Flight of unaccompanied minor should be lesson

By Andrew Zashin*

Earlier this month, a mother took to TikTok alleging that American Airlines lost her child. According to the mother, Monica Gilliam, her preteen daughter was flying American Airlines as an unaccompanied minor from Tennessee to Florida when the airline lost track of her daughter after her flight landed in Florida. Luckily, the child was unharmed and was able to independently link up with her father at the airport.

In response to Gilliam’s allegations, American Airlines stated, “We take these matters very seriously and are looking into what occurred. American cares deeply about young passengers and is committed to providing a safe and pleasant travel experience from them.”

Gillam’s story caught my eye since it is common for my separated or divorced clients to utilize an airline’s unaccompanied minor services to transport their child or children back and forth for parenting time. Further, from my personal experience, the degree of supervision offered to the unaccompanied traveling minors is considerable.

Many airlines have different rules to deal with unaccompanied minors. There are, however, some basic principles that all airlines adhere to. For instance, every child wears a lanyard, a strap, a necklace of sorts with an envelope attached that holds information about the child, his or her itinerary as well as his or her passport if the flight is an international one. A parent or guardian is required to sign for the child at the drop-off and upon pickup. The designated person for the drop-off and pickup are registered with the airline in advance.

These details are designed so that a child is literally not lost in transit. Once the child is dropped off in advance of departure, he or she is not allowed to leave the eyesight of a designated airline representative. During waits and layovers, children are kept together with other unaccompanied minors in special lounges, and escorted to their gates and onto the aircraft, at the appropriate times.

Most airlines will allow children to travel unaccompanied as early as age 5. From ages 15 to 17, most airlines will allow children to fly as regular passengers, depending on the carrier. Parents may, however, opt to allow their older teen to fly as an unaccompanied minor. It is important that parents familiarize themselves with the rules of the airlines on which their child will travel alone before booking.

Generally speaking, the unaccompanied minor program is safe and uneventful. It is a low-cost effective way to get children from place to place. Rarely are there any issues. But when they do occur, they can be serious, as evidenced by Gilliam’s story.

This article originally appeared as a column for the Cleveland Jewish News.

2023-11-10T13:38:05-05:00July 31st, 2022|Child Custody, Traveling with Children|

Defining “Habitual Residence” in the Hague Convention

In Monasky v. Taglieri, SCOTUS took the opportunity to define “habitual residence” and proclaimed a uniform legal standard for the first time. The decision alters the trajectory of U.S. Hague Convention jurisprudence on this issue.

By Amy Keating and Chris Reynolds, Family Lawyers*

On December 11, 2019, the United States Supreme Court (SCOTUS) heard oral argument in Monasky v. Taglieri,1 a case that hinges upon the definition of “habitual residence” for an infant under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“Convention”). In fact, this was only the fourth case that the Supreme Court has taken dealing with the Convention and the first time that the Court has spoken on the issue of habitual residence. The term “habitual residence,” which is not defined in the Convention itself, afforded SCOTUS the opportunity to consolidate jurisprudence in the United States.

Many family law practitioners find international issues daunting, even if they have a vague understanding of what the Convention is. So, what is it? Plainly, it is a multinational treaty, one of many under the “Hague Convention” umbrella intended to protect children from the harmful effects of international abduction. Its main goals include bringing about children’s prompt return, and it is designed to prevent parents from forum shopping in international custody disputes. Like the UCCJEA, the Convention is essentially a forum selection law, intended to be about who decides not what is decided.

The basic components of a Convention claim include:

  1. a wrongful removal/retention of a child;
  2. when the child was habitually resident in a contracting state;
  3. in breach of rights of custody;
  4. when the child is under the age of sixteen;
  5. within one year of the removal/retention (after one year, the Convention still favors returns but considers whether the child is settled in his/her new environment [Art. 12]).

The burden of proof is on the petitioner who must prove these elements by a preponderance of the evidence in the U.S. Establishing a prima facie case presumes a right of return to the child’s habitual residence unless one of the narrow defenses applies.

Defining Habitual Residence in the Hague Convention

 

Three Standards for Habitual Residence

Despite its critical importance, “habitual residence” is not specifically defined in the Convention – primarily because the drafters could not agree on a definition.2 As a result, prior to Monasky, different jurisdictions crafted different legal standards to determine this very key term of the Convention. For purposes of simplicity, there were three standards that developed in the U.S.:

  1. Acclimatization standard;
  2. Shared Parental Intent standard;
  3. A hybrid of both standards.

Acclimatization, the prior standard in the Sixth Circuit,3 focused on where the child has been physically present for an amount of time sufficient for “acclimatization” and which has a “degree of settled purpose from the child’s perspective.4 It looks for indicia of the child’s connectivity to a place through objective criteria such as school, extracurricular activities, social activities, and meaningful relationships with people in that place.

Shared Parental Intent focused on where the parents intend for the child to be raised.5

To determine a child’s habitual residence, we “look[ed] for the last shared, settled intent of the parents.” A court considered the parties’ subjective intent but also objective evidence of steps the parties took in furtherance of that intent – outward manifestations of where the parties intended for the child to be raised.6

Other circuits have adopted a hybrid standard that considered both Acclimatization and Shared Parental Intent, weighing them differently depending on the jurisdiction. Good examples of this exist in the 8th and 3rd Circuits, among others.7

Monasky v. Taglieri

In Monasky, the parties meet and marry in Illinois, but relocate to Italy, disagreeing as to how long they intend to stay. The parties’ marriage deteriorates, and there are credible allegations of domestic violence. Monasky becomes pregnant but, by the time of the child’s birth, the marriage is irretrievably broken. Due to an emergency cesarean section, Monasky cannot leave Italy due to her recovery and lack of a US passport for the child. Monasky tells Taglieri she intends to return with the child to the US as soon as possible; Taglieri alleges that the parties had reconciled. When the child is 6 weeks old, Monasky and the child are placed in an Italian domestic violence safe house. When the child is 8 weeks old – and as soon as her US passport is issued – Monasky and the child leave Italy for the US. After a four-day bench trial, the district court found that Italy was the infant’s habitual residence and ordered a return.

In the Sixth Circuit, acclimatization had been problematic for infants or children with cognitive disabilities. In other words, what should a court do with children that cannot acclimatize? This had been an “open issue” for some time, but the Sixth Circuit had not been forced to contend with it directly. Monasky – along with another case that hit the Sixth Circuit at the same time (Ahmed v. Ahmed, 867 F.3d 682, 2017) – made it impossible to sidestep any longer. Would the Sixth Circuit agree with the majority of other circuits that shared parental intent was the standard for this category of children? Ultimately, an en banc Sixth Circuit agreed that shared parental intent was the proper standard (907 F.3d 404, 2018).

Must Every Child Have a Habitual Residence?

Further, must every child have a habitual residence at all? One camp holds that, while rare, there are times when a child has not formed a sufficient connection to a particular place, either directly or through its parents. In those situations, the Convention simply does not apply because there is no status quo to return to. The other camp argues that a child always has a habitual residence; that it must always exist. In Monasky, our position had been that the child never acquired a habitual residence due to her young age and the parental discord about where the child would be raised – the absence of shared parental intent.

Despite agreeing that shared parental intent was the appropriate standard, the en banc Sixth Circuit found that habitual residence was an issue of “pure fact” subject to clear-error review. It refused to remand the matter so the trial court could apply the facts to the new legal standard and upheld the return by a vote of 10 – 8.

We identified two circuit splits that the Supreme Court agreed merited review. The questions were:

  1. Whether a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo…or under clear-error review; and
  2. Whether, when an infant is too young to acclimate to her surroundings, a subjective agreement between the infant’s parents is necessary to establish her habitual residence.

 

Is Habitual Residence an Issue of Pure Fact?

“Standard of review on appeal” may not seem like a “sexy” topic, but lawyers know that it can make a big difference in the outcome of cases. The Court must determine whether habitual residence is an issue of pure fact – calling for strong deference to the trial court on appeal – or a question of “ultimate fact” or “mixed question of fact/law” – requiring a de novo review.

Habitual Residence in the Hague Convention: SCOTUS’ Decision

On February 25, 2020, the U.S. Supreme Court issued its opinion in Monasky v. Taglieri. SCOTUS held that a child’s habitual residence depends on the totality of the circumstances specific to the case – providing one uniform legal standard for this key term for the first time, applicable to all children. The Court rejected Monasky’s “actual agreement” requirement in favor of a flexible and fact-driven standard. SCOTUS also held that habitual residence determinations should be subject to a “clear error” appellate review.

This decision has altered habitual residence determinations in the US and changed the language and the landscape of habitual residence going forward. Despite the positive effects of a now-unified habitual residence standard, we remain concerned about the practical impact of the Court’s adoption of a clear error standard of review.

This pronouncement – and the Court’s apparent trade-off of expediency over other considerations – makes it more likely that cases with similar facts will have disparate outcomes driven by the proclivities of the particular judge or court hearing the case with almost no basis for meaningful appellate review. “Prompt but wrong” is not a generally accepted legal norm, and it is especially pernicious when the well-being of children is at stake. While we certainly hope our fears don’t materialize, that is now the state of our law.


1 In the District Court of Appeals, the case is captioned Taglieri v. Monasky.
2 A more comprehensive of the Convention would necessarily include additional explanation of the other components. Because Monasky is focused on habitual residence, we are confining our discussion to only that term.
3 See Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993) and Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007).
4 Robert v. Tesson, 507 F.3d 981, 993 (6th Cir. 2007).
5 Valenzuela v. Michel, 736 F.3d 1173, 1177 (9th Cir. 2013).
6 The seminal case on this standard is Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001).
7 A slightly different version of this exists in the 7th Circuit in Redmond v. Redmond, which implements a totality of the circumstances approach that considers both Acclimatization and Shared Parental Intent as factors. The Supreme Court seems to have relied heavily on Redmond and similar cases in this line of reasoning in arriving at its decision in Monasky.


This article originally appeared as posted by Diana Shepherd on Family Lawyer Magazine.

*Amy Keating and Chris Reynolds are both OSBA Certified Specialists in Family Relations Law, and they tried Monasky v. Taglieri in the Northern District of Ohio. On both appeals in the Sixth Circuit and before the Supreme Court, they were co-counsel with Gibson Dunn in Washington, D.C. and Professor Joan Meier of George Washington University. Amy focuses her practice on family law matters, including child custody and issues concerning parental relocation. Chris has significant experience representing parents in international custody matters, including international child-abduction cases implicating the Hague Convention.

How does the Ohio Director’s Stay at Home Order on March 22, 2020 impact custody agreements and parenting time?

Section 14(e) of the Order states that “[t]ravel required by law enforcement or court order, including to transport children pursuant to a custody agreement” is Essential Travel and permitted during this time. The custody agreement need not specifically address times of National Emergency or Global Pandemic to fall within this provision. 

The Domestic Relations attorneys at Zashin & Rich believe that parents should continue to follow their parenting time schedules during this Stay at Home Order and should further exercise additional patience and common-sense with one another.  Remember, your children are experiencing an unprecedented moment in time—it is on you as parents to help ensure they are as insulated from the situation as possible.

2023-11-10T13:38:09-05:00March 23rd, 2020|Child Custody, Pandemic, Parenting Time|

International residence case defines standards

By Andrew Zashin*

A decision was recently reached in Taglieri v. Monasky, the habitual residence case involving local family practice law firm Zashin & Rich that on June 13 went to the U.S. Court of Appeals for the Sixth Circuit in Cincinnati.

“Habitual residence” refers to the location where a child has spent most of his or her life, or where he or she has the deepest connection. According to the Zashin & Rich team – Andrew Zashin, Amy Keating and Christopher Reynolds – the court adopted a standard set forth in a previous 2017 case, Ahmed v. Ahmed. The standard, called shared parental intent, requires that a court determine the shared parental intent of the parties and identify the location where parents intended their child to live.

Zashin, co-managing partner at Zashin & Rich, which has offices in Cleveland and Columbus, said the decision addresses an “open issue” in the circuit, namely the legal standard for habitual residence for infants and children with cognitive disabilities.

“It is the first time the Sixth Circuit has clearly articulated the legal standard for the habitual residence of infants, very young children and children with cognitive disabilities,” he said. “Now, litigants, lawyers and most importantly, judges, have guidance on the law and know what standard they should rely on and utilize. There is now certainty on this issue in the Sixth Circuit, which now falls in line with other federal circuits that have ruled on this issue.”

Zashin noted courts take into account a few variables, like visa status, child custody, living situations, employment and the depth of ties to other countries.

With this ruling, Zashin said parents of children with cognitive disabilities should be aware of this standard when considering moving to the United States inside the Sixth Circuit from another country, especially if it’s short-term. The Sixth Circuit includes Ohio, Michigan, Tennessee and Kentucky.

“Parents should be aware of the factors set forth and consider memorializing their clear, shared intent about where they intend for their child or children to be raised contemporaneous with their location,” he suggested.

Zashin & Rich’s involvement stems from its representation of Michelle Monasky, who is fighting for custody of her child amid what she describes as marital unrest and spousal abuse involving the child’s father, Domenico Taglieri, a resident of Italy.

The firm was tasked with seeking an en banc hearing – when a case is heard before all of the judges of a court rather than a panel of judges selected from them – to establish a legal precedence. The en banc proceedings were issued Oct. 17 for Taglieri v. Monasky.

As for the future of the case, Zashin said Monasky will move to ask the U.S. Supreme Court to accept “certiorari,” which is an order by which a higher court reviews a decision of a lower court on various issues.

According to Zashin, she will have to ask whether “habitual residence” is a mixed question of law and fact which is reviewed “de novo” on appeal, that is allowing the appellate court to review the case as if it were considering it for the first time. If it’s an issue of fact only, Zashin said it is reviewed on appeal under a clear-error standard, which strongly defers to the trial court’s findings of fact.

“While this is, in some ways, a hyper-technical legal issue, Monasky’s case may hinge on this very thing,” Zashin said. “The standard used could be the difference between the child remaining in Italy or being potentially re-returned to the United States. And this, which country has jurisdiction to determine custody.”

This article originally appeared as a column for the Cleveland Jewish News.

School rules – where will children go when they return to school

By Andrew Zashin*

For Ohio families, August usually means the end of summer break and the start of the next school year. Some basic level of education is, of course, required by Ohio law, and children between the ages of 6 and 18 are expected to attend school.

And, while home schooling – which is often coupled with online resources – is permitted, the majority of Ohio children will head back to some type of brick-and-mortar school.

How do parents decide where their children will go to school? Obviously, public schools are the tuition-free, publicly funded option and are open and available to all Ohioans. On the other hand, parents may opt for one of the many available – though not free – private, secular options, or for the combination of secular and Judaic education offered by a Jewish day school. Clearly, the choice between public school and private, or between religious and secular, will vary – perhaps quite widely – from family to family.

When children are going to attend public school, the available option, or options, will be given by where the parents live. If two parents live together, clearly there is no question of which public school district is appropriate. But if the parents live apart, there may be two options to choose from.

If the parents aren’t together, the school question can be more complex. Like decisions involving other important aspects of a child’s life, schooling decisions are made by the parent or parents having legal custody. And people often confuse the ideas of physical custody or, where the child is at any given time with legal custody, which is decision-making authority.

Stated more simply

  • If a child is born to unmarried parents, the biological mother has legal custody of that child by default under Ohio law, at least until someone else is awarded rights in lieu of the mother or along with the mother. In that case, the mother decides where the child will go to school.
  • If the children are the subject of a legal battle surrounding custody, the appropriate court may need to be involved in the school registration question.
  • If the parents have litigated their case, whether as a divorce/dissolution/legal separation matter, or as a custody case between unmarried parents in juvenile court, legal custody will ultimately be awarded either solely to one parent, or to them jointly in a setup known as shared parenting. If one parent was awarded sole custody by a court, that parent will decide the school issue.
  • If custody is shared between parents, a shared parenting plan document will spell out which parent is the residential parent for school purposes. Unless a court order states otherwise, this designation usually does not give that parent any greater authority than the other to make schooling decisions but, instead, merely indicates in which parent’s school district the child will be enrolled.

The costs of any education-related tuition will usually be divided between the parents, assuming everyone agrees on the schooling decision. Unfortunately, it can be difficult to see a parent forced to pay toward a private school against his or her wishes as courts will generally acknowledge that there is a free option available via public school. And, because of the separation of church and state in the United States, it can also be difficult to get a child enrolled in a religious-based school if a co-parent opposes it.

In today’s society, schools have become accustomed to all different types of parenting setups. If you are unsure about what rights you have as to your children’s schooling, the school itself or, better yet, an attorney, can help you to decipher your court order.

At the time of enrollment, the prospective school likely will ask a few questions about your family situation and will expect to receive a copy of any parenting order before you will be able to get your child enrolled in your school of choice.

This article originally appeared as a column for the Cleveland Jewish News.

2023-11-10T13:38:11-05:00August 2nd, 2018|Child Custody, Child Support, School Enrollment|

Legal issues of traveling with children

By Andrew Zashin*

Summer is almost here and many families will take vacations near and far. While the thought of traveling with children – small children, in particular – can be daunting, the legal aspect does not need to be scary.

Special permission for travel is usually only necessary if you will be crossing international borders. While it can never hurt to travel with a copy of a child’s birth certificate and other important documents, like custody, guardianship or adoption papers, if you are driving domestically, you will likely face no issue or question.

The one notable exception would be if you have a custody order that limits or puts special restrictions on travel with the child. In that case, you will want to make sure you follow your divorce or other custody order.

As for air travel, the Transportation Security Administration similarly does not require identification or any special consent for children traveling accompanied on domestic flights. Children under the age of 13 can undergo modified screening procedures that are intended to be less scary, however older children must go through the same process as an adult.

Rules for children flying unaccompanied vary from airline to airline. Some form of identification may be required, at least for older children, and it’s always a good idea for an unaccompanied child to travel with some form of identification, whether a birth certificate, passport, driver’s license, school ID or similar form.

No matter the method of travel, if the travel will be with someone other than a parent or guardian, it is smart to give the chaperone a letter of consent so it is clear he or she is authorized to travel with the child. In fact, with group trips, such as those organized by a school, religious or other group, some form of permission slip will likely be required.

International travel is a bit more complicated. The website for the U.S. Department of State contains important travel requirements that vary from country to country. In general, if the child will be traveling internationally, a passport will usually be necessary just as for an adult.

If the child will be traveling with only one parent or guardian, it is useful and sometimes required for the traveling parent to travel with a letter of consent signed by the other parent. This letter is not a specific government form, but should clearly spell out the travel being permitted and identify as much detail about the travel plans as possible.

To obtain a passport for a child, both parents or guardian must consent. The only times a passport can be obtained unilaterally is if the parent applying for the passport can show that he or she has sole legal custody of the minor, such as by a divorce or custody decree, some other order authorizing the issuance of a passport, a birth certificate listing the requesting parent as the only parent or guardian, or a death certificate showing the death of the non-requesting parent.

This article originally appeared as a column for the Cleveland Jewish News.

In estate planning for your minor children, think beyond just money

By Andrew Zashin*

This article originally appeared as a column for the Cleveland Jewish News.

Do you have minor children? Do you know what would happen to them if you were to pass away unexpectedly? This is never a pleasant topic to think about, but it is one of the most important estate planning decisions you can make.

Depending on your specific situation, the answer may be obvious. If a minor loses one parent, most often the surviving parent would simply assume custody. If the parents are divorced, or if they were never married, the domestic relations or juvenile courts may need to get involved depending on formal parenting plans that may already be in place. But from a legal perspective, it may be a simple matter.

On the other hand, if the surviving parent is estranged, unfit, or otherwise not around or uninvolved, the answer could become more complex. In that case, it may be necessary to seek the appointment of a “guardian.”

In general, anyone with some ties to the child could apply in the appropriate probate court to become the child’s guardian. Once appointed, that guardian would be expected to care for the child’s well-being just as a parent would, providing food, shelter, and clothing, and ensuring schooling and medical care. If the child has any assets, a guardian would be expected to manage those on behalf of the child as well.

In Ohio, as in many states, a person can be named as the guardian “of the person” or the guardian “of the estate.” A guardian of the person would be responsible for providing necessities and care and for decision-making regarding the child’s health and well-being, while a guardian of the estate would be tasked with management of the minor’s financial affairs, such as managing monies held in trust for the child. One person could feasibly fulfill both roles, or a different person might fulfill each. And, if the child has no significant assets, there may be no need for a guardian of the estate to be appointed at all.

Ideally, your wishes as to who should serve as your child’s guardian, and maybe a “backup,” or successor, guardian will be spelled out in your will. A probate court would not be required to follow a guardianship designation made in a will, but generally would, so long as that designation is in the interest of your child. It is also important to understand that just because you choose to name someone does not obligate them to accept the responsibility; they could decline to serve in that capacity.

For these reasons, it is important to consider carefully who you would trust with such responsibility and, ideally, discuss in advance if he or she would be willing to take on the job should it become necessary. If a significant inheritance or other monies could be involved, consider who you believe would handle those funds appropriately and in a manner that you would be satisfied with. And, if you have a spouse or co-parent, it is very important to discuss with him or her the identity of a successor guardian in the – however unlikely – event that neither of you would be around to care for your child. Any disputes will likely ultimately be resolved by a court, and it is far better to tackle this issue in advance via a clear and concise estate plan, rather than in a court of law after legal challenges.

2023-11-10T13:38:12-05:00September 19th, 2017|Child Custody, Estate Planning|

Halle Berry’s Violent Custody Battle: Domestic Violence and Child Custody

Halle Berry’s personal family saga continues to evolve (see our previous posts on Berry’s child custody case here and here, and a related one involving Kelly Rutherford.) Just a few days ago, on Thanksgiving Day, a fight broke out between Gabriel Aubry, the father of Berry’s daughter Nahla, and Olivier Martinez, Berry’s fiancée. Apparently, Aubry was arrested at Halle’s house after allegedly pushing Olivier and striking him in the shoulder. (Martinez apparently defended himself by punching Aubry in the face – and sources differ as to whether Aubry was rendered unconscious from the blow.)

This comes at a particularly interesting time for Berry as she just failed in an attempt to get a court to grant her permission to relocate with her daughter to France, where Martinez lives. Does this violent episode help her? Does it hurt Aubry in the eyes of the court with regard to child custody? If a court finds that Aubry committed domestic violence will it help Berry get out of the country?

Having worked with many domestic violence cases, the first question that must be asked is this: is this incident domestic violence? Domestic violence laws vary from state to state, but, generally speaking, they are designed to protect family members from violence that might be perpetrated against them by other family members. The laws generally can be enforced through either civil courts or criminal courts. Where a court finds domestic violence (“DV”) to have occurred, broad remedies are available to protect family members. This could mean that someone is summarily evicted from their home. Financial arrangements could be made to protect vulnerable parties. Temporary protection orders could be issued against alleged perpetrators prohibiting them from trying to be anywhere near protected parties. These remedies can be applied at an ex parte hearing (a hearing without the opposing party present to defend himself or herself.) Shortly thereafter, such orders can be made more “permanent” at a full hearing where the accused is given a chance to appear and defend himself/herself.

Back the Berry’s story, according to news reports Aubry is being charged with some sort of criminal assault. He is also restrained from going near Berry, Martinez, or Nahla. So, is this domestic violence? Or is this just a case of criminal assault and battery? The answer may turn on whether or not a court considers Martinez to be a family member. In answering this question, where Martinez lives is relevant. If he simply stays with Berry in Los Angeles when he is not in France, that may not be enough for protection under the relevant DV laws.

Does a DV hurt someone’s attempt to get companionship rights with their child? Will this hurt Aubry regarding getting access and time with his daughter if a court finds that this episode is DV? Maybe. Maybe not. A finding of domestic violence, whether civil or criminal, could detrimentally impact a court’s determination of custody and access. But a court should consider against whom the violence occurred. If the DV was perpetrated against the child at issue it will matter more than if the violence that (allegedly) occurred was against only the fiancée.

Here, it appears that the violence occurred between Aubry and Martinez, and the child was not involved. Therefore, even though news reports indicate that Aubry is restrained from being near Berry, Martinez, or Nahla, those restraining orders may have been issued on an emergency and temporary basis. The reality is that the temporary restraining orders (“TRO”s) may be dissolved soon, especially the one against Nahla.) However, it is also likely that the court will not only consider, but frown upon, Aubry’s behavior if it is established that he was violent towards Martinez. But because the violence was not directed toward the child this incident may well have no impact on the overall child custody case.

So, ultimately, is this event likely to hurt Aubry with regard to Berry’s attempt to leave the country? If this case had taken place in Ohio (interestingly, Berry is originally from the Cleveland area) a number of protections against Aubry could have been put into place. For example, Aubry could have been ordered into counseling. He could have been prohibited from contacting, even via a third party, Berry, and even his daughter. And, if an act of domestic violence is established under Ohio Revised Code 3113.31, the civil law controlling domestic violence, or its counterpart under the criminal codes, that act of violence should be considered by a court not only as a reason against finding that a shared parenting plan is appropriate but also as a major factor in determining an appropriate parenting schedule.

At our firm we have lectured to other lawyers and consulted with many clients about this exact issue, and we have handled many cases where domestic violence intersects with child custody and shared parenting issues. These are tough cases. Findings of domestic violence do not help people seeking shared parenting with their children, and can impair their access to their children. But a finding of domestic violence it is often not fatal. This reality is good or bad depending on your perspective, either as the accused or as the alleged victim.

Finally, as we discussed in another blog entry, the reason Berry was not permitted to relocate to France was because the move would limit Nahla’s access to her father. That is true whether or not Aubry acted violently toward Martinez. Therefore, at the end of the day it is unlikely that this event will help Berry relocate from the United States to France. But, it most certainly could come back to haunt Aubry if (or when) he seeks to expand his parental access to Nahla. A court might find – and perhaps reasonably so – that if one cannot avoid a violent outburst when one comes to pick up one’s daughter, he may not be able to effectively co-parent with the mother of his child.

What You Can Learn From Halle Berry’s Failed International Child Relocation Attempt

According to media reports Halle Berry sought a court’s permission to move with her daughter Nahla to France against the wishes of the child’s father, actor/model Gabriel Aubry. Berry is apparently engaged to another actor, Olivier Martinez, who lives in France. The court denied Berry’s request to relocate. For anyone considering relocating with their children against the wishes of the other parent, there are some important takeaways from Halle Berry’s failed relocation attempt.

Prior to issuing a ruling the court sanctioned a psychological evaluation. The evaluation concluded that Nahla’s best interests were served if her mother primarily cared for her. Reports indicated that although Aubry loved his daughter he was not as able to take responsibility for her day-to-day care. Psychological reports like these are commonplace in contested custody cases and in relocation cases. When they do not settle, relocation cases like this often turn into complex and expensive duels between mothers and fathers, their psychological experts and sophisticated family law attorneys.

Upon close examination, the Halle Berry/ Gabriel Aubry situation bears considerable similarities to another celebrity relocation case, that of the Kelly Rutherford (see our previous blog entry on the Kelly Rutherford custody order). In both cases the respective courts found that keeping the parents in close proximity to one another was the most important aspect of furthering the best interests of the children involved. In the Rutherford case that meant the children were required to move to France. In the Berry/Aubry case the court determined that the child should not move to France. Although Berry could move to France without her child, such an outcome is unlikely. Thus, as a practical matter, Berry was ordered to stay in Los Angeles even though the court determined that her parenting best served Nahla’s interests.

Without explicitly ruling so, the Berry/Aubry court is implicitly prohibiting Halle Berry’s relocation, contrary to her wishes. Does it matter that Halle is engaged to a man in France? Not so much. What should one take away from this? Of course every case is different and there are many nuanced issues subject to consideration on many levels. But there are also several immediate takeaways for anyone interested in issues like this:

1.) A parent’s desire to relocate children against the will of the other parent often fails. Courts are loath to separate children from their parents. This is true even when the parent wanting to move is the “better parent.” Experience suggests that this is also usually true even when the not-as-good parent is a human train wreck. Children should be in close proximity to their parents whenever possible.

2.) Children, by the time they are 6 or 7, have their own social network. Disturbing that network is not just disruptive, but it is considered unhealthy for children. Therefore a party that wishes to relocate with the children needs a persuasive reason to move them. Moving a child across a city to a different school system is traumatic. Moving a child to another state is even more traumatic, especially when it negatively impacts the amount of time a parent can spend with their children. Relocating overseas is a dramatic change of environment. Therefore the reason for the move must be of a similar magnitude. The reason must be truly compelling.

3.) If you want to relocate, as a general rule, you better have a damn good reason! The greater the distance the more compelling the reason should be. Getting married usually is not enough. A court might say that the remarrying parent should make the new spouse move. Getting engaged just isn’t enough. Halle Berry also tried this as a reason: the paparazzi were creating danger for Nahla. The paparazzi are too dangerous?? Halle Berry is hardly the only celeb in LA. A court would tell her to move to a smaller town in CA before it allowed a move for this reason (or perhaps she could try to move somewhere not quite so far away, like back to her hometown of Cleveland). Or it could tell her to quit her profession and lower her profile. But the danger created by paparazzi is not enough to warrant separating a girl from her father.

4.) None of the above should suggest that a parent can never relocate with a child. People come to us all the time to help them move. It can be done. We have represented people whose children would fly overseas between parents. This example illustrates our contention that every case needs to be considered on its individual merits. A winning approach is to spell out solid reasons for the move from the outset of the case and propose workable solutions to the problems that the move creates. If you can do this then you are then on your way to persuading the court to allow you to relocate.

2023-11-10T13:38:17-05:00November 15th, 2012|Child Custody, International Custody, Relocation|

The Kelly Rutherford Case: International Child Custody, or Revenge Gone Bad?

Many have read, or watched broadcasts, about Kelly Rutherford’s (the star of Gossip Girl) child custody case. Her children were sent off to live with their father, Daniel Giersch, in France. Rutherford maintains that the judge’s ruling is both unjust and inexplicable. Television talking heads and other commentators have agreed. But when Rutherford speaks she may as well be playing basketball against an opponent who is not even on the court because Giersch is not sitting next to her on the couch in the TV studio. He is in France with the children. As in most divorce and child custody cases the truth is that there is more to this story than meets the eye. This case may prove the old adage that there are two sides to every story.

In 2009, while two months pregnant with their second child, Rutherford filed for divorce. According to reports in the media what followed over the next three years was a list of what not to do when attempting to successfully co-parent. Rutherford delivered their second child without informing Giersch until the following day and refused to include Giersch’s name on the birth certificate, even when ordered to do so by the court. After Giersch began to teach his son German, Giersch’s native language, Rutherford attempted to prevent Giersch from leaving the country citing her fear that Giersch would abduct the children. Rutherford sought to relocate the children to New York City so that she could film the next season of Gossip Girl, and Giersch moved to New York City in order to be able to spend time with their children. Then, Rutherford restrained Giersch from contacting her, her mother, and the nanny claiming that Giersch was harassing her family. When asked to provide proof of the harassment, Rutherford withdrew her request for the restraining order. But most notably, Rutherford, through her attorneys, had conversations with the State Department regarding accusations of criminal activity against Giersch’s “businesses” that led to him being expelled from the United States.

There are numerous fascinating aspects to this story. For many, the most troubling aspect of the story is probably why the judge ordered the relocation of the children to France. What stands out for me, however, is that the Rutherford case proves what I have told innumerable clients: revenge doesn’t pay. Apparently, the father was expelled from the United States because of actions that Rutherford took. Was she after revenge? Whatever the answer to that question is, the result of the father not being allowed in the United States speaks for itself.

People are betrayed all of the time. To a greater or lesser extent, we are unfortunately betrayed by our friends, our families, our business partners, and of course, our spouses. It is always hurtful. The impact and significance of the betrayal varies from case to case. But, always, how one responds to the betrayal matters; it matters a lot.

When the lawyers in our practice meet with new clients we are often regaled with stories about how our clients were done wrong. Despite the fact that there are two sides to every story usually the clients telling us about their betrayals are telling the truth. People experience the breakup of their families and need to process through the pain. They need to know that we, their lawyers, understand what it is they are saying, what happened, and where they are coming from.
Yet, even those who were betrayed have to temper their desire for revenge. Although people are loathe to admit it, they often want to strike back at the ones who hurt them. Perhaps that is what happened in the Rutherford case. Why else would Rutherford have taken actions to have her husband’s visa revoked? She may have thought that if he was kicked out of the United States, her case would be a slam dunk. But as it turned out, her actions backfired. The ways that revenge can backfire are far too numerous to imagine. It could involve income, jobs, friends, property, or, most of all, children. Experience teaches the good family law attorney that seeking revenge, instead of seeking the best possible results, often backfires. While it is difficult to know without having been at the trial, it appears that Giersch may have received better advice. This is apparent in the way he has conducted himself with the media during the entire trial. And as most recently reported, during Rutherford’s trip to visit the children in France, Giersch and the children were at the airport to greet her with a sign that said “Welcome Super Mama” and a bouquet of Hello Kitty balloons.

Different lawyers handle their clients differently. When confronted with clients making sense of their situations too many lawyers allow the client to wallow in their misery or to use the legal system as a means to exact revenge. Sometimes lawyers themselves use the legal system for revenge on purpose. Other times they merely carry their clients’ ax and do whatever the client wants. But the feeling of betrayal is better redirected into something positive: how to help reinvent the client’s life. What happens the “day after” the case is something that the client has direct control over. And their lawyer should have some influence on that outcome.

Family law attorneys are sometimes ribbed about being their client’s psychologists and social workers. There is some truth to this. To best represent a client a lawyer in this situation needs to help the client maximize his or her results. Put another way, that means helping the client determine their best outcome the day after the legal wrangling ends. The single best way for a lawyer to do this is to make sure that these clients remember to love themselves, and their children, more than they hate their ex-spouses. That way the very real feelings of betrayal are directed in the positive direction, not of revenge, but of building a better “day after.”

2023-11-10T13:38:17-05:00November 1st, 2012|Child Custody, International Custody, Relocation|
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