posted: 25th February 2016

When parents with children separate, an application can be made to the court for the living and contact arrangements of the children. As a result a sealed court order will dictate the provisions for both parents to have sufficient access with their children. However, when parents separate with their children still young, often the arrangements made are no longer sufficient years later. This seems to be the case for the international singer Madonna and the child she shares with Guy Ritchie. Madonna’s 15 year old son, Rocco, has been living with his mother since the divorce of his parents in 2008. However just before Christmas he fled to England in search of a more stable and grounded upbringing. Ever since, Madonna has publicly made it known she is doing everything she can to return her son to America. But does Madonna’s job title affect the outcome of this custody battle? Can a 15 year old boy dictate the resolution of these proceedings? Ultimately, will Guy Ritchie come under fire for not upholding a previously sealed court order? The background of this case is as follows.

The world renowned pop star Madonna (57) has taken her ex-husband, Guy Ritchie (47), to court over the custody of their 15 year old son Rocco. In 2009 Madonna won a legal battle to retain custody of Rocco (then 8 years old) and their adopted son David Banda (then 3 years old) and to return them to New York with her. Recently Rocco has been travelling around the world alongside his famous mother on her world tour as a dancer. However, following an argument within the family Rocco fled to London, expressing his desire to live with his film director father, his new wife and their three children.

On 23rd December 2015, Madonna went to the Manhattan Supreme Court in front of Justice Deborah Kaplam to request her son to be brought back to America for the holidays and foreseeable future. Madonna filed her application in New York. The jurisdiction of cases are dependent on where the proceedings are issued. As Madonna issued her emergency application in America, regardless of the fact Rocco is now residing in England, America will retain jurisdiction. English law will therefore not dictate proceedings.

When asked whether Mr Ritchie was preventing their son’s return to America, the father responded that he ultimately was following the desires expressed by Rocco. It was decided that Rocco had to be returned to America before Christmas regardless of his wishes and feelings. Should Rocco decide that he wishes to move permanently to London, he should first return to his mother to discuss matters together before any final decision was made. Nevertheless Rocco refused to return and to this day is still living in London with his father.

The couple, who married in 2000 but later divorced in 2008, have publicly disagreed on how to raise their children. Madonna is known to be strict in most aspects of her children’s lives. Their diets, education and social media involvement are monitored. Conversely, Mr Ritchie stated in 2011 that he is not keen on putting too much pressure on his children, preferring their childhood to be centred on fun activities rather than homework. This disagreement appears to have continued long after the breakdown of their marriage.

As Rocco has refused to return back to America, there could be serious implications for Mr Ritchie. Ultimately, Rocco was not a party to the case and no doubt the order made in December had stipulated the father should use his best endeavours to return their son within a certain timeframe. Without evidence suggesting Guy attempted to persuade Rocco to return, by buying him a plane ticket for example, he could be under grave criticism for not following the court order. He could therefore be held in contempt of court and given either a fine or even a possible prison sentence.

Rocco has now been appointed a lawyer for the next hearing, which has been adjourned to March 2016, in order to avoid a conflict of interest. Given Rocco’s age, the Judge will most likely want to hear his wishes and feelings in accordance with the Welfare Checklist in s.1(3) of the Children Act 1989. Any court order would cease once Rocco reaches the age of 18, yet where he lives for next three years of his teenage years still need to be decided. The court will take into account the reason for Rocco’s wishes to live with his father as well as his age and maturity. For instance, should his preference centre on the fact his father may be more lenient, his feelings will not bear much weight. However if Rocco were to state that he feels his father will be able to provide him with the stability his mother cannot, due to her international career, the court may be persuaded.

When parents get divorced with very young children, they often need to return to court in order to modify the custody arrangements which were made. As children get older, circumstances change and any court order would have to reflect this. Employment, schooling, relationships, finances and geographical accommodation may all alter and therefore orders may need to be restructured so the interests of the children are still addressed in the best possible way. In Rocco’s case, the arrangements which were made in 2009 may no longer suit the gentleman he is growing to be. With Madonna spending recent years on numerous international tours and Rocco reaching an age where he will need to think more seriously about finishing education and entering employment, his needs may best be addressed in London. His father may be able to provide more stability as Rocco is currently travelling with his mother on her 7 month world tour.

In this day and age where dual nationality relationships are more common, careful consideration needs to be given upon the separation of a couple in regards to the arrangements of the children involved. The most common issue arises when one parent desires to return to their country of origin and wishes to take their children with them. This is notwithstanding a circumstance whereby a single parent may meet a new partner with a different nationality and may want to move with their children to their partner’s country of origin. Additionally a parent may need to move to another country long term for work purposes. The courts are faced with cases of relocation and custody battles overseas more and more. A child has the right to continue seeing both of his/her parents upon separation, just as a parent has a right to see their child. Nevertheless, the court may have trouble restricting a person’s liberty by forcing the individual to continue to reside in a country they wish to leave. Additionally any order which is made in England would need to be protected by a mirror order in the opposing country, otherwise its credibility could be damaged. This in itself may be difficult to achieve, especially if the opposing country is not part of the Hague convention. Other security measures would need to be enforced.

Ultimately, this is a custody battle between two normal parents and their child. We may not be able to relate to their lavish lifestyles, but behind the glitz and glamour are two parents trying to enforce what they believe is best for their child. The mother wishes her son to be returned to New York but his father trusts he is simply enforcing the wishes of his son by keeping him in London. As a 15 year old, Rocco may have persuasive power in the court room. Nevertheless, by refusing to return to England following Justice Kaplam’s court order in December, the court may hold a dim view over his plea to stay where he is. Only time will tell what will be decided in the next hearing. What is for certain is the next 3 years of Rocco’s life will ultimately not be decided by either of his parents, but by a third party – Justice Deborah Kaplam.

If you are currently having difficulties determining the best arrangements for your children following a breakdown in your relationship, please do not hesitate to contact us. We have a dedicated team of solicitors who are experienced in securing child arrangement orders for parents who live both in this country and abroad. Please call us today on 0151 375 9968 to book a free initial consultation with one of our legal experts.

By: Renn Moucarry - Trainee Solicitor