Rhode Island court has jurisdiction over international custody spat

The Rhode Island Family Court has jurisdiction to decide a custody dispute between a mother living with her children in Rhode Island and the children’s father in Australia, the state Supreme Court has decided.

The mother, plaintiff Kelly Fitzgerald, a Rhode Island resident whose children have resided with her since 2015, petitioned the Family Court for sole custody, child support, and other relief in 2019.

The Family Court entered an order in 2022 stating that it had jurisdiction over the dispute and giving full faith and credit to an Australian court’s ruling disclaiming its own jurisdiction over parenting matters in the case.

The father, defendant James W.A. Jackson, argued on appeal that the Family Court lacked subject matter jurisdiction because of procedural errors in the case and because of its failure to hold evidentiary hearings on the issue.

Jackson, a pro se litigant, also argued that the Family Court lacked personal jurisdiction over him because he had no ties to Rhode Island beyond the fact that his children were “hidden” there.

The Supreme Court disagreed with both arguments.

With respect to subject matter jurisdiction, the court found that the conditions in the case satisfied multiple prongs of the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA, as adopted in Rhode Island.

Chief Justice Paul A. SuttellAs for personal jurisdiction, “defendant waived the issue … and consented to jurisdiction in Rhode Island because he availed himself of the laws of Rhode Island by participating in mediation, filing a motion for joint custody, and submitting a DR-6 form prior to a hearing on child support,” Justice Paul A. Suttell wrote for the court.

The 20-page decision is Fitzgerald v. Jackson.

In an emailed statement, Fitzgerald’s attorney, Felicia A. Manni-Paquette of Providence, said only that she and her client were pleased with the ruling regarding jurisdiction and looked forward to resolving the underlying issues pending in the Family Court.

Jurisdictional challenge

Fitzgerald and Jackson have two minor children who have lived in Rhode Island, with dual United States and Australia citizenship, since 2015.

The parties were never married.

On April 26, 2019, Fitzgerald petitioned the Family Court for sole custody. She also requested that the court award the father reasonable visitation rights within the United States and that it order him to pay child support, maintain medical insurance for the children, and pay half their uncovered medical, dental and vision expenses.

Additionally, the plaintiff requested that the court deem Rhode Island the children’s home state for purposes of the UCCJEA.

In response, Jackson requested that the complaint be denied and dismissed on the basis of lack of subject matter jurisdiction, lack of personal jurisdiction, and improper venue.

He specifically argued in his answer that the parties had a pending action in the Family Court of Australia.

On March 26, 2020, a Family Court judge in Rhode Island urged both parties to collaborate in an effort to move the case to resolution.

The judge also scheduled a pretrial conference via phone.

After a pretrial hearing on June 4, 2020, the judge entered an order setting up a videoconferencing schedule for the defendant to see his children three times weekly and allowing him to telephone them at any time.

Soon afterward, Jackson filed a motion seeking joint custody and an order allowing him to bring the children to Australia. The matter was referred to mediation and partially settled.

A different judge ordered another videoconferencing visitation order in March 2021 and ordered the father to pay $168 a week in child support, retroactive to June 4, 2020. The judge also ordered Fitzgerald to obtain passports from both Australia and the U.S. for the children.

Over the next several months, Jackson filed several motions, including a contempt motion over Fitzgerald’s alleged failure to obtain passports for the children.

He also moved for in-person visits in Australia with the children and sought a contempt order over Fitzgerald’s alleged noncompliance with the videoconferencing visits.

In the ensuing months, Jackson moved to compel an evidentiary hearing and finding of jurisdiction, filed a “notice to court” alleging ex parte communications between plaintiff’s counsel and the hearing judge, filed an objection to temporary orders regarding the children’s placement, and filed another notice to court alleging that the January 2021 child support orders were void ab initio for lack of a jurisdictional finding.

At a December 2021 hearing, the judge scheduled an evidentiary hearing on the jurisdiction issue. She also asked about proceedings in other jurisdictions, and Jackson indicated that the case in Australia had been dismissed.

A third Family Court judge continued the matter for further hearing, and Jackson responded with additional notices to court complaining of delays and the failure to rule on the jurisdictional issue.

At a hearing on April 28, 2022, the Family Court took judicial notice of the Australian court’s April 20 decision disclaiming jurisdiction, determined that Australia indeed lacked jurisdiction, and referenced the Australian court’s 10-page order to that effect.

Still, the defendant continued to contest Rhode Island jurisdiction.

Meanwhile, in June 2022, Jackson filed an emergency motion seeking a summer parenting schedule, asserting that he sought to resolve the issue with Fitzgerald but she would not cooperate.

Fitzgerald objected, asserting that Jackson was aware of the children’s schedules and there was no emergency. The judge, noting that Jackson was still contesting jurisdiction and that no order had entered in the case, said she would hear no further motions until the jurisdiction issue was resolved.

On July 25, 2022, the Family Court entered an order giving full faith and credit to the Australian court’s decision and holding that Rhode Island had jurisdiction over the dispute.

The judge also required that the children remain with their mother in Rhode Island until further order and that previous support orders would remain in effect.

She further ruled that visitation or placement matters would be continued for an in-person evidentiary hearing.

Jackson appealed on jurisdictional grounds.

Appeal denied

On appeal, Jackson argued that the Family Court erred by not ruling on jurisdiction right away, pursuant to the UCCJEA, G.L. 1956 §15-14.1-18, before proceeding in the matter because there was a “simultaneous proceeding” occurring in Australia.

Citing §15-14.1-20, another UCCJEA provision, he asserted that the lower court erred in not declining jurisdiction by reason of conduct.

He further disputed that the Australian court conceded U.S. jurisdiction over the matter, asserting that the court only dismissed the case because a simultaneous proceeding was occurring in Rhode Island.

The Supreme Court rejected those arguments, noting that only one of four conditions need to be present under the UCCJEA for Rhode Island to have jurisdiction over a custody dispute: that Rhode Island be the home state of the child at the time the proceeding commences; that the child and at least one parent have a significant connection with Rhode Island; that all other courts have declined jurisdiction; and that no court of any other state would have jurisdiction under the above criteria.

“It is clear to us that, although only one prong must be satisfied, several statutory factors support the exercise of jurisdiction in this case,” Suttell said.

As to personal jurisdiction, Suttell said the defendant waived the issue by availing himself of the laws of Rhode Island when he participated in mediation, moved for joint custody, and submitted a DR-6 form prior to a child support hearing.

Finally, addressing Jackson’s contentions that future evidentiary hearings should be held remotely rather than in person because he resides in Australia, Suttell emphasized that a contested child custody case is troubling to begin with and is exacerbated by the fact that the father resides “half a world away” from his children.

“The case before us has now been pending for over four years, yet no evidentiary hearing on the fundamental issues of custody and visitation has taken place,” Suttell said. “Such a hearing was scheduled but has not yet occurred. Now that this Court has determined that Rhode Island may properly exercise jurisdiction, however, we expect that the case will proceed as expeditiously as possible. We would, additionally, suggest that, where possible, reasonable accommodations be made for the noncitizen defendant in this global custody dispute.”