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 forensic accounting firm of Stout Risius Ross Advisors LLC has published an excellent guide to year-end tax questions that separated and divorcing spouses may have:

1.) What is my filing status for 2008? Your filing status is determined as of the last day of the calendar year. You are considered unmarried for the whole year if, on the last day of your tax year, you are unmarried or legally separated from your spouse under a divorce or separate maintenance decree. Your filing status will be either single or head of household.

2.) How can I qualify to file as head of household? In general, you must meet the following requirements to file as head of household.

1. You are unmarried or “considered unmarried” on the last day of the year.

2. You paid more than half the cost of keeping up a home for the year.

3. Your home was the main home of your child for more than half the year.

4. You must be able to claim an exemption for the child. However, you meet this test if you cannot claim the exemption only because you waived the right to claim the child pursuant to your divorce decree.

3.) What if my ex and I have the child an equal amount of time?
If the child lived with each parent the same amount of time during the year, the parent with the higher adjusted gross income has the right to the head of household filing status.

4.) Who claims the exemptions for our children? In most cases, a child of divorced or separated parents will qualify as a dependent of the custodial parent under the rules for a qualifying child. However, the noncustodial parent may be able to claim the exemption for the child if the special rule (discussed next) applies. Special rule for divorced or separated parents. A child will be treated as the qualifying child or qualifying relative of his or her noncustodial parent if all of the following apply.

1. The parents: a. Are divorced or legally separated under a decree of divorce or separate maintenance, b. Are separated under a written separation agreement, or c. Lived apart at all times during the last 6 months of the year.

2. The child received over half of his or her support for the year from the parents.

3. The child is in the custody of one or both parents for more than half of the year.

4. The custodial parent signs a written declaration, discussed later, that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return.

If the parents divorced or separated during the year and the child lived with both parents before the separation, the custodial parent is the one with whom the child lived for the greater part of the rest of the year.

More answers are available at SRR’s website.