Should She Stay or Should She Go? Emerging Issues in Interstate - - PDF document
Should She Stay or Should She Go? Emerging Issues in Interstate Cases Involving Domestic Violence The Legal Resource Center on Violence Against Women Deborah Goelman Darren Mitchell Part I: What questions should victim advocates ask
Deborah Goelman Darren Mitchell
Part I: What questions should victim advocates ask survivors in interstate cases? Part II: What questions are victim advocates likely to hear from survivors? Part I: What questions should victim advocates ask survivors in interstate cases?
Does the survivor want to move to a different location? Where? Why? These questions may help advocates understand what safety and economic concerns are motivating the relocation. The answers may help determine whether jurisdictional arguments are available (for example, emergency jurisdiction), and whether a survivor will be able to return easily to the state she left to participate in custody litigation.
Does the perpetrator know where the survivor would be living? Does the survivor want to keep her location confidential? How might relocation affect the children? These questions may help develop a safety plan for the survivor in the new jurisdiction and craft a custody or jurisdictional argument.
What was the most recent physical threat or violent act against the survivor or child? What is the history of abuse against the survivor and child? What type of visitation, if any, does the survivor think is appropriate for the child to have with the perpetrator? What evidence is available to document the abuse (e.g., previous protection orders, convictions, police reports, medical records, or witness testimony?)
These questions can help develop a safety plan and a legal
The type of evidence available may help prepare for domestic violence legal arguments (such as inconvenient forum arguments under the UCCJEA).
Are there any previous court orders regarding the child (including as part of a protection order, paternity, child protection, child support, or custody case)? When were they entered, and from which state or tribal court? What do they say about custody and visitation? Is the survivor aware of any other court proceeding involving the child? Has the survivor or the perpetrator ever violated a court
These questions help determine whether a certain state has
it is legal for a survivor to leave a state with her children because parental kidnapping laws and relocation laws often turn on whether there is an existing custody order and what it
the two states are required to communicate with each other about jurisdiction, and whether a judge is likely to be sympathetic or punitive towards a survivor’s wish to leave a state.
Where has the child been living since birth (including dates and the person with whom the child has been living)? Where have each of the parents been living since the child’s birth (including dates)? What connections does the family have with each of the locations, including where is there evidence of the child’s “care, protection, training, and personal relationships” (e.g., with caregivers, doctors, teachers, relatives)?
These questions can help determine which state has the power to enter a custody order over a particular child. These answers help establish that a particular state is the child’s home state (which trumps other states in terms of jurisdiction),
(which can be important when there is no home state).
If the survivor has left the state where the perpetrator lives, has she checked with the domestic relations court in the county she left to see if he filed for custody? If the survivor has relocated, what type of contact does the perpetrator have with the new state (e.g., business dealings, family, previously lived there, stalked the survivor there, made threats by phone or e-mail)? Has any court ever been asked to consider if it had jurisdiction
These questions can help answer whether there is an ongoing case in the state that the survivor left, or whether any court assumed jurisdiction in the past. The perpetrator’s level of contact with the new state is relevant to whether or not this state has “personal jurisdiction” over him and can enter a protection order against him. Part II: What questions are victim advocates likely to hear from survivors?
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Whether she is able to leave the state with her children depends on several considerations:
including protection orders
contempt charge
the children, often requires notifying the court or other parent before relocating
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Whether she will be charged with parental kidnapping (sometimes called “parental abduction,” “child concealment,”
state only if a custody order has been entered, and the order is violated.
entered, a parent may not remove a child from the state to keep the child from the other parent.
domestic violence survivors (but may require a report to law enforcement to qualify for the exemption).
abuse or trying to protect a child.
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It depends on your state’s parental kidnapping and relocation laws:
“concealment of children,” it may help the survivor to avoid criminal charges or a conviction if the abuser knows where she has gone with the children
the survivor has gone anyway, telling him (in a safe way after leaving) and providing some continued telephone contact with the children may help avoid a later claim of denial of access
move
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The decision whether to file for a protection order before leaving is very complex and legal advice should be sought. Benefits of obtaining a protection order:
helpful for jurisdictional and custody arguments in the future
nationally
from her
court in another state later if that court does not have personal jurisdiction over the abuser
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Risks of obtaining a protection order:
he never abused the survivor (in future legal proceedings)
survivor will have to comply which may make it impossible to leave the state
may give the issuing state continuing, exclusive jurisdiction, forcing the survivor to litigate further custody proceedings in the issuing state
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Risks of obtaining a protection order (cont’d):
may trigger the state’s parental kidnapping or relocation laws if the survivor leaves
make it more difficult to win an “inconvenient forum” argument later (if she asks your state to transfer the long-term custody case to another state)
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Even if there was no custody case when the survivor left the state, a judge may require her to return to the state to litigate custody if the abuser subsequently files for custody
the state
left the state and that the abuser threatened, controlled, or assaulted her
hearings, so the judge will hear their side of the story
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for an extension of time (“continuance,” “adjournment,” or “postponement”) to give her additional time to travel back to the state and/or to find an attorney to represent her in court.
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help her to contact the court to confirm that a case has been filed and work with her to find an attorney who understands domestic violence
can provide assistance)
months of the survivor’s departure, that state will have the power to hear the custody case and enter an order
she should participate in the case to avoid having the court enter an order based upon hearing only from the abuser
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If the abuser has obtained a court order, the survivor should consult with an attorney from the issuing state immediately to figure out what to do next If the court had jurisdiction and the notice requirements were met, the survivor will need to fight the case in that state—she may be able to ask the court to reconsider its order, file an appeal, or seek a modification of the order Under certain circumstances, the survivor may be able to get a temporary emergency order from the new state giving her custody or suspending visitation—she should consult with an attorney to decide whether this is possible
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First, the survivor should call the court in the previous state (weekly) to be sure the abuser has not filed for custody there. The new state may be able to enter a temporary custody
To enter such an order, a judge must find that there is an
must to talk to a judge in the other state (if anything has been filed back there).
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Finding an attorney who understands domestic violence and interstate laws is critical! Contact the local legal aid or legal services program. Find out if local programs receive VAWA funds to represent survivors in civil legal cases. Check if local shelters or law schools offer legal representation for survivors. Ask local domestic violence programs or state coalitions for referrals to competent private attorneys.
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Ask other survivors who has represented them. Check if local or state bar associations have pro bono or reduced rate programs for family law. Contact local law firms to see if they have a pro bono program. If the case involves custody, domestic violence, and more than one state or tribal land, call the Legal Resource Center
attorney.
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It is important to be represented in custody cases, especially when a batterer is fighting for custody! Suggest that the survivor: Talk with another attorney to get a second opinion; Explain again to the attorney why she is afraid; Stand firm on safety and economic needs, even if her attorney pressures her to dismiss a protection order, settle for joint custody, or give up financial support;
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If all else fails, find another attorney before asking the current attorney to withdraw from the case.
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Federal laws:
Violence Against Women Act (VAWA) – This is a broad law. It
includes one section requiring states, tribes, and territories to enforce protection orders that were entered by other states, tribes, and territories, including child custody orders that are part of protection
Parental Kidnapping Prevention Act (PKPA)– This law requires
states to honor custody orders that were entered by other states.
Indian Child Welfare Act (ICWA) – This law was designed to
prevent Indian children from being removed improperly from their families by child protective services, and it involves the child’s tribe in the custody case. It does not apply in custody cases between two biological parents.
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International Parental Kidnapping Crime Act – This law makes it a
crime to remove a child from the United States under certain circumstances and includes a defense if the person was fleeing domestic violence.
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State and tribal laws (which may be different in every state and tribal lands):
Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA) – This is a law that says whether a state has the power to make a custody order about a child. It contains certain protections for domestic violence victims, and has been enacted by every state except Massachusetts.
Custody law – This is the law that tells a judge how to decide which
parent gets custody, based on the best interests of the child. In every state, domestic violence is part of what a judge must consider under the custody law.
– Some states use the term “legal custody” to say which parent can make big decisions for the child, such as health, education, and religious choices. “Physical custody” usually means which parent the child lives with for more
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State and tribal laws (cont’d):
Full faith and credit law – This is the law that tells one state how to
enforce a protection order from another state.
Protection order law – This is the law that says who can get a
protection order and what it can say. A protection order is a civil
a protection order can include temporary custody, child support, and use of the home or vehicle.
Relocation law – This is the law that says what steps you need to
take before moving if you are the parent who has custody of the
and a parent wants to move out of state.
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State and tribal laws (cont’d):
Parental kidnapping law – This is the law that says whether it is legal
– or whether it is a crime – for you to leave the state with your
concealment, custodial interference or violation of a custody order law.
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(301) 270-1550, lrc@lrcvaw.org, www.lrcvaw.org
(800) 903-0111, ext. 3
(800) 903-0111, ext. 2 This presentation was supported by Grant No. 2009-TA-AX- K021 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this presentation are those
Department of Justice, Office on Violence Against Women.