Fatherhood/Is it fair that because an American mother does not want to
Is it fair that because an American mother does not want to United States law governing paternity and Custody, laws which rightfully give preference to the biological father under the US Supreme Court decision of Stanley v. Illinois, she gives birth to her daughter in the Bahamas and her daughter is not allowed to visit the United States before child custody ends at age 18. Her daughter is a United States citizen but is born in the Bahamas.
Anna Nicole Smith and The Legal Rights of Unborn Children
March 11, 2007
MSNBC News legal analyst, NYC lawyer Lisa Beth Older, Esq., appeared on MSNBC News Saturday and Sunday, raising novel concerns regarding Anna Nicole Smith and the legal rights of unborn children that go to the heart of what is on everyone's mind.
Upon the death of Anna Nicole Smith, and with the parentage of Dannielynn in balance, New York City MSNBC and ABC News Lisa Beth Older, Esq. addressed a serious loop hole in State laws which leave the question of the rights of unborn children to the potential capriciousness of other foreign countries. This breaking news angle on Anna Nicole Smith and the right of unborn children and viable fetuses has the world pondering the fate of Dannielynn and the human rights of all unborn children. Custody, paternity and DNA testing needs to be addressed in these cases as well as in the case of Anna Nicole Smith.
Foreseeing the problem of parental kidnapping of children and forum shopping for custody, paternity and DNA testing results, most States have already adopted UIFSA, the Uniform Interstate Family Support Act, and the UCCJEA, the Uniform Child-Custody Jurisdiction and Enforcement Act, and both sets of laws provide State courts with the power to determine paternity and custody where there is more than one state involved, such as where one parent kidnaps or brings a child across state lines. The laws rely upon the notion of "home state" jurisdiction, which is defined as the Court located where the child is born or has lived six months prior. If Congress does not act to expand the time of "home state jurisdiction" to include the time of pregnancy; a change from six months to fifteen months, and if UCCJEA and UIFSA is not amended Lisa Beth Older argues that the unborn child is potentially deprived of knowing their biological parents and asserting US citizenship.
The UCCJEA fails to safeguard unborn fetuses conceived in the United States. The National Commission has reported to Congress that the Bahamas is currently listed as a country of concern as a country that doesn't act on applications and abide by the rules of the Hague convention for the return of abducted children to the US.
Lisa Beth Older argues that Howard K. Stern, and others like them under the prevailing law, may be encouraged to leave the United States in order to legally circumvent United States law governing paternity and Custody, laws which rightfully give preference to the biological father under the US Supreme Court decision of Stanley v. Illinois. If a child like Dannielynn is conceived in the US but brought to the Bahamas, then it is up to the biological father to rebut the presumption of legal parentage by requesting discretionary blood testing.
In the Bahamas, Lisa Beth Older says, the law presumes that legal parentage and custody and paternity, is in the man who cohabits with the pregnant mother for a significant time and enters into a voidable marriage. This is to the detriment of the biological father and to his unborn fetus. If the Bahamas does not order blood testing on Anna Nicole Smith's the unborn child the child may never know her biological parent. An unborn child has the fundamental human right to know their biological father, and to allow people, such as Howard Stern, to remove an unborn child from US jurisdiction not only sets bad precedent but also encourages other pregnant woman and their friends to flee the United States in an arbitrary effort to defeat the fundamental human rights of all biological fathers and unborn children throughout the world. As such in the ultimate analysis Larry Birkhead has an uphill battle at this point.
Forum shopping is the informal name given to the practice adopted by some litigants to have their legal case heard in the court thought most likely to provide a favorable judgment. Some jurisdictions have, for example, become known as "plaintiff-friendly" and so have attracted litigation even when there is little or no connection between the legal issues and the jurisdiction in which they are to be litigated.
Examples include the attraction of foreign litigants to the United States due to its expansive acceptance of personal jurisdiction and favorable litigation climate, and the United Kingdom for its stricter defamation laws.
The term has become adopted in a wider context for the activity of repeatedly seeking a venue or willing listener for a concern, complaint or action, until one is found.
A U.S. district court judge called it correctly when he insisted that [i]n reality, every litigant who files a lawsuit engages in forum shopping when he chooses a place to file suit. International family lawyers work to assist their clients in that process.
In one case, a court expressly acknowledged that the plaintiff had chosen to move to the state in order to benefit from the liberal divorce laws in that state. The court found that was perfectly appropriate and did not justify a stay or dismissal of the case.
On the other hand, forum shopping is generally seen as particularly inappropriate when it is intended to secure a more sympathetic forum in a child custody case. Indeed, courts have found that the Hague Abduction Convention was designed to deter parents from engaging in international forum shopping in custody cases. Specifically, the Hague Convention attempts to prevent situations in which a parent dissatisfied with current custodial arrangements flees with the child to another country to re-litigate the merits of custody and to obtain a more favorable custody order.
Nonetheless, it may well be in the best interests of a child to remove the child from a forum which does not apply the best interests test in child custody cases to a forum which has a "better" law and practice in such cases.
You are right, it is not fair, but look for answers in ways to improve your relationship with the mother, develop it to the best degree of trust that you can and show her that you can be trusted as well. Learn how you can be the absolute best father you can and plan to spend some time around your child as long and often as you can, change some diapers, feed and play with your child, be a happy and positive influence. I know that you first have to get her to trust you which for some reason she does not is that right? Why does she have those fears? Find out and so something about it. Forum shopping exists only because people just have too much fear and mistrust in each other. Why is that? What can you do to eliminate or at the very least significantly reduce the fear and mistrust. Stop trying to get a better judgement and just decide to give each other the best possible solution that is fair to both of you.