1 Child, 2 Custody Rulings Spawn Major Legal Quandary

David Thompson had planned the operation carefully.

He hired a private investigator to help him and staked out the target, diligently noting the comings and goings at the house in Shreveport, La.

But when Thompson made his move, his mother-in-law resisted, stubbornly refusing to give up the young boy, covering him with her body and refusing to move even when the private investigator shouted threats.

Thompson, horrified at that turn of events, lost heart and abandoned the plan to barge in and take back his son Matthew.

And since that day in 1981, Thompson, a Los Angeles neurologist, has had no contact with his only child, now 9 years old. His wife, Susan Clay, had taken Matthew to Louisiana after the couple filed for divorce in 1979.

Thompson only tried to seize his son once a Los Angeles judge had awarded him custody. But that was three months after Clay had already won a similar order in Shreveport. The conflicting decisions by California and Louisiana courts have led to a widening legal battle, and last week, the U.S. Supreme Court agreed to hear the case at the request of Thompson, the states of Hawaii, Nevada, Texas, and California Atty. Gen. John Van de Kamp.

‘I Just Want My Son’

“I’m no crusader. I just want my son,” Thompson said. “I’m delighted the Supreme Court will hear the case and help me and other parents.”

The decision, which is at least a year away, could affect the estimated 100,000 children who are abducted by a divorced or separated parent each year. The review could also provide a definitive test of the Parental Kidnapping Prevention Act, passed in 1980 by Congress as a mechanism to peacefully settle interstate custody disputes.

“The act imposes a mandatory federal duty upon the states to give full faith and credit to sister state child custody decrees,” according to papers filed with the supreme court by Van de Kamp’s office. “This case poses the significant question of whether there will be an effective means of enforcing that duty.”

Or, in Thompson’s words, “I got an order with no power to enforce it.”

Thompson and Clay, also a neurologist, drifted apart after several years of marriage and filed for divorce in Los Angeles in 1979. They were to have joint custody.

Then in December, 1980, Clay asked the court in Los Angeles for permission to take Matthew with her to Shreveport, where she had accepted a position with the University of Louisiana School of Medicine.

Over Thompson’s objections, the court approved. Thompson was granted visitation privileges the last week of each month.

But after an incident at the Shreveport airport--Clay’s lawyer, Kenneth Rigby, says it involved pushing and shoving, with Matthew in the middle--Clay went to court in Louisiana.

In March, 1981, she was awarded custody, with Thompson receiving strictly limited visitation privileges: He could only see Matthew in Shreveport, on the first weekend of each month, for four hours a day and under supervision. Three months after Clay had won her custody ruling in Louisiana, Thompson was awarded custody in California. Neither party had appeared in the other state to contest the proceedings.

Since Thompson’s lawyer had advised him not to go to court in Louisiana, and with no effective way of enforcing his California order, Thompson decided to try to take back his son.

The attempt to grab Matthew was unsuccessful. When the encounter became physical, Thompson says, he called it off because he didn’t want anyone to be injured.

“I saw my son very briefly in that encounter.” he said. “I just felt it was inappropriate to have a youngster see parents physically squabbling over the issue. It just was not what I wanted for my son to see.”

Back in California, Thompson filed suit in federal court in Los Angeles, seeking to the have California custody decree enforced on Louisiana authorities.

But in a decision that was also later upheld by a federal appellate court in San Francisco, he was rebuffed. Congress may have urged states to recognize the custody decrees of each other, the appellate court ruled, but it did not empower federal courts to settle disputes between them.

The decision frustrates the intent of Congress, according to arguments made by Van de Kamp’s office.

“Absent correction by (the Supreme Court), child abductors will be encouraged once more to kidnap their children and cross state lines in search of more favorable custody determinations.”

Clay could not be reached for comment. But her attorney, Rigby, says Thompson should have sought custody in Louisiana. Instead, he has bypassed Louisiana courts and tried to go directly into the federal system, Rigby said.

“He has never attempted to enforce his California decree in a Louisiana court,” Rigby said. “A Louisiana court might recognize it, you see, and enforce it.”

Thompson’s argument “assumes erroneously, I believe, that a Louisiana court might be biased in favor of a local mother,” Rigby said.

Because neither parent contested the final custody order in the other state, there is no true conflict between California and Louisiana, Rigby contends.

Thompson’s lawyer, Ronald W. Weiss of Tustin, pointed out that federal appellate courts have not been able to agree on the issue and have issued conflicting decisions. He urged the Supreme Court to accept the case to set a uniform rule.

Despite the legal maneuvering, Thompson is left with virtually no information about his son, who will be 10 on Aug. 9.

“It appeared then and now that the judiciary is unable to expeditiously come to grips with a very difficult problem,” Thompson said. “Here in California, I had a valid court order for custody, yet it appeared to be unenforceable.”

“I felt betrayed in some ways here by the judiciary, forcing me to go through this extensive, exhaustive, frightfully expensive experience of all the weeks and months in court,” Thompson said. “Then, after all that, it seemed the courts turned their back on me and said ‘Sorry, we’ve done the best we can.’ ”

Thompson feels he “played by the rules of the game” and got nothing.

“You hear that this is a common situation. Where is a parent to go, if there is a valid court order? How do you enforce it, if you can’t go to federal court system?”