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 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?
Questions about relocation 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. Questions about relocation 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. Questions about the history of abuse 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?)
Questions about the history of abuse These questions can help develop a safety plan and a legal strategy. The answers may suggest that filing for a protection order or emergency jurisdiction could be useful in a case. The type of evidence available may help prepare for domestic violence legal arguments (such as inconvenient forum arguments under the UCCJEA). Questions about existing court order 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 order? Questions about existing court order These questions help determine whether a certain state has ongoing jurisdiction over a custody case (the power to enter or modify a custody order). They also are relevant to whether 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 says. Also, these answers can help assess whether courts in 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.
Jurisdictional Issues 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)? Jurisdictional Issues 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), or that a state has a “significant connection” with the family (which can be important when there is no home state). Jurisdictional Issues 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 over the child or a party, and, if so, what was the outcome?
Jurisdictional Issues 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? Can I leave the state with my children? Whether she is able to leave the state with her children depends on several considerations: • The parental kidnapping law in your state • It may be a crime to leave with the children, depending on the specifics of the state law • The terms of any existing custody or visitation orders, including protection orders • Leaving the state and violating the terms of the order could result in a contempt charge • It may be possible to change or dismiss the order before leaving • The relocation law in your state • Sets forth steps that the parent with custody must take to relocate with the children, often requires notifying the court or other parent before 1 5 relocating
Could I be charged with kidnapping? Whether she will be charged with parental kidnapping (sometimes called “parental abduction,” “child concealment,” or “custodial interference”) depends on your state’s law: • In some states, it is illegal to remove the children from the state only if a custody order has been entered, and the order is violated. • In other states, even if a custody order has never been entered, a parent may not remove a child from the state to keep the child from the other parent. • Some states do not apply the parental kidnapping laws to domestic violence survivors (but may require a report to law enforcement to qualify for the exemption). • Other states have a legal defense if a parent is fleeing from 1 6 abuse or trying to protect a child. Do I have to let the abuser know that I am leaving or where I am going? It depends on your state’s parental kidnapping and relocation laws: • If the state parental kidnapping law in your state law refers to “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 • Safety is paramount, but if the abuser is likely to guess where 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 • She should keep proof of the abuser’s contact and notification of the move • State relocation law may require notice to the other parent 1 7 Should I get a protection order before I go? 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: • If it is issued, this will document the violence, which could be helpful for jurisdictional and custody arguments in the future • It may help protect the survivor and would be enforceable nationally • If the survivor is awarded custody as part of the protection order, the abuser would not be able to take the children away from her • The survivor may not be able to get a protection order from a court in another state later if that court does not have personal 1 8 jurisdiction over the abuser
Should I get a protection order before I go? Risks of obtaining a protection order: • If the protection order is not issued, the abuser will claim that he never abused the survivor (in future legal proceedings) • If the abuser is awarded some sort of regular visitation, the survivor will have to comply which may make it impossible to leave the state • If a custody order is issued as part of the protection order, this may give the issuing state continuing, exclusive jurisdiction, forcing the survivor to litigate further custody proceedings in the issuing state 1 9 Should I get a protection order before I go? Risks of obtaining a protection order (cont’d): • If a custody order is issued as part of the protection order, this may trigger the state’s parental kidnapping or relocation laws if the survivor leaves • If the survivor seeks a protection order in your state, it may 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) 20 Can a judge make me come back if I leave? Will I have to return for hearings? 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 • Some judges will require the survivor to return the children to the state • Judges should be told early on in the case why the survivor left the state and that the abuser threatened, controlled, or assaulted her • Generally, it is very important for survivors to participate in hearings, so the judge will hear their side of the story 21
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