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June 2015 Archives

Child Custody Jurisdiction for Military Assigned to Japan

  • Previous Child Custody Determination

    Please review my previous AVVO Legal Guides on Interstate Custody and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA; in Washington State the statute is RCW 26.26). The UCCJEA provides that when a state in the US has previously entered a child custody determination, that state will continue to exercise jurisdiction until it waives or declines jurisdiction.
  • Home State Jurisdiction (Including Foreign Countries)

    When there is no prior court order on custody or visitation, RCW 26.27.201(1)(a) provides that the initial inquiry for UCCJEA jurisdiction will be whether or not the child has a "home state," as defined by RCW 26.27.021. RCW 26.27.021(7) defines the home state of the child as the place where the child has lived for six months prior to the commencement of the proceeding. RCW 26.27.051(1) provides that "a court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying Articles 1 and 2." Therefore, if the child has lived in Japan for more than six months, Japan would normally be considered to be the "home state" of the child under RCW 26.27.201(1)(a).
  • Status of Forces Agreement (SOFA) in Japan

    However, Under the Status of Forces Agreement (SOFA), a treaty signed between the US and Japan, U.S. service members and their dependents "...shall not be considered as acquiring any right to permanent residence or domicile in the territories of Japan." For this reason, Japan will not make a custody determination for children of US service members due to the SOFA. When the parents reside in a state or country for more than six months, but intend to reside there only for a temporary period, and do not intend to return to that state or country, it is not a "home state" within the meaning of RCW 26.27.021(7). C.f. Hudson v. Hudson, 35 Wn.App. 822, 670 P.2d 287 (1983). Therefore, Japan will normally not be the home state of the child of a US service member.
  • SOFA Precludes Japanese Jurisdiction in Military Custody Cases

    Pursuant to the SOFA treaty with the US, Japan will not take jurisdiction over the children of US military service members, unless one parent is Japanese and the child has Japanese citizenship. The Status of Forces Agreement (SOFA) between Japan and the U.S. specifically provides that U.S. forces and their dependents "shall not be considered as acquiring any right to permanent residence or domicile in the territories of Japan." This precludes Japan from making child custody determinations as no child becomes a true resident of Okinawa/Japan.
  • SOFA Provisions

    SOFA ARTICLE IX provides: 1. The United States may bring into Japan persons who are members of the United States armed forces, the civilian component, and their dependents, subject to the provisions of this Article. 2. Members of the United States armed forces shall be exempt from Japanese passport and visa laws and regulations. Members of the United States armed forces, the civilian component, and their dependents shall be exempt from Japanese laws and regulations on the registration and control of aliens, but shall not be considered as acquiring any right to permanent residence or domicile in the territories of Japan....
  • Most Convenient Forum

    RCW 26.27.201(1) (b) states when there is no home state of the child or that state declines to exercise jurisdiction, the more appropriate forum should take jurisdiction. Washington may the most convenient forum to make custody decisions if the child has more connections to Washington State than to any other state. These connections can be past residence in Washington; an intent of one or both parents to eventually live there; Washington being the military "home of record"; the existence in Washington of medical or educational records, family ties, and friends; the mentioning of Washington State in the military "Family Care Plan"; or the presence in Washington of witnesses about the parents' child care history.
  • Inconvenient Forum

    By contrast, RCW 26.27.261 indicates when a court is an inconvenient forum. The first issue mentioned in the statute is a history of domestic violence. Another factor mentioned in RCW 26.27.261(2)(e) is an agreement between the parties as to which state should assume jurisdiction. If one parent has previously agreed that Washington state would decide issues of custody, that is a fact the court can consider in deciding whether to exercise jurisdiction.
  • "Vacuum Jurisdiction"

    RCW 26.27.201 (1) (d) provides a solution for those cases in which there seems to be no state which has jurisdiction. It provides that: ...[A] court of this state has jurisdiction to make an initial child custody determination...if: ... (d) No court of any other state would have jurisdiction under the criteria specified in (a), (b), or (c) of this subsection. This "vacuum jurisdiction" provision applies when the child has no home state, there is no convenient American forum, no state has any substantial witnesses or evidence about custody, and the child has no significant connection to any other state. Such a situation would leave the parties in a jurisdictional vacuum. RCW 26.27.201 (d) applies when "No court of any other state would have jurisdiction...." If the Court finds no other basis for jurisdiction, it should apply this "vacuum jurisdiction" provision of the UCCJEA.
  • The Need for an Early Decision on Custody

    Many things must be done by a parent prior to departure from Japan. They will have to notify the military whether they will be traveling alone or with the child; make plane reservations; contact the new school and day care; and set up the necessary residential arrangements. The State with the most significant connections, more convenient forum, or "vacuum jurisdiction," must resolve these issues before travel plans can be made. If the parties agree and can articulate minimal grounds for jurisdiction, the Courts should be amenable to taking jurisdiction. If the parties don't agree, it may essentially boil down to a race to the court house. However, courts with competing grounds for jurisdiction when no prior custody order has issued are required to consult with each other under the UCCJEA before making a decision.
  • "Vacuum Jurisdiction" Allows Difficult Custody Issues to be Decided

    RCW 26.27.201 (1) (d) was intended to resolve those cases where no other basis of jurisdiction is provided under the UCCJEA, but some state nevertheless must enter a Parenting Plan. This conclusion is supported by the following quote from Horenstein, Washington Practice, Volume 17, Family and Community Property Law, ? 24.11 (page 137): Washington Court may assume jurisdiction over a custody proceeding when it appears that no state is the child's home state, there is no state with which the child and a party have significant connections and no state is been determined to be the more appropriate forum by the child's home state. Thus, for example, if a couple meets while in the military while overseas and they come from different states they marry, conceive a child, the child is born and raised overseas, and then the couple separate in view of their respective discharges, this provision comes into play. The first party to file will often have a paramount claim to jurisdiction.
  • Service of Process

    Notice of a child custody case filed under the UCCJEA to "a person outside this state may be given by personal service [RCW 26.27.081(1)(a)] or certified mail [RCW 26.27.081(1)(b)]." It is often prudent to serve Respondent in both manners. Statutory notice is not required for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of the court. RCW 26.27.081(3). Service by one of the statutory methods will normally suffice to establish personal jurisdiction to someone living outside of Washington State. See, e.g., Hudson v. Hudson, 35 Wn.App. 822, 670 P.2d 287 (1983); and In re Marriage of Tsarbopoulos, 125 Wn.App 273, 104 P.3d 692 (2004). Courts in Washington State may adjudicate child custody issues under the UCCJEA without acquiring personal jurisdiction over the absent party, as long as the absent party has been given adequate notice under all the circumstances. Hudson v. Hudson, supra.
  • Disclaimer

    (C)Bruce Clement. This Blog is provided for general educational purposes only. By using or participating in this site you agree and understand that there is no attorney client relationship between you and the attorney who wrote this Blog, and no attorney-client confidentiality. The law changes frequently, and varies from jurisdiction to jurisdiction. The information provided in this Guide is general in nature and may not apply to the factual circumstances described in your question. The applicable law and the appropriate advice may be different in the State or States where the relevant facts occurred. For definitive legal advice you should independently consult an attorney who (1) is licensed to practice in the state which has jurisdiction; (2) has experience in the area of law you are asking about, and (3) has been retained as your attorney for representation or consultation. Your comment to this Legal Guide may be used for promotional or educational purposes.
  • Mediation and Alternative Dispute Resolution

  • What is ADR?

    ADR, or Alternative Dispute Resolution, is an informal procedure designed to reduce or eliminate the need for court proceedings by encouraging or requiring resolution of disputes, usually by counseling or mediation. In counseling, the parties jointly meet with a counselor to discuss their issues, and try to voluntarily come to an agreement on all or some issues. In mediation, the parties meet with a mediator who is trained to help people come to an agreement; the parties often sit in different rooms while the mediator goes back and forth with proposals and suggestions for a resolution. In arbitration, the arbitrator hears evidence from both sides, and then renders a decision which is binding on both parties unless one party appeals to the court.
  • When Is ADR Required?

    Cases requiring mediation or some other form of ADR include Petitions to Modify Parenting Plans, and contested Relocation cases. ADR is required prior to a trial on relocation, custody, and visitation cases. It is also a precondition to filing a court motion to modify an existing parenting plan. Most parties choose mediation as their method of ADR.
  • What is Mediation?

    Mediation is highly effective for resolving the difficult disputes in divorce and family law. In fact, Washington law requires that parties try out-of-court dispute resolution before contested cases can be set for trial. The mediator acts as a neutral third party to help you and your spouse or partner work through your custody and visitation disagreements. The goal is a negotiated, fair agreement that avoids litigation. A mediated solution is almost always quicker, less costly and less stressful than going to court. It allows you to control the outcome to a greater extent and it reduces future conflicts.
  • Disclaimer

    This Blog is provided for general educational purposes only. By using or participating in this site you agree and understand that there is no attorney client relationship between you and the attorney who wrote this Blog, and no attorney-client confidentiality. The law changes frequently, and varies from jurisdiction to jurisdiction. The information provided in this Blog is general in nature and may not apply to the factual circumstances described in your question. The applicable law and the appropriate advice may be different in the State or States where the relevant facts occurred. For definitive legal advice you should independently consult an attorney who (1) is licensed to practice in the state which has jurisdiction; (2) has experience in the area of law you are asking about, and (3) has been retained as your attorney for representation or consultation. Your comment to this Blog may be used for promotional or educational purposes. (C)Bruce Clement
  • Divorce Defaults Part 2

  • If Your Spouse Has Not Appeared in Your Divorce Case

    The basic rule is stated in Civil Rule 55. If your spouse has not filed a Response to your Petition or a Notice of Appearance in your divorce case, you can normally get an Order of Default and have all your final orders entered without the need to even give prior notice to your spouse. You do have to wait for 90 days after both service and filing of the pleadings. After that, if all your paperwork is in order and your Proof of Service is on file, you should be able to get your divorce finalized by default.
  • What Is a Notice of Appearance?

    CR 55 (a) (3) does provide that "Any party who has appeared" must be given 5 days prior notice of a hearing on a motion for default. The same rule provides that "Any party who has not appeared...is not entitled to a notice of the motion...." "Appeared" usually means the filing in court of a "Notice of Appearance". This form can be obtained on line at www.Wash.gov.court. Once a Notice of Appearance has been filed, the petitioner in a divorce cannot get a default against their spouse without first giving prior notice of the date, time and place for the Motion for Default. The motion can still be filed, but in order to get all the final orders entered by the Court, the petitioner must show the Commissioner that the responding spouse was given prior notice of the Motion for Default.
  • What Is an Informal Notice of Appearance?

    Washington State has three divisions of its Court of Appeals. All three divisions have filed published decisions over the years which recognize a concept of an "informal appearance". An informal appearance is basically the expression of an intent by the defendant to oppose the petition that was filed in a court case. Examples from the appellate cases include multiple phone calls to the petitioner's attorney, letters containing an offer to settle at a smaller amount than asked for in the petition, and extended settlement negotiations. These cases from the Court of Appeals basically say that where the defendant clearly communicates an intent to oppose the petition, the Defendant must be given prior notice of the Plaintiff's Motion for Default, and an opportunity to be heard at that motion, before an Order of Default may be entered.
  • Is the Informal Appearance Doctrine Dead?

    In 2007, the Washington State Supreme Court apparently rejected the concept of an "informal appearance" in law suits in Washington State. Morin v. Burris, 160 Wn.2d 161. "The informal appearance doctrine ... would permit any party ... to simply write a letter expressing intent to contest litigation, then ignore the summons and complaint.... Parties formally served by a summons and complaint must respond ... or suffer the consequences of a default judgment." Morin, at 749, 756, and 757. The majority opinion did not clearly reject the informal appearance doctrine. However, the concurring opinion in Morin noted that the Court was actually throwing out the analysis which all three divisions of the Court of Appeals had applied for years. It would seem clear that the "informal appearance" doctrine is dead in the State of Washington. The safest practice, however, is to provide prior notice of a motion for default whenever the opposing party has expressed an intent to oppose the petition.
  • Disclaimer

    DISCLAIMER: This Blog is provided for general educational purposes only. By using or participating in this site you agree and understand that there is no attorney client relationship between you and the attorney author. The law changes frequently, and varies from jurisdiction to jurisdiction. The information provided in this Blog is general in nature and may not apply to the factual circumstances in your situation. The applicable law may be different in the State or States where the relevant facts occurred. For a definitive solution to your situation you should seek legal advice from an attorney who (1) is licensed to practice in the state which has jurisdiction; (2) has experience in the area of law you are asking about, and (3) has been retained as your attorney for representation or consultation.
  • Grandparent and Non-Parental Custody (Part 3)

  • Introduction

    This Legal Guide is a follow-up to the prior Guide, "Petitions for Custody by Grandparents and Non-Parents." In the current Guide, the following additional topics are covered: Independent custody investigations; non-parental custody when the parents are unfit; non-parental custody when the parents are not unfit; the best interests of the child; termination of parental rights; restrictions on visitation by the biological parents; domestic violence; and the definition of "parenting functions."
  • Independent Custody Investigations

    In a non-parental custody case, the court can order an independent investigation and recommendation from a private or public source. In King County, for example, custody investigations are often conducted by Family Court Services (FCS). This county agency consists of professionals, mostly social workers, who conduct custody investigations and make custody recommendations to the judges. Their reports are authorized by RCW 26.10.130. The report must be mailed to counsel and any pro se party at least ten days prior to the court hearing. RCW 26.10.130(3). Any party may call the FCS investigator as a witness that the FCS investigator "and any person whom the investigator has consulted" for examination or cross-examination at trial. RCW 26.10.130(3). If the notice requirements of RCW 26.10.130(3) have been met, "the investigator's report may be received in evidence at the hearing."
  • When the Parents are Unfit

    The court may award custody of a child to a nonparent when both parents are either unfit, or are unable or unwilling to care for the child. In re Custody of Shields, 157 Wn.2d 126, 136 P.3rd 117 (2006). See also In re Custody of SHB, 118 Wn. App. 71, 74 P.3rd 674 (2003); affirmed 153 Wn.2d 646, 105 P.3rd 991. Unfitness may be proved in a number of situations, including: drug addiction; alcoholism; abandonment; neglect; abuse; sexual molestation; failure to protect a child from abuse or neglect; failure to provide adequate food, shelter, clothing, education or medical care; emotional illness; or criminal activity.
  • When the Parents are Fit

    The court may award custody of a child to a nonparent when both parents are fit, but placement with a parent would result in actual detriment to the child. In re Custody of Shields, 157 Wn.2d 126, 136 P.3rd 117 (2006). See also In re Custody of SHB, 118 Wn. App. 71, 74 P.3rd 674 (2003); affirmed 153 Wn.2d 646, 105 P.3rd 991. A nonparent who has physical custody of a child can be awarded custody against a fit biological parent if placement with the parent would result in actual detriment to the child's growth and development. In re Custody of Shields, ibid, at 143. For example, non-parental custody has been granted against a father who was not unfit, but who did have a significant history of physical and emotional abuse, where the children were fearful of him, and were currently living with the non-parents in a stable, happy, nurturing environment. In re Custody of BJB, 146 Wn. App. 1, 189 P.3rd 800 (2008); review denied, 165 Wn.2d 1037, 205 P.3rd 191.
  • Constitutional Rights of Biological Parents

    Non-parental custody cases are necessarily different from divorce or paternity cases. In the latter, the court is weighing who the better custodian would be as between two biological parents, who have constitutional rights to custody. In non-parental custody cases, the non-parents do not have a constitutional right to custody. A nonparent who has physical custody of a child can be awarded custody against a fit biological parent if placement with the parent would result in actual detriment to the child's growth and development. In re Custody of Shields, ibid, at 143. For example, non-parental custody has been granted against a father who was not unfit, but who did have a significant history of physical and emotional abuse, where the children were fearful of him, and were currently living with the non-parents in a stable, happy, nurturing environment. In re Custody of BJB, 146 Wn. App. 1, 189 P.3rd 800 (2008); review denied, 165 Wn.2d 1037, 205 P.3rd 191. When a child does not reside
  • Non-Parental Custody Does Not Terminate the Rights of the Biological Parents

    Unlike a dependency or termination proceeding, a non-parental custody order does not terminate parental rights. In re Custody of SBH, supra, at 83. After a decree is entered, and custody is granted to a non-parent, it still remains the hope and expectation of the court that one or both of the biological parents will eventually be able to assume or resume custody of the children. For that reason, they can petition the court for custody at a later date when they are able to provide adequate parental care for the children. In such cases, the court will normally allow the parents to resume care of the children, unless the non-parental custodians can show actual detriment to the health and welfare of the children.
  • Restricting Visitations by the Parents

    In non-parental custody cases, the grandparents or other custodians often want to restrict visitation by the natural parents, especially if they are often prone to rages, violent outbursts, or high on drugs or alcohol. "Visitation with the child shall be limited if it is found that the parent seeking visitation has engaged in any of the following conduct: (i) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions; (ii) physical, sexual, or a pattern of emotional abuse of a child; (iii) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault which causes grievous bodily harm or the fear of such harm; or (iv) the parent has been convicted as an adult of a sex offense. . . ." 26.10.160(2)(a).
  • Domestic Violence of the Parents

    Certain sections of the divorce statute would seem to give guidance to judges in non-parental custody cases. For example, RCW 26.09.003 states that, "the legislature finds that the identification of domestic violence as defined in RCW 26.50.010 and the treatment needs of the parties to dissolution are necessary to improve outcomes for children." Certainly, the same can be said for dysfunctional parents in non-parental custody proceedings.
  • What Are "Parenting Functions"?

    In RCW 26.09.004(2) (another section dealing with custody in divorces) defines parenting functions to include: "those aspects of the parent-child relationship in which the parent makes decisions and performs functions necessary for the care and growth of the child. Parenting functions include: maintaining a loving, stable, consistent, and nurturing relationship with the child; attending to the daily needs of the child, such as feeding, clothing, physical care and grooming, supervision, health care, and day care, and engaging in other activities which are appropriate to the developmental level of the child and that are within the social and economic circumstances of the particular family; attending to adequate education for the child, including remedial or other education essential to the best interests of the child; assisting the child in developing and maintaining appropriate interpersonal relationships; [and] exercising appropriate judgment regarding the child's welfare..."
  • Disclaimer

    DISCLAIMER: This Legal Guide is provided for general educational purposes only. By using or participating in this site you agree and understand that there is no attorney client relationship between you and the attorney author. The law changes frequently, and varies from jurisdiction to jurisdiction. The information provided in this Legal Guide is general in nature and may not apply to the factual circumstances in your situation. The applicable law may be different in the State or States where the relevant facts occurred. For a definitive solution to your situation you should seek legal advice from an attorney who (1) is licensed to practice in the state which has jurisdiction; (2) has experience in the area of law you are asking about, and (3) has been retained as your attorney for representation or consultation. (C) Bruce Clement