Los Angeles Family Law Blog

UCCJEA and International Child Custody Jurisdiction

2009-12-15T18:13:35Z

The Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") governs many international child custody disputes involving California (or any state within the United States) and a foreign country. In addition, the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention") as made effective in the United States by the International Child Abduction Prevention Act ("ICARA"), which is a federal law, governs international custody disputes between countries that have both signed the Hague Convention treaty. Whether the foreign country has signed the Hague Convention or not determines how the California court can proceed as a matter of law and this determination in turn

]]> greatly influences the outcome of the custody dispute.

For example, assume a child custody dispute arises between California and a foreign country that did not sign the Hague Convention. The first thing California must do is determine if, pursuant to the UCCJEA, California has subject matter jurisdiction over child custody. This is a critical question under this scenario because the California court is required to determine as a threshold question whether the foreign country has custody laws that "are in substantial conformity with the Uniform Child Custody Jurisdiction and Enforcement Act." If they are not, the California court may elect not to apply the foreign country's custody laws if its laws violate fundamental principals of human rights. Where the foreign country's laws substantially conform to the Uniform Child Custody Jurisdiction and Enforcement Act and the California court determines that child custody jurisdiction properly lies in the foreign country, the California court is obligated to apply the foreign country's laws. That is to say, once the threshold question of which country has jurisdiction is settled, the California court will proceed to make a child custody determination by applying either the Uniform Child Custody Jurisdiction and Enforcement Act or the foreign country's custody laws, depending on which locus has jurisdiction.

As a practical matter, under the Uniform Child Custody Jurisdiction and Enforcement Act, the California court is required to consult telephonically on the record with the foreign court with both parties present before reaching its decision. This is not always a simple matter to arrange.

In the above scenario, the child's physical whereabouts--whether in California or abroad--is not mentioned. This is because the physical location of the child is not relevant in determining jurisdiction. Once jurisdiction is asertained and the proper custody laws are applied, a custody determination is made. Note, however, enforcing the custody decision can be problematic.

Next, assume a child custody dispute arises between California and a foreign country that signed the Hague Convention. In this case the International Child Abduction Prevention Act applies if the child is under 16 years of age and is "wrongfully removed" (i.e., without the other parent's consent) from his or her "habitual residence". The International Child Abduction Prevention Act is not a designed or intended to determine the merits of a custody claim. Its sole purpose is to ensure that custody determinations are made in the country that was the child's "habitual residence" before the abduction.

Under this scenario, one of two things happens. Either the California court determines that the foreign country has jurisdiction over the custody dispute in which case California relinquishes jurisdiction to the foreign country, or the California court determines that California is the "habitual residence" of the child and asserts jurisdiction over the custody dispute.

Even if California has jurisdiction, many challenges still face the parent who was deprived of custody. The dispossessed parent must still convince the California court that the child's best interests would be served if the child were returned to the non-custodial parent. If successful, the non-custodial parent must then take that custody order and attempt to have it enforced in the foreign country where the abducting parent took the child. This can takes months and tens of thousands of dollars may be spent to secure the return of the child.

To add insult to injury, if too much time passes before the non-custodial parent secures physical custody of the child, a court could decide that the best interests of the child would best be served by allowing the child to stay with the abducting parent!

For these and many other reasons, it is essential that the dispossesed parent act quickly and decisively to effect the return of the abducted child. This can only be done by securing effective legal counsel as quickly as possible and by filing appropriate pleadings in both California and the foreign country.

Pre-maturely Litigating Psychological & Custody Evaluations

2009-11-14T17:23:20Z

Attorneys who either want to churn fees or who are afraid their client will not do well on a psychological/custody evaluation will oftentimes resort to litigating a psychological/custody evaluation during the evaluation. Their purpose in doing so is to unfairly influence the outcome of the evaluation. Unfortunately, they oftentimes succeed and the family is forced to endure a custody arrangement that is not based on the best interests of the children.

In California, the better practice is to wait until the psychological/custody evaluation is competed and distributed to the respective attorneys and the court and then, if you believe the evaluator’s methodology is problematic, challenge it by either impeaching the evaluator or by hiring another evaluator to perform a “unilateral” evaluation and to critique the first evaluator’s work. (Some states like California allow parties obtain “unilateral” evaluations without a court order; other states require permission from the court.) A “unilateral” evaluator is an evaluator hired by

]]> one of the parties rather than an evaluator appointed by the court. A court appointed evaluator is commonly referred to (in California) either as the “court-appointed evaluator” or the “Evidence Code §730 expert”. In California it is likely a court will continue a custody hearing or trial to give the challenging party an opportunity to depose the psychological/custody evaluator.

Deposing the opposing party or the opposing party’s collateral witnesses and then submitting their depositions to an evaluator during the evaluation is risky business. First, you are effectively telling an evaluator that you think he or she is incompetent. Second, it is arrogant for an attorney to tell a psychotherapist how to do his or her job. Do attorneys really believe an experienced evaluator is not capable of discovering far more about the psychological dynamics driving the discord in the relationship than the attorney is? Third, I sincerely doubt most evaluators bother reading 150-page depositions.

“Litigating” a psychological/custody evaluation is different from preparing for the evaluation. It is absolutely essential that you completely fill out and document each question of (what is commonly called) the “Custody Evaluation/History Questionnaire” that evaluators give each party at the beginning of the evaluation to fill out. What I have seen all to often is a party submitting an inadequate “Questionnaire” and then his or her attorney feels compelled to compensate for the client’s inadequate response by litigating every aspect of the evaluation process.

Once the custody evaluation is completed and distributed, nine times out of ten the parties will not challenge the court-appointed evaluator even if they do not like the evaluator’s recommendations. This is so for several reasons, time and expense being two major reasons. The third reason is that unless the evaluator’s methodology is seriously flawed, it is unlikely the court (depending on the court) is going to reject the evaluator’s findings and recommendations. Indeed, if the evaluation includes a psychological evaluation of one or both parties or their children, it is unlikely a court is going to second guess the psychologist’s findings. It is more likely the court will accept the psychological findings but reject some of the evaluator’s recommendations. This can happen when the case has been before the same court for a year or more and the court understands the psychological dynamics driving the conflict.

If after reading the evaluation you and your attorney feel serious flaws exist in the evaluator’s methodology, it’s time to impeach the evaluator. How to impeach a evaluator is a question for another day.

Divorce "Move-Aways" from Los Angeles

2009-09-16T19:51:21Z

WARNING: Never attempt to litigate a "move-away" case on your own. As every divorce attorney in California who has filed or defended a "move away" case will tell you, this area of law is fraught with fatal technicalities and a single innocent mistep can cost you your relationship with your children.

The Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") is the controlling law. This statute has been adopted, with some minor modifications, in every state. We have litigated a number of "move-away" cases with great success.

One recent case involved a Nigerian couple residing in New Jersey. (Foreign nationals living in the U.S. are subject to the UCCJEA. Custody disputes in which one parent resides in the United States and the other parent resides in foreign country may be covered by the Hague Convention.) They had one young child and Mother decided she wanted to move to California. Father had to stay in New Jersey. Mother moved without Father's consent and Father retained us.

At the hearing on jurisdiction, the New Jersey court and the California court conferred with each other telephonically, which is what the law requires courts to do when determining which state has jurisdiction. We were present in Pasadena and were able to satisfy the court that New Jersey had jurisdiction. Producing this result "tipped" the case in Father's favor and within a month, Father was able to secure substantial custody rights in New Jersey.

]]> As you can see, determining which state has jurisdiction oftentimes determines whether the parent/child relationship survives.

A word to the wise: Never make a general appearance in "another" state unless you want that state to assume jurisdiction over your marriage and children. Retain an attorney immediately to contest jurisdiction. She will make a special appearance on your behalf, which will prevent the other state from automatically assuming jurisdiction without first having a full hearing on jurisdiction.

"Move-away" cases are highly technical--and expensive. If you think retaining an attorney to defend a "move-away" is expensive, then think again about how much more it will cost to litigate an out-of-state case and how expensive it will be to visit your children. Don't be penny-wise and pound foolish: retain qualified legal counsel.

Consulting with Local Counsel

2009-09-12T01:58:28Z

We receive calls from all over the United States and Europe and from as far away as India asking for help in dealing with, among other things, Borderline Personality Disorder cases. These inquiries typically fall into one of four categories. First, many callers want to know if we know an attorney in their area who specializes in Borderline Personality Disorder. Unfortunately, with the notable exception of one attorney in San Diego, California, I do not.

Second, because I am a Los Angeles divorce attorney, some callers ask me to talk with their local attorney because she or he "just doesn't understand what is going on." I am happy to accede to these requests and I have never refused an invitation to coach local counsel on what Borderline Personality Disorder is, the typical shenanigans Borderlines engage in, and how a Borderline Personality Disorder case differs from all other family law cases.

Third, some callers want me to associate into their case and appear locally with their local

]]> counsel. This I have done on a limited basis with great success and with no small amount of satisfaction.

Fourth, a few callers have asked me to testify as an expert witness. I have not yet testified as an expert, but that day is soon approaching. To be qualified as an expert, one must satisfy certain requirements, for example, publish several articles on a particular subject. In addition, one must carefully define the scope of one's expertise. I am not a psychiatrist (i.e., an M.D.) or psychologist (i.e., a Ph.D.) so I cannot diagnose anyone.

Nevertheless, once a person has been properly diagnosed with Borderline Personality Disorder, I can certainly help a court construct appropriate custody plans, restraining orders, "contingency" orders and similar provisions.

In broadest terms, I can "translate" the psycho-babble contained in the psychological/custody evaluation into the legal terms and concepts with which the court is familiar. This includes explaining, for example, why standard custody provision simply do not work in Borderline cases, what protections need to be put in place to protect the children, what the psychological/custody evaluation means in practical terms, and how spouses and children experience Borderlines.

If I can help you, please do not hesitate to contact me.

Why Must Divorcing Borderlines Be Identified?

2009-09-08T00:40:42Z

As a Los Angeles divorce attorney whose practice emphasizes Borderline Personality Disorder, I am frequently asked why is identifying Borderline Personality Disorder so important in divorce and custody cases? Inevitably, this question is posed by someone unfamiliar with Borderlines for if they had ever been in an interpersonal relationship with a Borderline, they would have no need to ask the question. This is not an easy question to answer for the uninitiated within the limits of a blog.

In a word, courts do not care if a parent is afflicted with an otherwise debilitating physical, mental, emotional or psychological condition as long as the condition does not adversely affect that parent's ability to parent. For example, some alcoholics do not drink when they are around their children. In my experience, this self-control is exitsts in many psychological and emotional conditions. Unfortunately, this is not true of most Borderlines for reasons too involved to get into here.

Keeping in mind I see only divorcing couples, in my experience moderately-severe to servere Borderline parents are, essentially, "anti-parents". Their parenting destroys the children they love. Borderlines are ofterntimes models of poor parenting and the results manifest in their children. (Note: I do not mean to include in this damning statement Borderline parents to are actively and successfully seeking professional help to overcome negative parenting patterns and who, therefore, are most likely not divorcing.) Research shows that Borderlines beget Borderline children or children with Attention Deficit Disorder. The reasons for this are debatable, but the statistics bear witness to the reality of the effect.

]]> In sum, Borderlines are the antithesis of the "reasonably adequate parent", which is the minimum legal standard most states family law courts apply in awarding custody.

Anyone who has ever tried to co-parent with a Borderline knows the futility and danger of typical Borderline behavior. The most casual, objectiive, constructive criticism about the Borderline's parenting skills are met with a "Borderline flare-up" complete with severe punishments of anyone who questions She-Who-Must-Be-Obeyed. The Borderline simply cannot abide the truth because it conflicts with her deep-seated need to experience herself as perfect. This deep need to maintain her internal sense of perfection combines with the Borderlines "I-It" world view to form an impenetrable wall to dealing with reality. The children, who are mere objects to the Borderline, suffer the most because the Borderline systematically subjugates the children's wills to her own. From the Borderlines point of view, her will is the only will the children or her spouse needs.

I recently came across a video clip in which a woman who suffers from Borderline Personality Disorder, a man who was in a long-term marriage with a Borderline, and Randi Kreiger, who wrote "Walking On Eggshells" were interviewed on the program "Lifestyle Magazine". If you are in the Borderline universe--or suspect you are, I highly recommend you view this show.

For these and other reasons, it is crucial to identify whether a party to a divorce is Borderline. I look forward to the day when courts respond to legitimate allegations that one party suffers from Borderline Personality disorder in the same way the courts currently respond to domestic violence.

If the non-Borderline parent and the court system are to act in concert to prevent the Borderline parent from psychologically and emotionally maiming his/her children, the courts must set up a protocol by which the "alleged" Borderline parent is fast-tracked into a psychological/custody evaluation with a psychotherapist who specializes in Borderline Personality Disorder. Terrible results are typical when a court inappropriately appoints a psychological/custody evaluator who does not specialize in Borderline Personality Disorder.

The costs to society of raising more Borderlines are simply too great to ignore and, thus, early intervention (i.e., preferably when the child is in infancy!) is crucial.

Welcome to Clarke Logan Young Law Offices

2009-09-05T19:21:51Z

This first blog is a good opportunity to introduce you to my Los Angeles divorce attorney practice. We handle the usual "bread and butter" family law issues like divorce, paternity and paternity fraud, pre-marital agreements, "move-away" cases, property distribution, custody and support, and interstate jurisdiction. We also do some pre-foreclosure defense cases in which the property owner/borrower has mortgage insurance. Nevertheless, over the years my practice has evolved to emphasize high conflict custody cases in which the other party suffers from Borderline Personality Disorder. This initial blog is limited to discussing how it came to pass that so much of my practice deals with Borderline Personality Disorder cases. Subsequent blogs will deal with specific family law issues, including recent developments in family law.

]]> Potential clients and other family law attorneys often ask me how I, an attorney, can claim to have any real understanding of Borderline Personality Disorder. This is a fair and good question. The answer is simple: I learned the hard way---I was in a very dangerous, destructive and debilitating long-term relationship with a Borderline. As anyone who has been in a long-term interpersonal relationship with a Borderline will tell you, life ceases to be life and a quick death would have been a kinder sentence. My life and who I am changed forever the day the woman I thought I knew changed, literally overnight, into a monster.

I jokingly tell people that over a period of years, my Borderline bestowed upon me an honorary Ph.D. in Borderline Personality Disorder. I do not claim to have anymore than a layman's knowledge of any other personality disorder like co-dependency, histrionics, obsessive/ compulsive disorder, bi-polar disorder or narcissism, but I do claim to know more about Borderline behavior than many Ph.D.'s who only understand Borderline Personality Disorder from what they read in textbooks.

As you can well imagine, if we can handle high-conflict Borderline cases, then "normal" family law cases are walks-in-the-park in comparison.

That, in a nutshell, is what "qualifies" me for claiming a working understanding of, and appreciation for, Borderlines and people who are in inter-personal relationships with Borderlines.