Many parents don’t realize the logistics of moving to another state when they share a child with someone else, so they don’t plan accordingly. We had a case recently involving a mother who wanted to return to where her family lives in Alaska, which is a substantial move. She and the child’s father hadn’t been married, so there were no child support cases. This issue of properly relocating sometimes comes up even before there’s a case pending. Most people know to follow the rules when they’re in front of the judge or in the middle of a divorce or child custody case; but for those without a case, they still need a lawyer to help them plan for relocation with a child. If the mother had left this area without our help, the father could have filed a restraining order with the local judge to get the child returned. She probably would not be living in Alaska with her child right now. If you have a child with someone, it’s important to consider the planning aspect of a move and seek good advice from a lawyer. Doing so now is much easier than cleaning up a mess later.

The post How Often Do You See Cases for Relocation in Family Court? appeared first on Goldberg Simpson - Family Law Group.

Warren Circuit Court

Before Wife petitioned for divorce, Husband and Child relocated to Kansas City, Kansas, where Husband’s parents lived. Wife contended that Husband did not consult her about the relocation but rather that Husband had sent her a text message that he was going to look for employment and would return to Kentucky. Husband contended that he and Wife discussed moving to Kansas City where Husband could seek employment and be closer to Husband’s parents and hoped that Wife would join them in Kansas City.

Wife petitioned for dissolution of the marriage. Each party requested temporary joint custody of Child, and each requested to be named the primary residential parent. After a hearing, Family Court ordered temporary joint custody of Child, with Husband designated as the temporary primary residential parent. The parties later entered an agreed order for Wife to pay child support.

Family Court later held a final hearing and awarded joint custody of Child to the parties, designated Husband as the primary residential parent, ordered Wife to pay child support, ordered wife to pay Husband one-half of the parties’ 2015 joint income tax refund, and ordered Wife to pay Husband one-half of a credit card debt assigned to Husband. Wife appealed.

The Court of Appeals held that it would have been error for Family Court to consider a retroactive best-interest analysis regarding a pre-petition relocation. The relocation occurred before initiation of any proceedings and before any order affected the parties’ rights to joint custody afforded by KRS 405.021, which recognizes the right and liberty interest of parents to rear their children without government interference. These joint custody rights are exercised autonomously by the parents, and the decisions are presumed to be in the child’s best interest. There is no authority allowing a family court to rule on the propriety of a joint custodian’s relocation decision made before invocation of the court’s jurisdiction. An ex post facto, post-petition judicial determination rejecting the legal presumption that a joint custodian’s pre-petition decision is in a child’s best interest could constitute unconstitutional governmental interference.

The Court of Appeals held that there was no abuse of discretion in considering two incidents that exhibited Mother’s poor decision making regarding the child, where she left Child unattended, in her sight, at an amusement park so that she could ride bumper cars, and where she uploaded a picture of Child with very little clothing, lying on a bed, holding a rose. KRS 403.270(2) does not provide an exhaustive list of factors to consider in the best-interest analysis, and evidence of a parent’s decision-making skills impacts the analysis.

The Court of Appeals held that it was error for Family Court to conclude that Child should sleep in his own, separate bed throughout the night. Minor day-to-day decisions concerning the child will be made by the parent with whom the child is residing, and the family court should not interfere with minor decisions absent a finding that such decisions will endanger the child’s physical health or significantly impair the child’s emotional development in accordance with KRS 403.330.

The parties received a tax refund after filing their 2015 income tax return, of which Wife kept the entirety. Family Court ordered Wife to pay Husband half the refund, which had already been spent. The Court of Appeals held that whether the funds have been exhausted prior to the time of trial is irrelevant. It is important that it was based on the parties’ 2015 incomes and filed prior to separation, making it marital property to be divided. If Family Court found Wife had spent the money on marital obligations, Husband would not be entitled to half.

The parties incurred a debt from a cash advance from Husband’s credit card to give to Wife’s brother as a loan to buy an engagement ring. Husband made all the payments toward the debt since separation. Family Court found this to be marital debt and ordered Wife to pay half. The Court of Appeals affirmed. A finding that a debt is marital is within the trial court’s discretion, and there is no presumption that debt incurred during the marriage is marital. This debt was marital as it was used to benefit Wife’s immediate family member, Wife had knowledge of the loan, and did not dispute her agreement to loan the money. She actively participated in incurring the debt.

Digested by Nathan R. Hardymon

The post Retroactive Best-Interest Analysis Inappropriate in Pre-Petition Relocation with Child; Poor Decision-Making Skills Proper Factor Under KRS 403.270; Tax Refund Received Before Separation Marital Property – Published Opinion from Ky. Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

Mother relocated to Jefferson County from Hardin County, enrolling Child in a new school and various extracurricular activities. Due to the relocation, Father filed a motion requesting (1) Child be enrolled in an elementary school in Hardin County; (2) Child reside in Hardin County; (3) to enforce the previous parenting schedule; and (4) that he be awarded parenting time in accordance with the Hardin Family Court rules. Family Court held a hearing and issued oral findings of fact and conclusions of law, concluding that relocation was not in Child’s best interest, because it found “[W]hat bothers me is that [Child] has been removed from schoolmates . . . and uprooted from something she is accustomed to and that’s why I ruled against [Mother] leaving the state. But it’s also the fact [Child] is leaving her little schoolmates; kids she’s probably known for a while and it wasn’t really necessary.” Family Court then issued a summary written order that did not include any findings of fact or the best interest standard. Mother appealed.

Mother argued that Family Court erred by failing to issue written findings of fact regarding whether relocation was in Child’s best interest. Father argued that no findings of fact were necessary, because this was an issue of relocation under FCRPP 7 and not a modification of custody or parenting time requiring a findings related to the best interest standard. The Court of Appeals vacated and remanded Family Court’s order, holding that CR 52.01 requires a trial court to include its found facts in a written order. It reasoned that relocation requires a best interest analysis, a conclusion of law, requiring a trial court to set forth its written finding of facts supporting the conclusion.

Digested by Nathan R. Hardymon

The post Family Court Erred in Not Making Written Findings of Fact in Relocation Case – Published Opinion from Kentucky Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

Same-sex parents, after separation, had joint custody and an agreed parenting-time schedule for their two minor children, twins with autism. Appellee moved the trial court to allow her to move from Lexington, Kentucky to St. Joseph, Missouri area. The court granted her motion allowing relocation finding Missouri had better services for autistic children.

The Court of Appeals remanded the case for further proceedings, concluding that the trial court failed to address whether or not the relocation would serve the children’s best interests. While the trial court looked to services that might be available in Missouri it did not consider or compare the services the children are actually utilizing in Lexington. Moreover, the evidence presented about services available to the children did not relate specifically to them, was from varying counties in Missouri, and did not identify the actual benefit of the service to the children. Additionally, while the court found that relocation would benefit the Appellee, there was no finding it would benefit the children themselves.

Digested by Elizabeth M. Howell

The post Published Child Relocation Opinion from Ky Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

A custody determination is separate from parenting time. A modification of parenting time, even one that changes the child's primary residence, does not alter joint custody. Two affidavits are not required for a motion to change primary residence. Trial court did not abuse its discretion in prohibiting mother from relocating the children and granting father primary residence of the children.

A.G. v. T.B.

A custody determination is separate from parenting time. A modification of parenting time, even one that changes the child's primary residence, does not alter joint custody. Two affidavits are not required for a motion to change primary residence. Trial court did not abuse its discretion in prohibiting mother from relocating the children and granting father primary residence of the children.

The post Published family law opinion from Ky Court of Appeals today – change of primary residence appeared first on Goldberg Simpson - Family Law Group.

Sometimes only short geographical distances are involved, such as a parent moving across town in metro Louisville, or from Louisville to Oldham County or southern Indiana. Other cases involve parents wanting to move hundreds or thousands of miles for a variety of reasons, including work or to be closer to family members after a divorce or separation.

The rules that govern what relocating parents must do at the courthouse and with the other parent (or other person exercising custody or parenting time, such as a grandparent) vary depending on where you currently live.

INDIANA RULES ON RELOCATION

Indiana has had a law on the books for some time regarding parties who share children and desire to change residences. (Click here to read the complete Indiana Code statute, I.C. 31-17-2.2)

The law requires a notice to be filed with the court and served on the other parent by registered or certified mail ninety (90) days or more before the move.

The notice needs to include specific and detailed information, including:

• Physical address of the new residence (there may be exceptions for situations that involve domestic violence or protective orders);
• New phone numbers, if any;
• Date of the proposed move;
• Reason for the move;
• Proposed new parenting time schedule;
• Statements advising the non-relocating parent about certain rights that he or she has.

One of the defining features of Indiana’s rule is that this protocol must be followed for all proposed moves when a change of the individual’s primary residence will occur for at least a sixty (60) day period – regardless of which parent has custody (or whether joint custody is shared) and regardless of whether a parent is moving across the street or moving to a new state or country.

One of the common questions asked is whether a notice has to be filed if the parties are not presently involved in an ongoing court case regarding their child or perhaps have no existing orders regarding custody, parenting time, child support, and the like.

Imagine a scenario where a husband and wife are having marital problems, but before either parent files for divorce, one parent wants to relocate with the children. Or if a child is born out of wedlock, and the parents have never been to court to set up parenting time, and either the mother or father desires to move with the child.

The Indiana relocation law requires all individuals who have (or who are seeking) child custody or parenting time, and who intend to relocate their residence, provide the notice above to an individual who has (or is seeking) child custody, parenting time or grandparent visitation. The first provision of the statute specifically states that if the section of the law discussing a prior custody or parenting time order being issued does not apply, then the notice should be filed with the court clerk that has jurisdiction over the legal proceedings concerning custody or parenting time of the child. The law also speaks to allowing a court to consider relocation at the initial custody hearing.

The non-relocating parent must file an objection, if any, within sixty (60) days of receiving the notice to relocate. It is possible for the court to enter a temporary restraining order prohibiting relocation while the matter is pending.

Either party can ask the Court for a hearing to review and modify any present orders, and the Court should take into account the following factors:

• The distance involved in the proposed change of residence;
• The hardship and expense involved for the non-relocating individual to exercise parenting time or grandparent visitation;
• The feasibility of preserving the relationship between the non-relocating individual and the child through suitable parenting time and grandparent visitation arrangements, including consideration of the financial circumstances of the parties;
• Whether there is an established pattern of conduct by the relocating individual, including actions by the relocating individual to either promote or thwart a non-relocating individual’s contact with the child;
• The reasons provided by each parent for seeking or opposing the relocation of the child;
• Other factors affecting the best interest of the child.

After the notice requirements are met, it is possible that relocating with your child in Indiana may be a more straightforward task than in some other jurisdictions. In Kentucky and other states, the burden may be on the relocating party to show that the move is in the child’s best interests, which can be difficult if the child is engrained in the local school and/or community with friends and family.

Indiana, however, does not put all of the burden on the relocating parent. That person must initially show that the proposed move is made in good faith and for a legitimate reason. If those are requirements are met, then the burden “shifts” to the non-relocating parent to show that the proposed move is not in the best interest of the child. Failure to file a motion objecting to the move can also be fatal to an individual’s hopes of keeping the child in his or her present location.

KENTUCKY RULES ON RELOCATION

In the past few years, Kentucky for the first time implemented statewide rules of practice for Family Court.

The rule regarding relocation has already gone through some changes. Initially, the rule looked at whether a parent was moving more than 100 miles away or to another state.

The current rule, which was modified in late 2012, asks whether the relocating parent has joint or sole custody in determining the necessary steps to a successful move.

A sole custodian who desires to move must file written notice with the court and serve the notice on the non-custodial parent prior to the move. Within twenty (20) days of being served with the notice, the non-custodial parent may file a motion contesting any change in court-ordered visitation caused by the move.

A joint custodian who desires to move also must file written notice with the Court and serve the notice on the non-relocating parent who shares joint legal custody. Additional language in this rule, however, demonstrates that a joint custody arrangement involves additional steps:

Either party may file a motion for change of custody or time-sharing within 20 days of service of the notice if the custodians are not in agreement; or, the parties shall file an agreed order if the time sharing arrangement is modified by agreement.

The rule cites two Kentucky cases which provide the basis for the rule, either of which you can read on Google Scholar by clicking on the following links:

• Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008)
• Wilson v. Messinger, 840 S.W.2d 203 (Ky.1992)

SUMMARY

Reviewing the different relocation rules of just these two states separated by the Ohio River illustrate the various issues that can arise in these cases. Parents wanting to move with their children are some of the most difficult cases that family court judges encounter on a weekly basis.

Remember:

• The rules you have to follow may (such as in Kentucky) or may not (such as in Indiana) be dependent on whether there is a joint or sole custody arrangement.
• The best practice is generally to provide notice to your local court and to any other party if you are moving, even if you are not aware of any existing orders for custody or parenting time.
• The time period for objecting to a relocation can vary from twenty (20) to sixty (60) days, but certain situations may require even more immediate action.

As always, do not rely on anything you read on the Internet as legal advice, and your particular situation should be reviewed with a competent family law professional who has experience in dealing with relocation issues so that you can comply with the rules in your area.

The post Relocating with Your Child in Kentuckiana appeared first on Goldberg Simpson - Family Law Group.

Published:   Affirming  

County:  Fayette

Father appeals order granting Mother
leave to relocate with Child to Washington State, contending such an Order is
not in Child’s best interests.

FACTS:

Samson v. Samson, 2011-CA-002181-ME

Published:   Affirming  

County:  Fayette

Father appeals order granting Mother
leave to relocate with Child to Washington State, contending such an Order is
not in Child’s best interests.

FACTS:

After marrying in Texas in May 2009,
Couple moved to Kentucky and had their only Child there.  Both Mother and Father have substance abuse
issues and bipolar disorder.  Multiple
EPO’s were taken out, 2 with Dad as Petitioner and 1 with Mom as
Petitioner.  In May 2011, Father’s
time-sharing with Child was terminated due to positive drug test, but it was
re-established in September 2011.  In
November 2011, they divorced and Mother was granted sole custody of Child.  FC ordered a time-sharing evaluation from
social worker and the report was incorporated with FC’s order allowing Mother
to relocate with Child. 

ANALYSIS:

Father argued that social worker’s
opinions must be limited because they cannot be related to psychological
analysis or credibility of the witnesses and that she acted only as a conduit
for the introduction of hearsay testimony. 
CA held first that the social worker was qualified to give the testimony
she did, but that, more importantly, her opinion was only a fraction of the
evidence relied upon by FC in granting the relocation request.  FC relied upon the testimony of family and
friends that, among other things, Mother has no connections to Fayette County;
that during their time together, Mother and Father moved repeatedly and there
was no real connection to Fayette County for Father either; that neither party
has an income; and that both parties have ongoing mental and emotional health
issues.  CA also held that these facts
demonstrated it was in Child’s best interests to relocate with Mother. 

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

The post Samson v. Samson, Ky COA, Child Relocation appeared first on Goldberg Simpson - Family Law Group.

No. 2010-CA-002257-ME

Published: Opinion Affirming in Part, Vacating in Part, and Remanding

County: Fayette

N.B., (Mother) appealed November 22, 2010 order of Fayette Family Court which addressed issues regarding N.H. (Daughter) the minor child born of Mother’s marriage to C.H. (Father).

N.B. v. C.H.

No. 2010-CA-002257-ME

Published: Opinion Affirming in Part, Vacating in Part, and Remanding

County: Fayette

N.B., (Mother) appealed November 22, 2010 order of Fayette Family Court which addressed issues regarding N.H. (Daughter) the minor child born of Mother’s marriage to C.H. (Father).

The parties were divorced in August, 2002.  They agreed to share joint custody with Father the primary residential parent and Mother to have liberal timesharing.  Shortly   after the divorce, Mother moved to California, but returned to Kentucky in October, 2003.  Father and Daughter resisted her efforts to resume regular visitation and Family Court ordered the entire family – Mother and Father and their new spouses – and all the children to counseling.

Mother’s timesharing resumed, but in late 2009, Daughter expressed her desire to stop spending time with Mother.  Mother filed for additional counseling and the parties agreed to consult a different counselor, who recommended reconciliation counseling.  Mother requested Family Court to enter a counseling order, which Father opposed.  Prior to hearing on the motion for counseling, Father filed a notice of intent to relocate Daughter’s residence, but failed to file a motion for permission to relocate or to modify custody or timesharing.  After a hearing on Mother’s motion, Mother and Daughter attended one unsuccessful counseling session.  Father refused to force Daughter to attend another session, and Mother filed a motion to compliance with the counseling order.

The therapist testified at the hearing on Mother’s motion for compliance and cautioned against forcing the Daughter into unwanted counseling.  In two in camera interviews, Daughter expressed distrust of Mother.  Mother’s motion was eventually denied and counseling discontinued.

When Mother subsequently learned that Father and Daughter had moved to Texas, she asked Family Court to require return of Daughter to Kentucky and compliance with order to reconciliation counseling.  Father responded that he and Daughter had dual residences in Kentucky and Texas and that his contacts with Kentucky were insufficient to trigger requirements of Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008).  After a hearing, the Family Court denied Mother’s motion for return of child to Kentucky, denied her motion for compliance with order of joint custody and denied her request for continued reconciliation counseling. This appeal followed.

First, the Court disposed of Father’s contention that the Order was not final and appealable.  Citing several cases supporting continuing jurisdiction in custody matter, the Court concluded there is ample authority to allow review of this order because it relates to Daughter’s care and custody.

Next the Court addressed Mother’s claim that the Family Court abused its discretion in denying her motion to enforce its order for reconciliation counseling.  Finding that the court’s decision was not arbitrary, unreasonable, unfair, or unsupported by sound legal principles, termination of counseling was not an abuse of discretion because evidence supported the conclusion that reconciliation counseling would be unsuccessful and possibly counterproductive.

With respect to relocation, custody, and timesharing issues, the Court noted that Family Court equated a jurisdictional question (whether there was sufficient connection with Texas to divest Fayette Court of jurisdiction) with the factual question actually before the court (whether Father and Daughter had relocated to Texas, interfering with Mother’s joint custody and timesharing rights).  It was error for the Court to use the UCCJEA to resolve substantive factual questions, and no jurisdictional issue was before the court.  The Family Court’s failure to enforce the custody and timesharing order opened the door for Father to engage in the forum shopping the Act seeks to avoid.

The Court of Appeals agreed with Mother’s argument that Family Court should have applied Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008). Pennington defines “custody,” “visitation” and “timesharing.”  In addition, Pennington clarifies that a relocation is not simply a quantitative, but a qualitative, assessment, and examines whether the facts and circumstances impact the custodial or visitation/timesharing rights of the parent who is not moving.  A cross-country relocation such as this must not occur unless it is in the child’s best interest.  Such a decision, absent court approval, must be made by both joint custodians.  Because the joint custodians failed to agree, the trial court should have conducted a hearing and decided the issue according to the child’s best interest.  Family Court failed to do so.

Finally, the Court of Appeals discusses procedural issues at great length, particularly which party bears the burden of proving what is in Daughter’s best interest; In the case at bar, Father filed no motion to modify custody or timesharing, and Mother objected to the relocation and sought enforcement of the existing order.  The Family Court did not address Father’s unilateral decision-making, nor did it address the best interest question.  Therefore, the case is reversed and remanded for a hearing in accordance with Pennington.

Upon remand, if Father desires a change with sole custody vested in him, he must bear the burden of persuading the Family Court that Daughter’s best interests require such a change.  If Family Court agrees, Father may relocate without Mother’s approval.  If Father fails to meet his burden that relocation is in child’s best interests, the original custody and timesharing order must be enforced.

After a long discussion of the burden of proof, the Court interpreted Pennington as holding that, between joint custodians, and absent the non-primary residential parent’s motion to modify timesharing, the relocating parent always bears the burden of providing relocation is in the best interests of the child.

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

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Published:  Affirming

Carpenter-Moore v. Carpenter, et al, 2010-CA-000164-ME

Published:  Affirming

County:  Kenton

    Mother appealed from FC’s denial of her motion to relocate with the parties’ three minor children.

    Divorce proceedings were initiated in June, 2004.  In December, 2004 FC entered an order that the parties would share joint legal custody of their children.  A bifurcated divorce decree entered in August, 2005 dissolved the marriage but reserved all other issues, including custody, with all temporary orders to remain in effect pending resolution.  An agreed order entered March 21, 2007 stated that the parties would have joint legal custody, with mother the primary residential custodian.

    On November 1, 2007 mother filed a motion to relocate to Virginia with the children.  Father’s counsel stated his objection at the hearing on November 13, 2007.  The court set a hearing date for February 7, 2008 and appointed a guardian ad litem.

    Father filed a motion on January 30, 2008 for review of parenting time which was set to be heard the same date as the hearing on relocation.  The GAL filed her report on February 4, 2008 stating that she did not believe the relocation was in the best interest of the children.  On February 6, 2008 mother filed a motion for court to summarily grant her relocation because father had not complied with Fenwick v. Fenwick, 114 S.W.3d 767 (Ky. 2003) and KRS 403.340 and 403.350.  This was also set to be heard on February 7, 2008.

    On February 7, 2008, father filed a motion for a change of custody with two affidavits.  At the hearing, the judge requested briefs on the legal issues and gave mother an opportunity to file a response to father’s motion for change of custody.

    Each party filed a memorandum and on June 2, 2008, the court held an unrecorded hearing in chambers.  On August 11, 2008, the judge issued findings of fact and conclusions of law that father had submitted sufficient evidence of emotional harm to the children, requiring a full evidentiary hearing under KRS 403.340(2).

    On October 23, 2008, the Kentucky Supreme Court rendered Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008) which specifically addressed relocation issues and changing motion procedures previously mandated by Fenwick.

    Before the hearing on October 31, 2008 father filed a motion to plead in the alternative for modification of visitation/timesharing to name him the residential parent, citing Pennington.  The FC decided Pennington applied and that the best interests of the child standard applied to motions for relocation.  On November 13, 2008, mother filed a motion for sole custody with no affidavits.

    On January 6, 2009, the FC heard the remainder of the evidence and granted father’s oral motion to deny mother’s change of custody motion.  Both parties filed position statements at the request of the court.

    On March 30, 2009, FC issued an order denying mother’s motion to relocate and reserved all issues for future rulings.

    Mother filed an appeal of the March 30 decision which was dismissed as premature because of unresolved reserved issues.  The FC then entered an amended opinion and order on December 22, 2009, denying all other motions, maintaining the status quo, making no custody changes and stating the order was final and appealable.  Mother appealed from the March 30, 2009 and December 22, 2008 orders.

    CA did not find the three month period an unreasonable time in which to file father’s motion and cited Fowler v. Sowders, 151 S.W.3d 357 (Ky. App. 2004) which held that allegations of serious physical or emotional endangerment to a child were not required to support a  motion for a change of custody.

    The CA found no error in failing to follow Fenwick’s procedural mandates because Fenwick is not applicable to this case.

    Mother further argued that FC retroactively applied Pennington and erred by the retroactive application of new law to substantive rights.  CA disagreed distinguishing between statutes and regulations and Pennington, a judicial decision.  In cases involving new judicial precedent, the CA said “a court is to apply the law in effect at the time it renders its decision.”  Commonwealth v. Alexander, 5 S.W.3d 104, 106 (Ky. 1999).  Pennington did not affect mother’s substantive rights; it merely clarified statutory procedure for challenging a motion for relocation.  Furthermore, no decision or event had occurred to which Pennington could have been applied retroactively.  CA found that FC did not err in determining that Pennington was applicable.

    Mother argued that the FC did not find give appropriate weight to GAL’s report.  CA did not find that FC clearly erred when it found relocation was not in the best interest of the children.

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

The post Carpenter-Moore v. Carpenter, Ky COA, Relocation, Law in Effect at Time of Decision 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."

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