Episode 29. Ira Scott

We’ve spoken to parents on this show who had children taken away from them, but what if the child is taken away before it is even born? This is the heart breaking situation facing Ira Scott, who has never met his, now 2 1/2 year old daughter, who was abducted by her mother from the U.S. to the Ukraine.

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8 Replies to “Episode 29. Ira Scott”

  1. Much of the statements on the law in the podcast are wrong. The mother leaving with their daughter was not a felony because she had not violated anyone’s legal parental rights. In NY state, an unmarried mother is presumed under law to be the sole legal and custodial guardian of the child at birth. That only changes when the court adjudicates it. If she’s the sole custodial parent, that’s it. Filing for paternity, regardless of what’s on the birth certificate, is how you obtain parental rights, which as an unmarried partner, he did not have. The DNA test was the first step in obtaining parental rights, and since the first step didn’t happen, he had no parental rights. There are no felony kidnapping charges to be brought against her, the FBI cannot violate the law, because the courts have not declared he had any parental rights when she removed the child from the United States.

    Any lawyer would have told her she didn’t need to file for her sole custody, because she had it. Filing for custody was either misinformation, or a strategy to slow the courts by demanding due process on another legal case.

    The Hague Convention does not apply, because he had no parental rights to the child. That law is for violation of a legal parental right, which he never had since he was not a custodial parent according to NY law. The first part of the Hague requirement isn’t there. An Hague convention defense can also be if the child was three months old, that the child was too young to meet the habitual residency requirement. In NY state, habitual residency is applied at 4 months, in the Hague convention language it’s 6 months. A good attorney in NY or Ukraine would argue that condition of the Hague law was not met because the child was too young. His Hague convention case is not appearing positive.

    On the question of the birth certificate, both parties need to consent to signing the application for it at the hospital. If the presumed father is there for the delivery and the mother does not want his name on the birth certificate, his name will not be there. He also has to consent to signing the birth certificate application.

    This case has the outcome of separating a man who is very likely the father, but not legally the father, from parenting his child. The case has become a question of international custody because they are in different countries. But, it’s not a case of international abduction under the law of NY state or the Hague convention.

    • When a child is removed from or retained in a country that is not a child’s habitual residence a parent can seek to have the child returned to their habitual residence country under the Hague Convention on the Civil Aspects of International Child Abduction. The child was born in The United States and is a citizen of the United States. The child’s habitual place of residence was The United States at the time the child was taken and detained from the United States by the mother. The Convention mandates return of any child who was “habitually resident” in a contracting nation immediately before an action that constitutes a breach of custody or access rights. The Convention does not define the term “habitual residence,” but it is not intended to be a technical term. Instead, courts should broadly read the term in the context of the Convention’s purpose to discourage unilateral removal of a child from that place in which the child lived when removed or retained, which should generally be understood as the child’s “ordinary residence.” The child’s “habitual residence” is not determined after the incident alleged to constitute a wrongful removal or retention. A parent cannot unilaterally create a new habitual residence by wrongfully removing or sequestering a child.

    • To the other points raised by “Lainy” – I guess he or she knows more than The FBI, The US DOJ, The US State Dept., NCMEC, et al like the judge who issued a Writ of Habeas Corpus – which all recognize me as the father AND this as a case of IPCA.
      Specific to NYS Domestic Relations Law please see sections 70, 77a, 80, and 81.

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