Tom Cruise and Katie Holmes Divorce Raises Jurisdiction Issues

Disposable cell phones, a secret apartment, hiring lawyers in multiple states…No, this is not part of the plot of a new Tom Cruise movie, it’s the real-life tactics used by Katie Holmes to secretly file for divorce against him. The Holmes-Cruise divorce has been all over the headlines since Katie covertly filed for divorce in New York blindsiding Tom. Since this Hollywood couple has lived together in L.A. it begs the question, why did she file in NY?

Every state has its own divorce and custody laws and they tend to vary. New York and California happen to have some differences and the New York laws might be more favorable to Katie. The primary issue in this divorce is clearly custody of the couple’s six year old daughter, Suri.

There are two types of custody – legal and physical, which can be held solely or jointly. “Sole legal custody” means that one parent has the right to make decisions regarding the health, education and welfare of the child. “Sole physical custody” means that the child resides with one parent, with the other parent potentially having visitation rights. Having “joint custody” means the parents would share these rights and responsibilities.

When it comes to legal custody, New York favors sole custody, while California favors joint custody. New York courts do not award joint legal custody unless the parents can show a willingness and ability to make decisions together, setting aside their personal differences. Cases there tend to end up with one parent getting sole legal custody and the other being the visiting parent.

Katie filed for sole legal and physical custody in New York, which if awarded to her, gives her the right to make major decisions for Suri, in addition to having Suri primarily reside with her. Katie would also have the right to make decisions for Suri regarding religion, which everyone knows is a major issue since Tom is a follower of Scientology and Katie was raised Catholic. The speculation, of course, is that Katie filed in New York hoping to get sole legal custody to prevent Suri from a life within the Church of Scientology. Had Katie filed in California the likelihood of her getting sole legal custody would have been slim, since the state leans towards joint legal custody.

But can Katie meet the residency requirements to file in New York? Each state has its own residency requirements for filing for divorce. In California you must be a resident of the state for 6 months and a resident of the county you file in for at least 3 months. In New York the requirement is one year if the parties were married in the state but since Tom and Katie were not married in New York, the requirement is two years! Katie will have to prove that she has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action. This explains why she secured an apartment in secret and has been spending so much time in NYC. Katie has also joined a Catholic church in New York and enrolled Suri in school there, which all help her establish that New York is where the case should be heard if Tom were to fight to transfer the case to California.

Katie has certainly done her homework when it comes to the custody of her daughter. Issues of child custody can arise in any divorce case. At Mello & Pickering, LLP we can help you navigate the complex area of child custody in order to provide the best possible results for you and your child/children. Call us at (408) 288–7800 to set up a free 20 minute telephone conference or an in person meeting.