Subject: domestic violence, parental kidnapping.
THE USE OF DOMESTIC VIOLENCE INJUNCTIONS
TO DEFEAT THE UNIFORM CUSTODY JURISDICTION
ACT AND THE PKPA
The Uniform Child Custody Jurisdiction Act was drafted in the summer of 1968 at meetings in Chicago, the purpose of the act was to prevent parental abductions and prevent bitter parents from engaging in forum shopping. (The practice of shopping for a court that would be disposed to rendering a favorable decision.)
After many years of struggle, the last two hold out states, Texas and Massachusetts finally enacted modified versions of the UUCJA. In the early 80's Congress enacted the Parental kidnapping Prevention Act. Most of the PR spin on the UUCJA during the 1970's had focused on several highly publicized cases where fathers had absconded with their children. The strident advocates of the UCCJA (largely women's groups) had not done their homework to determine that actually the larger number of absconding parents were women. (Of course many father's rights groups also supported its passage.) After final passage of the laws it became painfully recognized by those strident activists that women were the ones largely penalized in these cases. (Mothers on Trial, Phyllis Chesler) the women's movement began to go back to the drawing boards to undo the damage they had done to their cause. The solution was to link the issue of custody jurisdiction to the issue de jour (Domestic Violence). Soon it became the propaganda centerpiece of extremist spinmeisters to encourage that women had to go on the run because of domestic violence. (See "Mothers On Trial" by Phyllis Chesler) issue found a sympathetic home with the media and eventually with both political parties. Any sense of fairness in child custody cases began to evaporate as women learned that they needed only make allegations of domestic violence to defeat their husband's custody aspirations and that they could even obtain total control over visitation by making these allegations.
The essential aim of the UCCJA was to prevent child abductions and forum shopping has thus been defeated. The situation created on the heels of the Cronin decision from Maryland about 1994 has created an now nearly automatic system where women (not men) can abscond with their children to friendly jurisdictions where they can be assures of a positive outcome and not only almost automatically be awarded sole custody, but typically the fathers are not allowed any visitation at all as courts couple the allegations with the Violence Against Women Act which went into effect in 1997. Rarely have courts been willing to subject the allegations to anything beyond the most rudimentary skepticism. Places like Seattle, Washington, Phoenix, Arizona, and Hawaii have become almost certain to award exclusive custody to mothers on even the most transparent allegations. Some is do to judges having a sympathetic political agenda; in other cases it is a lack of intestinal fortitude to incur the wrath of strident feminists in communities where they wield unbridled political power.
Often men who face these allegations have an even worse set of enemies, their own ignorance, and the indifference and incompetence of their lawyers. In one survey over 90% of the responding lawyers who "specialized" in family law were not aware at all of the "Violence Against Women Act" and 98% had no knowledge on how it would impact their cases. Asking those lawyers how best to defend against false domestic violence allegations is a futile endeavor. In most cases men who ask their lawyers get a dazed stare and are told not to worry and just agree to the injunctions giving this "legal advice" in blissful ignorance of the legal consequences to their client. In this case suffering fatal cases of compound ignorance. (Meaning that they don't know that they don't know the consequences.)
Most typically women abscond with children either at the very beginning of the breakup of the marriage, or at a point at which it appears they are losing the legal battle for custody. It has been our observation that in places such as Seattle, seemingly no matter the extreme of the facts of the cases, alarming instances of child abuse, for example, the judges refuse to consider any evidence apart from the unsupported allegations by the woman of domestic violence from the women. Handling of these cases seem almost automatic. We have yet to see a case where the Washington courts didn't hijack jurisdiction in a DVI case.
The UCCJA and PKPA both have "emergency jurisdiction" sections. Those sections were designed to be temporary, until such time as the "home state" could investigate the matter, or it could be ascertained that the home state already had addressed the same issues. And when that "emergency" was satisfied in the home state the responding state was required to enforce the decisions of its sister state and not modify them or obstruct them. Since 1994, traced to Cronin, American law has been on a slippery slope where the UCCJA and PKPA do not protect children in cases where the fathers have or should have custody.
The newer UCCJEA was designed to close some of the loopholes created by courts that had misinterpreted the UCCJA and PKPA. However this act directly addresses the problematic thwarting of home state jurisdiction by domestic violence allegations and restraining orders obtained with no notice to the accused. The UCCJEA is only now being adopted by a large number of states, and already it is being misinterpreted in the same way that the UCCJA and PKPA have been. In short, jurisdictional competition is alive and well in America's courtrooms as children are trampled in the war of the legal titans. "Expedited cases" can take years if not decades to resolve. Some states have become infamous havens for some contestants. For an example the bias favoring women in the Seattle courts is astounding. It is unlikely that a father, nearly regardless of the factual history of a case will get his children back once the mother lands in Seattle and teams up with the local strident women's support groups, if he does it will be years and tens of thousands of dollars later.
There currently is no solution to this problem that is 100% effective, certainly not after the fact of abduction. The only way to be sure is to head off the problem before you have it. When you have warning that a DV allegation is likely, an once of prevention is worth a pound of cure. The first think you will need is to find one of the handfuls of attorneys in the nation who are capable of handling such a case. Then you will need to gather the evidence that will show you didn't do what is alleged. You can't simply ignore the problem away.
On other pages I refer to "Horse and Buggy Lawyering in the 21st Century" the legal strategy I have seen almost all lawyers using in DVI cases is akin to the child who fears a monster in his bedroom at night, who pulls the covers over his head believing that now the monster can't see him and he's safe. The only difference in the simile I reference is that there is NO monster in the child's bedroom. There IS in this scenario and when your lawyer pulls the covers over you, the monster CAN still see you and eat you and your children.
The solution will be for folks to lobby for changes to law to prevent the DVI from being abused the way it is. Judges will have to see some political consequences for such biased actions as have become commonplace today. Until we get the attention of the political powers that be, a DVI allegation will continue to place these cases on automatic. We can't offer a perfect solution, just THE ONLY REAL CHANCE you have to deal with these allegations with any reasonable assurance of survival.
If you are looking for a cheap or easy solution this isn't it. The psychological testing we employ alone can start at well over $10,000. Remember, you are guilty until you prove yourself innocent. And you usually can't find good experts on every street corner. Advice that you can is bad advice.
Subject: domestic violence, parental kidnapping.