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(And Hide Him There for Eight Years)
This should be a cautionary tale for clients who consider self-help and removal of kids to non-Hague Abduction Convention countries, but we learn instead why stealing a car in Dubai leads to a longer prison term than stealing a kid in Florida.
Today’s advance sheets bring us a rare family law case from a federal appellate court. In UNITED STATES OF AMERICA v. CLIFFORD ALLEN NEWMAN (No. 09-14557 D.C. Docket No. 04-00153-CR-J-34-HTS) we meet Clifford Newman, a father who abducted his child to Yemen for eight years and challenged the sentencing enhancement factors after after pleading guilty to one count of violating the International Parental Kidnapping Crime Act (“IPKCA”), 18 U.S.C. § 1204.
Mr. Newman’s actions were calculated to thwart the legal custody process and to ensure that he, and not a judge with jurisdiction over custody matters, would be the ultimate decisionmaker about who would retain custody of his child.
Mr. Newman didn’t like the custody orders made by the judge in his Florida divorce. So he picked up his son for a visit, and disappeared with him to Yemen for eight years. He enjoyed the fruits of his self-help custody arrangement for those eight years, followed by five years in a Dubai prison on an unrelated charge, followed by a U.S. sentence of 33 months for the child abduction count. He didn’t like that sentence either. But this time, instead of resorting to self-help, he appealed the sentence. (The Court of Appeal can’t resist pointing out to Mr. Newman that appeal, not child abduction, was the remedy for the unfavorable custody order.)
The opinion explains Mr. Newman’s rationale for taking his son to Yemen,
Mr. Newman abducted his son because, in his words, he “could not just sit back and let [his] son be taken away,” he “wanted to be his [son's] father and [he] wanted to raise him, and they wouldn’t allow [him] to do that here,” and contrary to the state court’s decision, he “knew what was best for [his son].”
The child didn’t see his mom again until he was age 11, when Mr. Newman was arrested in Dubai for auto theft and attempted robbery. Mr. Newman had left the son in the care of his second wife in Yemen. Custody proceedings in Yemen resulted in an order reuniting the boy with his mother.
Mr. Newman spent five years in a Dubai prison for the theft and robbery attempt. Then he was extradited to Florida to stand trial for the child abduction charge. The moral may be that one serves a longer sentence for stealing a car, than for stealing a child. The sentence in this case is shockingly short, and the Court of Appeal shortens it further.
He plead guilty to the single child abduction count. Next came the sentencing report.
First, the PSR recommended a three-level increase under U.S.S.G. § 2J1.2(b)(2) because the offense resulted in “substantial interference with the administration of justice.” Second, the PSR recommended a two-level enhancement under § 2J1.2(b)(3)(C) based on the probation officer’s finding that the offense was “extensive in scope, planning, or preparation.” With a criminal history category of III and a three-level decrease for acceptance of responsibility, Mr. Newman’s guidelines range was 27 to 33 months.
Mr. Newman objected, the Court followed the recommendation and Mr. Newman appealed.
The D.C. Circuit upheld the enhancement based upon substantial interference with justice, but reversed the other two enhancements.
This turned out to be an issue of first impression — check out the opinion and see if you can follow Mr. Newman’s reasoning attempting to wiggle out from under this enhancement. The Court explains,
Contrary to Mr. Newman’s argument, it is not the bare existence of the custody order that supports the enhancement in this case. Rather, it is the nexus between Mr. Newman’s dissatisfaction with the lawful custody determination and his intent to frustrate and avoid the judicial process-not just the order itself-that renders § 2J1.2(b)(2) applicable. That being so, Mr. Newman’s argument about blanket application of the § 2J1.2(b)(2) enhancement to divorced parents based on the mere existence of custody orders sweeps far too broadly.
Kidnapping your kid instead of filing an appeal, the appellate judges hold, constitutes substantial interference with justice. So far, so good. That comports with public policy and common sense.
But the Court of Appeal goes on to reverse the other two sentence enhancements, thereby reducing the already minimal sentence for felony child abduction.
The prosecution argued that hiding a kid in Yemen for eight years triggers an enhancement for a crime that is “extensive in scope, planning, or preparation.” Because it is extremely difficult to recover kids from Yemen (a non-Hague Abduction Convention country), and because he kept the boy in Yemen for eight years, the prosecution argued that this enhancement factor had been met. The trial court had considered the eight-year duration, and may also have considered the difficulty associated with recovering a child from Yemen when applying this factor.
Turning to the definition of “scope” in the context of sentencing for other crimes, the Second Circuit disagreed, holding that “duration” and “scope” are not synonymous. “Scope” does not address temporal factors since some federal sentencing guidelines set forth both “scope” and “duration” as factors. So that basis for sentence enhancement doesn’t fly.
The Court goes on to hold that the prosecution failed to introduce direct evidence that the prosecution failed to prove Mr. Newman choose Yemen because it is so hard to recover kids from that country — that the trial court’s finding was not supported by substantial evidence. It seems to me that fact can reasonably be inferred from the surrounding facts of the case, and that the trial court was not bound to believe the defendant’s testimony that he chose Yemen for cultural and religious reasons. But the appellate judges characterize this inference as speculation. Evidently the mother’s eight years of futile efforts were insufficient to establish the difficulty factor. (Two recent dependency court decisions, and the an earlier family law case of mine, In re Marriage of Paillier and Pence (2006) 144 Cal.App.4th 461, also fault counsel for failing to present evidence to establish that foreign countries do not automatically agree to recognize, enforce, and not modify American custody orders — so be sure to call your expert witnesses to make these points for the record.)
The case got remanded for reduction of Mr. Newman’s sentence. I wonder how long a sentence for auto theft would be in Florida?
 This post also appeared in the LACBA Family Law ENews.
A recent Hague Abduction Convention case out of Mono County illustrates how the defenses to return under the Convention can be stretched to defeat the core purpose and policies of the treaty. In Escobar v. Flores (2010) __ Cal. App 4th __, 2010 WL 1347107, the DCA3 applied the deferential abuse of discretion review standard to uphold a family law judge’s refusal to return an eight-year-old boy to Chile under the Abduction Convention based upon the child’s stated “mature” preference to remain with his father in the U.S.
The Hague proceedings in Escobar represent one installment in a self-help international moveaway case involving never-married parents. Apparently without consulting counsel, the father agreed that the mother could take then 4-year-old Cesar to Chile in 2004. Dad testified that he agreed to a seven-month visit to relatives, and expected Cesar to return with his mother to Mammoth Lakes. Mom testified that it was to be a permanent move. When mother and child did not return, Dad did not petition for Cesar’s return under the Convention. In 2005 Mom obtained a custody decree in Chile. Dad married, and moved to North Carolina.
Mom sent the now eight-year-old Cesar to visit a maternal aunt in California in 2008. She did not register the Chilean custody orders for enforcement in California under Cal-UCCJEA. When Dad found out Cesar was in California, he sought emergency custody orders from the Mono County family court, and received permission to take his son to his new home in North Carolina. Mom responded with a Hague Abduction Convention petition for return Cesar to Chile. The family court concluded that the 8-year-old Cesar’s testimony about his experiences living with each parent established his mature objection to returning to Chile – a defense to return under Article 13 of the Abduction Convention.
The lesson for international custody practitioners is that an action to register and enforce a foreign child custody decree under California’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (Cal-UCCJEA) is usually the better course of action, because there are fewer defenses, and because American family law judges are apt to be more familiar with Cal-UCCJEA principles. If Mom had registered the Chilean order for enforcement by the Mono County family law court, the judge could not have considered Cesar’s wishes. Chile had exercised jurisdiction under factual circumstances consistent with Cal-UCCJEA, so California would be obligated to enforce the Chilean orders and refrain from modifying them unless Dad proved that Chilean custody law violates fundamental human rights. (Fam. Code §3405).
On the other hand, when a parent seeks return of a child from California under the Hague Convention on the Civil Aspects of International Child Abduction, the action may be brought by the District Attorney, sparing the party the expense of private counsel.
The Abduction Convention and Cal-UCCJEA each require jurisdictional determinations be made without regard to the child’s best interests. Each was adopted to deter forum shopping and competing child custody orders. While Cal-UCCJEA provides for international recognition and enforcement of child custody orders, the Abduction Convention merely offers the summary remedy of returning the child physically to the country of the child’s habitual residence. The U.S. is not a party to any treaty or bi-lateral agreement for recognition and enforcement of custody orders.
The policy underlying both the Abduction Convention and Cal-UCCJEA is that the court deciding which court has jurisdiction to decide custody must not make its own “best interests” determination. Understandably, family courts accustomed to making best interests determinations find this very difficult to do in practice.
Under the Convention, a court must order a child returned to the nation of the child’s habitual residence where the child has been wrongfully removed, or retained in violation of a parent’s rights of custody. The purpose of return is so that the court in the child’s place of habitual residence can make or enforce custody orders.
However, it is clear that the nations negotiating the Convention were reluctant to give up the power to decide not to return children on a case-by-case basis. Article 13 contains a number of defenses to return – and permits the court to deny return based upon the child’s “mature” objection.
Here the exception has swallowed the rule. The International Child Abduction Remedies Act (ICARA) directs American courts to construe those defenses narrowly and return children promptly. (42 U.S.C.A. § 11601; England v. England (200) 234 F.3d 268). Typically the cases where the defense succeeds involve teenagers, not second-graders. See de Silva v. Pitts (2007) 481 F.3d 1279 for a more detailed discussion of the child’s mature objection defense cases.
Moreover, a young child’s expressed preferences need to be assessed and interpreted in context, ordinarily as part of a full child custody evaluation. (See the discussion at p. 15 of the ACFLS Comments to the Draft Recommendations of the Elkins Family Law Task Force (www.acfls.org/Elk) and Warshak (2003) Payoffs and Pitfalls of Listening to Children, 52 Family Relations, 373–384. Eight-year-olds do not have a mature concept of time or the capacity to assess their long-term best interests. Typically their most recent experiences shape their views. Moreover, children in contested custody disputes are subjected to intentional and unconscious parental influence. Once can’t determine whether their views are independent without a comprehensive child custody evaluation. This child’s preferences were properly a matter for the Chilean Court, not the California Court, to assess when it considered custody on its merits.
Of course, denying the return petition based upon the child’s objection doesn’t end the case. Thereafter, an American state must exercise jurisdiction under Cal-UCCJEA criteria, and make a best interests determination based upon all of the best-interests factors, not just Cesar’s preference. At least theoretically, a hearing on the merits could result in an order for this child to live in Chile with his mother. Since neither parent, nor Cesar lives in California, it is likely that North Carolina would end up with jurisdiction over custody.
By not sending Cesar back to Chile, the court has made it impossible for the child’s time to be divided between his parents’ homes. It seems probable that if Cesar was physically present in Chile, Chile would prohibit further removals to the U.S. because the U.S. has failed to honor its jurisdiction. One wonders whether Chile would return Cesar if the father was the parent bringing a subsequent Abduction Convention petition. The U.S. would be the child’s habitual residence under the Convention.
There’s also an embedded, and unanswered jurisdictional question. Does a court’s decision not to return a child under the Abduction Convention thereby terminate the foreign jurisdiction’s exclusive and continuing Cal-UCCJEA jurisdiction so as to permit California or North Carolina to make custody orders on the merits?
Consensual Dispute Resolution (CDR) might have saved this family a lot of grief and expense. The National Council for Missing and Exploited Children is working with the University of Pennsylvania Law School and the University of Miami Law School that is studying the suitability and effectiveness of mediation in cases involving international child abduction. Teams of mediators are available in the pilot project to assist families.
 The 4th DCA (San Diego)’s May 8 decision in In re E.S. (2009) — Cal.Rptr.3d —-, 2009 WL 1262315, 09 Cal. Daily Op. Serv. 5743 requires a careful read on issues of nonparent custody, the constitutional rights of parents to custody of their children, supervised visitation, delegation of authority to a therapist determine if and when supervision could end, and the requirements for Statements of Decision or Statements of Reasons in child custody cases.
Five-year-old E.S. has lived with her aunt and uncle for her entire life. Her bipolar mother has been in and out of psychiatric hospitals, and unable to assume primary care of her daughter. E.S.’s attorney father was daunted by the prospect of caring for an infant, and left her in the care of an aunt and uncle. Mom, dad, aunt and uncle all became parties to a Family Law custody case. As E grew up, and her parents made stabs at expanding their roles in her care, the Court made a series of interim orders. By the time E was five years old, there was no basis to believe that she could transition from her aunt and uncle’s care to her father’s care. Not only was E primarily attached to her aunt and uncle, but her father simply lacked the judgment, insight, empathy, and attunement necessary for caring for a young child.
Over the first five years of E’s life, her attorney dad was unavailable to care for her most of the time, not terribly interested in infant care and development. He was unable or unwilling to learn to care for her, recognize her physical or psychological needs, exercise good parental judgment, understand her as an individual person rather than an object, or develop a meaningful attached and attuned relationship with her. He would walk thru the mall separated from her by many feetl ignore her needs for food or bathroom breaks, fail to recognize when she was sick, make sexually suggestive remarks to her, make frightening remarks to her, take her to musicals with adult content — and on and on and on. Despite a series of interventions designed to help him come up to speed, he never learned how to take care of a little girl.
As E got older, and more verbal, her dad started asking for greater parental responsibility — and ultimately sought custody. But E’s aunt and uncle were her psychological parents, and E’s dad never came up to speed. During visits he delegated her care to others, and failed to provide the level of attuned and thoughtful care necessary to keep her physically or emotionally safe. Despite therapy, parenting classes, repeated recommendations by the court and professionals, and opportunities to develop parenting competencies, E’s dad never learned how to care for her. Ultimately the family law court awarded the aunt and uncle sole legal custody, and ordered that the father’s visits be monitored until E’s and the father’s therapist agreed that supervision would no longer be necessary — and father agreed to follow the safety guidelines established by the aunt and uncle. The Court also retained jurisdiction to hear modification requests — including requests for unmonitored visitation. The father asked the Court to continue to make interim orders, and set further review hearings. The Court concluded that E.S. needed permanence, and denied that request.
Both the trial court and the Court of Appeal concluded that E’s right to family stability and continuity outweighed her father’s interest in her custody, and that an award of custody to her father would be detrimental to her best interests.This holding is consistent with a long line of Supreme Court and Court of Appeal decisions weighing children’s interests family stability and continuity of psychologically-significant relationships more heavily than the claims of biological parents.
In the published portion of the case, the Court rejects the father’s constitutional challenges to nonparent custody, and explains the detriment standard that replaced the “unfit” standard for non-parent custody.
One of the troubling things about the opinion is the extent to which the minors’ counsels (the first lawyer retired and was replaced by another) are treated by the trial court as de facto expert witnesses who make reports and recommendations to the Court, rather than as lawyers who marshal evidence and arguments. But the opinion contains no suggestion that anyone questioned this role, and it is not an issue on appeal in the case.
To be continued …
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