U.S. District Court for the Eastern District of Kentucky

Appeal filed on February 23, 2023

Family Court issued a Domestic Violence Order (“DVO”) against Combs after “a hearing of which he received actual notice” and “an opportunity to participate.” The DVO prohibited Combs from “harassing, stalking, or threatening an intimate partner,” and explicitly prohibited “the use, attempted use, or threatened use of physical force against such intimate partner that would reasonably be expected to cause bodily injury.” A few days after issuance of the DVO, Combs purchased a firearm, indicating on the purchase application he was not subjected to a DVO.

A federal grand jury charged Combs with being a prohibited person in possession of a firearm in violation of 18 U.S.C. § 922(g)(8), which prohibits a person who is subject to a domestic violence order from receiving or possessing a firearm. Combs filed a motion to dismiss the indictment arguing that 18 U.S.C. § 922(g)(8) was unconstitutional as it failed to meet the Second Amendment test set forth by the United States Supreme Court in New York State Rifle & Pistol Ass’n v. Bruen, 142 S.Ct. 2111 (2022).

The Bruen opinion reinforced a “text and history” approach to the Second Amendment, holding that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” and “to justify [the second amendment’s] regulation, the government…must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”

First, the United States argued that the Supreme Court has limited the Second Amendment to law-abiding, responsible citizens. The District Court noted, however, that other courts have declined to read into the amendment a qualification that its rights only belong to law-aiding citizens, finding that a plain reading of the amendment covers all persons under the constitution. Thus, the District Court held that a plain reading of the Constitution protected Combs’ right to possess a firearm, even assuming that he was not a law-abiding, responsible citizen.

Second, the United States argued that surety statutes, which required certain individuals to post bond before carrying weapons in public, and historical laws disarming “dangerous people” provide a sufficient historical analogue to satisfy Bruen’s second amendment test. The United States argued that both surety laws and U.S.C. § 922(g)(8) attempt to prevent known allegedly reckless individuals from using a firearm in furtherance of a crime, and, therefore, have a similar social purpose. Combs argued that surety laws were insufficiently analogous the federal law, and the District Court agreed. The District Court held that U.S.C. § 922(g)(8)’s complete deprivation of an individual’s ability to possess a firearm was materially different than a sureties’ possible disarmament, if violated, and was therefore unconstitutional.

Digested by: Emily T. Cecconi

The post Federal Law Prohibiting Individuals Subject to Domestic Violence Order from Receiving or Possessing Firearms Held Unconstitutional by U.S. District Court appeared first on Goldberg Simpson - Family Law Group.

After a child abuse investigation and a no-discipline order was entered by a juvenile court, Parents brought official capacity claims against several Cabinet for Health and Family Services (“Cabinet”) employees, seeking declaratory and injunctive relief from 922 KAR 1:330 § 2(5)(f), which provides guidance to Cabinet social workers such that reports of abuse, neglect, or dependency that are without an injury, mark, bruise, or substantial risk of harm do not require investigation or assessment, asserting that the regulation chilled the exercise of their constitutional right to dictate how to raise their children, and they fear future false prosecution for child abuse if they use corporal punishment. The district court dismissed the claims for lack of Article III standing. The Sixth Circuit affirmed, holding that the claims were too speculative to satisfy Article III standing requirements. To have Article III standing, the plaintiff must satisfy three elements: (1) the plaintiff must have suffered an “injury in fact”; (2) that injury must have been “caused” by the defendant’s conduct; and (3) the injury must be “redressable” by a favorable decision. The issue in this case was the “injury in fact” element, which in cases dealing with declaratory and injunctive relief, must show actual present harm or a significant possibility of future harm in order to demonstrate the need for pre-enforcement review—it must be certain impending and not speculative future injury. Parents failed to demonstrate that their rights will be violated in the future as a result of the regulation, and the mere subjective fear that they will be subjected against to an allegedly illegal action is not sufficient to confer standing.

Parents argued that the Cabinet employees violated their due process rights under the Fourteenth Amendment by depriving them of their parental liberty interest in disciplining their children, asserting that the no-discipline order interfered with their right to use reasonable corporal punishment. The Cabinet employees argued they are entitled to absolute immunity because the juvenile court entered the order, and qualified immunity because there is no clearly established right to use corporal punishment. The district court found the Cabinet employees were entitled to absolute and qualified immunity and dismissed the claim. The Sixth Circuit held that the district court did not err in dismissing the claim. When examining a substantive due process claim the Court applies a two-part test: (1) whether the plaintiff has shown a deprivation of a constitutionally protected liberty interest, then (2) whether the government’s discretionary conduct that deprived that interest was constitutionally repugnant. At issue here is the first prong. Parents pointed to no case law from either the Supreme Court or the Sixth Circuit that indicates there is a clearly established right to use corporal punishment that leaves marks. Case law allows the use of reasonable corporal punishment, and nothing in Kentucky law conflicts with that premise. KRS 503.110 specifically allows parents to use physical force for discipline. But this is not an unlimited right. Parents offered no authority that corporal punishment leaving marks is reasonable and thus a protected right.

Parents argued that the Cabinet employees violated their Fourth Amendment rights by entering their home without a warrant and without an applicable exception to the warrant requirement. The Cabinet employees argued that they did not violate the Fourth Amendment because they entered the home pursuant to orders from the juvenile court, and even if they did violate the Fourth Amendment, they are entitled to qualified immunity. The district court dismissed the claim. The Sixth Circuit held that the district court did not err in dismissing the claim. The entry into the home did violate the Fourth Amendment because the order of the juvenile court fell below the requirements of a valid warrant. Thus, the question is whether a reasonable social worker would have known based on the particular circumstances that their actions were violating the Clark’s constitutional rights. While it is established that a social worker needs a warrant to search a home, the boundaries of that requirement are not clearly established. Social workers may rely upon the good faith instruction of police officers about the legality of their entry. The juvenile court stated in open court, maybe in error, that the Fourth Amendment did not apply, and it was not unreasonable for the Cabinet employees to reply upon instruction from a judge.

Parents argued that the Cabinet employees violated their First Amendment right to film the home visits and that they were retaliated against for exercising this right. The Cabinet employees argued the right does not exist or is not clearly established and that Parents were unable to demonstrate a causal connection between their request not to be recorded and the alleged retaliatory actions. Parents were able to record the home visit and did not allege a retaliatory action for doing so other than the continuation of the investigation beyond the first visit. The Sixth Circuit held the district court did not err in dismissing this claim. To assert a First Amendment retaliation claim, plaintiffs must establish that: (1) they engaged in constitutionally protected speech, (2) an adverse action taken against them caused an injury that would chill a person of ordinary firmness from continuing the speech, and (3) that action was motivated at least in part by the protected speech. Plaintiffs must “be able to prove that the exercise of the protected right was a substantial or motivating factor in the defendant’s alleged retaliatory conduct. Parents did not cite any cases showing the right to film social workers nor that such right is clearly established. Thus, the Cabinet employees were entitled to qualified immunity. However, even if they were not, Parents’ arguments failed because Parents did not allege facts that would demonstrate that a retaliatory action was taken against them motivated by their demand to record the home visits.

Parents argued that the institution and continuation of the investigation were acts of religious hostility that violated that First Amendment. The Cabinet employees argued that they were not aware of the Parents’ religious beliefs prior to the beginning of the investigation, and that the Free Exercise Clause does not excuse Parents from adhering to otherwise valid child-safety laws. The Sixth Circuit held that the district court did not err in dismissing this claim. The Supreme Court has repeatedly found that although targeting religious beliefs is never acceptable, a generally applicable law that incidentally burdens one’s free exercise rights will typically be upheld. The challenged regulation would overcome strict scrutiny. The state certainly has a compelling interest in protecting children from physical abuse, and the regulation is written such that it explicitly does not prohibit corporal punishment that does not leave marks, bruises, etc. Thus, the regulation is narrowly tailored and serves a compelling government interest. Furthermore, Parents did not plausibly allege that the regulation was discriminatorily applied against them because of their religious beliefs.

Digested by Nathan R. Hardymon

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Husband, an attorney, and Wife, who managed his law firm, divorced after a thirty year marriage. After four years of litigation, the parties appealed and cross appealed numerous issues for the Appellate Court to review.

Contingency Fees

The first issue the Appellate Court addresses is whether contingency fee cases are marital property subject to division.  On appeal, Wife argues that the Trial Court erred by finding contingency contracts were not property and granting summary judgment prematurely. The Court of Appeals holds that contingency fee cases are income-generation devices and do not give an attorney any ownership interest, therefore they are not determinate things. As contingency fee contracts are not determinate things, they are not property subject to division by the terms of KRS 403.190. The Court of Appeals holds the Trial Court did not err in finding the contingency contracts were not divisible property, and did not err in granting summary judgment without a valuation of the contracts, as no material issue of fact existed given the contracts were not property.

Dissipation

Next, Wife argues the Trial Court erred by finding Husband did not dissipate marital property. The Court of Appeals holds the Trial Court did not err as Wife did not show dissipation by preponderance of the evidence. The record clearly showed both parties traveled, spent extravagantly, and spent marital funds as they had during the marriage. Neither party showed a clear intent to deprive the other of marital funds.

Maintenance

Wife appealed the Trial Court’s maintenance award arguing the amount was too small and the duration was too short. The Court of Appeals holds the Trial Court did not abuse its discretion and properly analyzed Wife’s monthly expenses and modified certain expenses based on testimony granting reasonable maintenance in consideration of the parties’ lifestyle and the property division.

Husband appealed the Trial Court’s maintenance award arguing Wife should not have been granted maintenance as her property generated enough income to meet her reasonable needs. The Court of Appeals again held there was no abuse of discretion as the Trial Court properly considered reasonable needs in light of the parties situation stating, “what constitutes ‘reasonable needs’ varies based on the marital situation” and cannot be determined in a “vacuum.”

Husband also argued it was an error for the Trial Court to award Wife maintenance beyond her retirement age citing the Weldon case. Weldon v. Weldon, 957 S.W.2d 2283 (Ky. App. 1997). The Court of Appeals disagrees holding Weldon supports the Trial Court’s decision as here the Trial Court awarded a modest amount of maintenance for a definite number of years.

Attorney Fees

Wife appealed the Trial Court’s decision not to award her additional attorney fees. The Trial Court had considered the financial resources of both parties, noted the marital estate had paid for $14,000 of Wife’s fees and Husband had paid $10,000, and found Wife received significant assets before denying Wife’s request for fees. The Court of Appeals affirms the Trial Court’s order as the Trial Court did not abuse its discretion.

Non-marital Interest in Marital Residence

Husband appealed the Trial Court’s calculation of Wife’s non-marital interest in the marital residence. There is no question that Wife invested $125,000 of her nonmarital funds in the parties’ first home. Upon the sale of that home, which increased in value, Wife’s full non-marital share remained. The Court of Appeals did not assign any increase in value to Wife’s nonmarital share, holding that the presumption is that an increase in value is due to marital contributions unless proven otherwise. Wife did not meet her burden of proving the increase in value was due to “general economic conditions rather than marital contributions.”

The parties then purchased land and constructed their second home with $125,000 of Wife’s non-marital funds and the $85,000 of marital funds from the sale of their first home, as well as loans totaling $825,000. The non-marital and marital funds were co-mingled in the construction of the house and the parties ultimately lost money on the home selling it for $878,000, a loss of $157,000. Due to the reduction in the mortgage, the parties received $137,717.02 in proceeds from the sale of the home. The Trial Court award wife her $125,00 non-marital share and order the parties to equally divide the remaining $12,717.02.

Upon review, the Court of Appeals holds that loss due to general economic circumstances should be shared equally between a marital and nonmarital interest. The court applies the Brandenburg formula to reduce the marital and non-marital shares accordingly. As some factual findings regarding a $50,000 marital contribution were unclear, the Court of Appeals remands the issue to the Trial Court to make the relevant finding and use the Brandenburg formula to reduce the Wife’s non-marital share from $125,000 to $51,386.95 or $44,713.32.

Post-nuptial Agreement

Husband and Wife entered into an agreement during the marriage that Wife intended to use $35,000 of her non-marital funds to pay off marital debts. The agreement stated that if the funds could not be clearly traced to a marital asset upon dissolution, Wife would receive the funds from the marital property. Husband, without citing any law, argues on Appeal that the Trial Court erred in awarding Wife the $35,000 because the funds could not be traced. The Court of Appeals holds the Trial Court did not abuse its discretion noting no evidence was offered at trial in support of Husband’s claim other than an expressly refuted assertion by Husband.

Amendment of Findings of Fact and Conclusions of Law

Husband argues the Trial Court erred in amending the findings of fact and conclusions of law pursuant to CR 59.05 citing Gullion v. Gullion  which favorably cited the standards set forth for reconsideration of judgment under the Federal Civil Rules. Gullion v. Gullion, 163 S.W.3d 888 (Ky. 2005). The Court of Appeals find no Gullion error holding the Trial Court did not err by granting the CR 59.05 motion.

Mortgage and Property Taxes

Husband’s last argument is that the Trial Court erred in ordering him to pay the mortgage and taxes on the marital home while Wife resided in the home post-trial. The Court of Appeals reviews only for manifest injustice as Husband’s brief did not conform with the Civil Rules for Appellate Briefs. The Court of Appeals affirms the Trial Court noting its “yeoman’s effort” to divide the marital property pursuant to KRS 403.190(1).

Digested by Elizabeth M. Howell

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Grandparents assumed care of children, with the exception of a special needs child, after biological mother and biological father were both incarcerated. The special needs child was placed with friend of grandparents equipped to deal with his special medical needs. Grandparents filed motion to be designated as de facto custodians and for permanent custody of all three children. Biological father consented to grandparent’s motion for permanent custody and waived his right to appear at the hearing. After a hearing on the matter, the family court awarded grandparents permanent custody, finding biological father had waived his rights, biological mother was unfit to have custody, and it was in the best interest of the children for grandparents to have custody, although the grandparents were not de facto custodians.

Biological mother argues that the family court failed to prove she was an unfit parent, and therefore there are no grounds to award permanent custody to a non-parent. The court merely stated “The mother has a serious substance abuse problem,” while the mother provided testimony she as attended AA meetings, was sober, had passed all drug tests, maintained full-time employment, and cared for the children for almost the entire month of June after being released from prison. As the family court provided a conclusory statement regarding mother’s unfitness, and made no other findings of fact, the Court of Appeals vacated and remanded the order granting grandparents custody. Although not necessary, the Court of Appeals also notes the family court did not conduct a proper best interest analysis, as the court failed to address the factors set forth in KRS 403.270.

Digested by Elizabeth M. Howell

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No.
2012-CA-000224-ME

Published:  Opinion Reversing and Remanding

County:     Hardin

Angela Maxwell appeals the decision of
the Hardin Family Court to award sole custody of her three children to their
father, Robert Maxwell.

Maxwell v. Maxwell

No.
2012-CA-000224-ME

Published:  Opinion Reversing and Remanding

County:     Hardin

Angela Maxwell appeals the decision of
the Hardin Family Court to award sole custody of her three children to their
father, Robert Maxwell.

The parties were married in October,
1994 and three children were born to the marriage.  The parties separated in September, 2010 and
Robert filed the petition for dissolution and moved for sole custody of the
children.  Angela responded to the
petition and asked for joint and shared custody.

In October, 2010, the parties entered
into a “pre-temporary” agreed order providing for joint custody and alternating
physical custody on a week-to-week basis. 
The order also prohibited a non-family guest to stay overnight when the
parent had physical custody of the children.

In March, 2011, a mutual restraining
order was issued after motions were filed by both parties.  A settlement agreement was entered in
January, 2011, reserving child-related issues. 
A hearing on those matters was held in September, 2011. Robert requested
joint custody and designation as primary residential custodian.  Angela requested joint custody pursuant to
the current arrangement and that the prohibition on non-family guests spending
the night during parenting time be lifted.

Witnesses included relatives, a teacher,
a soccer coach, and the two older children. 
The children were happy with the parenting time arrangement and both
said they liked Angela’s friend, Angel.

The trial court’s order was entered
January 5, 2012 awarding Robert sole custody with Angela’s visitation schedule
set by the court.    The allotted
parenting time was less than the minimum guidelines in the local rules.  Both parties were prohibited from
cohabitating with another adult during the time they had physical possession of
the children, unless they were married to that person.

The standard of review is whether the
trial court’s factual findings are clearly erroneous.  The reviewing court determines whether the trial
court applied the current law and whether the trial court abused its
discretion.

Angela argued the family court erred by
1) considering factors unrelated to the best interests of the children, 2) the
award of sole custody to Robert was erroneous and an abuse of discretion, 3)
the court based its decision on inadmissible evidence, and 4) it was error to
restrict the parties from cohabitating during parenting time. Robert countered
that the court’s ruling was not made on Angela’s sexual orientation, was not an
abuse of discretion, and was based on the best interests of the children in
accordance with statutory factors.

The Court of Appeals applied the facts
of the case to the statutory factors listed in KRS 403.270(2).  The focus of the family court’s decision was
that Angela’s same-sex relationship was harmful to the children.  The Court of Appeals held that being a member
of a same-sex partnership alone does not meet the criterion of sexual
misconduct and to use her sexual orientation as a determinative factor violates
Angela’s right to due process, equal protection and fundamental right to parent
her children.  The trial court found that
Angela’s relationship was not in the best interests of the children, but provided
no factual findings in support.  Harm
must have an evidentiary basis and cannot be assumed.

The issue of restricting the parties
from cohabitating with a person to whom they are not married was to be retried
on remand with the understanding that cohabitation of any party is a factor, but
not dispositive on its own.  The family
court’s decision should be based on the best interests of the children.

The order of the Hardin Circuit Court is
reversed and remanded for proceedings consistent with the opinion.

Digested by
Sandra G. Ragland, Diana L. Skaggs + Associates.

The post Maxwell v. Maxwell, Ky Court of Appeals, Child Custody, Lesbian Mother appeared first on Goldberg Simpson - Family Law Group.

Published:   Affirming  

County:  Jefferson

Child, through GAL, appealed FC ruling
that her Great-Grandmother had standing to intervene in suit as de facto
custodian, arguing that she did not meet the requirements for de facto custodian
status under KRS 403.270.

FACTS:

S.S. v. Commonwealth, 2011-CA-001790-ME

Published:   Affirming  

County:  Jefferson

Child, through GAL, appealed FC ruling
that her Great-Grandmother had standing to intervene in suit as de facto
custodian, arguing that she did not meet the requirements for de facto custodian
status under KRS 403.270.

FACTS:

At age 2, Child was removed from
Mother and placed in temporary custody of Great-Grandmother pursuant to
dependency petition.  Two years and five
months later, Child was returned to Mother’s care; but eight months after that,
Child was removed from Mother’s care again and placed in concurrent planning
foster home.  Great-Grandmother filed
motion to intervene in order to be considered for Child’s placement or to have
visitation with Child.  After hearing, FC
granted Great-Grandmother de facto custodian status and granted her
visitation.  GAL filed motion to
reconsider, arguing that Great-Grandmother had relied upon an unpublished case
to establish that the lapse in time of her care of Child did not disqualify her
as de facto custodian and further arguing that Great-Grandmother could not rely
on her husband’s salary as her own income for purposes of meeting the
statute.  FC disagreed on both fronts and
denied the motion to reconsider.  On
appeal, Child through GAL argues that Great-Grandmother cannot qualify as de
facto custodian because she is not Child’s primary financial supporter; Child
also argues that termination proceedings are scheduled and the standing order
of visitation will inhibit Child’s potential for adoption.

ANALYSIS:

There is no authority holding that a
de facto custodian cannot be credited with financial support which is provided
by the government through government benefits, such as Great-Grandmother’s
receipt of social security and social security insurance, or from their
spouse’s income, merely because such monies were not earned directly through
employment.  Such a result would
disqualify stay-at-home spouses, retirees, elderly social security recipients,
and poor and disabled recipients of government benefits.  CA held this was not the intent of the
legislature.  CA acknowledged and
sympathized with the fact that Great-Grandmother’s visitation order, which
would continue on past an adoption, might inhibit Child’s prospects for
adoption; but without a legal precedent warranting reversal, it has no bearing
on Great-Grandmother’s status as de facto custodian. 

Digested by Michelle Eisenmenger
Mapes, Diana L. Skaggs + Associates  

The post S.S. v. Commonwealth, Ky COA, Standing as De Facto Custodian appeared first on Goldberg Simpson - Family Law Group.

NO.
2012-CA-000161-ME

Published:  Opinion Affirming

County:     Kenton

Father appeals order of Kenton Circuit
Court requiring him to pay, as part of his child support, amounts for respite
care and work-related childcare, as well as part of Mother’s attorney fees and
court costs.

McIntosh v.
Landrum

NO.
2012-CA-000161-ME

Published:  Opinion Affirming

County:     Kenton

Father appeals order of Kenton Circuit
Court requiring him to pay, as part of his child support, amounts for respite
care and work-related childcare, as well as part of Mother’s attorney fees and
court costs.

The parties were married in 1994 and
divorced in 2007.  They have two
children, one of whom requires extra care because of autism.  At the time of the divorce, Father lived in
Cincinnati and Mother lived in Ft. Mitchell, Kentucky.  In January, 2011, Father took a job in Abu
Dhabi, United Arab Emirates earning approximately $32,000 a month.  Mother also went to work earning $46,000 a
year.

Mother filed a motion in March, 2011
because Father was unable to exercise parenting time after his move to Abu
Dhabi.  She asked that Father be required
to pay for a sitter to give her time off from caring for the children.  She also requested that he share work-related
childcare costs and her attorney fees. 
Even after Father’s subsequent move to Texas, he was unable to exercise
parenting time on a regular basis.

The trial court ordered Father to pay
100% of any childcare costs incurred when he did not exercise his parenting
time, which was designated as respite care. 
Father was also ordered to pay work-related childcare expenses and to
pay $3500.00 of Mother’s attorney fees. 
After Father’s motion to alter, amend, or vacate was denied, this appeal
followed.

Father first argued that respite care is
not authorized under Kentucky law.  The
Court of Appeals disagreed, finding that the award of respite care was similar
to work-related childcare, and was not an increase in Father’s general child
support obligation.  This expense was
specifically and adequately justified by the trial court.

Father further argued that the trial
court erred when it awarded Mother work-related childcare expenses.  He claimed that even if she incurred the
expenses, they were only temporary. 
Again, the Court of Appeals disagreed, holding that Mother had only to
prove that there had been a change of circumstances requiring the payment of
work-related childcare expenses.  Father
had to pay his share of those expenses, whether or not they were temporary.

The Court of Appeals found no abuse of
discretion in the award of $3500 in attorney fees.  Father earned $450,000 in Abu Dhabi and about
$250,000 after his move to Texas.  Mother
only earned $46,000 per year. Because of the disparity in the parties’ incomes,
the award of attorney fees was not an abuse of discretion.

Digested by
Sandra G. Ragland, Diana L. Skaggs + Associates.

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    Although family mobility has been global for decades, the United States Supreme Court, for the first time,[1] has interpreted a provision of the Hague Convention on the Civil Aspects of International Child Abduction, a treaty to which the United States is a contracting state.  The treaty’s full text can be found at

       http://hcch.e-vision.nl/index_en.php?act=conventions.text&cid=24.

BACKGROUND

    The Hague Convention is implemented in the US by the International Child Abduction Remedies Act (ICARA), 42 USC §11601 et seq.  It determines which forum will decide a custody dispute – not the custody dispute itself.  See, Friedrich v. Friedrich, 78 F.3d 1060 (6^th Cir. 1996).  With authority to hear Hague cases in every state and federal jurisdiction, there are literally thousands of Courts that could be presented with a case. It is no wonder a Hague issue is only now being decided by this country’s highest Court.

    In general, a parent seeking return of a child must show that the child was abducted or wrongfully retained in violation of that parent’s custody rights, which depend upon the laws of the state from which the child was removed.  That country must have been the child’s habitual residence.  The parent must act within one year.  The Convention applies to children under age sixteen.  The Court may refuse to return the child if the parent seeking return agreed to the removal or retention or if there is a grave risk that the child’s return would lead to physical or psychological harm or if the country to which return is sought violates fundamental principles relating to the protection of human rights and fundamental freedoms.[2]

 Kentucky construed Hague’s return provisions over a decade ago. In Harsacky v. Harsacky, 930 S.W.2d 410 (Ky.App. 1996), the Court of Appeals refused to order return of American born children to a mother in Finland because she had failed to prove that the children were wrongfully abducted or retained in the United States, and that Finland was not the children’s habitual residence.  Two years later, the Kentucky Court of Appeals ordered a child returned to her father in Greece from which the mother had wrongfully removed her child.  Janakakis-Kostun v. Janakakis, 6 S.W.3d 843 (Ky. App. 1999).   

THE ABBOTT FAMILY

Resolving a split among the Circuits, Abbott v. Abbott, 560 U.S. ____ (2010) holds that the right to veto a child’s removal from the country constitutes a custodial right enabling its violation to invoke the return remedy set forth in the Hague Convention.  In so doing, the United States joins the majority of nations in this interpretation, though not necessarily the majority of Circuits. Justice Kennedy’s majority Opinion was joined by Justices Roberts, Scalia, Ginsburg, Alito, and Sotomayor.  The decision is consistent with Kentucky law, which associates custody with decision making, rather than physical control of the child.  KRS 403.330(1).

    In Abbott, the father was British and mother American.  They married in 1992, and their son was born in 1995.  The family moved to Chile in 2002, but separated in 2003.  A Court in Chile granted the mother what most in the United States would label as sole custody while granting the father visitation rights.  However, under the laws of Chile,  parents with the type of visitation rights granted the father automatically have a ne exeat (no exit) right, namely a right to consent before the mother could take the child out of Chile. 

    The father obtained a British passport for the son, and the mother obtained an Order that the father be prohibited from taking the boy out of Chile.  In 2005, while the proceedings were pending in the Chilean Court, the mother herself removed the child without the father’s permission.  A private investigator found the child in Texas, and in 2006, the mother filed for divorce in Texas.  She further sought to eliminate the father’s veto authority and to impose supervised visitation for the father in Texas.  The Texas Court granted the father visitation so long as he remained in Texas.  As reported in the Opinion, that litigation is not concluded. 

    .

    The father began Hague proceedings in May 2006.  The Federal District Court determined that the father’s ne exeat rights did not constitute a right of custody under the Hague Convention and denied the return remedy.  The Fifth Circuit agreed in 2008.  Interestingly, the Fifth Circuit relied on a Second Circuit case, Croll v. Croll, 229 F.3d 133 (2000), holding that ne exeat rights were not custody rights under the Convention.  A dissenting Opinion was written by then-Judge Sotomayor who considered ne exeat rights to constitute a right of custody because it allowed decision-making authority regarding a child’s international relocation.  Justice Sotomayor’s consistency resulted in her joining  the majority in the Abbott case.  

    Justice Kennedy analyzed that the ne exeat right indeed constitutes a right relating to determination of the child’s residence.  The father’s rights affected the child’s language, identity, culture, and traditions.  The right also enabled the father to control or prevent disruptions in his visitation by hypothetically conditioning his consent to relocation in a country where the father could obtain employment, thus allowing him to have continued contact with the child.

    Justice Stevens filed a dissenting Opinion joined by Justices Thomas and Breyer.  The dissent disagreed that the ne exeat rights constituted a right of custody invoking the return remedy under the Hague Convention.  Justice Stevens analyzed it as being closer to a right of access, which does not require the return remedy, but rather cooperation of the contracting state to allow that access to the extent possible.  Veto power based on Chilean law, the dissent reasoned, is not synonymous with the affirmative authority to establish in which country the child lives. Thus, the veto power would not “transform” the father into a custodian.

WHAT HAGUE CONVENTION CAN AND CANNOT ACCOMPLISH

The decision has been criticized by women’s rights advocates for domestic violence survivors who are concerned that it would burden the ability of women to flee abusive situations.[3]  That can certainly be a disturbing consequence of the Hague Convention’s focus on forum rather than results. Perhaps this issue could be more fully developed in construing the defenses and exceptions. Yet, on a positive note, this decision could give momentum to the decisions in other countries in which children abducted from this country are found.

    The ultimate tragedy is that this dispute began in 2005, when the child was approximately 10 years old.  He is now 15 years of age and nearly grown. Successful mediations involving international parental child abduction have been reported.  This solution should be considered by any attorney assisting a parent in a Hague Convention case and  that case evaluated for its ability to benefit from this alternative process.

Respectfully submitted.

    Bonnie M. Brown

The post From Guest Blogger Bonnie Brown: DEVELOPMENTS IN INTERNATIONALIZATION OF FAMILY LAW: U.S. SUPREME COURT ADDRESSES THE TRAGEDY OF INTERNATIONAL CHILD ABDUCTION appeared first on Goldberg Simpson - Family Law Group.

If a custodial parent violates an order not to remove a child from the country, the non-custodial parent may use the Hague Convention to have the child returned. Abbott v. Abbott, decided May 17, 2010 and online here

John Crouch at The Family Law News Blog says in this post, "This result is good policy, it’s good for international families, it’s good for the rule of law. It’s consistent with how people use and rely on the Hague Convention today, and how most courts in the U.S. and abroad interpret it. I’m not sure it reflects the treaty’s original intent or text, but the treaty leaves room for interpretation in that area.

What is especially significant is what it says about our current understanding of child custody. The majority reads “rights of custody” as implying “a bundle of rights”, in which some rights may be exclusive to one parent and others will often be shared by both, and both parents will ordinarily remain parents, and exercise some parental authority after divorce. The dissent takes an older view of custody as something that is (at least ordinarily) unitary, held by one parent after divorce. This view is declining but is still very strong in the more tradition-minded parts of our culture. These two views coexist, in different proportions, in other countries as well, as divorce and unwed parenthood become more common and society’s other institutions strain to adapt to them. They drive a lot of the drama in child abduction, alienation, and other contentious custody situations."

The post U.S. Supreme Court Decides Hague Convention Case of Abbott v. Abbott appeared first on Goldberg Simpson - Family Law Group.