LINCOLN — By all accounts, it has been an ugly custody battle.
The Nebraska mom left him off their baby's birth certificate. The Canadian dad said she had mental problems. She accused him of child sexual abuse. He said she had abducted their daughter.
They dueled in the courts of two countries for more than eight years, and even fought their way up to the Nebraska Supreme Court.
But the case became almost impossibly tangled once the Nebraska Legislature stepped in.
At the mother's urging, state lawmakers passed a bill that put the state at odds with a uniform child custody law adopted by 48 states, including Nebraska.
Legal experts said the result complicates an already difficult situation. Because of the Legislature's actions, a court in Nebraska and another in Canada each claims jurisdiction over the case — and each has issued a custody ruling. But the two courts heard different sets of evidence and came to conflicting conclusions.
The Supreme Court of British Columbia, Canada, where the father lives and where the girl was born, granted custody March 16 to the father and paternal grandmother.
A week later, the district court for Lancaster County, where the girl and her mother live, granted custody to the mother and barred the father from contact.
The girl's mother insists she acted to keep her daughter safe from an abusive father.
The mother has declined several requests for an interview and referred all questions to her lawyers. Her primary concern, she said, is her daughter's welfare and reputation.
The World-Herald is not identifying the parties involved to protect the girl.
The girl's father insists he's innocent of child abuse and says the case has become political. He said he has asked his parliamentary representative for help and still hopes to reunite with his daughter someday.
In the meantime, the 11-year-old girl with the dark, wavy hair and huge smile continues to live with her mother in Lincoln, attending public school and participating in ordinary activities.
Legally, though, she remains in limbo.
“Boy, that's not a good situation to have, because the whole idea behind it (the legislative action) was to bring some certainty,” State Sen. Steve Lathrop of Omaha said recently.
Experts say there are few avenues for reconciling the orders.
The Uniform Child Custody Jurisdiction and Enforcement Act, which Nebraska passed in 2003, was supposed to end such conflicts between courts. Under that act, courts in a child's home state handle custody cases.
Foreign courts are to be treated the same as U.S. courts.
The act defines the home state as where a child and parent lived for six months before the case was filed. In this case, the home state would be British Columbia.
That's where the mother and father met in 1997, the father said. She was 36, a Nebraska native teaching autistic children in a suburban Vancouver school. He was 34, the owner of a pizza restaurant observing her classroom before getting into education.
British Columbia is where their daughter was born in March 1998 and baptized a month later.
And that's where the mother filed a motion in fall 2000 seeking sole custody. The mother wanted to move to Lincoln to pursue a doctoral degree. The couple hadn't married.
The Canadian court granted the mother interim custody, allowed her to move and ordered visitation for the father.
A psychologist doing a court-ordered evaluation of the couple said he had “seldom seen” parents “disparage the other to the extent shown in this case” and cautioned that the mother might try to reduce the father's involvement.
The first allegations of abuse were made after the girl visited her father in spring 2004, according to court documents. More allegations followed each subsequent visit.
Over the next two years, he was accused of touching his daughter inappropriately, videotaping her in bed, slamming her face on the bottom of a public swimming pool, bruising her leg, infecting her with scabies and denying her food, showers and phone calls to her mother.
Police and child protection workers on both sides of the border investigated the allegations.
Those in Nebraska heard from the girl, her mother and the girl's therapist.
Those in British Columbia, where the abuse allegedly occurred, heard from the girl, her father and his family.
Officials in Canada obtained a sexual risk assessment of the father and an examination of the allegations by a forensic psychologist. They also received the results of two polygraph tests the father took and passed.
Each time, the Canadian officials concluded there had been no neglect and no sexual, physical or other abuse. The source of the scabies was not explored; the mites that cause it can be spread by touching an infected person or through clothing, sheets or other household items.
The father was never charged. He continues to work with disabled children after his employers were satisfied that his innocence had been established.
One month after the first Canadian investigation ended in September 2004, the mother began trying to move the custody case to Nebraska.
She started with the legal system, but courts in Canada and Nebraska repeatedly denied her requests.
The Nebraska Supreme Court ruled Feb. 2, 2007, that under Nebraska law, “the Canadian courts have exclusive continuing jurisdiction over child custody determinations concerning (the girl).”
By then, the mother was already pursuing a different course.
Going from office to office in late 2006 and early 2007, she told Nebraska lawmakers of the alleged abuse and showed photos of the scabies. She paid Sheri Wortman, her Lincoln attorney, $2,681.25 to help lobby for her.
“I have exhausted every possible resource that I have at my disposal,” the mother said at a legislative hearing. “The British Columbia court has done nothing.”
The Legislature's Judiciary Committee embraced her cause, advancing a bill in January 2007 under which Nebraska courts would not have to recognize or enforce foreign custody orders if the orders put a Nebraska child at “significant or demonstrable” risk of abuse or neglect. In such cases, a Nebraska court could claim jurisdiction.
Some lawmakers took pains then and now to say they were making a policy change, not a change to benefit a single case.
Said Lathrop: “It didn't give her an advantage, it set up a process in Nebraska. (Her) case was an example of a problem.”
But no other cases were brought to light.
Former Sen. DiAnna Schimek of Lincoln, who introduced the legislation, called the case and the Legislature's involvement “somewhat out of the ordinary.”
Schimek did not typically introduce legislation in response to parents who brought custody disputes to her office. But the international dimension of this case made it different, she said in a recent interview.
“I think that her story was very compelling,” Schimek said, “and sometimes the law does change for one person.”
Senators speeded through the steps to turn the bill into law, getting it from public hearing to the governor's desk in eight days.
Legislative officials recall few other bills that have passed so quickly. This year, it took nine days for a must-do change in the school aid certification date to make it from public hearing to the governor's desk.
Speaker of the Legislature Mike Flood of Norfolk gave the custody bill special priority based on requests from Judiciary Committee members. They said the bill needed to pass before the Canadian court learned of the pending legislation and could act to enforce its own visitation orders for the father.
“If there was supposedly a leak, say, in letting them know what was going on here, could they do that (take action) as soon as possible just to deter what's happening here?” then-Sen. Vickie McDonald of St. Paul asked at the hearing.
Senators involved said they never heard the father's side of the dispute. The father's Lincoln attorney, Chris Furches, learned of the legislation through newspaper reports when the bill was well on its way to passage.
The only questions raised about the proposal came from the uniform law commissioners group, based in Chicago.
Eric Fish, the group's legislative counsel, said the bill as introduced would have undone the whole system of uniform child custody laws, so the group worked to amend it.
The law as passed differs from what 47 other states have but is close enough, Fish said recently, that the group was willing to accept it.
The law commissioners' involvement carried weight with some lawmakers. Flood, for one, said he felt comfortable altering the uniform law because the group had signed off on it.
The new law took effect Feb. 1, 2007.
Three weeks later, the mother filed for custody in Lancaster County District Court, citing the new law.
But she was denied again. Lancaster County District Judge Paul Merritt Jr. ruled that the law was a shield to defend against foreign court orders — not a sword to be used for offensive attacks.
So the mother went back to the Legislature this year.
This time, she asked for a legal sword — one letting Nebraska courts take the offensive in cross-border cases where a Nebraska child was at risk of abuse and neglect. Once again, the change passed without opposition.
The mother filed for custody in the Nebraska court March 10, five days after the law took effect.
Before the month was out, the British Columbia and Nebraska judges had issued their opposite orders.
The Canadian court based its order on evidence presented when the mother's original custody case went to trial in early 2008.
The mother didn't appear or have an attorney represent her at trial. The abuse allegations were presented through court and investigative documents from Nebraska.
Another one of the mother's attorneys, Richard Ducote of New Orleans, said “there was no need or purpose in proceeding in Canada” because the Canadian court had not protected her daughter and the Nebraska law did.
British Columbia Supreme Court Justice C. Lynn Smith ordered the case to proceed, citing, in part, “the apparent danger to (the girl's) well-being while the issue remains unresolved, given that she is making allegations of abuse which, if true, suggest that her father is not suitable to be a custodial parent and which, if false, raise a question whether her mother may be fomenting the allegations and for that reason may not be suitable to have custody.”
In March 2008, the Canadian court granted interim custody to the father and ordered the mother to return the girl to British Columbia for an evaluation and a final custody decision.
“The evidence I have heard supports a conclusion that (the father) and his family members are decent people who are worthy of belief and who are not responsible for any abuse of this child,” Smith concluded.
The mother did not comply. Instead, she moved forward in Nebraska with a civil lawsuit against the father, seeking damages for the alleged abuse.
The father wasn't represented by an attorney and didn't appear for his deposition or the December 2008 trial in the suit. He said in an interview he could no longer afford to fight the case, having already spent more than $300,000 in legal fees.
Merritt entered a default judgment, declaring as fact the allegations of sexual abuse and battery that were in the mother's legal complaint. The mother was awarded damages of $255,000.
Three months later, Merritt based his custody decision on the evidence from the lawsuit presented by the mother.
Jeremy Morley, a New York City attorney who specializes in international family law, said he knows of no legal avenue to reconcile the two custody decisions.
Morley called the Nebraska Legislature's willingness to act based on an individual custody case “quite surprising.”
“The basis of the UCCJEA (uniform child custody law) is we are supposed to trust courts in other countries,” he said. “The Canadian courts have a good reputation.”
But Ducote, the mother's attorney, said the Canadian court was not protecting the girl and had received evidence from unqualified experts using “bogus theories and techniques.”
Said Sen. Amanda McGill of Lincoln, who introduced the 2009 bill: “There's no doubt in my mind that child was being abused. I do believe this is a case where we had a right to step in.”
Nor is Schimek convinced the case would be resolved if the Canadian court had retained sole jurisdiction. She said she doesn't know whether the mother would have complied with that court's orders.
“I don't know to what lengths she would have gone,” she said.
In an e-mail, the mother rejected the idea that the Nebraska legislation was passed on behalf of herself and her daughter. She said the bills “pertain to abused children in the narrow circumstances provided in the legislation.”
The father, meanwhile, has appealed to his parliamentary representative for help.
Member of Parliament John Cummins has taken the matter to the Canadian Foreign Ministry, which is reviewing it. He said the case raises concerns for other Canadians with spouses from across the border.
“It seems to me quite clear that things have gone awry and that the State Legislature, while acting with the best intent, may have erred,” Cummins said. “It certainly caused grief on this side of the border.”
The father maintains a Web site to tell his story and to let his daughter know he hasn't given up.
“I've always believed that somehow, some way, this is going to work out,” he said. “It's on my mind when I wake up and on my mind when I go to sleep. It's not easy, that's for sure,” he said.
“I understand there's an excellent chance I may not see my daughter until she's grown up.”
Sen. Brad Ashford of Omaha, the Judiciary Committee chairman, recently described the situation as a cautionary tale for lawmakers.
“We have to be very, very careful of making bad law with good intentions,” Ashford said. “It certainly is an example of the power of the Legislature and its ability to affect lives.”
Contact the writer:
402-473-9583, martha.stoddard@owh.com
Copyright ©2012 Omaha World-Herald®. All rights reserved. This material may not be published, broadcast, rewritten, displayed or redistributed for any purpose without permission from the Omaha World-Herald.
