Recovery under the Hague Convention

Christian Nørgaard, a Danish computer science engineer was working in California when he met and married Tammy Zied, a software engineer. They married in Redwood City, California and had two daughters, Mia and Sarah, both born in California. The family moved to Germany then Denmark for Christian’s employment. 

While living in Denmark, the couple separated and in 2012, the Danish courts granted sole custody of both children to Christian. Tammy accused Christian of violence against her and the daughters. Mia began running away from Christian’s home, according to Tammy, to "escape the violence". Last May, Mia arrived in the United States and Sarah was left in Denmark with Christian. It is unclear whether Mia came to the United States with permission of Christian and was never returned, or whether Mia went to the United States without the consent of Christian and against the court order. 

According to an article published in the Copenhagen Post in August 19, 2013, Mia was reported as kidnapped to Interpol after Tammy failed to return her to Christian after an Easter visit. Tammy had told the police that Mia had run away and she didn’t know where she was. Police suspected that Tammy was hiding Mia and held her in custody for five days. When she was released, Tammy disappeared. 
 http://cphpost.dk/news/american-mother-suspected-of-kidnapping-her-daughter.6461.html

Mia and Tammy were living in Laguna Niguel. On January 31, 2014, the local authorities took Mia to a youth facility. Christian returned to California and Mia was returned to him a few days later. It appears that Mia is now with Christian and Sarah in Denmark.

Christian filed a Petition in Orange County under the Hague Convention and received assistance from the United States in the return of Mia to his custody. 

http://www.ocregister.com/articles/mia-604827-denmark-danish.html

Generally, exercising self-help in custody cases is not a good option. If faced with a similar situation or if you don't like the orders that are in place, the remedy would be to petition the court that made the orders, in this case Denmark, for a modification. Orders are binding and disobeying a court order or using self-help will make it more difficult to obtain custody or visitation in the future.

Demographics of Reported Cases of Child Maltreatment

The Centers for Disease Control and Prevention (CDC) has released statistics and demographic data regarding the victims and perpetrators of child maltreatment. It appears that most of the data was obtained and processed through information that was provided by state child protective services agencies, so this might be only data of reported child maltreatment cases.

Of the victims, 79% were the victims of neglect, 18% of physical abuse, 9% of sexual abuse and 10% of other maltreatment such as threatened abuse, parent’s drug/alcohol abuse or lack of supervision. In 2011, 35% of the victims were younger than 3 and children younger than 1 have the highest rate of victimization (21.2 per 1,000 children). In 2011, 80.8% of the abuse was by a parent, 5.9% was by relatives other than parents, 4.4% by unmarried partners of parents and 2.9% by other unrelated adults. Again, in 2011, 45.1% of perpetrators were men and 53.6% were women.

http://www.cdc.gov/violenceprevention/pdf/cm-data-sheet--2013.pdf

Family Law Goes To The Movies

There’s a “Winter RomCom” which bears on family law this season: Vince Vaughn’s comedy of assisted-reproductive-technology, “Delivery Man” (short non-spoiler synopsis: he’s been a artificial insemination donor, and discovers that, due to a paperwork snafu, he’s the father of 500+ children). Haven’t seen it yet, but I’m hoping it has a bit more of legal reality infused in it than past “family law” movies, comic or serious, including “Mrs. Doubtfire”, “Kramer v. Kramer”, “Intolerable Cruelty” (a prenup comedy) and “Next Best Thing”, a fairly dismally received film (Rotten Tomato-meter: 19%)  on which, I must admit, I received a screen credit (I and my partner are right there, between the caterer and Madonna’s yoga consultant), but couldn’t manage to get director to make the courtroom scenes quite right.

Believe Half of What You See*: The "Skier's Fetus Custody Case", And Other Internet Rumors

To say that the Uniform Child Custody Jurisdiction and Enforcement Act   (UCCJEA) isn't usually the stuff of the internet tabloids, and the "entertainment news" shows and sites is an understatement.   So when it does make an appearance,  it's frankly not horribly surprising when the tabloids, reputable online news outlets, and even the "Grey Lady" of American news media, don't get the details exactly right.

The short version of the story (and I haven't read the full trial court record either in New York or in California) seems to be that in May, a New York judicial officer made an odd, and fairly clearly wrong-headed decision on the issue of custody jurisdiction, kicking the case back to California.  A judge in California, faced with an apparent "we don't want it!" from the New York court, then decided to act, since, at that point, no other court was willing to do so.  Several months later, the appellate court in New York, in what is characterized as a "scathing" opinion, reversed the New York trial court's mistake.

Is any of this really news?   Judges (and other judicial officers) sometimes make wrong decisions.  Sometimes, they even make stupidly wrong decisions.  That's what the appellate process is about.






*"People say believe half of what you see, and none of what you hear."   Norman Whitfield and Barrett Strong:   Heard It Through the Grapevine

Demographics of Child Support Collection

According to the U.S. Census, of the $37.9 billion owed in child support, only $14.4 million was paid in 2011. Where the child had contact with the non-custodial parent, the full amount was received 49.1 percent of the cases. Where the child did not have contact with the non-custodial parent, the full amount of child support was only received 30.7 percent of the time. 

Most custodial parents (81.7%) are mothers. According to the Census study, the more contact a child has with the non-custodial parent, the more likely the custodial parent will receive the full amount of child support. Other factors which were found to be associated with a higher likelihood of receiving the full amount of child support, according to the Census study, were the custodial parent having at least a bachelor’s degree (50.6%), being divorced (48.4) and being age 40 or older (48.4). 56.3 percent of parents sharing joint physical or legal custody received/paid the full amount of child support. This was the highest observed rate in the study.

Factors associated with a lower likelihood of receiving the full amount of child support, according to the study, were being under 30 years old (36.6%), having less than a high school education (36.4%) and never having been married (35.1%).

http://www.census.gov/newsroom/releases/archives/children/cb13-191.html

Custody while Incarcerated

Dorothy Maraglino, 38, was pregnant when she was put in jail in May 2012 and charged with the murder of Brittany Killgore, a 22 year old marine’s wife whose husband was stationed in Afghanistan at the time of the murder. The child, a girl, was born in July 2012. Louis Ray Perez, 47, also a marine, is the father of the child. Perez is also charged with the murder, conspiracy, kidnapping, torture and attempted sexual battery of Killgore.

Maraglino gave custody of her child to Becky Zagha, 38. She says that she didn’t know Zagha well, but Perez asked her to give custody to her. Problems arose when, according to Maraglino, Zagha broke her promise to live in San Diego County and bring the child to weekly visits. Zagha moved to central California soon after the child was born. Zagha apparently also visited Perez and Maraglino frequently before the baby was born, but visits significantly decreased after she took custody.

Last month, Maraglino attempted, in a Fresno Court, to remove the child from Zagha and place her with Maraglino’s sister in South Carolina. The Court declined the request. Maraglino is now appealing that decision.
http://www.utsandiego.com/news/2013/Nov/02/marine-wife-accused-killer-custody/

A parent that is incarcerated doesn’t necessarily immediately lose their parental rights. Depending on their crime, and assuming that it doesn’t involve violence towards the other parent or the children, the incarcerated parent may retain, at least legal custody (decision-making) rights. Visitation can be more complicated and, obviously, overnight visits cannot typically happen. If both parents are incarcerated, in the absence of other arrangements regarding the custody of the children, the state will take custody of the child(ren) and they will be placed in foster care. Similar to any other custody dispute, unless there are written court orders for visitation, there won’t necessarily be visitation unless the custodial parent/guardian chooses voluntarily, to bring the child to the incarcerated parent.

While Zagha may have "promised" to bring the child to Maraglino every week, if there weren’t court orders, then there is no remedy if she doesn’t do that. Once Marglino and Perez gave Zagha custody without any other orders, Zagha was not obligated to bring the child to either parent for visits.

Child Support Obligation for a Sperm Donation?

A Kansas man, William Marotta, responded to a Craigslist ad placed by a same sex couple seeking a sperm donor. One of the woman impregnated herself using a catheter and syringe without any physician’s assistance. A child was born from this process in 2009, she is now 4 years old. Marotta and the couple, Angela Bauer and Jennifer Schreiner, signed a written agreement where Marotta relinquished any and all parental rights and Bauer and Schreiner held him harmless for any child support claims raised by any entity or person. The couple split up in 2010 and share joint custody their eight children, including the one that Marotta biologically fathered.

Due to some health issues resulting in financial troubles, Bauer and Schreiner applied for public assistance. The Kansas Department for Children and Families demanded that they disclose the identity of the sperm donor or else the child would lose health insurance. The couple released Marotta’s name and the state opened a child support case against him. The state argues that the written agreement signed by the couple and Marotta is invalid because the insemination was not performed by a licensed physician.

Marotta and his wife are fighting any obligation owed for this child. The Kansas court is likely to reach a decision by the end of this year. 

http://usnews.nbcnews.com/_news/2013/10/25/21150280-kansas-judge-hears-arguments-in-case-of-sperm-donor-sued-for-child-support

Non-traditional couples and parenting are becoming increasingly more common. Kansas, at least in the articles I have seen, has not raised the issue of going after the non-custodial, non-biological parent for reimbursement, or acknowledging that the non-birth parent was the other parent of this child rather than the biological father who, all parties agree, has had no contact with this child, and has no relationship with the child or Bauer or Schreiner. Kansas is not the only court that has addressed the issue of holding a sperm donor responsible for child support for their biological children resulting from the donation. Most of those cases that do hold the donor liable involve a father who has an active role in the child’s life or who holds himself out to be the child’s father.

Legal Parents

In June 2008, in Carson City, Nevada, partners Sha’Kayla St. Mary and Veronica Lynn Damon had a child. Damon’s egg was used with donor sperm. St. Mary carried the child. St. Mary was listed on the child’s birth certificate on the mother and a year later, she signed an affidavit naming Damon as the biological mother.

The mothers had a co-parenting agreement and broke up when the child was about a year. St. Mary petitioned for custodial rights. A lower court judge ruled that St. Mary had no biological or custody rights since she was only the surrogate and they refused to consider a joint parenting agreement both mothers signed before the child was born. The Nevada Supreme Court disagreed. The Court ruled that the joint parenting agreement was more than a surrogacy agreement and St. Mary assets that she is the legal mother of the child in addition to Damon, not instead of Damon. Nevada’s Parentage Act does not prevent a child from having two legal mothers.
http://www.ajc.com/news/ap/nevada/surrogate-mom-can-seek-child-custody/nbFSj/

In California, Jerry Brown just recently signed a bill that allows a child to have more than two legal parents. This bill is in response to the changing family structure and the increasing number of same sex couples having children. The bill is to allow a courts to recognize the roles of all parents and to not separate a child from a figure that he/she knows as a parent.
http://www.latimes.com/local/la-me-brown-bills-parents-20131005,0,7226241.story

Medical Marijuana and Custody

With medical marijuana becoming more common, both in growing and in prescriptions, it has raised the issue of the effect of medical marijuana and child custody. The general rule in California is the best interest of the child(ren). Despite having a valid prescription/license, there are an increasing number of custody disputes involving medical marijuana. This does not appear to be state specific and is becoming an issue in many states.

For example:
In Michigan, after deeming their home unsafe for a child because both parents are medical marijuana patients and marijuana growers, the state removed six month old Brielle from her parents' custody.
 http://www.wlns.com/story/23486257/state-takes-medical-marijuana-caregivers-child-away

http://www.mlive.com/lansing-news/index.ssf/2013/09/lansing_marijuana_caregiver_fi.html

In San Diego County, California, two children were removed from the home of Michael Lewis and Lauren Taylor. Lewis, a Gulf war veteran was exposed to chemicals that cause debilitating migraines has a prescription for medical marijuana. Taylor tested negative in every drug test given and there was no evidence of neglect or abuse.
http://www.courthousenews.com/2013/08/12/60182.htm

In Colorado, a couple claims that were denied custody and were not allowed to adopt their ten month old great-granddaughter because both are medical marijuana patients. The child lived with them for five months before being removed by her mother. The state intervened and placed the child in foster care.
http://www.koaa.com/news/couple-claims-they-were-denied-custody-because-of-medical-marijuana-use/#_

 Since this is a relatively new change, even though there is a steadily increasing number of medical marijuana patients and growers, there isn’t a law in California that addresses medical marijuana specifically.   While there is no set definition of "best interest of the child", a court uses a set of factors to make this determination, as well as any other information it deems relevant.  One of the factors used in deciding the best interest of the child(ren) is the "habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent" (Family Code 3011(d)). For now, it’s best to treat medical marijuana use like any other prescription medication. The general "rules" for prescription medication apply here, such as do not smoke in front of the children, keep it in a safe place out of reach of the children, do not ingest so much that you will be unable to properly care for the children, do not drive the children while under the influence, and so on.

Choose your Monitor Wisely!

A Maine woman is charged with endangering the life of a child in a child abduction case. Jennifer Dore from Maine was supervising a visit between BethMarie Retamozzo and her children last month. Retamozzo drove away with the children and was lost in traffic. Dore did not report the incident to the authorities and spoke with them more than five hours later when the police contacted her. 

The children were reported missing by their grandmother on August 15. Retamozzo and the children were found more than 1,100 miles away sleeping in their car at a rest stop on Interstate 95 in South Carolina. The police went to South Carolina and returned the children to Maine on August 26.

Dore was not a professional monitor, she was an acquaintance of the family and was selected by the parties to monitor the visits. She was not paid for her services. She is scheduled to appear in court on November 5.

http://www.pressherald.com/news/child-visitation-supervisor-charged-in-abduction-case_2013-08-29.html

In California, you also have an option to select a non-professional monitor to supervise visits. There can be a number of benefits in selecting a family friend or relative to monitor visits: it’s cheaper, there can more flexibility in time and locations of visits, the children may be more at ease in front of people they already know just to name a few. That said, be careful in selecting a monitor. If supervised visits are appropriate, then there are concerns about the children’s safety while with that parent. In selecting a monitor, the person must be someone you trust and that will protect the children, even if that requires preventing the supervised parent from doing or not doing something. Especially with family friends and/or relatives of the supervised parent, this can be difficult to do since they may feel loyalty to that parent. 

Being a monitor is a big responsibility and it’s important that you explain their duties and responsibilities. If they are unwilling to perform those duties, then you’re better off selecting a different monitor or paying a professional monitor.

Parents: your legal guide to Kids and The Law: (free from the California State Bar!)

Just in time for school!   Here it is!

Visitation Rights with Children Conceived by Rape

In Massachusetts, a rape victim became pregnant from the rape and gave birth a child in 2009. She was 14 years old at the time, the father, Jamie Melendez, was 20 at the time she got pregnant. Melendez was convicted of rape in 2011 and sentenced to 16 years of probation. One of the conditions of his probation was that he had to initiate proceedings in family court and comply with the court orders until the child becomes an adult. One of the orders made by the court was that Melendez pay $110 per week in child support.  

       Once he was ordered to pay child support, Melendez requested visitation rights with the child. He offered to withdraw the request for child support if he did not have to pay the support. 

     Massachusetts, along with 30 other states currently have no laws preventing fathers being given parental rights to children they fathered through a rape. California is not one of the 31 states and has a specific statute that restricts the visitation rights of pedophiles, convicted rapists, and also denies visitation rights to people convicted of rape with any children conceived from that rape. Federal legislation, the Rape Survivor Child Custody Act, was introduced in July 2013, encourages the states to adopt a judicial mechanism to terminate specific parental rights of fathers with their children conceived through rape.

Poor Parenting Choices: This Just in From Minnesota

If your 12 year old daughter gets poor grades, it's probably a bad parenting idea to shave her head, and make her run around outside in a diaper, as a means of disciplining her.

Child Abduction in Custody Disputes

The number of child abduction cases that involve a child custody dispute has increased from 9% in 2009 to 50% in 2012.  The cases included in these statistics are those where a non-custodial parent takes a child(ren) from the custodial parent against the will of the child(ren) or custodial parent. Sometimes the motivation might be to retaliate against the custodial parent, sometimes it’s an effort to reconcile. Apparently, children under the age of three are at the greatest risk of being taken by a non-custodial parent against their or the custodial parent's will.

Early reporting of an abduction to the proper authorities will minimize the likelihood of harm to the child. If there is a history or domestic violence or threats of taking the child(ren), perhaps restraining orders or restricted and/or monitored visitation is appropriate. There are additional steps to reduce the chance of custodial issues or potential abduction or harm to the child(ren) such as always keeping a copy of the entered order at all times, dropping a copy of it off at all the schools, the local police station, and the day care or any other place the children spend time.

Celebrity Support Woes.

Charlie Sheen is trying to reduce his child support payments to ex-wife Brook Mueller. Mueller and Sheen’s four year old twins were taken from Mueller by social workers in early May and placed with Sheen's other ex-wife, Denise Richards. Richards is expected to extend the temporary custody another six months while Mueller completes her rehab program and completes the necessary classes to regain custody.

Sheen currently pays Mueller $55,000 per month in child support for the twins and $30,000 per month in mortgage, taxes and insurance payments for the house that the twins and Mueller live in. Sheen requests a reduction in child support since the twins are not in Mueller’s custody. Sheen is a high earner at $739,075 per month, and he already pays the twins’ school and medical expenses and therapy. Sheen argues that Mueller has no expenses for the children at this time since he is covering all the expenses and she does not have custody of them.

There may be authority for Sheen’s argument and he cites the case involving his former co-star, Jon Cryer who made a similar request in 2009 when his ex-wife was arrested for allegations of abuse and the court reduced her visitation to monitored visitation. Cryer was able to reduce the child support from $10,000 to $8,000 per month.

http://www.nydailynews.com/entertainment/gossip/charlie-sheen-brooke-mueller-doesn-deserve-child-support-article-1.1396536

Health Care and Child Support

To follow up on my post from last week about health insurance, there are other options other than allowing coverage to lapse. There are assistance programs available at low cost.  Health care does have an effect on child support. One or both parents are often required to maintain heath insurance coverage for any minor children as long at it’s available at no or little cost through their employer. "Available at no or little cost" is loosely interpreted and essentially any out of pocket expenses will be considered reasonable under this definition. Through the Affordable Health Care Act, various options may be available to parents who need assistance for health insurance coverage for minor children.

Starting as early October 1, 2013, parents can choose new insurance options through Covered California. (See http://www.coveredca.com/). This will be for coverage that will start January 1, 2014. The program shall allow financial assistance for qualifying families including Medicaid, Children’s Health Insurance Program (CHIP) and through tax credits that will help pay the premiums.

http://www.acf.hhs.gov/programs/css/resource/june-2013-child-support-report

When can we come home? International custody issues.

Shauna Hadden from Agawam, Massachusetts divorced her husband, Donizete Machado in 2009. Hadden has full custody of their 6 year old daughter, Ava. Machado moved to Brazil where he is from. On May 21, 2013, Hadden took Ava to Brazil to visit her father and extended family.

While in Brazil, Machado who purchased the tickets, then cancelled the return flight. The police came to Hadden’s door with guns demanding her and Ava’s passport which she gave. Machado filed paperwork in Brazil for custody of Ava. A Judge denied Machado’s request for immediate custody and for someone to bring Ava to him, but granted supervised visitation with Ava. According to Hadden, Machedo has not exercised any visitation. He had until July 5 to exercise visitation under the court order.

In the meantime, Hadden and Ava have been effectively "trapped" in Brazil, unable to leave without resolution of the pending case. Her visa will expire at the end of summer.


International custody issues seem to be more common lately. Even with custody orders, issues can arise. Before taking a child or allowing a child to go to a different country, consider having orders for each particular trip with a remedy if the child is not returned.

Parenting, Custody and Realistic Risk Assessment

Which is more risky for a nine-year old: letting the child wait alone at a bus stop for ten minutes, in mid-day, or letting the same child ride a bicycle for a half hour near his house? How about letting the same child visit a friend who has a swimming pool? A friend whose parent owns firearms and keeps them in the house? (See Dubner and Levitt's Freakonomics for that dyad.) Which are most parents likely to think are acceptable and appropriate? Which are judges likely to think demonstrate responsible or irresponsible parenting?

Should parents or judges make these calls based on their "gut sense" or "intuition", or should real EVIDENCE be required before the court injects itself into this sort of decision?

California Child Custody: What's Going On? Is It Broken? How?

"Believe half of what you see, and none of what you hear. "*

Last week, a Northern California newspaper published an extended piece, asserting, yet again, that the family law system is (quoting the cover headline) "helping pedophiles, batterers get child
custody".

While buried in the body of the piece was an acknowledgment that " it is impossible to say how common such cases are", that isn't exactly the same impression conveyed by the headline.

The same week, the Los Angeles Times ran a story regarding a psychiatrist/child custody evaluator in Los Angeles**. While that story was less obviously agenda-driven than the Northern California piece, it seemed short on well-verified facts, and long on "it is alleged, in documents filed with the court". Again, those authors implied that the problems that they referenced were systemic and pervasive. They offered no evidence for that implication.

There's little to offer.

The "studies" and "research" on the issues of the adequacy of the child custody/family court system in protecting children and victims of domestic violence, including those cited by outlets as reputable as Newsweek, are, if cited in support of any generalization about the system, are thin soup, perilously close to scientific junk.***

It may be that these problems are grossly under-reported, and systemic; my thirty-two years of practice makes me think otherwise, and leads me to conclude that the California system is actually quite child-centered, and victim-protective. I'm certainly unconvinced by the "studies", and by the information in the two articles. While I've railed about the lack of real objective information for nearly a decade, since the last such "scandal' erupted, the quality of the information has not yet noticeably improved.

The problems with the family law system are not, as far as I can tell, mostly the result of some system-wide bias or agenda; they're mostly from (a) the lack of adequate financial resources for the system to address these issues, and (b) the gross mis-allocation of resources within the judicial system. As I've said before, nobody ever successfully ran for statewide office in California on the platform: "I promise to spend more of your tax money on divorce court!"


* Ben Franklin, or E.A. Poe, or Marvin Gaye.

** Note that I have not provided links to the pieces above; they're here: "Helping" "Evaluator"
*** "That's not 'thin soup'. It's rat pee." Prof. Michael Shapiro.
"The plural of 'anecdotes' isn't 'data.' " Frank Kotsonis.

Another Child Custody and Religion Case

...in which nobody seemed to raise the Constitutional issues. This time, it's Georgia; by agreement, Mom was to have the authority to make decisions about child's religious training and upbringing. Mom wanted to give child Jewish religious training and practice, and Dad had, it appears, originally agreed. Then, it appears, Dad changed his mind, and (as is sometimes the case in these sorts of cases) also began acting like sort of, well, a jerk.

The Court warned Dad that he risked being found in contempt, and provided the following admonition as to how to "purge" the contempt, from which one might reasonably infer additional details of Dad's behavior:

(a) Mr. Greene may not indoctrinate the child in a manner which promotes the child's alienation from Judaism.

(b) Mr. Greene shall not take the child to church (whether to church services or Sunday School or church education programs); nor engage the child in prayer or Bible study if it promotes rejection rather than acceptance, of the child's . . . Jewish self-identity.

(c) Mr. Greene shall not share his religious beliefs with the child if those beliefs cause the child emotional distress or worry about the child's mother or the child herself. Thus, for example, Mr. Greene may have pictures of Jesus Christ hanging on the walls of his residence. But, Mr. Greene may not take the child to religious services where they receive the message that adults or children who do not accept Jesus Christ as their Lord and Savior are destined to burn in hell. Further, he may not pray Christian prayers with the child, play Christian songs with the child present, read the Bible to the child or in any way attempt to indoctrinate the child into the Christian Faith.

(d) Neither party is to talk negatively or derogatory about the other party's religion in the presence of the child, and there shall be no derogatory comments that could be construed as anti-Semitic of any nature, meaning Mr. Greene shall no longer refer to Ms. Greene's parents, who are Jewish, by any numbers or anything similar to that.

Mr. Greene shall ensure that these rules are followed by persons whom he allows the child to be in the presence of or have contact with. No secondary person shall teach or read the Bible to the child, or pray any Christian prayers, or otherwise attempt to indoctrinate the child into the Christian faith.

Even assuming that Dad was doing the obnoxious stuff we can infer from the details, why didn't making any of this order trouble the judge?