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Custodial Disputes - When State Rights Support Stated Wrongs

01/06/2011 08:41 pm ET | Updated May 25, 2011

If you listened carefully over the last weekend of winter break, you would have heard the collective sighs of custodial parents in airports across the country, as their children deplane from holiday visits with out-of-state parents. Regardless of how airtight our custody agreements may appear, angst during visitations weighs upon us like another plate of holiday cookies.

As anxiety turns to relief when each child appears in the jetway, good cheer descends to melancholy in the holiday home. The non-custodial parent, once bright as a child's smile on Christmas morning, returns to the vacant stare of longing. I can't imagine many parents who don't contemplate some variable that will transform a seasonal visit into permanent residency as they deliver their child to the departure terminal.

Several variables aligned in December of 1998. Newly arrived in Seattle from San Francisco, specifically because of the quality of public schools, I had no idea a change in state would leave my five years of primary parenting vulnerable, due to six months of legal limbo before establishment of Washington residency.

Was my son's familial connection suddenly stronger in the home state of his mother, aunts and grandmother, rather than with his father and new stepmother in Washington? A solid custody agreement may have terminated the discussion, but ours was a flimsy "paralegal special" parenting plan, created when casual conversation and tight budgets overruled lawyerly depositions. (Oh man, how this would change.)

In the mind of my son's mother, thanks to an overly ambitious legal advisor from a state that didn't strictly adhere to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), this gap was the last remaining chance to challenge residential custody. With a new fiancé and overwhelming family support, two weeks with our son was but a tease for his mother who'd ceded physical, if not legal, custody five years prior to pursue an advanced degree.

The UCCJEA was enacted to keep children of estranged parents in familiar surroundings, but should a parent move, the second priority relies upon a judicial decision to determine which state claims the strongest connection to the child and to the parent. At issue was not who claimed the stronger connection, my ten-year old son had lived with me an average of 49 weeks a year since he was five but rather, because of our move from California, what state claimed stronger affinity.

What's not to love about Victoria, British Columbia, a destination I feature frequently as a travel writer? Located on sublime Vancouver Island, B.C.'s luminous parliament glistens beside the inner harbor, an ideal location to ring in the New Year, which is why I took my new wife there thirteen years ago while my fifth grade son visited his mother. Never again.

I could tell something was off from the start, the involuntary anxiety of separation settled in like a winter virus. My normally garrulous kid seemed distant and ambivalent; I later learned his mother had taken him to tour his "new school" almost immediately upon arrival for the holiday. Normally, I'd talk to my son everyday during these visits, unable to release my role as primary parent for even twenty-four hours. But this time the gap between calls stretched over a couple of days and the calls were brisk, even abrupt. I felt, though I couldn't be certain, that our calls were being closely monitored. I asked his mother if something was up. I don't remember her response.

I can imagine my son's feelings, receiving so much attention, visiting an elite private school, conspiring to keep his father ignorant of the monumental changes that were about to occur. Most significant, his mother, whom he hardly knew, clearly wanted him, and this affection provided all the motivation he needed. (Would I have deceived my own mother as quickly had my previously distant father shown a sudden interest in raising me?)

Feeling uneasy but knowing there was nothing I could do to alter this burden, I left for Victoria on December 30th, which limited my ability to call my son. When I did call there was no answer, igniting parental intuition, even though a trip to a grandparent's house was not uncommon. I could think about little else while prattling through planned romantic dinners or walking the inner harbour below the New Year's Eve fireworks display. My messages became more insistent, then angry.

The ferry to mainland took forever, the drive to Seattle endless. Once home, as if looking into the cellar during a horror film, I entered the study to see the blinking red message light. The news came in message #4.

"Crai, this is [your son's mother], I've decided to keep [our son] with me. He is enrolled in an excellent school. He is very happy with my decision. We'll call you soon. He loves you."
Adrenaline suffocated me, confirmation of my deepest fears exacerbated by anger that my voice as primary parent was so quickly assumed by my son's mother. Feeling helpless, I vented my anger through several voicemails, though no live conversations took place during those first sleepless days.

Who notices state lines when driving throughout the USA? Perhaps we point out a welcome sign to our kids or realize our destination is within reach. But a state line becomes the border between North and South Korea when an interstate custodial dispute flares up. Suddenly, a welcome sign provokes a cold war.

To be continued...

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