A DISCUSSION OF LAW AND JOURNALISM

“Before Midnight” – After Jesse’s Divorce

By Noah Forrest

The premise is deceptively simple.

American boy meets French girl on a train.  Boy and girl spend an enchanted night together in Vienna.  Boy and girl agree to meet up in six months without exchanging numbers.  They don’t.

Nine years later: older boy and older girl meet again in Paris..  Boy is separated from his wife; together, they have a son in the U.S.  Boy and girl’s spark is reignited. Boy misses his plane back home.

Nine years after that: man and woman, now married with children, vacationing on a beautiful patch of Grecian coastline with their family.  Man and woman struggle to connect in ways that were once so easy.

Richard Linklater’s trilogy of films (plus a brief appearance of the protagonists in “Waking Life”) starring Ethan Hawke (“Jesse”) and Julie Delpy (“Celine”) are probably the finest exploration of love over time since Francois Truffaut’s “Antoine Doinel” series.

“Before Midnight,” the third in the series of films (after “Before Sunrise” and “Before Sunset”) hit theaters earlier this summer and will hit DVD and Blu-ray on October 22.  By its nature, this installment is the darkest and least conventionally “romantic” of the three films, as well as the deepest.

Yet in many ways, this is the most romantic film of the series precisely because it’s about the reality of what happens after most films fade out.  Things are messy.  The last half of the film is essentially one long fight between the couple we’ve adored for the last two decades and it is excruciating and exacting.  Nothing is off the table in this row, whether it’s their two young girls or Jesse’s ex-wife or the teenage progeny of that now defunct marriage, Hank.

It’s that last part that intrigued me from a legal perspective.

Apparently, during the nine years between the second and third films, Celine and Jesse lived in New York for two years; Jesse’s ex-wife and Hank lived there, too, and it seems that Jesse and his ex-wife shared custody of their child.  But things changed when, late in Celine’s pregnancy, Jesse and Celine traveled to Paris so Celine could be near her parents during the “complicated” birth of their twins. Sometime during this period, Jesse’s ex-wife moved Hank to Chicago.  As Celine was recovering, Jesse’s ex-wife petitioned an Illinois court for, and was granted, full custody.

Or to put it another way: Man’s first wife moves her son from New York to Chicago and is granted primary custody when Man is helping second wife recover from a complicated delivery in Paris.

Sure, I loved the film. But I did wonder.  Is what Jesse’s ex did kosher? Does Jesse have any options to try to regain joint custody?  LASIS investigates.

Obviously the best course of action would be for Jesse and his ex-wife to resolve their differences for the good of their kid.  But considering their contentious relationship – he left her for (mon dieu!) a Frenchwoman! – that seems unlikely.

These types of child custody cases have been in the news a lot in recent years because of celebrities like Kelly Rutherford (children being taken from them to different countries) and Halle Berry (being denied the opportunity to take the child abroad). And the default answer is that the custodial parent in the U.S. will usually be granted primary custody for the good of the child. (Though as Ms. Rutherford can tell you,  it doesn’t always work out that way.) As this article explains, these types of custody disputes are heavily fact specific, and to a frightening extent often depend on the nature of the judges themselves.

The first thing to look to is the Hague Convention of 1980 on the Civil Aspects of International Child Abduction.  While that might conjure images of a Sally Field movie, it is the primary tool that most international signees to the Convention defer to when it comes to international custody disputes.  There are many provisions contained in this document, but basically its purpose is to preserve whatever custody agreement was enforced prior to moving a child to another jurisdiction.

Practically speaking, most U.S. judges are not educated on the ins and outs of the Hague Convention treaty and will have to be educated by the lawyers on how to apply the treaty.  In the end, most judges tend to fall back on their default position of doing whatever is least disruptive to a child’s welfare, or favoring the mother/primary caregiver.

Typically, courts don’t look favorably upon either parent moving the child from his primary residence to another jurisdiction.  However, it’s likely that a U.S. court would look more favorably at a parent moving within the borders of this country than without.  Another important factor that courts consider is whether moving the child would cause harm to his welfare, as this 1996 Sixth Circuit case discusses.  However, there must be evidence of “grave harm.”

In the movie, Jesse and Celine fight long and hard about the idea of moving to Chicago to spend more time with Hank.  Celine feels that Hank is already a young adult and that it’s too late to make up for lost time.  She also doesn’t want to live in Chicago, although it’s left unclear if she’d be open to moving back to New York. (We think she would).

In Mr. Linklater’s latest, it is unclear to the audience whether Jesse and Celine kept their apartment in New York when they first flew off to Paris for Celine to deliver.  If they did, it would show a clear intention to return, and Jesse could make the argument that Hank was abducted to a new jurisdiction.  According to the Uniform Child-Custody Jurisdiction and Enforcement Act, Jesse could have petitioned a New York (Hank’s “home state”) court to regain custody — as long as he did so within the first six months.  It’s been at least six years.

We tried to make a legal case for Jesse to get his son back.  But merde, we must face facts.  No court in this country would sympathize with Jesse or reward the conduct that got him to this point – committing adultery, leaving his wife and son, and moving to France to start a new family with another woman, and seeking to share custody again all these years later…

I will be seeing another movie soon, and will be sure to write about a legal angle that occurs to me.  Readers with suggestions can reach me at noah.forrest@law.nyls.edu.

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  1. MEL says:

    From the New York Times, 11/24/13
    Truth is stranger than fiction when it comes to custody battles.
    http://www.nytimes.com/2013/11/24/us/custody-battle-raises-questions-about-the-rights-of-women.html?_r=0

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