Child custody battle from Missouri court spills over into territory
A child custody battle case out of a Missouri court has spilled over to the territory when local police enforced a Missouri court order, which didn’t sit well with the High Court of American Samoa that has described the action as “disdainful”, according to court documents.
In a decision issued Wednesday, the local court raised concerns over the enforcement of an out of state order that didn’t comply with local laws, and gives persons the opportunity to contest the out-of-state order.
As a policy practice, Samoa News doesn’t report on child custody cases, but only in rare cases when off island jurisdictions become involved and other matters are in question. To protect all parties involved, Samoa News is not identifying the father and mother of the now two-year old child.
According to court documents, the father of the child involved had petitioned a Missouri court in March 2016 for divorce from his wife, who is a US national from American Samoa. The child — who was 9 months old at the time — and the mother left the US and arrived in the territory in February 2016.
It was in July 2017 the Missouri court issued the divorce decree along with an order awarding custody of the child to the father, who maintained residence in Missouri.
The father’s petition was served by certified mail to the mother, and a confirmation from the US Postal Service records indicates the delivery of the certified mail along with a scanned image of the recipient’s signature, according to the High Court’s decision, which questions the validity of the signature.
On Jan. 23 of this year, local attorney Richard DeSaulles, accompanied by a female paralegal and three Department of Public Safety detectives, went to the mother’s home to deliver the Missouri divorce decree.
Later in the day, the mother met DeSaulles, the paralegal and a Child Protective Service official at the DPS office in Fagatogo. The mother’s ex-husband was there along with the couple’s young daughter.
“At the time, Mr. DeSaulles informed me that if I refused to surrender my daughter, criminal charges could be filed against me and I could go to jail,” the mother alleges in court documents. “He also said that I should be glad that my ex-husband had not filed criminal charges against me because otherwise I would already be in jail. No one present contradicted him.”
“Faced with the prospect of incarceration, I did not protest when the paralegal took my daughter away,” the mother further alleges.
According to Missouri court filings, the mother “did secret the child” — left without knowledge of the father — in February 2016 from the continental US to American Samoa, after telling her then-husband that she was going for a short stay in Utah, then California. However, the father discovered that the mother had allegedly “fled” to American Samoa.
The mother on the other hand, has disputed such claims, saying in a court affidavit that, she never told the then-husband, about going to Utah and then California. The mother claimed that she told the husband that she had lost her job and was returning with her daughter to American Samoa.
The mother also admitted in her affidavit of twice telling her then-husband, that he was not the biological father before the child was born. She further admitted of having an extra marital affair with another man, who is the child’s biological father.
The mother further alleges that she has never received a divorce petition from Missouri and she never signed to acknowledge a receipt of any mail from Missouri. She only became aware of the case when visited by DeSaulles and others.
The mother’s affidavit is included in her petition filed Jan. 26 this year, with the High Court challenging the Missouri court order to comply with local laws and to return her daughter to her custody.
“The seizure of the daughter from her mother’s care and custody was done under color of law, but with threat of arrest and incarceration for non-compliance,” according to the petition. Additionally such action was lacking in due process; and there was no Order of the High Court authorizing the seizure.
In response, DeSaulles asked the court to dismiss the petition due to lack of subject matter jurisdiction and failure to state a claim. He disagrees with the petition’s argument that local law requires a foreign judgment to be filed with the High Court.
He argued that local law provides that a foreign judgment “may” be filed with the High Court.
However, a response from the petitioner, reiterated local law that calls for the registration of an out of state court order with the High Court.
In her petition, the mother asserts — among other things — the father removed the minor child in violation of local Uniform Enforcement of Foreign Judgments Act (UEFJA); and the removal of the child was done without an order from the High Court.
HIGH COURT DECISION
Arguments were heard held Feb. 5, and presided over by Acting Associate Justice Elvis Patea and assistant by Associate Judges, Suapaia E.C. Pereira and Paepae Iosefa Faiai. And during a court hearing on Feb. 7, the court released its official written decision with a verbal order that the child be returned to the mother’s custody.
“We find that the Missouri custody order is not entitled to full faith and credit because it was not made consistent with” provisions of the federal Parental Kidnapping Prevention Act (PKPA), the judges wrote in the 13-page decision.
They explained that under Missouri laws, the Missouri court lacked jurisdiction to make the child custody determination. Additionally under the jurisdictional provisions of the PKPA, the Missouri court lacked subject matter jurisdiction to make the child custody determination.
Furthermore, under the notice provision of the PKPA, the mother was not provided reasonable notice and an opportunity to be heard because there is no evidence that she received the actual or legitimate constructive notice of divorce proceedings, she did not participate in them and she had no real opportunity to do so.
Finally, said the judges, under enforcement mechanisms of the UEFJA, the mother was denied the opportunity to contest the Missouri court order before law enforcement officials from “this territory were used to enforce” the order.
ENFORCEMENT OF COURT ORDER
The decision notes that the Uniform Law Commission drafted in 1997, the Uniform Child Jurisdiction and Enforcement Act (UCCJEA), because the PKPA doesn’t provide enforcement procedures or remedies. All 50 states have since adopted the UCCJEA, allowing courts in the US to apply the enforcement mechanism. The court also cited provisions of the UCCJEA when carrying out enforcement.
However, in American Samoa, the Fono has not yet adopted the UCCJEA and therefore, the court looked at enforcement mechanisms within the local UEFJA when enforcing the child custody order.
The judges noted that the mother has petitioned the High Court to compel the father to file the Missouri child custody order under the UEFJA for enforcement. However, the father came to American Samoa, “went to the mother’s home with the police and involved our own social services to secure the child [and] this is the sort of self-help that this Court disdains.”
According to the judges, PKPA was not enacted to “assist in this sort of self-help” and “does not provide for any sort of enforcement mechanisms.”
Until the Fono enacts a local UCCJEA, “any actions to enforce custody orders from out-of-state must be filed under our... UEFJA to allow for due process and to give persons the opportunity to contest the validity of a foreign judgment, order or decree,” the judges wrote.
They pointed out that the PKPA was never intended to deprive the other parent of due process because it requires the other parent to have reasonable notice and an opportunity to be heard.
According to the judges there is a 30-day waiting period after an out-of-state order is filed with the High Court before enforcement of such order is carried out.
However, since this was not done, the court finds that the mother “was denied her opportunity to contest the validity of the order as is her right under the UEFJA,” the judges said and ordered the child be returned to the mother until an evidentiary hearing and a custody order from the High Court.