Should I Stay or Should I Go? Helping Survivors Understand the Laws in Interstate Cases

1. Should I Stay or Should I Go? Helping Survivors Understand the Laws in Interstate Cases The Legal Resource Center on Violence Against Women Deborah Goelman Darren Mitchell

2. Have you ever heard of the Legal Resource Center on Violence Against Women? (www.lrcvaw.org)

3. Case Scenario Lila Smith calls you at your office in Detroit. She is calling from her car while driving to pick up Philip Smith, her husband, from work and has only five minutes to talk. You learn in the brief conversation that Lila and Philip have been married for five years and have lived in Detroit throughout the marriage. They have one child, a seven-month old daughter named Annie. Philip has physically and emotionally abused Lila since shortly after they were married. Philip has never been charged or convicted criminally for the abuse, and Lila has never sought a civil protection order against him.

4. Case Scenario Lila thinks a neighbor may have heard the abuse, including the most recent incident, which took place last week. During that incident, Philip held a gun to her head in front of Annie and threatened to kill her. Lila tells you that she wants to leave Detroit and move to West Virginia, where her family lives and where she hopes to find a job. You invite Lila to come to your office to discuss her case. What legal issues might arise regarding her desire to relocate? What non-legal issues (e.g., safety and economic) should you be prepared to discuss with her?

5. Legal Issues in Relocation • Has a custody order been entered previously, including as part of a protection order? • Can she leave without violating the order? • Parental kidnapping or custodial interference law (criminal)? - Domestic violence exemption? - Domestic violence defense? - Child protection defense? • Can she leave without violating the state relocation law? • Should she file for a protection order before she leaves the state? • Will she be able to file for a protection order in the new state (personal jurisdiction)? • Will the child custody jurisdictional laws require her to return to the state to litigate a custody case? • How do the custody laws differ in the two states? • Are there other legal protections that could keep her safer in one state versus the other? • Are there immigration-related consequences to leaving the state? • Will it be more difficult to seek child support or a divorce if she leaves?

6. Non-Legal Issues in Relocation • Is the refuge state safer? • Economic opportunities? • Shelter? • Police response? • Childcare? • Family support? • Legal assistance? • Would a protection order be effective? • How do the two states handle interstate custody cases? • How do the two states enforce protection order laws?

7. Overview of Jurisdictional Statutes: Federal Laws • VAWA FFC: the full faith and credit provisions of the Violence Against Women Act (18 U.S.C. §§ 2265, 2266) • VAWA 2005: the Violence Against Women Act of 2005 (P.L. 109-162, amended the original VAWA and the VAWA 2000) • PKPA: the federal Parental Kidnapping Prevention Act (28 U.S.C. § 1738A) • ICWA: the Indian Child Welfare Act (25 U.S.C. 1901 et. seq.)

8. Overview of Jurisdictional Statutes: State Laws • UCCJA: the Uniform Child Custody Jurisdiction Act • UCCJEA: the Uniform Child Custody Jurisdiction and Enforcement Act • State full faith and credit statutes • State protection order statutes State relocation and parental kidnapping laws also may be relevant to custody cases involving domestic violence, although they are not jurisdictional laws.

9. Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Michigan Texas U.S. Virgin Islands Utah Virginia Washington West Virginia West Virginia Wyoming UCCJEA Adoption Kansas Kentucky Louisiana Maine Maryland Michigan Minnesota Mississippi Montana Nebraska Nevada New Jersey New Mexico New York North Carolina

10. Let’s return to Lila’s situation…

11. Can Lila get a custody order in MI? • Can Lila get a custody order in WV if she leaves MI with the children? • Can Lila get an order from MI first and then ask WV to modify the order if she subsequently relocates?

12. 1. Can Lila Get a Custody Order in Detroit?

13. Can Lila Get a Custody Order in Detroit? The jurisdictional laws set forth several situations under which a court can hear a custody case: • Home State (“six-month rule”) • Significant Connection • “More appropriate forum” • “No other state”

14. Can Lila Get a Custody Order in Detroit? Home State (“six-month rule”) • Means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. • In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. • A period of temporary absence of any of the mentioned persons is part of the period.

15. Can Lila Get a Custody Order in Detroit? Is Michigan the home state in Lila’s case? Yes.

16. Can Lila Get a Custody Order in Detroit? Significant Connection • Under UCCJEA/PKPA: Only applies if there is no home state • Requires significant connection plus substantial evidence re: care/protection

17. Can Lila Get a Custody Order in Detroit? What can attorneys do to help? • File for custody showing home state status under the jurisdictional statute • Provide evidence of domestic violence as early as possible in the court proceeding

18. 2. Can Lila Get a Custody Order if She Flees to West Virginia?

19. Can Lila Get a Custody Order if She Flees to West Virginia? Two Aspects: Temporary Long-Term

20. Can Lila Get a Custody Order if She Flees to West Virginia? (Temporary) Temporary Emergency Jurisdiction under the UCCJEA A court may enter a custody order: • where “necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” • Child must be present in the state • This means that a court can exercise emergency jurisdiction in domestic violence cases where the mother (but not the child) has been abused

21. Can Lila Get a Custody Order if She Flees to a UCCJEA State? (Temporary) Temporary Emergency Jurisdiction under the UCCJEA What is “temporary?” How long can the order last? • Determined by judicial communication

22. What if Lila Would Like to Obtain a Protection Order in West Virginia? The protection order court would need to have “personal jurisdiction” over Philip.

23. Personal Jurisdiction • Generally, courts must have both personal jurisdiction (authority over the defendant/respondent) and subject matter jurisdiction (authority to adjudicate the matter at issue) • Child custody determinations require only subject matter jurisdiction • The jurisdictional bases discussed earlier relate to subject matter jurisdiction

24. Personal Jurisdiction • To issue a protection order, courts usually must have personal jurisdiction over the respondent • This may be difficult to assert if the survivor has fled to a state with which the batterer has no contact

25. Personal Jurisdiction An Overview of Approaches • Personal jurisdiction standards applied in protection order cases vary across the country: • Some states view issuance of a protection order as akin to a “status determination” (similar to issuance of a divorce decree) and do not require personal jurisdiction over the respondent • personal jurisdiction required only for provisions other than those prohibiting contact, abuse, etc. • The remaining states require personal jurisdiction for all protection orders, but differ in their application of the standards

26. Personal Jurisdiction Some Practical Tips • Understand your jurisdiction’s personal jurisdiction standards • Ask your clients about all contacts between abusers and the forum state, with an eye toward helping her attorney argue that the court has personal jurisdiction over the abuser • Telephone calls, e-mails sent, etc. • Business dealings and travel • Call the LRC for assistance regarding personal jurisdiction issues

27. Can Lila Get a Custody Order if She Flees to a Refuge State? (Temporary) What can attorneys do? • Conduct safety planning with Lila or ensure that she has an advocate who can do so • File a motion under the UCCJA or UCCJEA requesting that the court exercise emergency jurisdiction over the matter because Lila and the children have relocated to escape domestic violence • Make the necessary arguments under the applicable standard and case law—UCCJA and UCCJEA differ in this regard • Attach all available evidence demonstrating the existence of an emergency • Explain the statutory framework for taking emergency jurisdiction and the judicial communication requirements • Complete the UCCJEA affidavit completely and accurately • Help Lila to obtain an attorney in the home state and coordinate filings (see next section on long-term custody) • Help Lila find someone in the home state who can monitor court filings • Advocate for court forms and policies that facilitate the application for emergency relief under the UCCJA/UCCJEA

28. Can Lila Get a Custody Order if She Flees to West Virginia? (Long-Term) In UCCJEA states, emergency orders usually are temporary only. If certain criteria are met, though, an emergency order can become a long-term order.

29. Can Lila Get a Custody Order if She Flees to West Virginia? (Long-Term) A state that otherwise has jurisdiction over a case may decline to exercise it in favor of another state (the refuge state) Two Bases: • Inconvenient forum • Unclean hands

30. Can Lila Get a Custody Order if She Flees to a UCCJEA State? (Long-Term) Declining to exercise jurisdiction under the UCCJEA Inconvenient forum • 8 mandatory factors; the first is domestic violence • (relative financial circumstances is also a factor) • Helpful case law (Stoneman v. Drollinger; Jeanne E.M.)

31. Can Lila Get a Custody Order if She Flees to a Refuge State? (Long-Term) What can attorneys do? • Help the survivor to secure legal representation in the home state so that the inconvenient forum argument can be made effectively • Attorneys in the refuge state can request to participate in the judicial communication (but they may not practice law there) so that the home state court doesn’t hear only from the abuser • Especially important if survivor is unrepresented in the home state • Attorneys in the home state can marshal the relevant facts and case law to bolster the inconvenient forum argument • Emphasize that domestic violence considerations are preeminent in the UCCJEA • Make available arguments under the remaining factors • Cite Drollinger and Jeanne E.M. cases

32. 3. What if Lila gets custody in MI and then wants WV to modify the custody order?

33. What if Lila Gets Custody in MI and then Wants WV to Modify the Custody Order? • Modification of orders: Court of another state may modify order only if: • it has jurisdiction to do so and • the court of the initial state no longer has jurisdiction or has declined to exercise it In Lila’s case, this means that WV may modify a MI custody order only if MI declines to do so first.

34. What if Lila Gets Custody in MI and then Wants WV to Modify the Custody Order? What can attorneys do? • Ask MI to decline jurisdiction based on inconvenient forum • Ask WV to modify the custody order, demonstrating that WV has emergency or significant connection jurisdiction

35. National Organizations • Legal Resource Center on Violence Against Women (301) 270-1550, lrc@lrcvaw.org, www.lrcvaw.org • National Clearinghouse for the Defense of Battered Women (800) 903-0111, ext. 3 • Battered Women’s Justice Project, Civil and Criminal (800) 903-0111, ext. 1 • National Center on Full Faith and Credit (800) 903-0111, ext. 2 • National Council of Juvenile and Family Court Judges, Child Protection and Custody (800) 527-3223