Leszinske v. Poole

Alan Leszinske (plaintiff) and Bonnie Poole (defendant) were a married couple with three children who resided together in New Mexico. Leszinske filed for divorce in a New Mexico state trial court, which awarded temporary custody to Poole, who was the children’s primary caregiver. Poole wished to marry her uncle and move to California with him and the children after the divorce was granted. The trial court indicated that it would award primary custody to Poole if she and the uncle entered into a valid marriage. Under the laws of New Mexico and California, a marriage between an uncle and niece was incestuous and void under family-law statutes. In California, the penal statute prohibiting incest did not apply to sexual relationships between relatives who married in a jurisdiction that recognized the marriage. After the court granted the divorce, Poole and the uncle married legally in Costa Rica. The trial court awarded primary physical custody to Poole, reasoning that Poole was the primary caregiver, California courts were likely to recognize the Costa Rican marriage, and Poole was unlikely to be prosecuted for incest if California recognized her marriage. Leszinske appealed, arguing that the trial court improperly concluded that California would recognize the marriage, because the marriage was repugnant to public policy.