TRENTON — Child custody battles can be complicated disputes when parents live across the street, or across town. The state Supreme Court heard oral arguments Tuesday about parents who want to live a world apart.

At issue is the 7-year-old daughter of Ronald and Ericka McKinnon of Hillsborough. After the breakup of their marriage, Ericka sought to take the child to her native home in Okinawa, Japan. The couple met there when Ronald was stationed in the Marines. They moved to the United States in 1991.

After the birth of their child, the marriage broke up and Ronald MacKinnon has since had a son with another woman. He wants his two children to have a brother and sister relationship.

Following an eight-day trial in 2006, Superior Court Judge Stephen B. Rubin, sitting in Hunterdon County, gave Ericka permission to move to Japan, with the condition that she return to the United States with her daughter during three lengthy school holidays.

In February an appellate court upheld the ruling, under terms even more favorable to Ericka MacKinnon. It would allow her to apply to the court if trips to the United States proved to be an economic burden.

Ronald MacKinnon petitioned the state Supreme Court to hear the case, and oral arguments were heard Tuesday.

In an earlier state Supreme Court ruling, Bauers v. Lewis, the high court permitted a custodial parent to take a child to another state, if the parent could convince the courts a superior family support system existed in the other state.

Attorney Christina Reger, representing Ericka MacKinnon, asked the court to expand the ruling to allow her client to take the child to Japan, for the same reasons as the one that governed the Bauers' case.

Attorney Michele D'Onofrio, representing Ronald MacKinnon, however, told the court, "There would be no enforceability," if the child was taken to Japan.

D'Onofrio noted that Japan has not signed onto the Hague Convention on the Civil Aspects of Child Abduction, which governs international custody disputes.

Charles Vuotto, an attorney with Wilentz, Goldman & Spitzer of Woodbridge, said the MacKinnon case is being watched by attorneys involved in family law. "The real issue is whether Bauers is sufficient to take into account these circumstances," he said.

Reger told the court the best interests of the child would be served in Japan, where Ericka MacKinnon would have a strong family support system, and better job prospects. Together these factors, she said, "Would far outweigh the fact that the father would suffer."

According to testimony heard in the 2006 trial she makes about $11,000 annually while working three part-time jobs.

Reger noted that Ericka MacKinnon has taken the daughter to Okinawa to visit her family, and every time returned with the child to the United States. "She has always acted in good faith," said Reger.

Since the 2006 trial Ericka MacKinnon and the child have relinquished their passports. They will not be returned before the state Supreme Court rules, according to Reger.

Associate Justice Roberto Rivera-Soto noted that while the MacKinnons were together, "Her support system (in the United States) was her husband."

Based on his understanding of Ericka MacKinnon's support system and job prospects in Japan, Associate Justice Barry Albin said, "Having the mother (in New Jersey) isn't good for the child."

While questioning Reger, Chief Justice James Zazzali allowed that Ericka MacKinnon could take the child to Japan and not return. "What does (Ronald MacKinnon) do in that event?" Zazzali asked.

Reger said that Ronald MacKinnon could petition Japanese courts, which, she said, are traditionally governed by "the best interest of the child."

While Ericka MacKinnon has operated in good faith, Vuotto said not all parents would necessarily act the same way. The court, said Vuotto, "Needs to explore other security mechanisms beyond the anticipated good faith of the custodial parent."

High court to hear Hillsborough custody case

The Star-Ledger May 01, 2007 6:25AM
Source: http://blog.nj.com/ledgerupdates/2007/05/high_court_to_hear_hillsboroug.html

Custody dispute crossing borders: Mom wants to take daughter to Okinawa

Newark Star-Ledger
May 01, 2007
Source: http://familylawinternational.blogspot.com/2007/05/child-relocation-to-japan.html

The state Supreme Court will hear oral arguments today in a Hillsborough child custody case with international implications.

After the breakup of her marriage, Erika MacKinnon wants to return to her homeland, Japan, along with her 7-year-old daughter. A network of relatives and better job prospects should translate into a better life for mother and child, according to her attorney.

Erika's ex-husband, Ronald MacKinnon, challenges that notion. Relocating the child to her mother's hometown on Okinawa could make it difficult, perhaps impossible, for him to visit her, he said.

Unlike North American and European countries, Japan never signed the major treaty on child custody issues, the Hague Convention on the Civil Aspects of Child Abduction.

"Japan will not recognize foreign custody orders or foreign ar rest warrants in child abductions," said Walter Benda, a Virginian who came home 11 years ago to find his ex-wife had taken their two daughters to Japan.

"I don't think there's much you can do ... if the Japanese parent doesn't want to act in good faith," said Benda.

Jeremy Morley, a New York lawyer specializing in international family law, said he is "very frustrated" by the haphazard response of American courts.

"What the court needs to appreciate in this type of case is that if a child goes to Japan, and the custodial parent wishes to keep her there, it could be the last the other parent will ever see of her," Morley said. "Some courts recognize that, some do not."

While there have been high-profile cases elsewhere involving abductions to Japan, Saudi Arabia and Egypt, the issue is a new one for New Jersey.

"The precedent in New Jersey is a case involving a parent who moved to Wisconsin," said Michele D'Onofrio, who represents Ronald MacKinnon. "That doesn't fit the facts of a case where a parent wants to take a child halfway around the world."

For that matter, the idea of "abductions" does not fit this case either, said Christina Reger, Erika MacKinnon's attorney. Rather than bolting for Japan, her client has dutifully gone through the American legal system, prevailing in the lower courts, she said.

"She was only 19 when she came to this country" in 1991, after meeting Ronald MacKinnon when he was stationed on Okinawa with the Marines, Reger said. Erika held a series of low-paying jobs while her husband worked construction, she said.

"She has absolutely no family here, no support group, limited financial prospects," Reger said.

In contrast, Erika MacKinnon's fluency in English opens many opportunities in the Japanese job market, and her mother and sister can help with child care, Reger said.

Moreover, since the girl was born, Erika MacKinnon has taken her to Okinawa for extended stays every year, Reger said. Even when Ronald called her in the middle of one of those trips to say he was leaving her for his high school sweetheart, "they still came back," she said. …

"The court should reconsider reopening the case to take testimony on that point," Morley said, and possibly require a bond be posted to pay for the trips.

The information on this website concerns a matter of public interest, and is provided for educational and informational purposes only in order to raise public awareness of issues concerning left-behind parents. Unless otherwise indicated, the writers and translators of this website are not lawyers nor professional translators, so be sure to confirm anything important with your own lawyer.
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