United States: The Doctrine Of Fugitive Disentitlement And Its Impact On Child Custody Matters

The doctrine of fugitive disentitlement bars a fugitive from seeking relief in the judicial system whose authority he or she evades, i.e. one cannot flee the country and evade a court order and simultaneously seek the court's protection.

Justice Virginia Long (now retired from the Supreme Court and Counsel at this firm) set forth the standards for the application of the doctrine in Matsumoto v. Matsumoto, 171 N.J. 11, 120 (2002):

[T]he party against whom the doctrine is to be invoked must be a fugitive in a civil or criminal proceedings; his or her fugitive status must have a significant connection to the issues with respect to which the doctrine is sought to be invoked; invocation of the doctrine must be necessary to enforce the judgment of the court or to avoid prejudice to the other party caused by the adversary's fugitive status; and invocation of the doctrine cannot be an excessive response. Id. at 129.

In the realm of family law, this doctrine poses a unique question to Courts who are required to balance (1) their power to enforce their orders against those who have evaded them, against (2) a fugitive's parental rights, duty of support and, most importantly, the best interest of the child(ren) whose parent is evading the law.

Recently, the Appellate Division in Matison v. Lisnyansky, held that "[a] father may not obtain the protection of our judicial system to appeal a palimony and custody default judgment while he remains outside of the country avoiding arrest on an outstanding child-support bench warrant."

There, the defendant father, Mark Lisyansky and plaintiff mother Yvietta Matison, had twin children in 2004. Sometime thereafter, defendant came to the United States and purchased an approximately $1.9 million dollar home in Franklin Lakes, which was substantially renovated. In March 2006, the plaintiff and the parties' two children then came to the United States and moved into the Franklin Lakes home. Defendant also provided a nanny, interior decorator and secretary. Defendant then returned to Europe to conduct business and plaintiff and the children remained in Franklin Lakes until defendant sold the home. Thereafter, plaintiff and the children moved to Tenafly and defendant continued to provide financial support from abroad.

This arrangement continued until 2012, when defendant stopped supporting the children. Plaintiff obtained a court order for child support (the parties were never married so this was not a divorce proceeding), which stated that, "[a] writ of Ne Exeat [which in Latin means, 'that he not depart'] shall remain against defendant" and a bond or alternate security was required to be posted. The order also stated that "[t]he Warrant for defendant's arrest shall remain outstanding until he satisfies his support arrears and complies with the other terms of this Order."

The matter was set for trial and defendant discharged his attorney and failed to appear. The Court entered a default against defendant and held a four-day hearing on plaintiff's claims, ultimately entering a default judgment on May 1, 2013. One-day before the one-year limit set forth in R. 4:50-2, defendant filed a motion to vacate the default judgment (through counsel as he could not appear due to the still outstanding bench warrant), which was denied. Defendant then appealed this Order.

The Appellate Division noted that defendant has been avoiding his court-ordered responsibility to support his two children, while at the same time, he sought to appeal the issues of palimony and custody resulting from the same litigation.

In its opinion, the Appellate Court acknowledged that, as set forth in Matsumoto, "whatever limits the fugitive disentitlement doctrine might impose in other settings would not be applicable in a custody case in which no enforcement issue exists". Thus, if child custody is a substantial issue the doctrine would not apply. However, the Court concluded here that custody was not an actually an issue. The Appellate Division noted that, curiously, defendant did not raise custody as an issue throughout the litigation, raising it only for the first time in his motion to vacate the default judgment (almost a year after its entry). Further, Defendant did not offer a custodial alternative and the Court recognized that Defendant had been afforded contact with his children through supervised parenting time that was to be arranged between the parties.

Thus, since custody was clearly not an issue in the underlying litigation, the Court declined "to afford [defendant] the protection of the court while he flaunts the court's authority from overseas." Should custody reemerge in this matter, same is always modifiable upon a showing of changed circumstances.

Thus, the Court's ultimate decision in this case balanced the fugitive disentitlement doctrine in favor of defendant's facetious argument for custody. Though it might seem obvious that a person cannot flee our county and then seek the protections of the Court, that may not always be the case in family law matters. With today's ever mobile society, it will be interesting to see in what instances, if any, a fugitive's parental rights and the best interests of the child may outweigh the doctrine of fugitive disentitlement.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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