 Court Update
Recent Court Decisions of Interest in Family Law
Court of Appeals: Eighth District: Child Custody Walter v. Liu (03/03/2011)
On March 3, 2011, a long fight between a divorced husband and wife regarding state jurisdiction over the residential whereabouts of their children and location of litigation proceedings finally came to a resolution in favor of the ex-husband, Benjamin Walter. The situation began when the couple got married on September 14, 2002 and gave birth to twin boys on July 21, 2004. After just four years of marriage, Benjamin Walter filed for divorce. Prior to the divorce filing, Betty Liu, the ex-wife, had been living in Hong Kong with the two children. On April 23, 2008, the couple was granted a divorce that included a shared-parenting plan. Liu was awarded primary residential custody in the plan and then decided to relocate to New Jersey with the boys. On October 4, 2009, Liu filed an order to register the final judgment of divorce in New Jersey instead of Ohio. She also wanted the court to grant her permission to take the children to Hong Kong for her upcoming wedding. In addition to those requests, Liu also wanted the ability to travel internationally with the twins anytime without Walter's consent. She also sought a grant for mediation for the couple to take place in New Jersey. Liu argued that due to the fact that the children were born in New Jersey, and spent the majority of their life in that location, it should be considered a more convenient habitation as well as a simpler setting to conduct continued litigation. The New Jersey court ruled against Liu's requests on January 21, 2010, stating, "the Court finds that it has the power to enforce and to interpret the meaning of the shared parenting plan. However, the Court does not have the power to set standards in addition to those which already exist in the parties' shared parenting plan. Setting standards would be a modification of the shared parenting Plan, which is in violation of N.J.S.A. 2A:34-67. Moreover, while the Court has the power to interpret the agreement, any declaration of a future interpretation of the agreement would be an impermissible advisory opinion." The court further ordered Liu and Walter to assent to mediation on the issue of the children's future foreign travel. Displeased with the New Jersey court's ruling, On January 25, 2010, Liu filed a motion in Cuyahoga County Domestic Relations Court to declare Ohio an "inconvenient forum" and to transfer jurisdiction to New Jersey. Walter responded by filing motions for clarification and modification of the shared-parenting plan. On March 30, 2010, Liu's motion was denied. Not ready to back down, Liu filed a notice of appeal against the trial court's denial of her motion. She also disputed that she did not have an opportunity to have a magistrate review the case and report back to the court with the magistrate's findings. During the appeal, the court utilized R.C. 3127.21, The Uniform Child Custody Jurisdiction and Enforcement Act, to evaluate the case. This statute was drafted to avoid jurisdictional conflicts and competition between different states involving child-custody litigation. Under this statute, a court will review eight various factors to determine if a particular state is an "inconvenient forum." The Eight Factors to be considered under statute R.C. 3127.21 were: - Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child
- The length of time the child has resided outside this state
- The distance between the court in this state and the court in the statethat would assume jurisdiction
- The relative financial circumstances of the parties
- Any agreement of the parties as to which state should assume jurisdiction
- The nature and location of the evidence required to resolve the pending litigation, including the testimony of the child
- The ability of the court of each state to decide the issue expeditiously andthe procedures necessary to present the evidence
- The familiarity of the court of each state with the facts and issues in thepending litigation
In the court's final decision on March 3, 2011, it ruled that while R.C. 3127.21 required a trial court to consider the children's home state, as well as the location of any evidence required to resolve the pending litigation, those were only two of eight considerations reviewed which had been met. The trial court was thorough in contemplating all of the factors listed in R.C. 3127.21, but viewed it's own familiarity with the case a stronger component. The court further held that there was no need for a magistrate in this particular case, and future litigation regarding the children's international travel could be decided anywhere at a later date. |
