custody

Yesterday, I posted a summary of Abbott v. Abbott, 530 U.S. ___ (May 17, 2010), in which the U.S. Supreme Court held that a Chilean non-relocation order was a “right of custody” under the Hague Convention, requiring the Texas court to return a child to Chile after the mother relocated to Texas without permission. The Abbott decision was an opinion of the majority, including six of the nine Justices. Only Justice Stevens dissented, with Thomas and Breyer, JJ, joining him. This post will look at the dissenting opinion.

In his dissent, Justice Stevens described the difference between “rights of custody” and “rights of access” under the Hague Convention. If a parent’s “rights of custody” are violated, the courts must return the child to the jurisdiction that granted those custody rights. On the other hand, if a parent’s “rights of access” are violated, there is no duty to return the child. Justice Stevens argued that under Chilean law, the father in this case did not have what we would call “joint legal custody”; that is, the right to participate in major decisions concerning the child’s health, education, upbringing and religious training. The non-relocation order was merely a restriction on the mother’s custody rights, not “rights of custody” that would justify the more stringent remedy under the Hague Convention. Since the father did not have any rights or responsibilities to provide for the child’s care, the Justice argued, he should not have been able to interfere so deeply with the mother’s custody rights.

The U.S. Supreme Court issued a ruling on Monday in an international custody case governed by the Hague Convention on the Civil Aspects of  International Child Abduction. In Abbott v. Abbott, 560 U.S. ___ (May 17, 2010), the mother and father of a child who was born in the United States moved to Chile. When the parents separated, a Chilean court awarded primary custody to the mother and visitation to the father. Under Chilean law, a visitation order includes the right to prohibit the mother from taking the child out of Chile without the permission of the court or the father. The mother took the child to Texas without permission, prompting the father to sue in federal court under the Hague Convention. The Texas court held that it did not have jurisdiction under the Hague Convention because the father had no “rights of custody” under the Chilean court orders. The Fifth Circuit affirmed.

On appeal, the U.S. Supreme Court reversed, holding that the father’s right to prevent the mother from taking the child out of Chile amounted to “rights of custody” under the Hague Convention. In other words, the father’s right to deny relocation, which was implicit in the Chilean court’s visitiation order, was sufficient to invoke the protections of the Hague Convention.

The Hague Convention contains a definition of “rights of custody” which includes the right to determine a child’s place of residence. An order or law that prohibits a parent from removing the child from the court’s jurisdiction imposes a duty on a parent that is a right in the other parent. This right to veto the departure of a child is a “right of custody” under the Hague Convention. This Supreme Court decision overturned decisions made in the Fifth Circuit, Second Circuit, Fourth Circuit and Ninth Circuit.

The Jon and Kate divorce provided another example this week of what to do – and what not to do – in divorce situations. The Gosselins were ordered this week to attend mandatory co-parenting classes in Berks County.  Allegheny County and most surrounding counties in Western Pennsylvania have a similar program. In Allegheny County, it is known as the “Generations” program.

The Generations program, part of the Child Custody Department, is a mandatory two-part process for individuals involved in a custody dispute. This alternative dispute resolution program includes an educational seminar for adults, an interactive group for children ages six through fifteen, and a mediation orientation session.

The adult education seminar of the Generations program is approximately three hours in length and offers parents/caregivers the skills to reach their own resolution on custody issues. The following topics are addressed:

• How to build a co-parenting relationship
• How to communicate and problem-solve
• How to help children cope effectively with their changing family
• Identify how parent/caregiver conflict can affect the behavior of children
• Understand that most children do best when they have the opportunity to know and love both parents
• General overview of the mediation session

The children’s group serves children between the ages of six and fifteen years old. Children are appropriately grouped by age so that they can identify and share with peers similar experiences in their families. These groups are facilitated with activities, discussions, art, music and play.

Later in the week, after being ordered to attend parenting classes, Jon Gosselin was spotted in a mall bookstore, reviewing a copy of Kate Gosselin’s latest book, “I Just Want You to Know: Letters to My Kids on Love, Faith and Family.” Perhaps he was looking for dirt to use against Kate in the mediation.

I generally advise clients not to go to the Generations mediation with a chip on their shoulders. It is really not productive to enter mediation with a laundry list of “wrongs” perpetrated by the other parent. It does not impress the mediator. Remember that even if the other parent confesses to a murder during the mediation, the mediator cannot be called to testify. Concentrate instead on telling the mediator what custody arrangements you want, focusing on how your plan will benefit the children. If you keep your focus on the kids and why your proposal is best for them, you are much more likely to get good results.

A series of articles published last month in Working Mother magazine claims that men who seek custody of their children in contested divorces are winning just as often as women. This trend is attributed to the principle that parents who work harder to provide for the family have less time and ability to perform traditional parenting tasks. As more women devote themselves to their careers, the article suggests, they may have less time to perform parenting duties.

The thought-provoking article has been cited in the New York Times and Family Law Prof Blog.

The Superior Court recently considered the case of Murphy v. McDermott (2009), in which the Court was asked to consider whether the unmarried father of a child should be required to pay parochial school tuition. Prior to the outbreak of child support litigation, Mother unilaterally enrolled the child in parochial pre-school, a decision that Father opposed but acquiesced in. When Mother enrolled the child in private kindergarten, Father was roused from complacency and refused to pay. Mother sued him for child support, including private school tuition, and won.

On appeal, the Superior Court considered the two-pronged test previously established by the Pennsylvania courts: (1) whether the child would benefit from private school; and (2) whether the expense was consistent with the standard of living established prior to separation. (Note that the parents never lived together.)  Father argued that the public school should not be presumed to be inferior, and that public school offered more programs than parochial school. The Superior Court held that it would not overrule the trial court’s finding that parochial school would benefit the child, nor its finding that Father could afford the expense. One of the Superior Court judges wrote a strong dissent, expressing his opinion that public schools should not be denigrated.  In fact, the dissenting judge would have created a presumption that public schools are adequate unless the parent seeking private or parochial school could prove a deficiency.