Applying Jurisdictional and Other Laws in Interstate Custody Cases to Protect Survivors and Their Children

1. Applying Jurisdictional and Other Laws in Interstate Custody Cases to Protect Survivors and Their Children

2. Why do survivors flee with their children? Refuge from abuser’s actions and threats Autonomy and safety for survivor and children Greater opportunity for support from family/friends Increased economic opportunities Improved social or legal services needed to escape/heal from abuse (adapted from Rob Valente, Elizabeth Srinivasan, and Andrea Farney)

3. Interstate Scenario Maria Ford lived in Alaska with her husband, James for nine years. James abused Maria for years, but she was afraid to seek help because of his threats to kill her if she called the police. In 1999, Maria filed for an ex parte protection order but never returned to court for the protection order hearing. James has not physically abused their daughter, Theresa, age 6, but Theresa has seen and heard the violence. Maria, who is from Bolivia originally, is not yet a legal permanent resident because James, who is a U.S. citizen, never has filed the paperwork he promised to file when they got married. Maria relies on James for financial support.

4. Interstate Scenario At the beginning of April, James strangled Maria in front of Theresa. Maria fled to her neighbor’s house with Theresa, and her neighbor suggested that she go to see a lawyer about getting a divorce. Maria hesitated to do so because James has told her that if she leaves him, she never will see Theresa again. Maria’s sister lives in Burlington, Vermont, so she has thought about going to stay with her sister. Yesterday, James held a gun to Maria’s head at night after Theresa went to sleep. When he left for work in the morning, Maria took Theresa to school, and then took two buses in order to get to the Legal Aid office.

5. Legal Issues in Relocation Has a custody order been entered? Can she leave without violating the order? Parental kidnapping or custodial interference law? Domestic violence exemption? Domestic violence defense? Child protection defense? Relocation law? Protection order law? UCCJA/UCCJEA? Custody law? Confidentiality laws – including identity change – can she do it without publication and can the file be sealed? Technology issues with court system records? Likelihood that she’d be brought back into litigation here?

6. Non-Legal Issues in Relocation Is the refuge state safer? Economic opportunities? Shelter? Police response? Childcare? Family support? Legal assistance? Would a protection order be effective? How do the two states handle interstate custody cases? How do the two states enforce protection order laws?

8. Federal Laws VAWA FFC: the Full Faith and Credit provisions of the Violence Against Women Act (18 U.S.C. §§ 2265, 2266) VAWA 2005: the Violence Against Women Act of 2005 (P.L. 109-169, amended the original VAWA) PKPA: the federal Parental Kidnapping Prevention Act (including important amendments made by VAWA 2000) (28 U.S.C. § 1738A) ICWA: the Indian Child Welfare Act

9. State laws UCCJA: the Uniform Child Custody Jurisdiction Act UCCJEA: the Uniform Child Custody Jurisdiction and Enforcement Act State full faith and credit statutes State protection order statutes [State parental kidnapping statutes and relocation statutes are not jurisdictional laws, but also may be relevant in interstate cases]

10. Federal versus state authority

11. State laws: Determine when a state has jurisdiction to make a custody determination Determine when a state should give full faith and credit to another state’s custody decree May or may not have provisions that are protective of battered women Generally familiar to state court judges

12. Federal laws: Preempt state law to the contrary Determine when a state should give full faith and credit to another state’s custody decree (standards sometimes differ from state law standards) Generally include some provisions that protect battered women Generally unfamiliar to state court judges; some believe family law is exclusively a state matter

13. UCCJA: Drafted in 1968; enacted by all 50 states over next decade and a half Designed to eliminate multiple inconsistent custody orders and to deter parental abduction No account taken of domestic violence (though a few states made changes to protect survivors) Failed to reduce parental abduction and forum-shopping

14. UCCJEA: Developed in 1997 Designed to replace the UCCJA Intended to reconcile differences between the UCCJA and PKPA So far 43 states and D.C. have enacted it; currently being considered by others Significant improvement for battered women

15. UCCJEA Adoption Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Iowa North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Dakota Tennessee Texas Utah Virginia Washington West Virginia Wisconsin Wyoming

16. When may a court hear a custody case? UCCJA: Does not prioritize among 4 jurisdictional bases: Home state (“six-month rule”) Significant connection (significant connection plus substantial evidence re: care/protection) Emergency (child present in the state and was subjected to or threatened with mistreatment, abuse, or neglect) Last resort (no other state has home state, significant connection, or emergency jurisdiction)

17. UCCJEA: Jurisdictional bases: Home state trumps other bases (except emergency) Significant connection “More appropriate forum” jurisdiction “No other state” jurisdiction

18. UCCJA/UCCJEA: Crucial provisions when domestic violence is involved: Emergency jurisdiction Inconvenient forum “Unclean hands” Judicial communication

19. UCCJA: Emergency jurisdiction A court may exercise jurisdiction if: (1) the child is physically present in the state; and (2) the child has been abandoned or it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.

20. Does emergency jurisdiction apply if the mother was abused, but not the child? UCCJA: Emergency jurisdiction Not explicitly -- need strong advocacy Case law in some states extends emergency jurisdiction under the UCCJA to domestic violence cases

21. UCCJA: Emergency jurisdiction At best, an interim measure Need to press for judicial communication Try to convince the other court -- often the home state -- to decline jurisdiction over the long-term case (under inconvenient forum, unclean hands, etc.)

22. UCCJEA: Temporary emergency jurisdiction: Where “necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” Child must be present in the state This means that a court can exercise emergency jurisdiction in domestic violence cases where the mother (but not the child) has been abused

23. UCCJEA: Temporary emergency jurisdiction (cont’d): Temporary emergency order can become a permanent order if (1) the order so indicates; (2) no other order has been entered or proceeding commenced in another court; and (3) the issuing state becomes the home state ==> Always ensure order states that it will become final if (2) and (3) occur.

24. UCCJA: Inconvenient forum A court that has jurisdiction under one or more of the jurisdictional bases may decline to exercise it if: (1) it is an “inconvenient forum” and (2) a court in another state is a more appropriate forum (e.g., refuge state) Useful in initial custody determinations and for modifications of existing orders

25. Is domestic violence a factor in determining whether a forum is inconvenient? UCCJA: Inconvenient forum Not explicitly under the UCCJA (unlike UCCJEA) Case law in some UCCJA states applies the inconvenient forum principle to domestic violence cases It is an advocacy issue

26. UCCJEA: Inconvenient Forum: Like UCCJA, but factors explicitly include: Whether domestic violence has occurred and is likely to continue and which state could best protect the parties and the child The relative finances of the parties In re Stoneman v. Drollinger (MT)

27. UCCJA: “Unclean hands” (“jurisdiction declined by reason of conduct”) A court that has jurisdiction under one or more of the jurisdictional bases may decline to exercise it if the party seeking custody has “wrongfully taken the child from another state or has engaged in similarly reprehensible conduct”

28. UCCJA: “Unclean hands” (“jurisdiction declined by reason of conduct”) Useful when batterer has abducted the children What if survivor has fled to a refuge state (e.g., in violation of a court order)”? UCCJA provides no explicit help (unlike UCCJEA) Declining jurisdiction based on unclean hands must be “just and proper” under the circumstances: need for strong advocacy. Case law in some states has found that a survivor’s flight is not misconduct

29. UCCJEA: Jurisdiction declined by reason of conduct (“unclean hands” doctrine): Similar to UCCJA, but commentary specifies: “Domestic violence victims should not be charged with unjustifiable conduct for conduct that occurred in the process of fleeing domestic violence, even if their conduct is technically illegal.”

30. UCCJEA: “Unclean hands” (cont’d): Does not apply to cases brought under temporary emergency jurisdiction If court declines jurisdiction under unclean hands court shall assess expenses against party that sought jurisdiction (discretionary in some states)

31. UCCJA: Judicial Communication Required when a court is informed of a proceeding in another jurisdiction Useful in domestic violence cases: ensures that a court is not receiving information only from the abuser Courts can request transcripts, hearings, home studies, etc., from courts in other states or tribes: this means a survivor can remain in a safe location

32. UCCJEA: Judicial Communication: Required between courts when one court exercises emergency jurisdiction to: (1) Resolve the emergency (2) Protect the safety of the child and parties (3) Determine the duration of the temporary order

33. UCCJEA: Ensuring proper judicial communication is always crucial: - provides judges with the evidence necessary to make the right decision - uses mechanisms to transmit evidence, etc. without survivor having to travel

34. UCCJA/UCCJEA: Full faith and credit issues: The UCCJA and UCCJEA do NOT give full faith and credit to orders unless there has been notice and a hearing. ==> Excludes ex parte orders!

35. UCCJA Confidentiality: By statute, pleadings must identify where party and children have lived for the past five years In some states, attorneys may file a motion requesting that the court protect identifying information about domestic violence survivors and children

36. UCCJEA Confidentiality: Identifying information about domestic violence survivors and children should be kept confidential by courts

37. Federal Jurisdictional Statutes Parental Kidnapping Prevention Act Indian Child Welfare Act Violence Against Women Act (and Violence Against Women Act of 2000)

38. Parental Kidnapping Prevention Act (PKPA) 28 U.S.C. § 1738A Enacted by Congress in 1980 to fix problems with UCCJA PKPA is a full faith and credit law: it tells courts when to honor custody determinations issued by courts in other states or tribes As federal law, trumps contrary provisions of UCCJA and other state laws Same jurisdictional bases as UCCJA but prioritizes home state jurisdiction

39. PKPA VAWA 2000 expanded emergency jurisdiction under the PKPA: Similar to UCCJEA: if the child is physically present in the state and “it is necessary in an emergency to protect the child because the child, a sibling, or parent of the child has been subjected to or threatened with mistreatment or abuse.” This provision preempts the narrower UCCJA provision regarding emergency jurisdiction Note that PKPA references state jurisdictional laws, however (28 U.S.C. § 1738A(c)(1))

40. PKPA Continuing jurisdiction and modification of orders: PKPA strongly favors initial issuing state: That state retains jurisdiction if child or any contestant remains a resident Court of another state may modify order only if: it has jurisdiction to do so and the court of the initial state no longer has jurisdiction or has declined to exercise it

41. PKPA Full faith and credit is afforded only if there has been notice and an opportunity to be heard (excludes ex parte orders)

42. Indian Child Welfare Act (1978) Intent: To protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum Federal standards for the removal of Indian children from their families and their placement in foster or adoptive homes.

43. ICWA (cont’d) Applies only to “child custody proceedings” Definition does not include domestic violence orders of protection or dissolution proceedings Does not apply in cases between biological parents May apply if a protection order is issued in a state intervention case

44. Custody Provisions within Protection Orders Why VAWA Matters in Custody Cases Other jurisdictional statutes (UCCJA, UCCJEA, PKPA) govern protection order custody provisions Recent case law supports this BUT: They exclude ex parte orders. VAWA includes ex parte orders. If the custody provision doesn’t comply with the issuing state’s UCCJA (e.g., abuse against mother, but not the child), it may not be entitled to interstate enforcement under the PKPA. VAWA may help.

45. Violence Against Women Act of 2005 Signed into law on January 5, 2006 Amended definition of “protection order” in 18 U.S.C. 2266 Designed to improve the enforcement of child custody provisions within protection orders across state and tribal lines

46. Violence Against Women Act of 2005 Definition of “protection order”: (A) Any injunction, restraining order, or any other order issued by a civil or criminal court for the purpose of preventing violent or threatening acts or harassment against, sexual violence, or contact or communication with or physical proximity to, another person, including any temporary or final order issued by a civil or criminal court . . . ; and (B) any support, child custody or visitation provisions, orders, remedies or relief issued as part of a protection order, restraining order, or injunction pursuant to State, tribal, territorial, or local law authorizing the issuance of protection orders . . .

47. Violence Against Women Act of 2005 According to legislative history of provision: “Technical amendments are made to the criminal code to clarify that courts should enforce the protection orders issued by civil and criminal courts in other jurisdictions. Orders to be enforced include . . . the custody and child support provisions of protection orders.” Section-by-Section Summary of H.R. 3402, the Violence Against Women and Department of Justice Appropriations Reauthorization Act of 2005, Section 106

48. Parental Kidnapping Laws

49. Parental kidnapping Overview: Federal and State Parental Kidnapping Laws Federal There is no federal parental kidnapping crime when a parent takes a child from one state to another, but there are other related federal crimes: International parental kidnapping offense Unlawful Flight to Avoid Prosecution (UFAP) offense State Parental kidnapping Custodial interference Child abduction Child concealment

50. State parental kidnapping laws Must there be a court order for kidnapping to occur? Some states require flight with children in violation of a court order Some criminalize flight even in the absence of a court order Some state laws are unclear Some expressly criminalize fleeing in both contexts, but create more serious penalties for violating a court order

51. State parental kidnapping laws Do the laws require intent to keep the child from the other parent? In most states: Yes The parent must intend to do something more than just leave the state with child Often require things such as “intent to conceal the child from the other parent” or “intent to deprive” the other parent of visitation

52. State parental kidnapping laws Are there any protections for domestic violence survivors? In many states: Yes But the exact nature varies: Exemptions or defenses By statute or by case law

53. State parental kidnapping laws Exemptions: Language in the parental kidnapping statute may exempt a person from prosecution Usually must satisfy a condition for it to apply: e.g., the person must report to law enforcement or to a prosecutor that she has left the state with the children, and she must file for custody within a specified amount of time These types of conditions pose problems for many survivors

54. Defenses: Definition of “affirmative defense” varies depending on state law Unlike exemptions, however, defenses generally require at least the initial involvement of the criminal justice system Victims may be arrested and jailed initially and permitted to raise a defense later State parental kidnapping laws

55. State parental kidnapping laws Types of Defenses: Within kidnapping statute: Fleeing domestic violence Fleeing harm to self Fleeing harm to child General criminal law defense: Necessity

56. Parental kidnapping Know your state’s criminal law(s) Provide basic information regarding the criminal laws that apply as well as the legal protections available in civil laws (e.g., emergency jurisdiction, etc.) Assist survivors in finding defense attorneys Develop relationships, in advance, with public defenders/defense bar and prosecutors Provide advocacy and support throughout the criminal process

57. Other relocation issues Change of name vs. social security number change Change of name should be done first Client may have to abandon prior professional/social history Change of identity is difficult – not a decision to be made lightly Change of identity should be done only with attorney assistance Client should not have outstanding legal issues Can new information be protected

58. Change of name Every state should have some procedure Publication is generally required – some states allow for waiver either in court rule, by statute, or through court precedent Change of name for a minor – notice to parents generally required – may be able to waive this also

59. Social security number change Victims of domestic violence can request a social security number change – SSA Policy RM 00205.058 Documentation required In person meeting with Social Security Administration worker mandatory Process takes 1-3 months Caution! Old number is cross-referenced with new number in Social Security database

60. National Resources Legal Resource Center on Violence Against Women (301) 270-1550, lrcvaw@lrcvaw.org website: www.lrcvaw.org National Clearinghouse for the Defense of Battered Women (800) 903-0111, ext. 3 Battered Women’s Justice Project, Civil (800) 256-5883 National Center on Full Faith and Credit (800) 256-5883 National Council of Juvenile and Family Court Judges, Child Protection and Custody (800) 527-3223