Analysis: Foster v. Foster

Facts: Wife alleged she was taking kids to NC. Instead she went to her parents in ME and filed for emergency custody alleging abuse.

Issue: Does the emergency provision of the UCCJEA trump the home-state clause?

Ruling: No. Maine withdraws its custody orders, and Virginia, after reviewing the statutory factors, asserts jurisdiction. New Kent County is not an inconvenient forum within the meaning of the UCCJEA.

Comment: This ruling is probably correct in terms of the facts presented. Although there was a history of violence by dad, it was all alleged to have occurred in Virginia. The children had lived almost their entire lives in Virginia.

Let’s play Devil’s advocate and consider how different facts might have lined up more in mom’s favor.

1. When mom left home in New Kent County, Virginia (half-way between Richmond and Williamsburg) with the three kids, she lied about her destination. I understand needing to escape violence, but if she was disclosing a destination why did she have to misrepresent it? Dad had agreed she could take the kids to Ft. Bragg, North Carolina, but instead she went to Maine. Would dad have said “no” to Maine? My point is not the distance; but that out-of-state travel had been authorized and it seems the permission was abused.
2. Relatives lived in both Maine and Ft. Bragg, North Carolina. If mom was truly fleeing abuse and lacked funds for a motel, why did select the relatives so much farther away? She surely had a reason. But under the circumstances, going to her mother in Maine instead of choosing family in North Carolina (or even a local women’s shelter) sounds more like a relocation than an emergency.
3. There was no incident of violence close in time to the date of departure. There does not always need to be one; but the lack of immediate crisis makes a departure appear less urgent and more premeditated.
4. The violence exception to the UCCJEA six-month residence rule defining where you can go to court for custody is intended for real emergencies; for example, being chased down Maine’s Appalachian Trial by a spouse brandishing a hunting knife. As I mentioned before, no violence was proximate in either time or geography to mom’s court appearance in New England.