The “Realities” of Interstate and International Custody Disputes

Unlike most other cases, divorce and child custody cases often start somewhat explosively. This seems to apply to the recent filings involving Joe Jonas and Sophie Turner. Cases involving people with enormous wealth get complicated because it’s rarely crystal clear where the couple or their children actually live. Almost all divorce and custody cases are supposed to be managed where the couple or their children live. But as we saw last week in the Turner /Jonas custody dispute, residence is not always an easy matter.

People love to “reside” in Florida because it has no state income tax. But when it gets unduly hot in tax-free Florida, wealthy people often like to inhabit cooler climates such as New York City or London. These jurisdictions seem to have all come in to play when Mr. Jonas and Ms. Turner separated and filed for divorce and custody of their two very young children. The couple did not marry until May 2019 and children came shortly thereafter.

A few days ago, on September 20, a custody action was filed in New York asking for a court order to keep the children in that jurisdiction.  Mr. Jonas initiated divorce proceedings in Florida. The initial pleadings and press releases made all look amicable but then it appears that Jonas filed to prevent Turner from removing the kids to her native England. When the divorce was filed,

The Florida Court directed that neither party was to relocate the children but that’s often a ”boilerplate” order to keep the status quo. Custody jurisdiction laws are different than divorce jurisdiction laws, so it’s not clear that Florida had legal authority to enter the order it did.

In the last few days the parties agreed that the children would remain in New York at least temporarily while the custody case rumbles forward.

We profess no special knowledge of the Jonas/Turner battle. These cases are complicated by our age of private planes and many “residences” including Florida, New York and the United  Kingdom. And while these facts make for interesting arguments over what place will decide an interstate/international custody dispute, there are some common threads which relate to regular people who don’t fly private or have houses in different countries and states.

Let’s start looking at this without the exotic homes and careers. Jonas filed in Florida and, it appears his divorce included a count asking the Florida court to decide any custody disputes. Many states enter “status quo” judicial orders that say “Don’t mess with the kids or the assets until we get control over the case.” The Latin phrase for this is status quo.

That kind of order is binding if the Florida court has jurisdiction over the parties. There are entire books devoted to when courts have jurisdiction and when they don’t. But, let’s keep this simple. A responding party has the right to assert that the court does not have jurisdiction over the children if he or she believes another place is the “home state.” For ordinary mortals, “home state” is the place where the kids lived in the preceding six months. This definition is accepted pretty much nationwide. But people often can’t agree on where their kids were since March. March may have been Florida, May may have been in Oxfordshire where the couple was looking at a home and the Summer may have passed in the New York’s Hamptons. Candidly, we don’t know but it does present challenges to judges looking for a habitual residence when deciding whether custody is decided under Florida law, New York law or the law of Great Britain.

For those who live in the world of private jets or “jetsharing” this is complicated indeed. A well-meaning judge can listen to days of testimony and conclude the children spent 80 days in New York, 70 days in Florida, 30 days in Wallingford, England and five days in the stratosphere navigating their way between two states and two countries. So, which of these jurisdictions is best equipped to decide custody? Ask judges privately and they will say “80 beats 70 and 70 beats 30 so New York may be the place best suited to decide.”

But, there another issue in play here and it colors custody jurisdiction issues a bit and substantive relocation issues a lot. Ms. Turner is from England and it seems she was pressing Mr. Jonas to buy an estate there and make Oxfordshire headquarters for the family, whatever their migratory needs for work or play. That never played out.

From what we have read, the issue of whether New York or Florida should decide the final custody arrangement remains in play and under U.S. law the judges are supposed to communicate to decide which of them will “decide” those matters. There’s a lot at stake here because once it has been decided which state will have jurisdiction, that tends to stick.

Ms. Turner is in a bind here. If the judges in New York and Florida could agree on anything here is what it might be:

1. Florida is full of New Yorkers, especially when it gets cold.
2. Florida and New York are each in the U.S. and there are explicit laws regulating how the two states are to address custody issues.
3. England is somewhere in or near Europe
4. England messed with us and we had a revolution because of it about 1776.
5. England stands next to no chance of getting these two pre-school kids who are already in America.
6. England is a lovely country to visit for Stonehenge and theater, but they call private school “public school” and they have more socialism than either Florida or New York could tolerate. The kids can visit England in the summer so long as they don’t read Orwell or conflate football with rugby. If they do, they will summer in Disneyworld subject to the laws of whoever governs Disneyworld, as decided day to day.

So, England is out except for conditional summer vacations. Now, the question devolves to Florida or New York. The two judges are supposed to communicate to decide where the best evidence can be found about the needs of the kids. This is true whether they are rich kids or not. Thus, if the fulcrum of custodial evidence weighs in favor of Florida, New York should yield to Florida to decide all custody issues. Recognize that Florida could decide the kids belong in New York and it has authority to order that. Round 1 of this battle is limited to which state court can best decide who has custody and on what terms.

This happens all the time in the pedestrian cases we all deal with. Mom and dad split up in New York. Mom moves to Florida because her parents live there now, and they can help with the children. Dad filed in New York and asks for the children to be returned. On these facts New York was the last residence the kids had with both parents and will probably elect to decide the custody case as a matter of jurisdiction. Mom comes back to New York and tells the New York judge that Dad is no good; life in Florida is good and the children are thriving in their new environment. Dad responds that she kidnapped the kids; Florida is a state dominated by partisan politics, alligators and now pythons and that he fear his children will be consumed by either partisan politicians or reptiles of some kind (that may be the same thing).

The judge sitting in New York may have been to Florida but that’s about it. He doesn’t understand the schools, how there is no income tax or what exists in Florida beyond Miami, Tampa (Yankees Spring training) and Disney. He does understand that Florida was a part of the confederacy and is frequently deluged by hurricanes but it can be nice in the Winter.

Should it turn out that Florida was decided to have jurisdiction, the wheel of custodial fortunate turns. Most Florida judges have not been to New York nor would they go there. It is cold in winter, has no Disney and a significant part of the state is occupied by New Yorkers. No Florida child should be sent to live in New York. It is cold and has high income and, yes, estate taxes. If parents insist that children would benefit from interaction with New Yorkers, that occurs in Florida each December to April when Florida is temporarily deluged with New Yorkers.

My facetiousness may have run amok, but the core issue in any relocation case is that most judges believe with sincerity that they live in a good place, where children can thrive. Many parents limber up with data comparing Florida educational outcomes with those of New York or comparisons of costs of livings and demographic trends. The challenge is that the judges hearing these cases are kind of predisposed to rule in favor of the locality they know over the promise of the locality they don’t. There are some simple explanations for this:

1. I am a judge in Florida/New York
2. I grew up here.
3. My education was good enough that I have a graduate degree and a law license.
4. The people who live in my community are smart enough that they made me a judge.
5. Anyone with some talent who works hard can succeed here. I exemplify that fact.
6. Anyone without talent or unwilling to work will fail in any locality.

Ask yourself; can you fault that reasoning? If you want to take your child to live in another state or Oxfordshire or Timbuktu (that’s in Mali) how are going to persuade a judge sitting in his own courthouse that another place is so much better that relocation over the objection of the co-parent must be in the best interests of the child involved? In most cases where relocation is granted it is because the local environment has been made toxic by the acrimony of the parents toward each other; not because Dade County, Florida has more National Merit Scholars than Nassau County, New York or that one county has average per capita income 25% above the other. You won’t see it said this clearly, but it is a concept buried in many child custody rulings: the best outcome for any child is not related to resources. school data or much else other than two parents who respect the fact that their child loves them both and that they share a mission to see that child succeeds. Children succeed not because they live near world class museums or have teachers holding Ph.Ds. They thrive because they know their parents love them, nurture them and set aside their personal animosities knowing that anger is harmful to a child.

Custody jurisdiction is a tricky and highly nuanced matter. As lawyers our job is to navigate those murky waters. But, if you want to live elsewhere, the first thing is to figure out how to convince a judge that the environment where he or she was raised is not good enough for your kids even though it is typically the environment that produced the judge and the environment where the judge is raising his or her own kids. That’s a tall order and one too many custody litigants choose not to consider.

CODA: Just after posting this, a new development emerged. It is alleged that the parties to this custody arrangement may have formed some sort of agreement to acquire a home in Oxfordshire for roughly $9,000,000. As with all custody cases, the facts are fluid and these allegations may prove unfounded. But if true, it would complicate matters. It does not affect which court has jurisdiction to decide custody. And the court which has best jurisdictional facts (typically residence) is supposed to retain jurisdiction no matter what the facts. The law is clear that the kids should be resident primarily in a place that suits their best interests. So that competition remains, New York vs. Florida vs. England. But if a judge gets the impression that one parent is playing games by acquiring a property without the other parent’s consent or even knowledge or acceding to a relocation one day only to vehemently oppose the relocation a short time later, there may be a price to pay.. This is not true in connection with locations where the kids could reside is dangerous. But courts will not respond well to parents who shade or misrepresent their intentions when choosing school or a place of residence. Courts are not going to punish children by sending them to live in places where basic services are clearly inferior. But especially in cases where misrepresentation occurred, judges will do what they can to fix matters such that the misrepresenting party gets a message that the manipulation was observed and addressed. To do otherwise often produces a succession of later self help misrepresentations.

Story originally seen here