody/deployment SCRA not applied because servicemember failed to furnish supporting documentation required.)

Every Attorney should read In re Grantham (SCRA gone bad) Friedrich v.Friedrich ( Understanding International Child Abduction ) Diffin v. Towne (Family Care plan/ Temporary custody) Both CASES. UCCJEA, UIFSA and state interference with custody statutes.

The Mission