Monday, December 17, 2018
Court of Appeal:
Determination in Republic of Belarus That Child of Tennis Star Azarenka Is Resident There Must Be Disregarded Here, Under Opinion, Based on Lack of Service on Father
By a MetNews Staff Writer
The Court of Appeal for this district has held that jurisdiction lies in Los Angeles Superior Court in a custody fight between tennis champion Victoria Azarenka and her son’s father, declaring that a decree issued by a court in Eastern Europe’s Republic of Belarus is entitled to no deference because the father was not afforded notice of the proceeding there.
Justice Elizabeth A. Grimes of Div. Eight wrote the opinion, filed Thursday. It reverses an order by Los Angeles Superior Court Judge Mark H. Epstein declining to exercise jurisdiction and quashing previous orders he had made.
Under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), enacted in California as Family Code §3400 et seq., a court cannot exercise jurisdiction in a custody matter if “a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with” the UCCJEA.
Above is photo of tennis star Victoria Azarenka, which she posted on a social media website, with son, Leo, who will turn 3 on Wednesday. The Court of Appeal for this district held Thursday that the Los Angeles Superior Court has jurisdiction to make custody orders concerning the boy notwithstanding decrees issued in Azarenka’s home country of Belarus.
A court in Belarus, which is east of Poland and north of Ukraine, on June 7, 2017, found that the legal residence of the baby, Leo—born in Santa Monica to Azarenka and her boyfriend, Billy McKeague, on Dec. 19, 2016—was Azarenka’s apartment in Minsk, the nation’s capital city. Azarenka had sought that declaration as the relationship between her and McKeague was souring.
Neither parent attended the hearing; they had left for Paris early that morning and Azarenka’s mother stood in for her. The child had been present with them in the Minsk apartment from sometime in March 2017, when he was 10-months-old, until the June 7 departure for France.
Azarenka had been born in Minsk—then the capital of Byelorussian, a unit of the Soviet Union (which dissolved two years later)—and is a resident of Belarus and Monaco (while also maintaining a home in Manhattan Beach).
The relationship between her and McKeague collapsed following a heated quarrel in London in July 2017. McKeague has maintained that he was unaware of the Belarusian order when he filed a custody petition in the Los Angeles Superior Court on July 20, 2017.
Eight days later, Azarenka moved in Los Angeles Superior Court for a quashing of emergency orders Judge Mark H. Epstein had made requiring that the boy be kept in Los Angeles, that McKeague have temporary custody, and that the mother be granted visitation rights. That same day, she filed an application in the Belarusian court for custody in her favor, with visitation rights for McKeague, to be exercised in her apartment in Minsk.
On Aug. 3, the court in Belarus created conflicting custody orders by granting Azarenka’s application.
Epstein, at a hearing on Jan. 12 of this year, granted Azarenka’s motion to quash—though finding that “there is absolutely no evidence that any return receipt was submitted for either application” in the Belarusian case. Under Belarusian law, service is effected by registered mail sent by the court with a return receipt.
(The court in Belarus sent McKeague a notice of both the June 7 and Aug. 3 hearings, but directed them to him at the Minsk apartment.)
The overriding factor, Epstein found, was that the Belarusian action was a custody proceeding and that the foreign court’s jurisdiction was “substantially in conformity with” the UCCJEA. However, he stayed his order for three weeks to enable McKeague time to seek a writ of supersedeas in the Court of Appeal.
Div. Eight initially issued an order further staying the effect of Epstein’s order, over Grimes’s dissent—who said she would deny writ—seeking further briefing. The writ was granted, without dissent, on March 26.
Nullity in California
The lack of notice to McKeague, Grimes said in her opinion filed Thursday, means the Belarusian court’s exercise of jurisdiction was inconsistent with the UCCJEA, and need not be honored here.
“The flaw in the trial court’s analysis was the failure to consider [Family Code] section 3425—the jurisdictional provision requiring notice and an opportunity to be heard ‘[b]efore a child custody determination is made under [the UCCJEA].’…Instead, the trial court apparently concluded that so long as the Belarusian court ‘ha[d] jurisdiction to make an initial child custody determination’ under the section 3421 standards—that is, ‘a significant connection’ of the child and a parent to Belarus, and substantial evidence in Belarus concerning the child—then no more was required to conclude that Belarus ‘ha[d] jurisdiction substantially in conformity with [the UCCJEA].’ ”
She went on to declare:
“Section 3408 expressly states that notice ‘must be given in a manner reasonably calculated to give actual notice.’…The trial court found that notice compliant with section 3408 standards was not given. The court quoted the section 3408 standards at the beginning of its notice discussion, and in the end, after again referring to section 3408, stated that ‘it remains the case that the [June 7, 2017] order was made without notice or an opportunity to be heard.’ That being so, the Belarus court had no jurisdiction to make a child custody determination.”
The case is W.M. v. V.A., 2018 S.O.S. 5939.
An application by Harvard Law School Professor Emeritus/commentator Alan Dershowitz to appear pro hac vice was granted by Div. Eight on Jan. 31. He is listed on the opinion as counsel with the Los Angeles law firm of Walzer Melcher which, through name partner Christopher C. Melcher, represented McKeague.
Counsel for Azarenka were Honey Kessler Amado, James A. Karagianides and Ivan B. Perkins of Amado’s Beverly Hills firm; Wasser Cooperman & Mandels attorneys Laura A. Wasser, Jon L. Henningsen and Ashley L. Montgomery of Los Angeles; and Sara A. Weinstein, also of Los Angeles.
Azarenka is a former “world No. 1” in singles and won a singles bronze medal at the 2012 Summer Olympics, as well as a gold medal there in mixed doubles. Although there has been international news coverage of the custody dispute between Azarenka and McKeague, Grimes referred to the parties by their initials.
Copyright 2018, Metropolitan News Company