Custody dispute over embryos hinges on court jurisdiction

In a case that seems to be the first of its kind, two frozen embryos have been named the plaintiff's in a custody suit against the actress whose eggs were used in their creation. The former fiance of the actress, whose sperm was also used in their creation, had previously filed a lawsuit in California asking for sole custody and the right to implant the embryos into a surrogate, but recently dropped the case.

A Louisiana right-to-life activist, claiming to act as the embryos' trustee, has filed the lawsuit on their behalf. The action is made possible because Louisiana, a heavily pro-life state, is one of the few states that gives legal status to embryos as "jurisdictional persons." The trustee seeks to give full custody of the embryos over to their genetic father and a trust has been created for their financial care.

However, legal experts say that the possibility that the suit will succeed is slim, at best, because the Louisiana court likely lacks the jurisdiction to even hear the case. The embryos were created in California and are currently stored in that state. Additionally, the original contract governing their storage and disposal was also created in California.

Jurisdiction is the legal term for a court's right to hear a case and exercise authority over those involved in the dispute. In custody cases, jurisdictional issues can sometimes be a confusing and frustrating issue, especially when parents live in a different state from their children.

In this case, the trustee insists that there is good cause for the Louisiana court to take jurisdiction because the genetic parents resided in the state at some point during the years in which the embryos were created and eventually separated while in that state. He also asserts that the fact that a trust for the embryos' care exists in Louisiana gives the suit additional merit.

However, almost every state (Massachusetts and Vermont are the only exceptions) follows the statute known as the Uniform Child Custody Jurisdiction and Enforcement Act. That Act gives jurisdictional preference to the child's home state prior to any other state. After that, a state where the child has significant connections to the people in the state can take jurisdiction, which is likely what the trustee is relying on.

Questions about a child custody issue of your own can be answered by an experienced family law attorney.

Source: Page Six, "Embryos unlikely to win suit against Sofia Vergara," Julia Marsh, Emily Smith, and Danika Fears, Dec. 07, 2016

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