Establishing Foreign Paternity under UIFSA

Posted by Ron Kauffman on

A common family law issue involves UIFSA, in that a U.S. state can establish a child support order after proving the paternity of the father over a foreign born child. However, proof is required beyond mere admissions and agreement. Is being named on the birth certificate enough? One couple recently found out.

UIFSA Parentage

Love in Lansing

The Plaintiff lives in Brazil and is the mother of LCK, who was born in Brazil in late 2020. The purported father, who was the Defendant in the case, lives in Michigan. The case was heard in a town between Detroit and Lansing. Plaintiff contended that defendant is the father of LCK, arising out of a relationship between the parties in Michigan in January 2020.

Defendant did not deny that the parties had a relationship during that time. In August 2021, plaintiff sought child support from defendant under the Uniform Interstate Family Support Act (UIFSA), by filing an Application for Establishment of a Decision with the central authority in Brazil.

The application stated that defendant’s paternity of the child was “established or presumed,” and was supported by a Brazil birth certificate naming defendant as the child’s father.

The Livingston County Prosecutor initiated this action under UIFSA, filing the Application as a complaint.  Defendant responded, denying paternity and requesting that the child’s paternity be established.  Defendant also filed a -separate paternity action in the trial court.

In contrast to his denial of paternity in the child support case, defendant alleged in his paternity action that he is the father of LCK. In fact, the defendant earlier claimed he was the LCK’s father in the paternity action, and even signed an affidavit before the U.S. Consulate stating that he was the father.

However, in the international child support action under the UIFSA, he disputed his paternity of the child had been established under Brazil law. Plaintiff contended that defendant’s name on the child’s birth certificate established his paternity under Brazil law, precluding further inquiry into the child’s parentage under the UIFSA. Defendant disagreed, and asked the trial court to resolve the paternity action before determining the child support action. Plaintiff filed a motion to establish support, arguing without explanation that the birth certificate alone established defendant’s paternity of the child under Brazil law.

Plaintiff also asserted that while briefly visiting Brazil, defendant signed an acknowledgment of paternity at the United States Consulate to obtain a passport for the child, and sued plaintiff under the Hague Convention for abduction of the child.

Defendant did not respond to the motion, but at the hearing requested a determination of paternity under Michigan law. The trial court entered a Uniform Child Support Final Order on the basis that defendant had been established as the child’s father under Brazil law, and ordered defendant to pay plaintiff monthly child support of $1,567. The father appealed.

Florida UIFSA

I have written on international custody and support issues before. The Uniform Interstate Family Support Act is one of the uniform acts drafted by the Uniform Law Commission. First developed in 1992, UIFSA resolves interstate jurisdictional disputes about which states can properly establish and modify child support and spousal support orders.

The UIFSA also controls the issue of enforcement of family support obligations within the United States. In 1996, Congress passed the Personal Responsibility and Work Opportunity Act, which required all U.S. states adopt UIFSA, or face loss of federal funding for child support enforcement. Every U.S. state has adopted some version of UIFSA to resolve interstate disputes about support.

One of the more important purposes of UIFSA is to extend enforcement to foreign support orders. A court in Florida, for example, must apply UIFSA to any support proceeding involving a foreign support order from a foreign tribunal. A “foreign tribunal” means a court, administrative agency, or quasi-judicial entity of a foreign country which is authorized to establish, enforce, or modify support orders or to determine parentage of a child.

Spartan Findings

On appeal, the Defendant contended the trial court erred by determining his parentage of the child had been determined under Brazil law without permitting him to challenge the parentage of the child.

A trial court can establish child support under UIFSA only upon finding, after notice and an opportunity to be heard, that defendant had a duty of support based on the putative father’s paternity. In doing so, the trial court was obligated to apply the procedural and substantive law of Michigan.

In determining Defendant was the father based on the Brazilian birth certificate, the trial court accepted plaintiff’s contention under Brazil law, any man designated as the father on a child’s birth certificate is thereby determined by law to be the father of that child, and that defendant therefore was precluded from raising the defense of non-parentage.

However, the trial court accepted the contention that parentage had been established under Brazil law without any proof and without any authority to support plaintiff’s assertion.

Plaintiff also argued that she established paternity because of Defendant’s past claims that he was the child’s father in the paternity action, and that he even signed an affidavit before the U.S. Consulate stating that he was the child’s father.

But on appeal, the question was whether the was precluded from challenging the child’s parentage by virtue of a previous legal determination in Brazil or elsewhere.  Defendant’s past assertions of parentage are not relevant to this narrow inquiry.

Even though defendant consistently sought to establish the parentage of the child, he never conceded the issue had been determined under Brazil law.  The trial court’s reliance on plaintiff’s unsupported assertion that the birth certificate naming defendant as the father constituted a determination of parentage under Brazil law, was insufficient.

The trial court’s order was vacated, and the case was remanded to the trial court for further proceedings in which plaintiff must demonstrate that defendant’s parentage of the child has been determined under Brazilian law.

The Michigan Court of Appeals opinion is here.

De Facto Parents and Child Custody

Posted by Ron Kauffman on

Can someone ask a court for custody of a child if they are not the parent or legal guardian but act as the de facto parent? The Georgia Supreme Court just looked at that child custody question in weighing the constitutionality of Georgia’s Equitable Caregiver Act.

De Facto Parent

Georgia On My Mind

These days, a parent-child relationship is becoming hard to define. Cultural norms have changed, and increasingly we have embraced nontraditional families.

Imagine you and your child move in with your parents or significant other, and you rely on them to care for your child while you work. After several years, you get into a fight about parenting, move out, and limit their time with your child. Are your parents or Ex considered equal legal parents? Can a judge to decide how much visitation grandparents or your former significant other has with your child?

Roughly 38 states now recognize the concept of a “de facto parent,” where legal rights are rooted in the person’s relationship to the child as opposed to blood. And in 2019, Georgia Republican Gov. Brian Kemp signed the “Equitable Caregiver Act,” which gives people the right to ask for custody if they can prove they have a “permanent, unequivocal, committed and responsible parental role” for the child.

Abby Boone believed she met that description. She helped raise a young girl for the first four years of the child’s life along with her partner, Michelle Dias. The girl is a cousin of Dias, who legally adopted her in 2011. Boone was not part of that adoption, but the court noted the girl’s middle name is listed as “Boone” on the child’s new birth certificate.

The child, M.D., was born in October 2010. Michelle Dias, who adopted M.D. in March 2011, was in a romantic relationship with Abby Boone, who helped care for M.D. from six weeks old but was not a party to the adoption.

After their breakup, Boone remained involved in M.D.’s life until 2018, when Dias cut off contact. In August 2019, Boone sought “equitable caregiver” status under Georgia’s newly enacted law, which allows a non-parent to be adjudicated as a caregiver with parental rights.

The trial court found that Boone met the statutory requirements and granted her joint legal custody and visitation rights in January 2024. Dias appealed, arguing the statute was unconstitutional because it infringed on a parent’s fundamental right to the custody and control of their child.

Florida De Facto Parent

I’ve written about parental responsibility in Florida before. In Florida, “custody” is a concept we have done away with. Florida uses the parental responsibility concept. Generally, shared parental responsibility is a relationship ordered by a court in which both parents retain their full parental rights and responsibilities.

Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their child. In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

A grandparent and a stepparent do not acquire all of the rights or assume all of the obligations of a child’s natural parent in Florida. A grandparent may be awarded some visitation rights in very limited situations, such as when the child’s parents are deceased, missing, or in a permanent vegetative state.

Florida does not have a de facto or psychological parent law like Georgia’s. Generally, timesharing and visitation rights are statutory, and the court has no inherent authority to award visitation between a child and one who is neither a parent, grandparent, nor great-grandparent. Our supreme court, citing the fundamental and constitutional right of privacy, has unequivocally reaffirmed adoptive or biological parents’ right to make decisions about their children’s welfare without interference by third parties, and the state cannot intervene into a parent’s fundamental or constitutionally protected right of privacy, either via the judicial system or legislation, absent a showing of demonstrable harm to the child.

Just Peachy

The Georgia Supreme Court declined to resolve the constitutional challenges, instead it interpreted the statute to avoid retroactive application. The Supreme Court held the statute lacked a clear legislative intent for retroactive application. Accordingly, to apply it to a pre-2019 relationship – Dias was fostering Boone’s relationship with M.D. before the statute existed – would impermissibly ascribe new legal consequences to past actions, violating due process principles.

As a result of the refusal to apply the statute retroactively, the trial court’s order was reversed because the statute could not constitutionally apply to conduct predating its enactment, and the Court vacated Boone’s equitable caregiver status and custody rights.

The Georgia Supreme Court opinion is here.

Family Law, Free Speech & Insulting a Lawyer

Posted by Ron Kauffman on

In family law cases, courts can issue injunctions that curb your right to free speech, especially if children are involved but maybe not if you are insulting a lawyer. A recent case out of Michigan asks if the trial court can protect a divorce lawyer against threats from a dissatisfied former client.

Speech Restriction Family Law

Chilling Speech

A former husband was placed on probation after pleading no contest to two violations of a domestic violence injunction that prohibited him from contacting his ex-wife. As a condition of his probation, he was barred from engaging in “any assaultive, abusive, threatening, or intimidating behavior.”

While he was out on probation, the former husband violated his probation because of a series of e-mails he sent over the course of a month to his former attorney who represented him in his divorce and the injunction proceeding.

Cruelly, he called his former lawyer a “pussy” and a “negligent piece of shit,” accusing him of “ignor[ing] child abuse” and owing the former husband money, and finished with a: “Fuck you.”

In his later e-mails, he copied various other people, including the county prosecutor, and referred to his former lawyer as a “fraud” and a “twat,” accused him of breaking the law, and even accused the presiding judge of ignoring evidence of child abuse and parental alienation.

Some of the e-mails included photos, such as a photo of the presiding judge and his family at a judicial investiture and another of the former husband’s children, edited to appear as though they were in a jail cell.

The former lawyer reported the emails to the probation officer, who filed a warrant request alleging a technical probation violation for his “threatening/intimidating behavior”. At the probation violation hearing, the former lawyer testified that the e-mails made him fear for his safety.  He also testified about several telephone calls in which he allegedly threatened him, although he could not recall the substance of those threats.

After the presentation of evidence, the former husband argued that the e-mails were constitutionally protected speech.  The trial court disagreed, finding that he intended to threaten and intimidate his former lawyer, and the speech was not protected under the First Amendment because the language in his e-mails constituted fighting words.  He appeals.

Florida Speech Restrictions to Protect Against Violence

I have written about speech, domestic violence in family law cases before. To state a cause of action for protection against domestic violence in Florida, you must allege sufficient facts demonstrating that you are a victim of domestic violence or have reasonable cause to believe you are in imminent danger of becoming a victim. Domestic violence means, in part, any assault, battery, or any criminal offense resulting in physical injury of one family or household member by another family or household member.

An injunction against domestic violence requires malicious harassment that consists at the very least of some threat of imminent violence, which excludes mere uncivil behavior that causes distress or annoyance. Fighting words, or words that would tend to incite an immediate breach of the peace could be actionable but it would depend on the circumstances.

Muffled in the Mitten State

On appeal, the former husband complained the trial court violated his First Amendment rights by finding him guilty of a probation violation based on constitutionally protected speech.

Under the Constitution, protected speech under the First Amendment includes expressions or ideas that the overwhelming majority of people might find distasteful or discomforting.” However, the right to speak freely is not absolute.”

States may restrict certain categories of speech that by their very utterance inflict injury or tend to incite an immediate breach of the peace. Here, the trial court erred in concluding that the former husband’s speech was not protected by the First Amendment because it was threatening in nature.

The right to free speech does not extend to “true threats,” which are defined as statements in which “the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.  Excluded from this category are jests, hyperbole, or other statements whose context indicates no real possibility that violence will follow.

To establish a true threat, the State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The true-threat exception to the First Amendment encompasses only physical threats, and our Supreme Court explicitly declined to extend the exception to encompass nonphysical threats.

The trial court should have assessed whether the former husband intended to communicate a serious expression of an intent to commit an act of unlawful violence against the lawyer or whether the purported threats were physical.

Although his e-mails were offensive and inappropriate, they did not express an intent to commit an act of unlawful physical violence.  Accordingly, his speech did not fall within the true-threat exception to the First Amendment. The emails were also not “fighting words,” personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.

Generally, speech made over the Internet, far removed from any potential violence, is not considered to be inherently likely to provoke a violent reaction. Although the former husband’s language might provoke violence if delivered in person, the fact that it was communicated via e-mail, far removed from any potential violence, renders it unlikely to provoke a violent reaction.

The opinion is here.

The Scientific Causes of Divorce

Posted by Ron Kauffman on

Even though the numbers of divorce cases are increasing, the cause of divorces has avoided scientific examination. Most people look at who gets divorced: their age, financial status, parenthood, past divorces, and their emotional stability. But two researchers from Israel are examining the lesser known subject of why people get divorced.

Divorce cause

Divorce and Statistics

Divorce, the legal dissolution of marriage, can be driven by a variety of factors, ranging from changes in the economic status or health conditions of spouses to contrasting values. The end of a marriage can often be challenging to process. Divorce can impact your personal well-being and even your mental health.

Sari Mentser and Lilach Sagiv, two researchers at the Hebrew University of Jerusalem, recently carried out a study specifically exploring the relationship between people’s values and divorce. Their findings, published in Communications Psychology, suggest that interaction between spouses’ cultural and personal values can predict divorce.

On average, the rates of divorce worldwide have increased over the past century. But it is difficult to obtain or analyze public data on divorces.

In order to compute divorce-to-marriage ratios, the researchers in Israel created an average of all divorce-to-marriage ratios available for a country over the years, and compared it to the most recent divorce-to-marriage ratio available for that country.

People all over the world have a variety of cultural and personal values, i.e. shared beliefs connected to societal norms, which can emphasize autonomy, or social stability and tradition for example. Personal values, on the other hand, are beliefs influencing the behavior of specific people. For example, one spouse could value their independence, or new experiences, or pleasure. While the other spouse could instead be more driven by a respect for traditions and social conformity.

The researchers crunched the data they collected which involved over 100,000 participants residing in more than 55 different countries worldwide.

Florida Divorce

I’ve written about the reasons for divorce before. The Israeli study is not the first study done about who has the highest divorce rates, or which jobs are the most likely to lead to a divorce. Although the statistics are interesting, from a legal perspective, the causes for a divorce are not always relevant in a court. For example, Florida is a no-fault state. No-fault laws are the result of trying to change the way divorces play out in court.

In Florida no fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

Florida abolished fault as grounds for filing a divorce. Gone are the days when you had to prove adultery, desertion or unreasonable behavior. The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.” Additionally, the mental incapacity of one of the parties, where the party was adjudged incapacitated for the prior three year, is another avenue.

Scientific Explanations

As a result of this study, the researchers found that divorce was more justifiable and likely in nations emphasizing autonomy values and among individuals ascribing importance to self-direction, stimulation, and hedonism values.

Divorce was less justifiable and likely in nations emphasizing embeddedness values, and among individuals ascribing importance to tradition and conformity values.

The results of the team’s analysis suggest that cultural and personal values interact to predict divorce. Specifically, they show that cultural values prioritizing autonomy (i.e., individual freedom) are linked to higher divorce rates, while those prioritizing social stability and tradition are linked to lower divorce rates.

They also found that people who placed a greater value on independence, new stimuli and pleasure were more likely to divorce while those who valued tradition and social harmony more were less likely to dissolve their marriage. Interestingly, the effect of these personal values on divorce appeared to be stronger in countries with a culture that emphasizes autonomy, which hints at an interaction between cultural and personal values.

The researchers conclude that divorce is sometimes the solution to an undesirable situation. Whether or not a spouse will file for divorce may depend on their personal and cultural values. Some people would rather avoid divorce at all costs while others who value change may be more open to considering divorce.

The Phys.Org article is here.

Divorce Ignorance

Posted by Ron Kauffman on

A new report by two law professors in England is showing a great deal about the public’s ignorance of divorce laws. Overall, the public’s understanding about finance and property on divorce was considered poor. However, those fortunate enough to have consulted lawyers previously were considered knowledgeable.

London divorce town

Keeping calm and carrying on

The legal experts say that thousands of people going through their divorces could be losing out due to “do it yourself” divorces. The professors from the University of Bristol authored a new report where 20,000 members of the public in England and Wales answered questions on divorce-related laws about dividing finances and property.

For example, given 10 statements about the law and asked to say whether each was true or false, the public correctly identified an average of 4.5 statements. In fact, just over half (55 per cent) of the public correctly identified at least half of the statements.

Statements Which Are Not True (in England):

  • The law says that all assets and debts should be split 50:50, regardless of whose name they were in during the marriage
  • Legally, an individual is not entitled to a share of their ex-spouse’s pension
    The law says that if an individual contributed more money during the marriage, then they are usually entitled to more than 50 per cent of the assets

Interestingly, people with higher qualifications or incomes were somewhat more likely than those with lower level qualifications or incomes to know what the law was in relation to financial remedies on divorce.

Florida Divorce

The official term for divorce in Florida is “dissolution of marriage”, and you don’t need fault as a ground for divorce. Florida abolished fault as a ground for divorce. I’ve written about divorce issues before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your spouse’s political views. Instead, you just need to state under oath that your marriage is “irretrievably broken”.

Before the no-fault divorce era, people who wanted to get divorce either had to reach agreement in advance with the other spouse that the marriage was over, or throw mud at each other and prove wrongdoing like adultery or abuse.

No-fault laws were the result of trying to change the way divorces played out in court. No fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

Florida abolished fault as grounds for filing a divorce. The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.” Additionally, the mental incapacity of one of the parties, where the party was adjudged incapacitated for the prior three year, is another avenue.

Dodgy Results?

The report also showed that women were more likely to know about aspects of the law relevant to having children, and men to know somewhat more about the law around the division of assets.

Additionally, and not surprisingly, divorcees were somewhat more knowledgeable about the law than others. But still, their percentages appear to be mere guesswork: they identified an average of 5.2 statements correctly compared to 4.4 statements among those who had not been through a divorce. However, the differences between divorcees and others were not large, with levels of misconception still high among divorcees.

Having a lawyer was important to knowing your rights. Among divorcees who had divorced in the previous five years: those who had used more formal routes to reaching an arrangement, or consulted or used a lawyer, tended to know more about the laws around finances on divorce than those who had not.

Those with higher levels of assets to divide on divorce tended to have a greater understanding than those with lower levels or no assets. Divorcees with dependent children were more knowledgeable than other divorcees in relation to the law around the legal position of parents with main care of their children and around the child maintenance formula, although there were still high levels of misunderstanding among parents on these issues.

With do it yourself divorces, when couples settle how to split finances without courts, the law allows them to agree any split they want. More people are now coming up with their “own solutions” surrounding divorce settlements as there is no longer legal aid in England and Wales. The findings highlighted that women had a greater understanding around law relating to children, whilst men were more likely to know the law on assets.

The professor said the lack of legal aid leads to less awareness and knowledge which is “potentially problematic” because it means that people are relying on “their own misunderstanding of the law which tends to lead to poor settlements”.

The majority of the divorcing population in England and Wales reach arrangements relating to their finances and property outside of the formal family justice system, and also that one in five divorcees seek advice and support from family and friends during the divorce process.

For these reasons, it is important to know what level of knowledge people have, and whether there are misconceptions which might be influencing the decisions made by divorcees and the advice family and friends provide.

The BBC article is here.

Divorce and Annulment in Florida

Posted by Ron Kauffman on

An annulment is more uncommon in Florida than a divorce. A recent appeal decided whether a court case should proceed as a divorce or an annulment. A Florida husband tried to avoid his obligation to divide his marital property and pay alimony to his wife by alleging in court that his marriage was a fraud because he never consummated it. How did the trial and appellate courts review his argument?

Annulment

A Case of Annulment?

In the Florida case, a Husband testified he met his wife in 2000 when he attended a retreat. Twenty years later, he was re-introduced to his wife by a colleague. They traveled to Colombia and shared a residence. He argued that he never proposed to his wife, they just mutually agreed to marry. He claimed that all he wanted a companion as he grew older.

At trial he also testified that he never consummated the marriage. He also claimed that he had never seen her naked, didn’t know her bra size or any intimate detail about her body. He testified that she only married him to obtain legal status.

Also during the trial, the wife admitted she never received an engagement ring, but said she signed a prenuptial agreement, that they had consummated the marriage, and had intercourse on several occasions, but only in the dark. Accordingly, she had never visually inspected his body.

The husband’s girlfriend testified he told her he was married and was in process of divorcing. Based on those facts testified to at the trial court found it was a real marriage, that they did have sex, and the case could not proceed as an annulment. The husband appealed.

Florida Annulments

I’ve written about divorce and annulment in Florida before. In Florida, the legal term for ending a marriage is “dissolution of marriage,” not “divorce.” The process is initiated by filing a petition for dissolution of marriage. The term “divorce” is not used in the Florida Statutes.

There are different types of dissolution of marriage in Florida, depending on the circumstances, such as whether there are children, marital property, or if the dissolution is simplified. A judgment of dissolution of marriage is how a spouse returns to “the status of being single and unmarried.”

Annulments are different. An annulment in Florida is a procedure that declares a marriage null and void, as if it never existed. The grounds for annulment in Florida include bigamy, fraud, duress, mental incapacity, and incestuous relationships.

Because Florida is one of the handful of states that has no annulment statute, annulments in Florida are purely a question of common law, decided pursuant to the inherent equitable powers of the circuit court.
The historical common law “impediments” to marriage traditionally fell into two general categories: lack of consent and lack of capacity.

Lack of consent would include, for example, people who are related within certain degrees, and minors without parental consent. Lack of capacity includes marriages involving fraud, mental illness, sham marriages, and shotgun weddings.

That is where consummating the marriage comes in. It is established law in Florida that someone who has become a party to a wedding ceremony by fraud of the other party can secure an annulment if the marriage has not been completed by sexual intercourse.

The Appeal

On appeal, it was found that the trial court record contained ample evidence supporting the holding that the parties consummated their marriage, and the wife did not enter the marriage to commit fraud.
Additionally, in this case no asserted ground or evidence justified a decree of annulment in favor of the husband.

Here the parties entered into a valid marriage contract. The evidence did not establish the existence of any of the grounds for annulment. So, the appellate court ruled the petition was properly denied.

The written decision is available here.

Speaking on the Hague Convention and Interstate Child Custody

Posted by Ron Kauffman on

Honored to be invited to speak about the Hague Convention and other interstate child custody jurisdiction issues at the 2025 Marital & Family Law Review Course. The program will be presented at the Loews Royal Pacific Resort at Universal Orlando from January 24, 2025 to January 25, 2025. The prestigious Certification Review course is one of largest and most popular family law presentations, and is a partnership between the Florida Bar Family Law Section and the AAML Florida Chapter.

Hague Convention

Interstate Child Custody

Family law today frequently involves interstate child custody, interstate family support, and The Hague Convention on international child abductions. Parents are increasingly moving from state to state and country to country for various reasons. Whether children are moved by parents wrongfully or not, that moving makes interstate and international child custody complicated. The Uniform Child Custody Jurisdiction and Enforcement Act, and The Hague Convention on Child Abduction, can work together in those cases.

Florida and almost all U.S. states passed the UCCJEA into law. The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction over the child. That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say Florida. The ultimate determining factor in a Florida case then, is what is the “home state” of the child.

International Child Abductions

I have written about the Hague Convention before. All family lawyers should become familiar with the Hague Convention on the Civil Aspects of International Child Abduction, also known as The Hague Convention on Child Abduction. This international treaty exists to protect children from the harmful effects of international abductions by requiring the prompt return to their habitual residence.

Interstate Family Support

The Uniform Interstate Family Support Act is one of the uniform acts drafted by the Uniform Law Commission. First developed in 1992, the UIFSA resolves interstate jurisdictional disputes about which states can properly establish and modify child support and spousal support orders. The UIFSA also controls the issue of enforcement of family support obligations within the United States. In 1996, Congress passed the Personal Responsibility and Work Opportunity Act, which required all U.S. states adopt UIFSA, or face loss of federal funding for child support enforcement. Every U.S. state has adopted some version of UIFSA to resolve interstate disputes about support.

Certification Review Course

It is a privilege to be invited to speak on the Hague Convention and interstate and international family law issues at the annual Marital & Family Law Review Course again. The annual seminar is the largest and most prestigious advanced family law course in Florida. Last year’s audience included over 1,800 attorneys, hearing officers, and judges.

Register here for remaining spaces, if any.

International Child Custody and Hague Convention

Posted by Ron Kauffman on

A frequent international child custody issue involves the Hague Child Abduction Convention. Return of abducted children to their habitual residence is required unless defenses are established, in which case ameliorative measures can be considered. Is that also true in a war zone? A court in Montana just decided that question.

Hague Convention2

Home on the Range?

The parents are Ukrainians. They married in the Ukraine and lived in the city of Odessa, Ukraine in an apartment. In February 2022, Russia invaded Ukraine. The parties began to hear explosions and air raid sirens in Odessa based on Russian aerial attacks, and they were forced to sleep in their basement at times.

In August 2023, the father arranged for the mother and their child to stay with family friends in Moldova due to the increased bombing of Odessa. On August 26, 2023, the mother informed the father that she was intending to fly to Montana with the child to be with her mother and sister.

The father began to take steps to secure the return of the child to the Ukraine by filing a Hague application and filing a return petition in Montana.

Florida Hague Convention

I will be speaking about the Hague Convention and international child custody issues at the prestigious Marital & Family Law Review Course in Orlando later this month. The event is co-sponsored by the Florida Bar Family Law Section and the American Academy of Matrimonial Lawyers.

What happens if your children are wrongfully abducted or retained overseas? If that happens, you must become familiar with the Convention on the Civil Aspects of International Child Abduction, also known as The Hague Convention. This international treaty exists to protect children from international abductions by requiring the prompt return to their habitual residence.

The Hague Convention applies only in jurisdictions that have signed the convention, and its reach is limited to children ages 16 and under. Essentially, The Hague Convention helps families more quickly revert back to the “status quo” child custody arrangement before an unlawful child abduction.

If your children are wrongfully taken out of the country or wrongfully retained after the time for returning them passed, the Hague Convention can help you get them back.

A Mess in Odessa

At the trial in Montana, it was not disputed that the father established a prima facie case under the Convention. However, the mother argued return to Ukraine would expose the child to a “grave risk” of physical or psychological harm.

The district judge noted that the conflict in Ukraine did not, by itself, trigger the grave risk exception because it’s not sufficient to simply find that because the country is at war, children cannot be returned․

Instead, the focus should be on the risk a child would face in the part of the county she will return to and whether that will imperil her unacceptably. For example, some courts have found that return to certain cities or eastern Ukraine poses a grave risk.

Additionally, the fact that a child has grown accustomed to life in the U.S. was not a valid concern under the grave risk exception, as it is the abduction that causes the pangs of subsequent return. Also, the exception does not provide a license for a court in the abducted-to country to speculate on where the child would be happiest or who would be the better parent. And grave risk does not encompass a home where money is in short supply, or where educational or other opportunities are more limited. Even if a “grave risk” is shown, a court has “the discretion to consider ameliorative measures that could ensure the child’s safe return.

Here, the court found that return to a different city in the Ukraine, Chernivtsi, a city and oblast in southwestern Ukraine was at less risk than the eastern portion of the country such as Odessa. It was also noted that many Ukrainians had relocated to the western part of the country since the invasion.

The Mother’s argument that her voluntary parole status in the United States should be considered. However, to the extent the mother faced a Hobson’s choice, it is a dilemma of her own making. The record showed that the father was willing to allow her and the child to reside outside of Ukraine, but close enough for contact, while custody was determined.

Instead the Mother chose to come to the United States, as opposed to Moldova or another neighboring country, for the undisputed reason that her family was here. Neither the Convention nor this Court’s decision are constrained by that choice.

Based on those facts the court ordered the return of the Child to Chernivtsi, Ukraine and awarded fees and costs.

The order is here.

Registration for the certification review course is here (if available)

Speaking on the Hague Convention and Interstate Custody

Posted by Ron Kauffman on

Honored to be invited to speak on interstate custody and the Hague Convention at the prestigious Marital & Family Law Review Course in Orlando from January 24th to January 25th. The seminar is co-sponsored by the Florida Bar Family Law Section and the American Academy of Matrimonial Lawyers.

Divorce Religion

Raising Arizona

A recent state court case in Arizona applied both the Hague Convention and state law to order law enforcement to immediately pick up a child allegedly being retained in Arizona by the child’s Father. The Father argued that his due process was violated by not providing an opportunity to be heard.

A child was subject to a parenting time order in Mexico. The child otherwise resided with the Mother, Cohen, in Mexico, and the Father, Gbele, to timeshare in the United States.

On December 20, 2023, the Mother filed a petition under the Hague Convention in Arizona state court alleging the Father refused to return the child to Mexico under their Mexican order, and seeking an order for the child’s removal to Mexico.

The trial court found that the Father had not been served, authorized service by alternative means, and temporarily restrained the Father from removing the child from Arizona. After the Mother filed a notice that the Father was served with process, the trial court entered a “pick-up order” to transfer custody to the Mother in Mexico based on testimony at an earlier hearing that the child is imminently likely to suffer serious physical harm or be removed from this state without the issuance” of the order.

The Father asked to vacate the pick-up order for lack of jurisdiction and due process. On the final hearing day, the court neither took evidence nor decided the merits of the petition. Instead, it determined the Father could not challenge the pick-up order because that order did not resolve any of the Mother’s claims from the petition, and therefore was not a final judgment.

The trial court also refused to vacate the pick-up order as moot because the relief of return was effectuated and awarded the Mother travel expenses. The Father appealed.

Florida UCCJEA and Hague Convention

Parents move from state to state for various reasons. It is a subject matter I have written and spoken about many times. Whether children are moved by parents wrongfully or not, moving your children creates interstate custody and support and problems.

What happens if your children are wrongfully abducted or retained overseas? If that happens, you must become familiar with the Convention on the Civil Aspects of International Child Abduction, also known as The Hague Convention. This international treaty exists to protect children from international abductions by requiring the prompt return to their habitual residence.

The Hague Convention applies only in jurisdictions that have signed the convention, and its reach is limited to children ages 16 and under. Essentially, The Hague Convention helps families more quickly revert back to the “status quo” child custody arrangement before an unlawful child abduction.

The UCCJEA is a uniform act which promotes cooperation with other courts and ensures that a custody decree is rendered in the state which is in a superior position to decide the best interest of the child.

The UCCJEA helps to facilitate enforcement of custody decrees – even when the custody decrees come from a foreign country – and has the aspirational goal of promoting uniformity of the laws governing custody issues. Under the UCCJEA, a foreign country should be treated as a US state for the purposes of applying the UCCJEA.

Arizona Appeal

On appeal, the Mother argued the appeal was moot because the child was returned to Mexico, where it is undisputed the child is subject to a custody proceeding. The appellate court held that mootness is a discretionary doctrine, and in addition to the pick-up order, the Father also challenged the award of transportation costs, which was sufficient to prevent the appeal from being moot.

The Mother also argued that the trial court had discretion to order the child’s immediate removal under ICARA, which implements the Hague Convention in the United States. ICARA enacted provisional measures “to protect the well-being of the child involved or to prevent the child’s further removal or concealment before the final disposition of the petition.”

In rejecting the provisional measures, the court found there was neither allegation nor evidence concerning the child’s well being or any risk of further removal by the Father and the court’s order was not a final disposition of the petition.

Even if ICARA’s provisional remedies allowed the trial court discretion to enforce a provisional remedy, ICARA also provides that no court may order a child removed from a person having physical control of the child unless the applicable requirements of State law are satisfied.

Under Arizona and federal constitutions you are guaranteed due process. Additionally, under Arizona law, a petition to  enforce a foreign child custody order generally requires notice and a hearing before the trial court may order that the petitioner take immediate custody of a child. On remand, the appellate court direct the trial judge to determine whether to dismiss the petition in light of the child’s removal.

The opinion is available here.

New Year Divorce

Posted by Ron Kauffman on

If you have been thinking over the New Year holidays about divorce, know that you are not alone. Divorce filings surge in January as people decide to start their New Year with a clean slate. Not surprisingly, Angelina Jolie and Brad Pitt announced they have settled their eight year divorce case just in time to start the 2025 new year.

New Year Divorce

Mr and Mrs. ‘Formerly Known As’

The couple both signed off on a default declaration filed in Los Angeles Superior Court. The settlement agreement was confidential. In a statement to NPR, Jolie’s divorce lawyer wrote:

“More than eight years ago, Angelina filed for divorce from Mr. Pitt. She and the children left all of the properties they had shared with Mr. Pitt, and since that time she has focused on finding peace and healing for their family. Frankly, Angelina is exhausted, but she is relieved this one part is over.”

Pitt and Jolie met on the set of Mr. and Mrs. Smith, the 2005 movie in which the two played married assassins. They wed in 2014 and Jolie filed for divorce in 2016 alleging physical abuse during a private jet flight from Europe.

The FBI and child services officials investigated the allegations and the FBI released a statement saying it would not investigate further. The U.S. Attorney’s Office did not file charges. Pitt and Jolie vowed to keep the details of their divorce private, issuing a statement in 2017 that said they were sealing the documents to protect their six children.

In 2019, a judge declared Jolie and Pitt divorced and single, but reserved ruling on the distribution of the community property and child custody. Those issues remained pending for years, and needed to be settled separately.

Florida New Year Divorce

I’ve written about the recent rise in divorce filings, and many times the holiday season can highlight problems. What should you do? Whatever the reason for your problems, there are a few things that anyone looking into divorce for the first time needs to know to help them through the process.

Prioritize

Line up your priorities for life after the divorce. Is it finding a home? Is it retiring? Getting a job? Managing your special-needs child? Consider writing down your most important goals.

Consult

Even if you aren’t certain you need to hire an attorney, or filing for divorce at all, it is a good idea to meet with an expert in Florida’s divorce and family laws. Who better than someone certified by Florida as an expert in marital and family law? We offer free consultations, but even when there is a charge, it is well worth the fee to get accurate information.

Alternatives

Litigation is something to avoid. It’s time-consuming, contentious and expensive. The majority of divorces end up settling. There are many forms of alternative dispute resolution out there, including collaborative family divorce, mediation, and informal settlement conferences.

There is a good reason for treating a divorce calmly and not rushing to file. Think about your end game. Many people file quickly out of anger perhaps after learning of a spouse’s misconduct. But it’s better to be strategic. No one should make such a big financial decision when they are feeling tired and emotional, and divorce is one of the biggest financial decisions of your life.

Life, Interrupted

A private judge the parties hired to handle their divorce reached a decision that included equal custody of their children. However, Jolie filed to have him removed from the case over an unreported conflict of interest. An appeals court agreed, removing the judge and vacating his decision and they had to start the process over.

During the long divorce fight, four of the six children became adults, negating the need for a custody agreement for them.

The use of a private judge has helped to keep details of the divorce from being publicized. However, some elements of their case have been revealed through a separate lawsuit filed over Jolie’s sale of her half of a French winery they owned called Chateau Miraval.

Pitt had wanted to buy her half of the winery, and claims she abandoned their negotiations and sold her share to the Tenute del Mondo wine group. Pitt called the move “vindictive” and “unlawful”, and that  it should not have been made without his consent. The parties’ marital settlement agreement does not affect the winery lawsuit. Their legal battles, like their assassin characters in Mr. and Mrs. Smith, go on and on.

The article from the AP is here.