Virginia Lawyers Weekly

A father living in Spain who is a fugitive from Virginia justice forfeits his right to appeal a custody ruling involving his son.

Last month, the Supreme Court of Virginia, following the lead of the Virginia Court of Appeals, adopted the “fugitive entitlement doctrine,” which holds that a party cannot unlawfully remove himself from the jurisdiction of a court and then appeal a ruling by that court.

Yuri Sasson was ordered by a Fairfax circuit judge to return his 6-year-old son Ilan to Virginia from Spain. He refused to comply with the order and was found in contempt of court and fined.

Stephen M. Sayers, the McLean attorney who represents Dana Shenhar, the mother of the boy, said, “If you’re ordered to do something, you’d better follow that order or you’re going to be out of court.” Sayers, a partner in the McLean office of Hunton & Williams, represented Shenhar pro bono along with his colleague, Michael E. Kinney.

Shenhar, a licensed veterinarian who holds both American and Israeli citizenship, married Sasson in a civil ceremony in his home country of Mexico in September 1999 and solemnized the union in a religious ceremony in Israel the next month.

Ilan was born in March 2002 when the couple was living in Florida and subsequently had U.S. and Mexican passports issued in his name. The family moved to Switzerland three months after Ilan’s birth and relocated again in September 2004 in Marbella, Spain, where Sasson’s parents lived.

Sasson sought permanent residence status in Spain while Shenhar insisted that the couple return to the United States. As their relationship worsened, each spouse surreptitiously tried to bolster a bid to win custody of Ilan.

Sasson hid the child’s passports and took preliminary steps to get a divorce and win custody of Ilan in Spain without Shenhar’s knowledge. Shenhar, on the other hand, went to the American consulate and obtained a new passport for Ilan that allowed her to bring him without Sasson’s knowledge to Northern Virginia, where her parents lived, in October 2005.

A few days later, Sasson filed for divorce in Spain and filed papers the next month in Fairfax County Juvenile and Domestic Relations District Court under the Hague Convention of the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act, the U.S. law that implements the convention.

At about the same time, Shenhar filed a complaint for separate maintenance in Fairfax Circuit Court along with petition for custody of Ilan and an order preventing his removal from the country.

The custody matters were referred to J&DR court, which ruled in January 2006 that the Hague Convention required custody to be determined in Spain. Shenhar appealed that ruling three days later.

At about that time, Sasson took Ilan to Spain, but the circuit court ultimately ruled that the J&DR court had erred in finding that Ilan was “habitually resident” in Spain, the standard for determining where custody will be decided. The court ordered Sasson to return Ilan to the United States and held him in contempt of court and fined him $1,000 a day when he refused to do so.

Attorneys for Sasson appeared before the circuit court and contended that he had a valid order from the J&DR court to take Ilan from this country when he did so and that both the order to return Ilan and the contempt order were therefore void.

The circuit court rejected the argument, and Sasson appealed to the court of appeals. The appellate court adopted the fugitive disentitlement doctrine and refused to hear the merits of the appeal.

Writing for a unanimous court, Justice Lawrence L. Koontz Jr. affirmed. The doctrine “may be applied in appropriate cases whenever a court of this Commonwealth in the exercise of sound judicial discretion deems it necessary to protect the dignity of the court from abuse by a litigant.”

In applying the doctrine, the court rejected Sasson’s contention that a potentially valid order need not be obeyed. “[W]e also disagree with his contention that the Court of Appeals could not find that he was a fugitive without first determining whether the June 28, 2006 order was in fact legally void,” Koontz wrote.

“[E]ven when a party maintains that an order of a court is void, the appropriate action to take is to appeal that order, or to attack it in a collateral proceeding, while submitting to the court’s jurisdiction,” he concluded.

Hopewell attorney Lawrence D. Diehl, who argued the case for Sasson, said he did not oppose adoption of the doctrine, but he contended that it should be “limited in custody cases and should be used as a last resort.”

Diehl emphasized that Shenhar was not without a remedy and in fact availed herself of it. She went to Spain and sought custody of Ilan there. Spanish authorities awarded physical custody to Sasson but granted her visitation, he said.

Staying in Spain and exercising her visitation rights places a tremendous burden on Shenhar, Sayers said. Because she does not have the credentials to practice her profession there, she is working as a maid, he said.

Sayers said he is considering asking Spanish authorities to extradite Sasson to this country to face the contempt charges.

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