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Double Jeopardy: Understanding the civil legal implications of fleeing domestic abuse with children across state and national borders

Women who take their children and flee domestic abuse in another jurisdiction to return to Minnesota may face another set of (legal) problems once they arrive. Here’s how to best navigate them.

By Allison Maxim

 

1019-Mother-Children-PlaneOctober 2019 is the 30th annual National Domestic Violence Awareness Month. In recognizing the occasion, I am grateful for the opportunity to share my knowledge and experience regarding the intersection of domestic violence and interstate and international family law jurisdiction to promote awareness of this complicated area of the law. 

Ending an abusive relationship is difficult at best and downright dangerous at worst. As a divorce and family law attorney, I have counseled numerous clients in the midst of ending an abusive relationship—from advising them on the steps they should take to keep themselves safe when their partner is served with a petition for dissolution to counseling them on the risks and benefits of entering into an agreement with their abusive partner in concomitant order for protection and family court proceedings. But there is no situation more complex and fraught with potential detrimental legal consequences than when a woman living in another state or country leaves an abusive relationship to return with her children to the state they call home. This article focuses on the civil laws that affect women fleeing an abusive partner to “come home” to Minnesota with their children, and the potential legal consequences of taking such action. 

I focus on women because research has established that “[i]n an increasingly interconnected world, one group of battered women overlooked and in dire need of our attention... is mothers who flee with their children for safety across international borders.” As an attorney working in the trenches on such issues, women are the ones I have seen experiencing the harsh legal consequences after they flee an abusive relationship and come home to Minnesota. I simply have not had experience with men facing a similar situation, which is not to say they do not exist. My intent here is to raise awareness about the detrimental consequences women and children fleeing domestic abuse may experience and to offer insight for other practitioners working in an area of law that may brush up against such issues so that a potentially detrimental situation can be spotted right away and the victim advised accordingly.

To many women, ending a relationship with an abusive partner and returning to the state in which they grew up, where their parents and extended family reside, is a logical step for their own and their children’s safety and wellbeing. Indeed, women who flee with children may have few other options to keep themselves and their children safe from their partner’s violence. Women in an abusive relationship, who may be isolated and have little or no access to support or resources, are very unlikely to be thinking about the law and how taking action to leave an abusive relationship may violate the law or otherwise affect their legal rights.

As one scholarly article noted, “It is not surprising that in their search for safety, mothers flee across national boundaries. What is surprising is the web of international treaties and domestic legislation and programs in the United States that may work against securing safety for battered mothers and their children who have fled from abusive partners.” It is therefore often incomprehensible to women and their support networks when they flee an abusive partner only to face subsequent accusations of “abducting” their children, accompanied by legal action for the return of their children to the state or country from which they fled. 

The web of international treaties and domestic laws in question includes both criminal and civil laws. It is the impact of the civil laws that is of concern here—primarily the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and The Convention on the Civil Aspects of International Child Abduction adopted at The Hague on October 25, 1980 (Hague Convention), although state laws related to legal residence may also come into play. While there are certain protections in these laws for women who flee domestic abuse with their children, the reality is that the laws can and do work against women in very harsh ways, especially those who cannot substantiate the domestic violence they have experienced with actual evidence of their bruised bodies and battered psyches. 

The UCCJEA 

The UCCJEA was created to deter interstate parental kidnapping and to promote uniform jurisdiction and enforcement provisions in interstate child custody matters. It is a uniform state law drafted by the National Conference of Commissioners of Uniform State Laws (now known as the Uniform Law Commission), and has been enacted in every U.S. state (except Massachusetts) as well as the District of Columbia, Guam, and the Virgin Islands. The UCCJEA governs a court’s subject matter jurisdiction regarding child custody, answering the question of whether a court has authority to make a decision in a child custody case that involves more than one state, tribe, or territory. The UCCJEA also applies to foreign countries, which are treated as a state of the United States for the purpose of determining child custody jurisdiction. 

According to the UCCJEA, a Minnesota court has the authority to make a permanent, initial decision about custody considering the best interests of a child if 1) Minnesota is the child’s “home state;” 2) there is no “home state,” but a child and at least one parent have a significant connection with Minnesota and there is substantial evidence in Minnesota relating to the child’s care, protection, training and relationships; 3) Minnesota is a more appropriate forum; and 4) no state has jurisdiction under any of the other three bases for jurisdiction (that is, there is a vacuum because the family has not resided in one state long enough). 

The UCCJEA prioritizes home-state jurisdiction in an initial child custody proceeding as it is only when a child has no home state, or the home state declines jurisdiction, that another court may exercise jurisdiction. “Home state” is defined as the state in which the child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. (Note, however, that a period of temporary absence from the state is considered part of the six-consecutive-month timeframe.) For the purposes of determining child custody under the UCCJEA, a proceeding for divorce is included in the definition of a “child custody proceeding” under Minn. Stat. §518D.102(e). 

The UCCJEA does include a provision that instills the court with temporary emergency jurisdiction, granting a Minnesota court the authority to determine temporary child custody “if the child is present in this state... and it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” This provision of the UCCJEA plays a vital role in protecting many women and children fleeing domestic abuse across state and national lines. However, the temporariness of temporary emergency jurisdiction can be a problem for women fleeing domestic violence. A child custody decision based on a court’s temporary emergency jurisdiction can turn into a permanent custody determination if there is not a competing custody action in the state from which a woman fled—but if an abusive partner files a permanent custody action in another state (or if one was already started), the protection of a Minnesota court order granting a mother temporary emergency custody of her children will typically only remain in place until an order is obtained from a court of the state having initial child custody jurisdiction as outlined above. 

Another provision of the UCCJEA that can play a complicating role for women fleeing domestic violence is the provision related to simultaneous proceedings in Minnesota Statute Section 518D.206. In general, if a custody proceeding has been commenced in a different state, Minnesota may not exercise jurisdiction unless the proceeding in the other state has been terminated or is stayed pending Minnesota taking jurisdiction based on its being a more convenient forum. In other words, when a woman flees domestic violence by returning to Minnesota and a child custody action has already been commenced in the state she leaves, she must participate in that proceeding to preserve her legal rights. But depending on the circumstances, she may also have legal options to request that the Minnesota court take jurisdiction over child custody.

The UCCJEA and flight from domestic abuse across state lines

A situation that implicates the UCCJEA is generally fact-specific. A situation that implicates the UCCJEA and involves domestic abuse is not only fact-specific but also urgent. I have learned that one small fact in a woman’s situation can mean the difference between being able to make a compelling legal argument to protect herself and her children from returning to the state or country from which she fled and being left without a colorable legal basis to argue against such a return. In many situations, it is imperative to take legal action quickly in order to avoid the complication of simultaneous court proceedings. 

Let’s take Jen as our hypothetical example. Jen, a young woman living with her husband and two young children in Texas, grew up and attended college in Minnesota. She met her husband in college and they married shortly after graduation. After working in Minnesota for a few years, her husband was offered a higher-paying job in Texas. Jen was pregnant with the couple’s second child at the time. She was reluctant to leave her family in Minnesota, and her marriage was rocky, but her husband promised that things would be better for them away from family and in a warmer climate, and that they would return to Minnesota someday. Jen and her husband relocated to Texas for his job.

But the higher-paying job was more demanding for her husband than Jen expected. Their relationship did not improve; after the birth of their second child, it got worse. The verbal attacks from her husband that occurred in Minnesota evolved into physical attacks, rape, and threats to harm her and the children should she leave him. He was also in complete control of the couple’s finances, leaving Jen with no access to funds other than a credit card with a set limit that she was permitted to use. Jen grew depressed and anxious. She found it hard to get out of bed some days, but as a parent she had to be there for her children. Her husband taunted her about her looks and told her she was a terrible mother. He questioned where she went, what she did, and with whom she spent time. In short, Jen was financially dependent, battered, terrified, isolated, and alone, caring for two small children full-time in a small city where she hardly knew anyone. After 18 months of living this way, Jen finally confided in her parents—who immediately purchased her and her children airline tickets to return to Minnesota.

Jen’s return to Minnesota is where the rubber hits the road; at this point, her action or inaction could have a huge legal impact. The fact that Jen did not intend to permanently live in Texas and her husband’s promise to return to Minnesota are key facts in Jen’s situation. Other factors could help or hinder Jen’s claim that Minnesota has jurisdiction over a divorce and to determine child custody. As such, when a Jen, or the parent of a Jen, calls you, a Minnesota attorney, in a panic, to ask about her legal options in Minnesota, you need to obtain as much information as possible. 

First and foremost, it needs to be determined whether Jen can make the claim that Minnesota is her domicile based on the fact that she did not intend on living in Texas permanently. In order to obtain a divorce in Minnesota, an individual must reside in, or be a domiciliary of, Minnesota for 180 days. Jen was not a resident of Minnesota for 180 days immediately preceding the commencement of a divorce if she moves forward immediately upon her return to Minnesota, as she does not meet the legal requirements for residency. However, if there is sufficient evidence to support a claim that Jen and her husband never intended to relinquish Minnesota as their permanent abode, then Jen can file for divorce in Minnesota asserting that she is a domiciliary of Minnesota, because according to Minnesota case law, a “[m]ere change of residence, although continued for a long time, does not effect a change of domicile.” 

This, in turn, supports the legal argument that Minnesota has “home state” subject matter jurisdiction over child custody under the UCCJEA, because maintaining Minnesota as her domicile shows that the time Jen and the children spent in Texas was a “temporary absence” from the children’s “home state” of Minnesota under the UCCJEA. To determine whether these legal bases for Minnesota jurisdiction exist, the following questions need to be answered:

  •  Are there written communications between Jen and her husband discussing the temporary nature of their stay in Texas? 
  • Did Jen and her husband own a home prior to moving to Texas?
    If so, did they sell their home or keep it? 
  • Did Jen maintain her Minnesota driver’s license? 
  • Did Jen and her husband file Minnesota tax returns? 
  • Did Jen maintain her own or the children’s primary care doctors in Minnesota? 
  • Did Jen or her husband maintain bank accounts in Minnesota? 

If the answer to most of these questions is yes, then there is a colorable claim for Jen to file for divorce in Minnesota claiming it as her domicile and further asserting that Minnesota has jurisdiction over child custody under the UCCJEA because the time she and the children lived in Texas constituted a temporary absence from the state.

A woman in Jen’s position who can claim Minnesota as her domicile should take immediate legal action related to custody of the children upon arriving back in Minnesota. Being the first to commence a divorce (or a stand-alone custody action) in a situation like Jen’s results in a higher likelihood that her husband’s inevitable challenge to Minnesota’s child custody jurisdiction will be defeated. If a woman in a situation like Jen’s does not move forward swiftly, she runs the risk of having to defend herself in two state court custody proceedings and losing her case for Minnesota to take jurisdiction over child custody. 

Time is very much of the essence in these matters. For example, consider the scenario where, upon her return home, Jen—understandably exhausted from the abuse and isolation she experienced—sequesters herself in the warmth of her family’s support and decides to take her time in deciding what to do next regarding her relationship with her husband. She and her husband have some communication. He expresses anger that she left but is also apologetic about his behavior and promises to go to couple’s counseling and to “do better” when she returns. Based on their communications in the weeks following her return to Minnesota, she does not believe she needs to make any decisions right away about whether to pursue a divorce or remain married and return to Texas.

Jen’s husband, on the other hand, is very angry that he is not getting the response he wants from Jen, which is for her to commit to returning to Texas with the children. After three weeks of trying to cajole her back to Texas, he hires the most aggressive attorney he can find and files a child custody action in Texas, asserting that Texas is the children’s “home state” under the UCCJEA. He further alleges that Jen abducted the children in an attempt to alienate them from him and that Jen is psychologically unstable. He requests the immediate return of the children and for them to be placed in his sole custody. 

Assuming Jen can claim Minnesota as her domicile and make a colorable argument that her children’s absence from Minnesota was temporary, she can still move forward with a divorce in Minnesota, asking the Minnesota court to determine child custody. But her chances of having Minnesota decide child custody have decreased, making her situation significantly more unpredictable. She is going to have to ask that the Minnesota and Texas courts confer as required under the UCCJEA. And if Texas finds that it has UCCJEA “home state” jurisdiction, the Minnesota court—whose jurisdiction was invoked only after a case was filed in Texas—is very likely to defer to the Texas court on child custody jurisdiction. In this scenario, Jen’s legal situation is significantly more complex and dire. 

Ultimately, no matter which state determines child custody, the court must apply its own substantive law to the unique circumstances of the family’s situation. If there is a custody proceeding in the state from which a woman fled with her children, the court will still have the authority to consider the circumstances and the domestic abuse that has occurred. It may very well be that, by agreement or court order, she is granted custody of her children and granted permission to relocate with them to Minnesota. It could also be that a woman like Jen is defined as a child abductor and parental alienator, and deemed to be uncooperative and unstable—resulting in the abusive partner being granted custody of the children and using such circumstances to continue the pattern of abuse. 

It is important to be aware of the potential legal consequences facing women who flee domestic abuse with their children. There is much more to say about the nuances of how the UCCJEA can affect women fleeing domestic abuse—both positively and negatively. And the UCCJEA is not the only law that impacts a woman fleeing domestic violence with her children. When a woman flees domestic violence across national lines, her children may be returned to the country from which she fled under either the
UCCJEA or the Hague Convention. 

As you can see, fleeing domestic abuse without promptly taking legal action can result in a woman being accused of abducting her children across state or national lines and alienating the children from the other parent. It can result in a court order for the children’s return to an abusive partner, forcing a woman to choose whether to return to the place she just fled—where she may have no financial resources or social support, and may not even know the language. It can result in a woman having to navigate the complications of defending herself in two states or countries. In brief, the consequences of a woman’s return to Minnesota can be psychologically and financially devastating. It is a situation that needs to be handled with awareness and care.


ALLISON MAXIM, M.A., J.D. is a solo attorney at her 
St. Paul firm, Maxim Law, PLLC. She practices exclusively in the area of local, interstate, and international divorce and family law.