Scarlett Johansson's custody battle: What happens next?
Another week, another celebrity divorce involving legal jousting over — no, not the bank accounts, the houses or the luxury toys — but the custody of minor children. This week Scarlett Johansson and her French estranged husband have taken the path recently trod by Angelina Jolie and Brad Pitt, and Robin Thicke and Paula Patton.
The two-year marriage of Johansson, 32, and Romain Dauriac, 34, is over but what happens next in their struggle over who gets custody of 2-year-old daughter Rose? Will they be able to work out a settlement in which they share custody, the usual ideal? Will she be able to take the child wherever she goes in her film-making career? Or will Dauriac be able to take the child back to his native Paris?
Let the legal unpleasantness commence:
What's happened so far: The two legal teams were negotiating a settlement behind closed doors, according to Dauriac's lawyer, Hal Mayerson. Then the famously private Johansson and her lawyer Judy Poller surprised them by filing divorce papers on Tuesday using the couple's real names, despite rules in New York family law court allowing use of "anonymous captions," or fake names, for famous folk who want to avoid the attentions of Page Six and tabloid titters.
Johansson then issued a statement on Wednesday declaring she would not be commenting and demanding privacy. Dauriac issued his own statement deploring that Johansson had made the matter public, and asking that she withdraw her divorce action and return to the negotiating table.
What happens next: Divorce lawyers in New York and elsewhere scoff at the idea that Johansson would withdraw her divorce action. "She won't go back to the negotiating table," says prominent New York divorce lawyer Lois Liberman, because she wants a New York court to decide the matter and not one in France.
Under the Uniform Child Custody Jurisdiction Enforcement Act, the court of jurisdiction is wherever the child has resided for the previous six months. "So I'm guessing she can claim she lives in New York and the child lives in New York and just hit the six-months deadline," Liberman says. "That’s why she filed to assert that claim, because she doesn't want to go to France where she would have to fight."
She will probably win this round, says Nancy Berg, a Minneapolis divorce lawyer and president of the International Academy of Family Lawyers. "Dad does not really have strong case to prevent a New York court from deciding (the matter)," Berg says.
What if Dauriac files to have the case decided in Paris? Then there would be a bi-national jurisdiction conflict to be resolved, decided based on the six-months rule. But so far Dauriac hasn't filed elsewhere. Mayerson says his client wants to remain in New York as long as he and his ex share physical custody equally.
Case remains in New York; next move: The case is assigned to a New York family judge who then has to confirm his jurisdiction, again based on the six-months rule.
Then the judge could appoint someone to help evaluate the child. "In all New York custody disputes, a psychiatrist or psychologist is appointed to do a forensic evaluation of what is in the best interests of the child, to help the judge decide who gets primary custody and where they would live," says Mayerson.
But celebs are different, says Berg, and not just because Johansson owns multiple homes around the world. Often, celebrities "don't have what we traditionally know as a 'residence' even though the law assumes they do," Berg says. "It would have to be a fact-intensive inquiry into where people intended to live and where they actually live."
Is the child too young to be properly evaluated? It's possible, says Berg. "That process (of evaluation) doesn't work very well when the child is so young," she says. "The evaluator is looking to see if the disruption (of divorce) will have an adverse effect on children who need consistency, and many celebrity kids are being raised by nannies anyway."
There's also evidence that very young children who are away from their "primary attachment figure" for as little as a week start to forget. "Is she too young to be away from her attachment figure and is it the dad or the mom or both?" Berg says.
How might changes in family law affect this case? In the old days, says Los Angeles divorce lawyer Peter Walzer, who represented Katie Holmes in her 2012 divorce from Tom Cruise, the law made it near automatic that mom always got primary custody and dad got lost. No more.
Also, he says there is a "doctrine of tender years" that suggests the best visitation schedule for a young child is to see the non-custodial parent every other day and later every two or three days. "It’s not practical to have a week in Paris and a week in New York," Walzer says. "They're going to have to be flexible to take care of this child."
As a comparison, there is the long and bitter custody battle between Oscar-winner Halle Berry and Gabriel Aubry, the Canadian-born father of their now 9-year-old daughter. After they split up, Berry wanted to move from Los Angeles, where they lived, to France; in 2012 a Los Angeles judge nixed that because Aubry objected it would interfere with their shared custody arrangement.
If Dauriac won custody could he move back to Paris with her? "Dad would have a tough time (doing that)," Berg says. In the old days, "the custodial parent could go where she wanted and the non-custodial parent would not have any say. Now, parents aren’t allowed to move because that would remove regular access to the child from the other parent, and that becomes effectively dead to the child."
So the preference now is equal shared custody and equal access to both parents, Berg says. That means that both parents have a say in where the other parent goes and where the child goes and for how long.
"These people would be very smart to negotiate this because both stand to lose a lot of freedom of decision making" no matter what is decided, Berg says. "That’s why 99% of all family-law cases are settled."