Tags: Legal | Jurisdiction | Custody | Cases

Legal Jurisdiction in Custody Cases

Thursday, 08 December 2005 12:00 AM

On the last day of civil procedure class, Professor Abram Chayes read aloud from Lorraine Hansberry's account in "Raisin in the Sun" of living as a girl in the house where a cross was burned on the lawn as her father established standing to bring the lawsuit we knew and struggled with as Hansberry v. Lee – a lawsuit that ultimately overthrew certain racially restrictive covenants.

The lesson of our wise professor was to see that Hansberry was not just another civil procedure case – to look beyond our texts, where we would see the 9-year-old girl, or the beginning of the civil rights movement or a future for ourselves.

I think about Hansberry and the larger meaning of procedure, not to mention the struggle that goes into it, as I watch my friend Bobby struggle against an almost equally tenacious force. I shall try to be nice, but this is a column about divorce – or custody, to be exact – and I admit to be being biased in favor of the father. That should keep it interesting.

In a major decision last month, the California Court of Appeal ruled that California courts retain jurisdiction in custody cases even if one parent and the children (here, typically, the mother) move out of state. Stretching the words of a statute to avoid an undesired change in the law, the court held in Grahm v. Superior Court that California law continues to apply so long as one active parent lives here.

The fact pattern couldn't be more typical. The mother wanted to move back to New York with the two twin babies. She said she had a job with her brother – at the time, California law said she could move if she had a job. So the father consented to her moving, but the agreement provided for joint legal custody, very extensive visitation, joint decision-making, and lots of protection for his rights as an active and involved father.

The question is: What happens a few years later?

In a better situation, parents wouldn't need courts anymore. They'd live under their agreement more or less like grown-ups.

For the rest, the question is whether California courts will enforce California law, or some other state will enforce its law, instead.

When it comes to custody modification, states enforce their own versions of the best interest of the child. That doesn't necessarily include any reference to what a husband and wife drew up in an out-of-state agreement. It certainly doesn't have to include reference to out-of-state law.

The mother wants the New York courts to enforce New York law. The father wants the case to stay in California. The same issue can arise in any state. But in California, the stakes are particularly high, because family law is particularly progressive. California goes further than other states in protecting equality, which means presuming fathers to be equal partners, and protecting gay and single parents and all kinds of people a lot more than other states.

So, as my professor taught us, who decides will often determine what is decided and under what law it gets decided.

That's why Grahm v. Superior Court's ruling keeping cases in their home states is a big case. It's not just about one family's case staying in California, although it has been a painful and ridiculously expensive year for that family, unnecessarily so.

It's important for fathers anywhere whose rights will be defined by the same uniform act the California court interpreted. It's important for those groups who depend on the protections of California law. It's important for those entering into custody agreements to know that they can't escape the rights and responsibilities by one party moving away.

What looks like a dry procedural case is really a test of much more.

Which is what I kept telling my friend, as he has lived through his own Hansberry. He just wants to see his girls.

COPYRIGHT 2005 CREATORS SYNDICATE INC.

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On the last day of civil procedure class, Professor Abram Chayes read aloud from Lorraine Hansberry's account in "Raisin in the Sun" of living as a girl in the house where a cross was burned on the lawn as her father established standing to bring the lawsuit we knew and...
Legal,Jurisdiction,Custody,Cases
662
2005-00-08
Thursday, 08 December 2005 12:00 AM
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