A CHECKLIST OF CHECKLISTS
December 15, 2010 § Leave a comment
Proving your case by proving certain factors is a fact of legal life in Mississippi. I’ve referred to it as trial by checklist.
Here are the checklists I’ve posted (you can click on the links to get to them):
Modification of child support.
Periodic and rehabilitative alimony.
Income tax dependency exemption.
Those are all of the checklists of which I am aware. If you know of others, please let me know and I will add them to the list.
I also posted a checklist for closing an estate, but it’s a procedural cheklist rather than a substantive checklist.
A FEW POINTERS FOR MORE EFFECTIVE CHANCERY TRIALS
December 14, 2010 § 8 Comments
A few thoughts that might help:
Facts, not impressions. Okay, you’re the judge and you have to decide whether the defendant assaulted the plaintiff. Here are two different versions in response to the question “Please tell the court what you observed when you entered the room.”
Version One: “The defendant was going crazy. I mean he went mental. Kaflooey! And I couldn’t believe it. Never saw anything like it. Mmm, Mmm, Mmm; I mean to tell you. Crazy. And, Lordy, such language. I didn’t know which way to turn. Didn’t really scare me, though — I was in Viet Nam. But it might have scared the others.”
Version Two: “The defendant picked up a recliner chair and threw it through the window. Then he grabbed a beer bottle and rared back like he was going to hit the plaintiff in the head, but instead he slapped her in the face and screamed that he liked to kill her. She was all balled up on the floor crying and begging, yelling out “please don’t break my arm like you done the last time!” and then he turned and glared at me and I thought he was going to kill me.”
Version one doesn’t convey a single thought about what the defendant actually did to assault anyone. It is ineffective because it is full of impressions and adjectives. Where are the specifics?
Version two, on the other hand paints a vivid picture chock full of verbs that unmistakably conveys the violence and anger. All the details are there.
When you’re prepping your witnesses for trial (Uh — you do prep your witnesses, I hope), train them to paint a word picture of what happened instead of just babbling a bunch of labels.
Eliminate pronouns from your questions. Keep in mind that you are doing two important things while you are questioning the witness: You are telling the judge your client’s story as persuasively as you can; and you are making a record for the appellate court to use if necessary. So how does the following help your client?
Q. So when they entered the room, what did he say?
A. They was all talking loud, but he said he was going to kill her for messin’ around with him.
Q. Who else was in the room?
A. Just all them and me.
Q. What if anything did you see him do?
A. Well, he left the room and then he came with guns and then they both had guns.
Q. What did he do?
A. He started to shooting. That’s when he shot her by mistake, I guess.
Huh? Who’s on first? What’s on second? I dunno’s on third? How in the world can anybody follow that? Let’s go back and eliminate the pronouns:
Q. So when Robert, Travis and Bo entered the room, what did Bo say?
A. Robert, Travis and Bo was all talking loud, but Bo said he was going to kill Charlene for messin’ around with Billy Joe.
Q. Who else was in the room?
A. Just Rita and Charlene and me.
Q. What if anything did you see Bo do?
A. Well, Travis left the room and then Caleb came with guns and then Travis and Bo both had guns.
Q. What did Bo do?
A. Bo started to shooting. That’s when Bo shot Rita by mistake, I guess.
Clearer? It is to me.
Focus on the points you need to prove. If, for example, you are trying to modify child support, it makes no sense to take your client early in her testimony through a long, meandering history of the marriage and divorce, and then how the children are doing in school, and then get several pictures into evidence that one of the children finger-painted in kindergarten, and then a narration of the soccer tournament in Brandon, and then ad nauseam. Get into the Adams factors for child support modification, sit down and hush. Just hush. Sometimes I have the impression that an attorney has no clue about what he or she is supposed to prove because the witnesses and exhibits are all talking about something entirely different from what is at issue.
It’s your job to establish jurisdiction. Yes, it’s your job. Nevertheless, I have had to do it on more than one occasion for the attorney. Here’s the deal:
If you are trying a divorce, you have to ask your witness about residence in the state of Mississippi for the requisite time, and you have to establish venue, and of course a marriage;
if you are trying a modification, you have to establish that the court has continuing jurisdiction by virtue of a prior judgment; and
ditto for a contempt action;
if you are trying a property dispute, where on this green earth is the property located?
The pleadings are not evidence in chancery court. Don’t think just because it’s in the pleadings that it is proven. The pleadings are your template for what must be proven through competent evidence at trial. If you want the trial judge and possibly the appellate court to consider it, you must put it into the record at trial.
No corroboration = no divorce. Unless the parties lived in near-total isolation and were incommunicado, which is almost unheard of in this internet-connected, smart-phone world, corroboration is a prerequisite to a divorce. What constitutes adequate corroboration is beyond the scope of this post, but you can find what you need to know in Professor Bell’s or Professor Hand’s treatise. In uncontested cases, I will sometimes “recess” the hearing to allow a lawyer time to recoup some of his or her dignity by scrounging up some corroboration, but in a contested case, I can not do that without prejudicing the opponent, and the result is an unfortunate denial of the divorce.
Spend some time on your 8.05. A post with ten tips for more effective financial statements is here. I have seen cases turn on the 8.05’s, and the one that is clear and better-presented prevails every time.
Oh, and here’s something to keep in mind: If you’re in a modification of child support case, the most crucial thing to prove is that there has been a CHANGE in circumstances. Use your brain here. If you are trying to prove a change, and it involves money, what is the best tool to use to show that change? Yes! It’s the 8.05! Of course! Add a column to your current 8.05 showing the expenses and income from back in 2003 when the divorce was granted. You can ask your client to dig around and find the 8.05 from back then to base your figures on, or ask her to reconstruct those figures for you. If she does have the 2003 8.05, you could offer that into evidence to prove the expenses and income back then.
Finally, do yourself, the witnesses, opposing counsel and above all the court a favor and simply number the pages and items of your financial statement. Imagine how mind-numbing this unfortunately typical exchange is for the judge (and everyone else within earshot):
Q: So you spend $200 a month on clothes?
A: Yes. No. I’m not sure I know what you’re talking about.
Q: It’s on page 3.
A: (Flipping pages of the 8.05) No. I think that’s the equity in my house. Or maybe that’s my life insurance. Or pet expense. I’m not sure.
Q: No, look at the third page, the third page. 1-2-3.
A. Do you mean the GMAC here? That must be my church donation — Greater Meridian Adventist Church? Hmm, I don’t even go to that church.
Q: You’re looking at your car payment. Turn to the page that looks like this (Showing the witness the document).
A: I don’t see where it says that I spend money on clothes.
Q: Well, you have the figure $200 down there where it says “clothing.” What is it for?
A: Oh, clothing. I see it on line 11, but that’s the fourth page.
Q: No, it isn’t, it’s the third.
A: You’re right, it’s the third. Now what was the question?
Wouldn’t it have been more effective to direct the witness to the numbered page and to a particular line number? It certainly would save wear and tear on the judge, if nothing else. And the less wear and tear you inflict on the judge, the better your case turns out. Every time.
A MILITARY LIFE INSURANCE POTHOLE
December 10, 2010 § 2 Comments
You have tried your divorce case to a conclusion and your client, the wife, is awarded custody and statutory child support. The husband, an active-duty member of the Navy, is ordered to maintain his Serviceman’s Group Life Insurance (SGLI) policy for benefit of the minor child. It would appear that everything is peachy-keen. Your client is on cruise control, right?
Not so fast, my friend. Your client’s limo is headed for a major pothole. Consider the following:
Richard and April Ridgway were divorced in 1977 in the State of Maine. They had three children at the time.
In the divorce judgment, the trial court ordered Richard to maintain his SGLI policy in the face amount of $20,000 with April as beneficiary for benefit of the three minor children.
Richard later married Donna and changed the designation of the beneficiary to provide that the proceeds would be paid as specified “by law,” which under federal law means that it would be paid to his widow, who would be Donna. Richard died and both April and Donna filed claims to the proceeds.
April filed suit in Maine courts seeking imposition of a constructive trust for benefit of her children. Donna joined the suit seeking payment to herself based on the designation of beneficiary by Richard.
The case wended its way to the U.S. Supreme Court, and in Ridgway v. Ridgway, 454 US 46 (1981), that court held that due to the supremacy clause, a state court ruling must yield to federal law that gives a serviceman the unfettered right to designate his own SGLI beneficiary, and for such policies to be exempt from attachment, execution and other process for collection.
What all this means is that the state trial court judge’s rulings vis a vis the SGLI is essentially meaningless.
So what can you do? One solution may be to ask the court to take judicial notice of the Ridgway decision (and provide the judge a copy), and have your client testify that she insists that the husband obtain and maintain a private policy of life insurance with the children as sole named beneficiary. If you put all your client’s eggs in the SGLI basket, she may find it empty when egg-gathering time arrives. And she just might look to you to make things right.
Thanks to attorney Bill Jacob for this. I have not researched this issue for later authority, but Bill tells me it is good law.
TRANSFER OR DISMISS?
December 8, 2010 § 5 Comments
It was long the law in Mississippi divorce cases that venue is jurisdictional, and that an action filed in the wrong county had to be dismissed, and could not be transferred to the appropriate county. See, Carter v. Carter, 278 So.2d 394, 396 (Miss. 1973). Venue in a Mississippi divorce is said to be “exclusive” because the divorce statutes define where venue lays. The action must be brough exclusively in the county specified. Where venue is exclusive, it is jurisdictional.
Against this backdrop, the Mississippi Supreme Court decided the case of National Heritage Realty, Inc. v. Estate of Boles, 947 So.2d 238 (Miss. 2006), reh. den. February 8, 2007. The case involved an estate opened in Tallahatchie County, which was the county where the decedent formerly lived before relocating to a nursing home in Leflore County, where she subsequently died. The chancellor found that venue for the estate was properly in Leflore County, and had ordered that the estate be transferred from Tallahatchie County to Leflore. The Supreme Court, by Justice Easley, ruled that the venue statute for estates is exclusive, and, therefore, jurisdictional. In the absence of jurisdiction, the chancellor was without authority to take any action, even a transfer. In the absence of jurisdiction, his action was void and not merely voidable. Justice Easley at page 248 based his reasoning on the established divorce venue law, to which he analogized the estate venue statutes.
The only problem is that the divorce venue statute, MCA § 93-5-11, had been amended in 2005, a year before the Boles decision, to add the following sentence: “Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.” MRCP 82(d) reads, in part:
“When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court, on timely motion, shall transfer the action to the court in which it might properly have been filed and the case shall proceed as if originally filed therein … “
Justice Easley’s opinion makes no mention of the amendment.
From time to time I get requests from lawyers to transfer a case, usually from Lauderdale to Clarke County, although I have been requested to transfer to other counties. This occurs primarly with out-of-district lawyers who are unfamiliar with the fact that some people with a 39301 zip code and a Meridian address actually reside in Clarke County, or some folks with Collinsville addresses actually reside in Newton or Neshoba, or with Daleville or Lauderdale addresses actually residing in Kemper. The predominant type of case lawyers want transferred involves the Structured Settlement Protection Act, MCA § 11-57-1, et seq. I presume they prefer transfer over dismissal because dismissal requires filing a new petition and starts over the law’s technical notice and time requirements.
So how can we reconcile Boles and MCA § 93-5-11 and MRCP 82(d)?
In the absence of any definitive guidance from the appellate courts, here is my interpretation:
- If the case is not a divorce and venue is exclusive (i.e., defined in the statute upon which your action is based), then the case can not be transferred. It must be dismissed and refiled.
- If venue in the case arises under MCA § 11-11-3, the general venue statute (which has been held to be applicable to actions in chancery court where there is no exclusive venue statute), the case may be transferred per MRCP 82(d).
- If the case is a divorce, it may be transferred per MCA § 93-5-11, but see the caveat below.
Some observations based on the above:
Cases under the Structured Settlement Protection Act may not be transferred because MCA § 11-57-11 includes an exclusive venue provision.
An action solely for an injunction is under the general venue statute because MRCP 65 does not define venue for the action. A Rule 65 action may be transferred.
Although the statute expressly authorizes transfer of a divorce, consider the ramifications before you do it. The divorce statutes include an exclusive venue provision. Under Boles, an action filed in the wrong venue in an exclusive venue case is void ab initio, meaning that the chancellor has no authority to take any action other than to dismiss. The court lacks subject matter jurisdiction. Price v. Price, 32 So.2d 124 (Miss. 1947). Lack of subject matter jurisdiction is a defect that may be raised at any time, even years after the fact, because the action of the court lacking jurisdiction is void, and not merely voidable. Would you want to risk having your client’s divorce set aside somewhere down the road by the other party who is disgruntled with the outcome? If I were the attorney, my preference would be to take the safe path and dismiss the case with improper venue rather than transfer it.
[I hope this is a helpful starting point for Frankie and colleagues at MC Law]
ONE WAY TO PUT $50,000 IN THE POCKET OF YOUR CLIENTS
December 3, 2010 § 5 Comments
You are representing the executrix who is one of three siblings who are the legatees of the decedent. They have come to you because their dad’s only asset of any real value, other than his furniture and an old car, was a life insurance policy with a face value of $50,000 that he had made payable to his executor for the estate, and the estate needs to be probated to receive the insurance proceeds.
The catch is that the creditors have claims that exceed the proceeds of the life insurance policy: $17,000 to various credit cards; $8,000 to a loan company; and $36,000 to doctors and hospitals for the final illness. Pretty bleak.
The furniture and car are exempt property, as we know. Is there anything else you can do?
Look at MCA § 85-3-13. Here’s what it says:
The proceeds of a life insurance policy not exceeding Fifty Thousand Dollars ($50,000.00) payable to the executor, or administrator, of the insured, shall inure to the heirs or legatees, freed from all liability for the debts of the decedent, except premiums paid on the policy by any one other than the insured, for debts due for expenses of last illness and for burial; but if the life of the deceased be otherwise insured for the benefit of his heirs or legatees at the time of his death, and they shall collect the same, the sum collected shall be deducted from the Fifty Thousand Dollars ($50,000.00) and the excess of the latter only shall be exempt. No fee shall be paid or allowed by the court to the executor or administrator for handling same.
Under this section, the first $50,000 in life insurance proceeds is exempt from the claims of creditors, although that amount would be reduced by the amount of any other life insurance proceeds that the legatees receive from policies on the decedent’s life. The only exceptions to the exemption would be: Any claim made for payment of life insurance premiums made on the policy by someone other than the insured; and any claims for the burial and administrator’s or executor’s attorney’s fees for administering the estate, since those are not debts of the decedent, but rather are debts of his estate. Dobbs v. Chandler, 36 So. 388 (Miss. 1904). But attorney’s fees incurred in recovering insurance proceeds are not an administrative expense chargeable against the proceeds. Abernethy v. Savage, 132 So. 553, 554 (Miss. 1931).
The exemption is not limited to the spouse and children, but inures to the benefit of the heirs or legatees, and must be liberally construed in their favor. Coates v. Worthy, 17 So. 606; on suggestion of error, 18 So. 916 (Miss. 1895).
The exempt proceeds are divided among the heirs or legatees on a pro rata basis. Magee v. Bank of Hattiesburg & Trust Co., 98 So. 541 (Miss. 1923).
The insurance proceeds must be payable to the executor or administrator of the estate. In Rice v. Smith, 16 So. 417 (Miss. 1894), the court found the proceeds not to be exempt where the insured had named himself, his executors, administrators and assigns as beneficiaries. Held that the decedent himself was the true beneficiary, and that his administrator held the proceeds just as if the decedent himself had held them. This is a curious result, since it seems to presuppose that one may somehow collect one’s own life insurance proceeds. But the significance of this case is that the statute requires the beneficiary to be the executor or administrator.
Caveat: MCA § 85-3-11 disallows the exemption where the decedent can be proven to have used life insurance to defraud creditors.
Note: The cases cited are ancient, but I believe them to be good law and I found no negative history.
MORE ON FAMILY VIOLENCE AND CUSTODY
December 2, 2010 § 2 Comments
The court of appeals on November 30, 2010, upheld a chancellor’s decision that the statutory presumption against awarding custody to a party who has a history of family violence did not apply in the facts of the case. I previously posted about the presumption and its effect on custody here.
In Brumfield v. Brumfield, which was before the chancellor on remand for specific findings on the Albright factors, there was evidence that the husband, Alex, who was awarded custody, had argued with his wife Heather, grabbed her, dragged her outside, threw her to the ground and hit her twice with a belt. The parties reconciled after the event, although they later separated again. The chancellor found the episode to be “isolated,” and insufficient to trigger the presumption. A majority of the court of appeals, by Justice Myers, agreed with the chancellor’s finding that the record established only the single incident of domestic violence.
Justice Carlton, in a written dissent, reached deep into the record and found a document purporting to be a “sentencing order” from the Walthall County Justice Court on a charge of stalking and telephone harassment brought against Alex by an unnamed person. The document stated that the charges had been remanded to the file. Justice Carlton took the position that the document supported a finding of a pattern of family violence, even though the document did not appear to have been introduced into evidence, and there was no authentication. The majority opinion pointed out that Heather had never mentioned the charge in her testimony at trial, in her arguments before the chancellor, or in her briefs filed with the court of appeals. Apparently the chancellor had found the document either inadequately authenticated, or too vague with respect to its victim, or otherwise lacking probative weight. It has long been the law in Mississippi that, in the absence of specific findings, it is presumed that the chancellor resolved fact issues in the appellee’s favor. McNeil v. McNeil, 607 So.2d 1192, 1193 (Miss. 1992).
There are two refreshing aspects of the majority opinion: One is the finding that Chancellor Debbra Halford acted properly in considering the belt-hitting incident in the context of her consideration of the Albright factors, rather than reaching outside the evidence to make a finding for the presumption; and Two that the majority deferred to the chancellor’s judgment and discretion, based as it was on her observation of the demeanor and credibility of the witnesses.
As a lawyer, you need to plan your case either to meet the presumption or to persuade the chancellor to find that it applies. You don’t want to get blind-sided by the presumption if it is against your client, and you don’t want your proof to fall short if the presumption is in your client’s favor. In the Brumfield case, might the outcome have been different if Heather’s lawyer had put more emphasis on proof supporting the presumption? Remember, chancellors have to base their decisions on what is in the record, and it is your job to make that record.
COMPLYING WITH RULE 10(d), MRCP
November 30, 2010 § Leave a comment
Rule 10(d), MRCP, states “Whenever any claim or defense is founded on an account or other written instrument, a copy thereof should be attached to or filed with the pleading unless justification for its omission is stated in the pleading.”
Originally, Rule 10(d) required a copy of any writing to be attached as an exhibit to the pleading. That requirement was removed in 2000 to conform to the Mississippi Supreme Court’s ruling in Gilchrist Machine Co. v. Ross, 493 So.2d 1288, 1292, n. 1 (Miss. 1986); see also, Edwards v. Beasley, 577 So.2d 384 (Miss. 1991); and Bryant, Inc. v. Walters, 493 So.2d 933, 938 (Miss. 1986).
So what do you need to do to avoid an evidentiary problem under Rule 10(d)?
As the comment states, ” … it remains good practice normally to attach such documents as part of a clear statement of a claim or defense,” and the rule does specifically state that a copy should be attached unless justification for not attaching it is stated in the pleading. The comment points out that if a foundation document is not attached to an otherwise sufficient pleading, it may be obtained through discovery.
From the cases, it appears that the documents offered at trial that were not attached would likely be admitted, unless no justification was given in the pleading and efforts to discover them were unsuccessful.
A THOUSAND WORDS’ WORTH
November 29, 2010 § 1 Comment
Rule 1006 of the Mississippi Rules of Evidence allows you to offer charts, summaries or calculations where the evidence is so voluminous that it would be inconvenient to develop it in the course of testimony. The procedure is simple: The originals are produced at a reasonable time and place for inspection and copying, and the court may order that they be produced in court, although introduction of the originals is not required, according to the official comment to the rule.
The advantages of this rule can be pretty significant. It can improve your effectiveness in presenting complex proof, and give you an edge over an opponent who is too lazy to avail himself of it.
Here are a few examples:
- There is a claim of wasteful dissipation of assets based on abuse of a credit card over a three-year period. There are literally hundreds of transactions. Instead of dumping the statements into evidence, prepare a chart showing yearly and monthly totals. Another chart could highlight spending trends, such as dates and amounts of casino cash advances, jewelry purchases and so on. Witnesses can then be questioned about particular aspects of the matter without laborious testimony to establish the underlying transactions.
- Six years of tax returns are relevant. Chart the income and taxes paid, or the depreciation and deductions claimed, rather than tediously poring over them.
- The other party has fluctuating income. Use charts and graphs to illustrate.
A variation on this theme is to present your client’s position in a concise written form, as, for instance, where your client is requesting particular provisions for visitation. Have the proposed visitation arrangement reduced to writing and have your client testify about the key articles. Introduce the proposed arrangements through your client.
As always, put yourself in the judge’s shoes. If all you do is put 76 credit card statements in evidence with some testimony of a witness or two, are you sure that the judge will draw all the conclusions that you want her to? If all you do is put tax returns into evidence with some testimony, will the judge in his deliberations focus in on exactly what you need to win? Which evidence is more likely to get a detailed, thorough going over: raw documents with some notes taken by the judge; or a chart that focuses the judge’s attention like a laser on the details you need?
Rule 1006 is a super tool. It lets you reduce literally thousands of words (and, consequently judge’s notes) into a picture. And we all know how many words a picture is worth.
ONCE AGAIN ON THE IMPORTANCE OF CHECKLIST PROOF
November 24, 2010 § Leave a comment
I’ve talked before here about how important it is to develop your proof at trial based on the various lists of factors — I call them “checklists” — that have been handed down by the appellate courts.
The Court of Appeals on November 2, 2010, reversed a Chancellor’s decision granting grandparent visitation for failure to address the Martin v. Coop factors. In the case of Conerly v. Davis, the court stated that ” … the grandparent-visitation statutes simply give a grandparent … standing to file a request seeking visitation rights. It is then within the chancellor’s discretion to award or deny visitation after reviewing the Martin factors and considering the best interest of the child. Therefore, we vacate the chancellor’s judgment and remand this case for an on-the-record consideration of the Martin factors and the entry of an appropriate judgment based on those factors.”
The Martin v. Coop factors are here.
A guide to the intricacies of grandparent visitation is here.
The retrial in this case may be due to a simple oversight on the judge’s part. Or, it may be that neither party at trial developed any evidence that would have supported findings under the appropriate factors.
When representing a client in any case where proof of trial factors is required to support the chancellor’s decision, be sure you present evidence to establish each and every one. If you do not have proof on every factor, develop as many as you can. If the judge renders an opinion at the conclusion of the case and does not address the applicable factors, ask her to adress them or to render a supplemental opinion doing so. If the judge renders a written opinion and/or judgment, file an MRCP Rule 59 motion immediately, but not more than ten days after the judgment is entered, asking the court to address the factors based on the proof in the record.
You are setting the stage for a remand and a second, costly trip to court for your client if you don’t.
UCAPA: A VALUABLE CUSTODY TOOL
November 23, 2010 § Leave a comment
Mississippi adopted the Uniform Child Abduction Prevention Act (UCAPA) in 2009. It is codified at MCA §§ 93-29-1 through -23.
Although the title of the law refers only to abduction, the new statutes go much further and offer proceedings and remedies for situations involving violation of a court order by removing or withholding custody of a child, both of which are situations frequently encountered by practitioners and the courts. The unique aspect of this law is that it is preventative; that is, it allows the court to act in anticipation of a violation, provided that certain things are proven. You need to be aware of this law and add it to your repertoire of actions in custodial situations of every kind and nature.
The Act is an adjunct to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), MCA §§ 93-27-1 through 209.
The purpose of the law is to provide legal measures to prevent child abduction, which is defined in Section 3 as “wrongful removal or wrongful retention of a child,” or wrongful removal of a child, which is defined as “taking of a child that breaches rights of custody or visitation given or recognized under the laws of this state,” or wrongful retention of a child, which is defined as “the keeping or concealing of a child that breaches the right of custody or visitation given or recognized under the law of this state.”
There are three ways to impose measures under the Act spelled out in Section 7:
- A court may on its own motion impose abduction prevention measures if it finds that the evidence establishes a credible threat of abduction. Section 3 states that the court is any aythorized to establish, enforce or modify a child custody order.
- A party to a child-custody determination or a party having a right under Mississippi law or the law of any other state may petition to have obtain abduction prevention measures. A child custody determination is defined in Section 3 as “a proceeding in which the legal custody, physical custody, physical custody or visitation with respect to a child is at issue, including divorce and dissolution of marriage, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, or protection from domestic abuse.
- A prosecutor or certain public officials may take action.
Jurisdiction is in any court that has child custody jurisdiction under the UCCJEA. Also, a court of this state may have temporary emergency jurisdiction under MCA § 93-27-204.
The petition must be verified and include a copy of any existing child-custody determination. The petition must state a factual basis for the belief that there is a credible risk of abduction, stating which of the factors set out in Section 13 are applicable, and why. Subject to MCA § 93-27-209(5) (where information must be kept confidential to protect the safety of a child), the petiton must also include (a) the name, birth date and gender of the child; (b) the customary address and current physical location of the child; (c) The identity, customary physical address and current physical location of the respondent; (d) a statement whether a prior action to prevent abduction was filed by anyone having custody of the child, and the date, location and disposition of the action; (e) a statement whether a party has been arrested for a crime related to domestic violence, stalking, child abuse or neglect, and the date, location and disposition of the case; and (e) any other information required to be submitted to the court under § 93-27-209, MCA.
Section 13 lists factors to be considered by the court in determining whether there is a credible risk of abduction, and allows the court to take into consideration that the respondent may have believed in good faith that her actions were necessary to prevent harm to the child, or that they were done with permission. The factors include whether there has been:
- A previous abduction or attempted abduction;
- A threat to abduct;
- Recent activity indicating a planned abduction;
- Domestic violence, stalking or child abuse or neglect;
- Refusal to follow a child-custody determination;
- Lack of strong familial, financial, emotional or cultural ties to this state or the United States;
- Strong familial, financial, emotional or cultural ties to another state or country;
- Likelihood of taking the child to another country that is not a party to the Hague Convention, or the laws of which would bar efforts by the other party to contact or re-gain custody of the child, or which poses a threat to the health or safety of the child, or is a terrorist state, or is one with which this country has no diplomatic relations, or is involved in any external or civil war to which the child may be imposed.
- An ongoing immigration proceedings that may result in expulsion;
- An application for U.S. citizenship denied;
- Falsified travel, driver’s license or other government-issued documents, or misrepresentations to the United States government;
- Use of multiple names;
- Any other relevant conduct.
If the action is brought on the court’s own motion, the court must also consider the age of the child, the potential harm to the child, the legal and practical difficulties of returning the child to the jurisdiction if the child were abducted, and the basis for a finding of potential abduction.
An order issued by the court must include the provisions spelled out in Section 15
Measures that may be imposed to prevent abduction as set out in Section 15 may include:
- Imposition of travel restrictions;
- Prohibition from removing the child from this state or the United States, from retaining the child in violation of a court order, or even from approaching the child at any location other than one designated by the court for supervised visitation;
- Requirement to register the court’s order in the other state as a condition precedent for visitation with the child in that state;
- An order that the child’s name be placed on the U.S. State Department’s Passport Issuance Alert Program;
- Surrender of passports and prohibition against applying for new or replacement passports or visas;
- Other measures as spelled out the section.
The court may also limit visitation, require a bond, order educational programs, issue a warrant to take custody of a child, direct law enforcement to locate and take or return custody of a child, and grant any other relief necessary.
The court’s order remains in effect for the time stated in the order, or until emancipation of the child, or until the child attains age 18, or until further order of a court of competent jurisdiction.
This court’s view: On first blush, it would appear that this would be a rarely-invoked law. After all, how many times have genuine abduction situations arisen in our courts? Well, in 2010, I have already had two cases that raised issues under this law. One involved a citizen of middle-eastern country married to an American citizen who was alleged to have threatened in the heat of a separation squabble that he would take the children to his country and the mother would never see them again. The other involved grandparent visitation rights and a threat to take the children to another state or Canada where the parent would no longer be required to submit to the court’s order.
But those specific instances are only the more exotic examples. With a little imagination and effort, you can find ways to make this statute work for your clients in more prosaic cases.
There have been many scenarios over the course of my legal career where this law would have come into play and provided a remedy where none existed then.
Practice Tip: Familiarize yourself with UCAPA and add it to your repertoire to use in child custody, visitation and wrongful retention cases, especially where there are interstate or international considerations. It can be an important tool in your custody tool box.
The Better Chancery Practice Blog 