Child Custody

Double Deception

O, what a tangled web we weave when first we practice to deceive.
– Sir Walter Scott

Deception and military custody


Jamie Snellings may have thought she could get away with it. She was caught with her hand in the cookie jar… and an invisible cookie jar, at that.

Jamie’s Deception

After the 2014 filing for divorce in Hawai’i, she and her husband, Jason Snellings, filed their mandatory disclosure forms with information on their assets and accounts. Then Jason found out that Jamie had moved $65,000 to a new account that she had not disclosed – an invisible account – so he filed for a financial restraining order. Jamie later said, “I wanted the court case to be done and… was scared over the threat of sanctions,” and so she told her lawyer to settle the matter quickly with a consent order.

The attorneys quickly arrived at a stipulated divorce decree, and the parties signed the typed order. It covered divorce and custody, with Jason getting primary custody of the children. The judge orally approved the typed settlement and granted the divorce.

Jason’s Deception

The attorneys started preparing the full and final order, but then Jamie’s attorney wrote to the court with objections. The letter said that Jason had not disclosed to Jamie his impending deployment until the day after the June 3, 2015 hearing on the stipulated divorce decree, “when he also informed Jamie that their two children would live with his parents in Virginia as part of a family care plan he had submitted to his military command. Jamie requested a hearing before the family court.” Snellings v. Snellings, NO. CAAP-16-0000704, 2020 Haw. App. LEXIS 77 (Haw. Ct. App., Feb. 28, 2020) at *3-4.

The trial judge was clearly upset, stating at the initial hearing:

The reason we’re here today is . . . [Jason], you are currently . . . on deployment with the military pursuant to your service and that allegedly you knew about that well in advance of the proceedings in June, but for reasons that I think are manifestly obvious you decided to not reveal that to [Jamie]. [Jamie]’s claim is that that was a material misrepresentation . . . and it would have affected the negotiations between the parties and maybe come up with a different — a different result. And that’s what’s before me.

Id. at *5. It turned out that Jason had taken the children from Hawai’i to Virginia to live with his parents.

What Happened Next

The court ultimately signed the tendered settlement, since it recited accurately the terms upon which the parties had agreed previously. While stating that the conduct didn’t appear to require the filing of a report to the Office of Disciplinary County of the bar, the court decided to impose $5,000 in sanctions – attorney’s fees and costs – on Jason, and it demanded a detailed affidavit from Jamie’s attorney.

Jamie then filed a motion to vacate or modify portions of the settlement, sought modification of the custody terms, and asked the court to enforce a prior order requiring Jason to transfer a vehicle to her. The response from Jason was a motion to dismiss and a request for a stay of proceedings under the Servicemembers Civil Relief Act, 50 U.S.C. § 3932. The court denied the stay request and ordered the children to be returned to Hawai’i, to be placed in Jamie’s sole custody until Jason returned from deployment. Ultimately the court set aside major portions of the stipulated divorce decree on the basis of fraud. It awarded an additional $12,000 to Jamie in attorney’s fees and costs.

The Court’s Concerns

Much would be lost in the exploration of this case if the court’s statements in open court were omitted. A clear sense of why the court was disturbed by Jason’s conduct and where the court was headed can be gleaned from the following remarks to Jason’s attorney:

[F]rankly, the Court has very little trust in terms of your client’s actions in this case thus far…. What the Court is concerned about are the allegations that a fraud was perpetrated on the Court…. That’s what the Court is concerned about, that information pertinent to settlement negotiations and relevant to settlement negotiations was intentionally withheld. [M]y understanding of the case, having reviewed the motion, is that the essence of the fraud claim is that [Jason’s] deployment was not disclosed [to Jamie] prior to the time the agreement [for the stipulated divorce decree] was reached…. The intention was to withhold information to get the agreement he wanted is what it’s — it sounds like you’re telling me.

[JASON’S COUNSEL]: No, I don’t believe that’s the case.

THE COURT: It may have been because he wanted to ensure his children were safe and protected and all of that stuff, but at the heart of it, it sounds like he withheld information because he felt that would benefit his position.

Id. at *9-11.

Pulling Back the Curtain

The facts about deployment and the settlement were revealed out in the Court of Appeals decision. The Court noted that:

  • Jason received TAD (Temporary Additional Duty) orders to Cuba three months before the settlement was signed. The tour of duty was for nine months.
  • Despite the pendency of timesharing and custody issues between the parties, Jason didn’t disclose the assignment orders to Jamie when he received them or within a reasonable time thereof.
  • When the parties signed the settlement on custody and timesharing, Jason still had not revealed to Jamie his TAD orders, which required him to report just three days after the typewritten settlement in court.
  • The day after the court settlement, Jason told Jamie that he had TAD orders, he was leaving Hawai’i in two days, “and told her that he was sending the children to live with his parents in Virginia for the duration of his TAD.” Id. at *17.
  • “Thereafter, [Jamie] discovered that on June 2, 2015, [Jason] had notified the children’s schools that the children’s last day of school would be June 3, 2015 and that they were to be permanently released as they were moving to Virginia…. [Jason] had not disclosed this notification to [Jamie] prior to the parties’ June 3, 2015 agreement at Court…. [Jamie] also discovered that on May 26, 2015 [Jason] had arranged for a 16 foot storage pod to be delivered to his address on May 30, 2015…. On June 6, 2015, [Jason] left Hawai’i with both children and dropped them off at his parent’s house in Virginia.” Id. at *17-18.

The Appellate Decision

In affirming the trial court’s rulings on attorney’s fees and costs, the Court of Appeals noted the following specific findings in the trial court’s order regarding Jason’s conduct:

[Jason’s] TAD orders and imminent departure from Hawai’i were material facts that should have been disclosed to [Jamie] and her counsel prior to June 3, 2015. [Jason] did not disclose his TAD orders to [Jamie] until June 4, 2015. [Jason] knowingly and intentionally failed to disclose [to Jamie] his TAD orders and his plans to send the children to Virginia… until June 4, 2015 to induce her to agree to the settlement terms that he wanted.

Id. at *25. The Court upheld the trial court’s other orders in all respects.

Lessons to be Learned

The Snellings case contains several lessons for the family law practitioner and the client. The pointers are not confined simply to cases involving custody and a military family.

“Clean hands” is the first lesson. Be “clean” with the opposing party and the court. Be candid when there are issues of substance which are being overlooked and which could lead to a different result, whether in the courtroom (in a contested case) or in the conference room. Even when the case is being settled “on the courthouse steps,” remember that a lawyer’s duty, as an officer of the court, includes candor to the tribunal. This is not a game of “hide the ball.” A family law matter in court is something that will affect the lives of the parties and the children, perhaps for a long time.

The next lesson involves an unappealed issue, the denial of Jason’s motion for a stay of proceedings under the SCRA, the Servicemembers Civil Relief Act, 50 U.S.C. § 3932. Ordinarily such a motion is granted automatically when the movant sets out the four essential elements of a request: a) a statement as to how his military duties affect his ability to appear, b) a statement as to when he will be available, c) a statement from his commanding officer that the servicemember’s military duties prevent his appearance, and d) the commander’s statement that military leave is not authorized. While the matter did not reach the Court of Appeals, an educated guess is that the denial was based on Jason’s conduct. When a party applying for a stay of proceedings has acted inequitably, most courts will refuse to consider the stay request based on the doctrine of “the sword and the shield.” This doctrine states that the SCRA is intended to be used as a shield to protect the rights of the servicemember, not as a sword to defeat the rights of others. “Fair play” is the key to successful use of the SCRA in slowing down civil proceedings. Bad actors may get bad treatment in court.

A third lesson is: “Good lawyers know the law, but great lawyers know the judge.” Listen to the judge. If there are comments from the bench that affect your case, pay heed and try to follow where the court is leading. In this case the court on numerous occasions pointed out its concerns about the issues of truth, credibility, fraud and the concealment of material facts in order to gain a tactical advantage. These statements are like red flags before a hurricane – heed them and act accordingly. One who doesn’t will often “reap the whirlwind.”

Finally, a lesson which Jason should have been given early in the case is “When you’re in a hole, stop digging.” Disregarding the substantial claims as to his misconduct, Jason kept on filing motions and resisting the court’s clear concerns about his deceptions. Counsel has a duty to warn the intransigent client of the likely consequences of his actions. In the appropriate case, counsel should withdraw when his or her client refuses to bring his conduct into compliance with the court’s rulings and concerns. It was clear from the start how the judge was leaning, and the court’s remarks left little doubt that Jason had “gamed the system” in gaining a settlement without revealing his position. In effect, Jason declared “I won” in a card game and collected all the poker chips on the table without showing his hand. The displeasure of the trial judge and the Court of Appeals regarding such self-dealing is obvious.

* * *

–Mark Sullivan

Can a parent relocate with the children?

Custody and RelocationA short look at Child Custody Relocation in North Carolina

We are often asked how relocation works in a custody situation, when a parent can relocate, and other relocation related questions.  The question is not as simple as it may seem at first blush.  There is no specific situation where a parent can relocate every time, or under which a parent will always obtain or maintain primary custody in relocation.  So, the question remains, what should a parent consider and how does a parent know when he or she can relocate (or when the other parent would be allowed to relocate)?

View of the Court

The law in North Carolina has long been that the welfare of the child will be the court’s primary consideration.  The Shepherd case says that the child’s best interests are the “polar star” to guide the court in any custody determination. See Shepherd v. Shepherd, 273 N.C. 71, 75, 159 S.E.2d 357, 361 (1968).

What are in the child’s best interests?  Divorcing parents can certainly disagree over what ‘best’ actually is.  Generally speaking, the child’s best interest represent an open door – any witness, communication, testimony, document, expert opinion, or items relevant to what is good, bad, better, or worse for the child or children can be considered.  What is a parent to do when faced with a relocation? Case law goes on to provide further guidance.  In evaluating a proposed relocation in a child custody case, the court should consider a number of factors, including:

  1. The advantages of the relocation in terms of its capacity to improve the life of the child;
  2. the motives of the custodial parent in seeking the move;
  3. the likelihood that the custodial parent will comply with visitation orders when he or she is no longer subject to the jurisdiction of the courts of North Carolina;
  4. the integrity of the noncustodial parent in resisting the relocation;
  5. and the likelihood that a realistic visitation schedule can be arranged which will preserve and foster the parental relationship with the noncustodial parent.

See Evans v. Evans, 138 N.C. App. 135, 142, 530 S.E.2d 576, 580 (2000) (quoting Ramirez-Barker v. Barker, 107 N.C. App. 71, 80, 418 S.E.2d 675, 680 (1992), disapproved of on other grounds by Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998)); Miller v. Miller, 241 N.C. App. 656, 775 S.E.2d 695 (2015).

It is important to note that the court can decide how much weight it will assign to each factor, and may or may not be swayed by any factor or set of factors.  And the court can consider any relevant information or evidence, even if it is not on the above list, if it relates to the child’s welfare.

How does a Court consider these factors?

In North Carolina District Court (where child custody matters should be heard), the judge has broad discretion in a custody case.  The Judge has the benefit of seeing the parties in person, hearing witnesses, receiving and reviewing evidence, and hearing the arguments of counsel for each party.   Our experience has shown that the court will use this discretion to look at the case that is presented through the aforementioned lens of “child welfare” or “best interests of the child.”

Is it best for the child or children to relocate?

For better or worse, it all depends on the facts and circumstances of your particular case.  The court should apply the above factors, and decide what is in the child’s best interests based upon the evidence and arguments presented.  There are many factors to be considered in addition to the factors listed above.  A short list would include job opportunities, cost of living, opportunities in the new community, taxes, family support available in each community, and more.

What can I do if I want to relocate (or if my ex has relocated)?

Call a lawyer who is experienced in family law and relocation cases. Depending on the situation, an ex parte emergency custody request may be available to you (or the other side!).  While not universally true, a relocation case is much more likely to end up in court because there are only two choices – the two places involved.  This is a forced situation where one parent must “win” on the location issue.  It requires a skilled professional to make the best possible argument for why the parent/child relocation should be granted or denied.

My ex relocated, what can I do?

In addition to filing a lawsuit, there are many strategies which can be considered and employed. Often, we will associate with local co-counsel in the area of relocation to determine the odds of improving one’s custodial position in that jurisdiction.  We can consult with professionals, such as forensic psychologists, to assess the case and provide expert testimony.  Relocation requires diligent work and attention, and is often complex litigation.  You need to formulate a plan with a qualified professional as soon as you can.  If you received a court ruling that you consider to be unfavorable, and are still within the appropriate timeframe, you may consider appealing the court’s ruling.

I am (or my spouse is) in the military.  How does relocation impact a military divorce case?

First, it is always best to plan for long distances in any custody agreement or order entered by the Judge. We frequently recommend having essentially two custody arrangements: i) if the parties live within a certain mileage radius; and ii) if they live outside of that same radius.  This can assist both the servicemember and the spouse by preventing them from having to run to court to modify existing custody arrangements every time there is a new permanent change of station (PCS) or move.

One must bear in mind that the law clearly allows for consideration of activities and conduct in a custody case.  This is important when the actions of a parent are as a result of military orders, as opposed to a personal choice to move or relocate.

Modification of existing custody determinations can also be very important to the military family with the somewhat regular relocation of military personnel every three or four years.

For more on this issue, see The Military Divorce Handbook, (Am. Bar Assn., 3rd Ed. 2019) and the other resources available online written by the principal of our firm, Mark E. Sullivan.

Kris Hilscher practices family law in Raleigh, North Carolina.  He works on family law cases, and works with attorneys nationwide as a consultant on military divorce issues in drafting military pension division orders.  He can be reached at 919-832-8507 and at