Originally created 01/30/98

Ruling complicates case



AIKE -- A South Carolina's judge's ruling this week that he has jurisdiction in an international parental kidnapping case already decided by a federal judge is unprecedented, legal experts say.

And the ruling issued by Aiken County Family Court Judge Peter Nuessle has at least one state senator wondering if the judge should win re-election to another term on the bench -- a legislative vote expected to be taken next month.

"I can't think of any single case we have had like this one," Nancy Hammer said of the international custody battle over two little girls taken by their father and grandmother nearly three years ago from their German home and brought to the Aiken area.

Ms. Hammer is director of the international division of the National Center for Missing and Exploited Children, which represents the U.S. government in Hague Convention petitions. The international treaty, adopted by the United States, outlines the legal procedure courts must use when it's alleged that children have been kidnapped across national borders.

Just before Christmas, U.S. District Judge Dudley H. Bowen Jr. of Augusta ruled that Michael Lops and his mother, Anne Harrington, wrongfully abducted the girls and concealed their whereabout and that the girls should be returned to their mother, Christine Lops.

But Tuesday afternoon, Judge Nuessle ruled that he had jurisdiction in the case and ordered Ms. Lops to bring her daughters to Aiken County to live or he would give custody to Mr. Lops.

State Sen. Greg Ryberg, R-Aiken, said Thursday he doesn't understand why a state Family Court judge put in his "2 cents' worth" in the case now.

Judge Nuessle is up for re-election this year to another six-year term. In South Carolina, legislators elect judges and rely on a screening committee to review candidates' qualifications.

The screening committee has rated Judge Nuessle as qualified. However, Mr. Ryberg said, "I get concerned when I see a state judge who is elected by the Legislature and tells the (federal court) he wants to take jurisdiction after saying at an earlier point that he refused to hear the case."

Judge Nuessle didn't answer two telephone calls made to his residence Thursday night.

Ms. Hammer said Thursday that a Hague Convention case can be litigated in a state court or in federal court but that the parties can't take the matter to the other court if they don't like the ruling. But since technically the case was pending before Judge Nuessle -- who wouldn't allow Ms. Lops to drop the case in South Carolina -- "I don't know what the answer is," she said.

"There is such a thing as federal supremacy," said Bill Hilton, a California attorney who specializes in Hague treaty cases and helped write an attorneys' handbook on the issue.

Not only has a court with superior jurisdiction already ruled in the case, but federal law clearly says that once another court issues a decision in a child custody matter, another court cannot change it, Mr. Hilton said.

"If the South Carolina court had issued a judgment first, the federal court couldn't step in -- it works both ways," Mr. Hilton said.

Ms. Lops' attorneys are awaiting a ruling from Judge Bowen on their request filed Wednesday that he stay Judge Nuessle's order.