10/1/2020 Should They Stay or Should They Go? Helping Domestic - PDF document

10/1/2020 Should They Stay or Should They Go? Helping Domestic Violence Survivors with Interstate Cases Taylor Duran Deborah Goelman Maria Veniard 1 This presentation was supported by Grant No. 2016-TA-AX-K030 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 of the authors and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women. 2 2 What Does the LRC Do? • Train attorneys, victim advocates, and judges about the laws and issues affecting survivors in interstate custody and domestic violence cases • Assist survivors to find attorneys in interstate cases involving a jurisdictional legal issue • Provide support to attorneys, victim advocates, and others in individual interstate cases • Maintain a website with jurisdictional and related laws (www.lrcvaw.org) • Maintain a database of attorneys and programs available to assist survivors in interstate cases 3 3 1

10/1/2020 Legal Resource Center on Violence Against Women Practitioners’ tools: • Relocation checklists for attorneys and advocates • Relocation guide for survivors (available in English or Spanish) • Sample Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) pleadings • Interstate custody case law summaries • UCCJEA article for judges • UCCJEA Guide for Court Personnel and Judges • Brief bank of interstate motions 4 4 When Is It Appropriate to Refer a Case to the LRC? Domestic Violence Child Custody More Than One State, Tribe, or Territory 5 5 When Is It Appropriate to Refer a Case to the LRC? • We do not handle international cases; these involve different laws and issues. • We do not directly represent survivors; we connect survivors to civil attorneys when a jurisdictional legal issue is involved. • We do not handle criminal matters. Some of these cases involve criminal charges against a survivor; in such cases, they may need a criminal defense attorney as well as a civil attorney. 6 6 2

10/1/2020 Who Are We and When Are We Available? • We have 2 part-time attorneys on staff and 1 project coordinator. • We are open during business hours EST.  301-270-1550 7 7 Can survivors leave the state with their children? Maybe. It depends on the facts of the case and the laws in the original state. Survivors should talk with an attorney before leaving the state. They may choose to take their children and go to a safe place within the state to have the time and privacy to connect with an attorney before relocating. 8 8 Can survivors leave the state with their children? There are complex legal issues to consider including: • Existing court orders • Where a child custody case may take place (the Uniform Child Custody Jurisdiction and Enforcement Act) • State relocation law • State parental kidnapping law 9 9 3

10/1/2020 Highlights of the UCCJEA Does a state have the power to enter a custody order over a child? 10 10 Uniform Child Custody Jurisdiction and Enforcement Act [UCCJEA] • Developed in 1997 • Designed to replace the UCCJA • Intended to reconcile differences between the UCCJA and PKPA • So far 49 states, D.C., Guam, and the U.S. Virgin Islands have enacted it; currently being considered by Massachusetts • Significant improvement for domestic violence survivors * Note that the UCCJEA applies after a child is born 11 11 UCCJEA Adoption 12 12 4

10/1/2020 When May a Court Hear a Custody Case? Jurisdictional bases: Home State (“6-month rule”) Significant Connection “More Appropriate Forum” “No Other State” 13 13 Emergency Jurisdiction 14 14 UCCJEA: Emergency Jurisdiction Temporary emergency jurisdiction: • 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. 15 15 5

10/1/2020 UCCJEA: Emergency Jurisdiction Filing for temporary emergency jurisdiction: • State procedures vary; UCCJEA does not specify procedure and forms. • May be able to file for temporary emergency order under protection order statute. • Submit evidence establishing the emergency: evidence of abuse of parent and/or child. 16 16 Inconvenient Forum (under the UCCJEA, a party can ask a court to transfer a custody case elsewhere) 17 17 UCCJEA: Inconvenient Forum Factors explicitly include: 1. Whether domestic violence has 5. The agreement of the parties, occurred and is likely to continue 6. The nature and location of the and which state could best protect evidence including the child’s the parties and the child, testimony, 2. The length of time the child has 7. The ability of each court to decide the issue expeditiously and the resided outside of the state, procedures necessary to present 3. The distance between the two the evidence, and courts, 8. The familiarity of each court with 4. The relative finances of the parties, the facts and issues in the pending litigation. 18 18 6

10/1/2020 Facilitating Safe and Effective Interstate Litigation Section 111: Taking Testimony in Another State • A party may offer testimony of witnesses located in another state, including testimony of the parties and the child, by deposition or other means. • The court on its own motion may order the testimony of a person be taken in another state. • A court may permit an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state. • Documentary evidence transmitted from another state to this state by technological means that do not produce an original writing may not be excluded on this basis. 19 19 Facilitating Safe and Effective Interstate Litigation Section 112: Cooperation Between Courts A court may request that a court in another state: • Hold an evidentiary hearing. • Order a person to produce or give evidence. • Order a child custody evaluation. • Forward a certified copy of the transcript of the hearing and any evidence presented. • Order a party or another person with custody of the child to appear (with or without the child). 20 20 Facilitating Safe and Effective Interstate Litigation Section 112: Preservation of Records • A court must preserve the pleadings, orders, decrees, records of hearings, evaluations, and other pertinent records from a child custody proceeding until the child is 18. • A court shall forward a certified copy of the records upon request by a court or law enforcement official of another state. 21 21 7

10/1/2020 Facilitating Safe and Effective Interstate Litigation Section 210: Appearance of Parties and Child • A court may order a party within the state to appear in person (with or without the child). • If a party is outside the state, the court may order that a statement direct the party to appear and inform the party that failure to appear may result in an adverse decision. • A court may enter any orders necessary to ensure the safety of the child and of any person ordered to appear. • A court may require another party to pay reasonable and necessary travel and other expenses of an out-of-state party and child. 22 22 Case Scenario Lila Smith calls you. You learn in the brief conversation that Lila and Philip have been married for 5 years and have lived in the District of Columbia. They have 1 child, a 7-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 filed for a civil protection order. 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 and move to California, where her family lives and where she hopes to find a job. 23 23 Relocation Checklist What safety, economic and legal issues does Lila need to consider? 24 24 8

10/1/2020 Safety and Economic Issues in Relocation • Is the refuge state safer? • Does she have a way to get to the refuge state? • Will she be able to survive economically? − Shelter? Employment? Childcare? Health insurance? • How will relocation affect the children? • Police/court response? • Family support? • Legal assistance? • What should she bring with her? 25 25 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? • Will she be charged with contempt? • Will she be charged with parental kidnapping or custodial interference? • Can she leave without violating the state relocation law? 26 26 Legal Issues in Relocation • 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? • Will the state from which she is fleeing have continuing exclusive jurisdiction? 27 27 9