Recognizing International Divorce Decrees

A recent Texas case resolves an important dispute over recognizing international divorce decrees. A couple filed for divorce in Texas. Then, the husband traveled to his home country of Pakistan for a ‘quicky’ divorce. Does the Texas court have to honor the international divorce decree?

International Divorce

Longhorns in Lahore

The parties were married in Pakistan in 2009 and later moved to Texas. Husband filed an original petition for divorce in Dallas County district court in 2021. He asked for a divorce, the division of their property, and for the court to decide child custody.

Eight months later, Husband filed a “Notice of Filing of Foreign Judgment.”  He attached a “Divorce Registration Certificate” that was issued in 2022 by the Union Council in his home town of Lahore, Pakistan.

The Pakistani certificate lists addresses in Lahore for both parties. The Husband asked the Texas court to recognize the Pakistani divorce decree, and he also amended his divorce petition. He dropped his demand for a divorce as they were divorced now in Pakistan.

But the Pakistani divorce decree did not “dispose of the parties’ marital interest in various assets” or decide custody so he asked Texas to decide those issues. The Wife objected to recognizing the foreign judgment.

In 2023, after a hearing, the Texas family court sustained Wife’s objection to the recognition of the Pakistani decree, and rendered a final decree of divorce on June 7, 2023. The Husband appealed.

Florida Comity and International Divorce

I have written about international divorce issues before. In Florida, a person must have resided in Florida for 6 months before the filing of the petition for the court to have jurisdiction over your divorce. The term “reside” generally means a legal residence in Florida with an intention to stay there, as opposed to a temporary residence.

However, in our mobile society many couples have multiple residences where they reside. Some of those residences can be in other countries, and more than one country may have jurisdiction. Will a foreign divorce decree be recognized in the U.S.?

Generally, comity is the recognition that a country gives to the legislative, executive or judicial acts of another country, having due regard both to international duty and convenience, and to the rights of its own citizens.

A U.S. state will respect and give effect to the laws and judicial decisions of another jurisdiction, provided that they do not conflict with public policy. Comity ensures that international divorce decrees will be recognized and enforced across different countries.

Cowboys, Curry, and Comity

On appeal, the Husband argued the court didn’t have subject matter jurisdiction to grant a divorce because they were no longer married. The appellate court noted that states, however, are not required to give full faith and credit to every single foreign divorce decree. Dismissal of a case based on comity is a matter of discretion for a trial court.

In this case, the only evidence the Wife received notice about the Pakistani divorce proceeding was an email from the Husband stating: “I am attaching NADRA divorce certificate for your records” and a one-sentence text message saying: “to fulfill religious obligation, I have pronounced verbal divorce today.”

The Husband argued Pakistan is not required to follow Texas-specific due process laws or rules. The appellate court agreed Pakistan did not have to follow American notions of due process. But, a U.S. court can refuse to recognize judgments obtained without due process. Since there was never notice to Wife of the Pakistani proceedings until after a judgment was rendered, she was deprived of minimum due process, and the international decree was not recognized.

The opinion is available at MKFL International Family Law.

Equitable Distribution Isn’t Always Equitable

Dividing marital property in a divorce is governed by the equitable distribution statute. Sometimes the division is not so equitable. One former husband complained to the appellate court the values of the marital property awarded to his former wife increased so much after the trial, he needed more money to do equity.

Equitable

What goes up

In 2018, the parties’ marriage was dissolved, and their assets were equitably divided and distributed. The former wife was awarded the marital home, valued at around $138,000. The final judgment required the former husband to sign over a deed of his interest in the home to his former wife, but also obligated the former wife to pay cash to the former husband to equalize the distribution.

Neither party appealed the revised equitable distribution scheme in the amended final judgment, which continued to award the former wife the marital home and continued to value it at $138,413.

In 2022, the former husband filed a motion claiming that value of the home had increased so much, that he was entitled to have the value from any sale equally divided. He did not move to set aside either the final judgment or the amended final judgment as inequitable.

Instead, he argued that the valuation of the home in both judgments was put in place to show if the house had been sold at the current market, what it would be worth. Following a hearing, the family judge disagreed, and the former husband appealed.

Florida Equitable Distribution

I have written about equitable distribution in Florida before. In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, a court must set apart to each spouse that spouse’s non-marital assets and liabilities.

When distributing the marital assets between spouses, a family court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors.

However, when dividing up a marital estate, a court can’t always divide it equally to the penny. To ensure a marital estate is equalized, a court may order one spouse to pay the other spouse a lump sum payment. This amount is referred to as an “equalizing payment”.

An equalizing payment is proper only when the distribution schedule justifies it and the payment is in the ability of the paying spouse to make the payment without substantially endangering his or her economic status.

Must Come Down

On appeal, the court found that when an equalizing payment is ordered by a court to equitably distribute marital assets, they payment becomes vested when the judgment is entered, and is treated as a debt owed.

Here, the former husband had 30 days after entry of the final judgment to challenge the equitable distribution but he didn’t. The equalizing payment vested and could not be challenged because res judicata applies to prevent either party from relitigating the issue.

The court also held that even if the former husband had timely brought a claim under rule 12.540 it would fail. Former husband had to allege “new circumstances.” The fact that the marital home may have appreciated in value is not a new circumstance.

The opinion is here.

Transforming Nonmarital Property Into Marital Property

For many clients going through divorce, there is a concern that their nonmarital property can transform into marital property, and then get distributed by a court. Believe it or not, divorce lawyers know that in certain cases, it is easy for your nonmarital asset to be transformed into a marital one. One couple in north Florida found out how courts look at whether your nonmarital property has been transformed into a marital property during a divorce.

marital property

Defining Marital and Nonmarital Property

Understanding a little about Florida’s equitable distribution statute will help you protect your premarital assets from being wrongly divided. In Florida marital assets and liabilities include assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.

Many people forget that marital assets also include the enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.

Another area of transforming nonmarital assets into marital one is by gifts. Under Florida law, marital assets include gifts between spouses during the marriage.

Conversely, nonmarital assets and liabilities include things like assets acquired and liabilities incurred before the marriage, and assets acquired separately by either party by non-interspousal gift, bequest, devise, or descent. For example, an inheritance may initially be considered nonmarital property absent anything else.

Before a court will classify your assets as either marital or nonmarital, the court will consider numerous factors. One of the factors a court will look at is the title of the property. A court will also consider whether you commingled your marital funds with your nonmarital funds. Were there any increases in the value of your nonmarital stock accounts because of marital efforts, or control of the funds? If so, a court may consider that too. They will also look at the length of the marriage, and your intent concerning the marital or nonmarital status.

Transforming Marital Property

In a recent case in Florida’s panhandle, a husband and wife divorced. During the trial, the family judge added to the equitable distribution schedule one of the husband’s Certificate of Deposit accounts. However, there was no evidence that the CD account, which was acquired ten years before the marriage, had transformed into a marital asset.

On appeal, the appellate court reversed the decision. The appellate court found that there was no evidence at the trial that there was any enhancement of the CD account through the husband’s efforts. The court also noted that there was no evidence that the husband commingled his nonmarital funds with marital funds. Lastly, there was no evidence that he had given to his wife the CD account as a gift.

Gifts between spouses are an important and frequent way in which a nonmarital asset becomes a marital asset. Believe it or not, there are even cases in Florida where spouses accidentally gifted non-marital homes to their spouse by birthday card, not realizing they would be found to have the proper donative intent.

Florida’s New Anti-Gift Law

This year the law changed in Florida. The revised equitable distribution statute now prohibits interspousal gifts of real estate unless there is written documentation that complies with the provisions for conveyance of real property under the statute governing deeds to property.

The mere inference of a gift of real property will now not meet the threshold required for an interspousal gift unless there was written documentation for a conveyance.

The new law in Florida also makes it clear that when a spouse merely signs a deed for the sole purpose of conveying a homestead property – other than the other spouse or both spouses jointly – the deed does not change the character of the real property from nonmarital property to marital property.

Finally, the new amendment to the equitable distribution statute changes the definition of nonmarital assets and liabilities so that real property acquired separately through non-interspousal gift, bequest, devise, or descent and in which legal title has not been transferred to both parties as tenants in the entireties, remains non-marital property.

The appellate decision is here.

Mistakes In Your Agreement

What happens when you discover mistakes in your marital settlement agreement? Family and divorce lawyers are always interested in protecting their clients, and themselves, against mistakes. When agreements are entered into fast and furiously, mistakes can happen. One married couple in Florida found out just how courts look at mistakes in a marital settlement agreement.

Mistake Divorce Agreements

Fast and Furious Divorce

In 2019, the wife filed for divorce. In their in pretrial stipulation, the parties agreed they would each keep their own cars and pay their respective car loans. However, their agreement was not specific as to what type of car each party owned and which care they would keep.

At their final hearing, the trial court entered a final judgment and incorporated their agreement. The husband kept the 2010 Mercedes and the wife kept the 2005 Mercedes.

About a month after their divorce the wife asked the family judge to correct their final judgment, arguing, in part, that the 2010 Mercedes actually belonged to her, that they no longer owned the 2005 Mercedes, and that they actually owned a 2015 Mercedes. The Husband argued in response that the 2010 Mercedes was really his car, and that there was no error in the final judgment.

During the hearing on her motion, the wife told the judge the 2010 Mercedes is titled in her name, it was her Mother’s Day gift for herself, and they intended for her to keep the care when they signed the agreement.

The husband argued that they purchased the 2010 Mercedes after being in a car accident with their previous vehicle. The couple alternated which vehicle they drove based on their needs. Before their divorce, the husband testified that it was always his understanding that he would keep the 2010 Mercedes when entering into the agreement.

Following this hearing, the court found a mutual mistake in the agreement and final judgment should be set aside. The trial court entered a Consent Order Equitably Distributing Vehicles giving the wife a one-half interest in the 2010 Mercedes and sole possession of the 2015 Mercedes. The husband appealed.

Florida Setting Aside Final Judgments

After a final judgment is entered in a divorce, courts are limited in granting relief, but not entirely. For example, a court can relieve a person from a final judgment because of things like, mistake, inadvertence, surprise, or excusable neglect, newly discovered evidence, fraud and the like.

Motions seeking relief from a judgment usually must be filed within a reasonable time, and usually not more than 1 year after the judgment. However, there is no time limit in Florida if the motion for relief is based on a fraudulent financial affidavit in marital or paternity case.

Fate of the Furious

On appeal, the husband argued that, at most, there was a unilateral mistake on behalf of the wife, which is insufficient grounds to set aside the final judgment.

The appellate court agreed. A marital settlement agreement may be set aside when it is entered into as a result of mutual mistake. However, a mutual mistake occurs when the parties agree to one thing and then, due to either a scrivener’s error or inadvertence, express something different in the written instrument.

But if the mistake is due to your own negligence and lack of foresight and there is absence of fraud or imposition, equity will not relieve you.

In this case, the parties’ agreement provided that “each party shall keep their own vehicle. However, there was no evidence regarding the vehicles at the final hearing, and the motion for relief filed afterwards only showed that the parties’ testimonies contradicted each other. The order was reversed and the original agreement and its disposition of the cars was reinstated.

The appellate decision is here.

Florida’s New Safe Exchange Locations Law

A new law amending Florida parenting plans this month deals with the concept of a ‘safe exchange location’. Every child custody and timesharing case must have a court approved parenting plan in which parents share decision-making and physical custody of their children. In some timesharing cases, the places parents do their pickups and drop-offs can be a problem. Family lawyers in Florida will be interested in the new changes to parenting plans.

Safe Exchange

Cassie Carli Law

Florida parenting plans not only govern the relationship between parents relating to decision making, but must contain a timesharing schedule for the parents and the children. Ideally, a parenting plan should attempt to address all issues concerning the minor child like the child’s education, health care, and physical, social, and emotional well-being.

But a frequent problem has been the place where exchanges of the child for timesharing takes place. Timesharing exchanges commonly occur in either parent’s homes, or well-lit parking lots of popular establishments, rest stops at the midway point between both parents, the child’s school, or a common landmark such as a specific coffee shop. There is really no limit to the location parents can agree to for the timesharing exchange.

However, when the parents have a contentious relationship, it is generally preferable that the exchange be made in a public, well-lit location with security cameras and high foot traffic by other people. Usually, parents are able to agree on a change in exchange location and deviate from the location prescribed in the parenting plan as needed.

Some sheriff and police departments allow parents to use their lobbies as an exchange location, but there is no standard process or procedure for all locations and many disapproved of the process.

The new law is often called  the “Cassie Carli law.’ The law was named for Cassie Carli, who was a 37-year-old mother from Navarre, Florida. Cassie went missing after a custody exchange with her ex-boyfriend. Days after she went missing, Cassie was found buried in Alabama.

Under the new law effective this month, every sheriff in Florida must:

  • designate at least one parking lot as a neutral safe exchange location for use by parents of a common child and
  • identify minimum requirements that each designated safe exchange location must satisfy, including a purple light or signage in the parking lot and a camera surveillance system.

Starting this July, family courts in Florida can order that exchanges of a child be conducted at a neutral safe exchange location if there is a risk or an imminent threat of harm to one of the parents or the child during the exchange.

The bill amends the domestic violence statute to allow the petitioner to request that the court require timesharing exchanges to be conducted at a safe exchange location, and to authorize or require the court to order the use of a neutral exchange location in an ex parte order for a temporary injunction under certain circumstances.

The bill also amends the law to provide that a parenting plan must generally designate authorized locations for the exchange of the child and may be required to take place at a neutral safe exchange location if there is a risk or an imminent threat of harm to one of the parents or the child during the exchange; the court finds such a requirement necessary to ensure the safety of a parent or the child; and such a requirement is in the best interest of the child.

Florida’s new designated safe exchange locations are not always staffed but are considered a secure environment because of the video surveillance and proximity to law enforcement. Police suggest that if anything occurs during the exchange to call 911 immediately.

The bill became effective July 1, 2024.

Big Update to Florida’s Property Division Law

There have been big updates to Florida’s property division law after Governor Ron DeSantis signed an important House Bill this month. Many divorce lawyers will be interested in the changes to the equitable distribution statute this bill makes and it can impact your divorce right now.

Property Division Law

Dividing up property in divorce

In every divorce case, courts have to equitably distribute of assets and liabilities between the parties. In order to do that, the court first has to evaluate what assets and liabilities exist, then determine which are “marital” and which are “non-marital.” A new law makes some interesting changes to what are marital and non-marital assets, and how to distribute them.

Marital assets include things like, any assets and debts acquired during the marriage, the enhancement of value and appreciation of non-marital assets due to the efforts of either spouse or the contribution of marital funds or other marital assets; interspousal gifts during the marriage; retirement, pension, profit-sharing, and other similar funds during the marriage

A court always starts with the premise that a distribution of marital assets and liabilities should be equal, unless there is justification for an unequal distribution based on certain factors.

The new bill tries to clarify different aspects of the equitable distribution process. For example, the bill clarifies what sort of circumstances justify an temporary partial distribution during a divorce, and even provides a list of factors for the court to use in making a determination on whether there is good cause to make a temporary partial distribution.

Can you give your house away as a gift?

Believe it or not, there were cases in Florida where spouses accidentally gifted non-marital homes to their spouse by Valentine’s Day card or birthdays cards not knowing they would be found to have the proper donative intent.

The new law now prohibits interspousal gifts of real estate unless there is written documentation that complies with the provisions for conveyance of real property under the statute governing deeds to property. The mere inference of a gift of real property will now not meet the threshold required for an interspousal gift unless there was written documentation for a conveyance.

The bill also makes it clear that when a spouse merely signs a deed for the sole purpose of conveying a homestead property – other than the other spouse or both spouses jointly – does not change the character of the real property.

Finally, the new law changes the definition of non-marital assets and liabilities so that real property acquired separately through non-interspousal gift, bequest, devise, or descent and in which legal title has not been transferred to both parties as tenants in the entireties, remains non-marital property.

How do you value the family business

Your small business can be a marital asset, and difficult to value. That’s  because of the concept of “goodwill.” Goodwill is that intangible value of your business above and beyond the value of its physical assets. Things like, your company’s brand, reputation, amount of loyal customers, employee relations, and proprietary technology are aspects of goodwill.

One kind of goodwill is called “enterprise goodwill”, the value that exists separate and apart from the reputation or continued presence of the spouse who owns the business. Enterprise goodwill is a marital asset equitably distributed in a divorce. On the other hand, “personal goodwill” is the goodwill attributable to the spouse, not to the business itself, and is not a marital asset. That begs the questions, what is and isn’t personal goodwill?

Under the new law, courts have to consider evidence that a non-compete clause or a similar restrictive covenant may be required upon the sale of the business. The law clarifies that the mere existence of a non-compete provision is not dispositive as to whether the goodwill is considered enterprise goodwill. So, even if the valuation of a business is based on the requirement for a non-compete contract, the court can still determine whether the goodwill is enterprise or personal and subject to equitable distribution.

The new law becomes effective July 1, 2024 and is available here.

Abducted Child Returned to Third Country

In an international custody case, can a court order an abducted child be returned to a third country that’s not the habitual residence if the habitual residence has become unsafe? This is a frequent problem under the Hague Convention, and one New York appeals court just answered the question.

International Custody

Два чоботи – пара

(“Two shoes make a pair”)

Tereshchenko and Karimi married in Odesa, Ukraine, in 2017. They are the parents of two children, one born in Ukraine and another born Florida. They divorced in 2018, and signed a custody agreement under which the children would reside with Karimi and Tereshchenko would “freely visit” with them and participate in their upbringing.

Then Russia invaded Ukraine in 2022. Karimi contacted Tereshchenko in Dubai by phone and asked for the passports so they could quickly leave Ukraine.

He agreed, but asked that they be brought to him in Dubai. Instead, she took the children to Poland, and ultimately to Manhattan. On January 8, the court found the children were “habitual residents” of Ukraine, and return to Ukraine did not pose a grave risk of harm.

The court ordered the return the children to Tereshchenko in France.

Hague Child Abduction Convention

I have written and spoken on international custody and child abduction under the Hague Convention. The Convention’s mission is basic: to return children to the State of their habitual residence to require any custody disputes to be resolved in that country, and to discourage parents from taking matters into their own hands by abducting or retaining a child.

The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

If an applicant can prove his prima facie case, the abducted children must be promptly returned to their habitual residence. But what if no one is left in the habitual residence?

Розставити всі крапки над “і”

(“Dotting your “i”)

The appeals court noted that both parents agreed to remove the children from Ukraine because of the Russian invasion. And both parents continue to recognize the dangers posed by returning the children to Ukraine.

Notwithstanding the grave risk of harm facing the children if returned to Ukraine, the court agreed a court could return a child temporarily in a third country. The ongoing war in Ukraine simply precluded entry of the ordinary Hague Convention order.

However, even if a court does return a child to a third country instead of the habitual residence, the return order must be tailored to secure the continued authority of the Ukrainian courts over the children and over the parents’ respective custody rights. Absent such tailoring, the order has the effect of an impermissible custody determination.

The Convention did not accept a proposal to the effect that the return of the child should always be to the State of its habitual residence before removal․ The Convention’s silence must be understood as allowing the return of a child directly to the applicant, regardless of the place of residence.

The opinion is available at the invaluable MK Family Law site.

Joint Custody in Japan

Many parents and divorce lawyers in Japan are celebrating a change in international child custody laws after the Japanese parliament passed a bill to introduce the concept of joint child custody for divorcing couples in Japan.

Joint Custody Japan

A Glow in Tokyo

In the first law change regarding parenting in 77 years, Japan’s Civil Code will permit divorced parents to choose either sole custody or joint custody. The bill marks a significant shifting in attitudes about gender roles and family in Japan. In Japan, women remain the primary caregivers in most households.

The change in joint custody law comes as the relationships in families across Japan diversify. There has been a rise in married couples divorcing, and increasingly both parents now want to play a role in raising children. Under the current system in Japan, foreign citizens who want to maintain ties with their children found it challenging if one of the parents relocated to Japan.

Florida Joint Custody

I have written about joint custody issues before. Child custody in Florida is broken down into two distinct components: parental responsibility (which is decision-making) and timesharing (physical custody and visitation rights). Both components must be incorporated into a “parenting plan.”

Florida historically did not have a presumption in favor of any specific timesharing schedule. In establishing timesharing, the court always considered the best interests of the child and evaluated all factors affecting the welfare and interests of the child and the circumstances of the family.

Since 2023, the Florida Legislature added a rebuttable presumption to the law that equal time-sharing of a minor child is in the best interests of the minor child. To rebut this presumption, a party must prove by a preponderance of the evidence that equal timesharing is not in the best interests of the minor child.

Know Before You Go to Kyoto

Under Japan’s revised Civil Code, parents will determine between themselves whether to opt for sole or joint custody. When there is a dispute, a family court judge will have to decide on the appropriate custody arrangements. In cases where domestic violence and abuse by one of the parents is suspected, the other parent will have sole custody.

Supporters of joint custody argue the new law allows both parents to take part in child-rearing, after a divorce. However, victims of domestic violence have voiced concern that a joint custody system could hinder them from severing ties with their abusers as it would maintain connections to their former spouses.

Some also fear such victims may not be able to negotiate single custody or joint custody on an equal footing. To address concerns, the bill was modified during parliamentary deliberations to add a clause that calls for considering measures to “confirm the true intention” of each parent, but critics argue the government measures to protect domestic violence victims are too vague.

Under joint custody, consensus between parents is not required in making decisions on day-to-day matters, such as what to feed children and whether to vaccinate them. Parents must reach consensus on important matters such as education and long-term medical treatment, but if they cannot do so in time in an urgent situation, one of the parents can decide on their own.

To avoid ambiguity in what would constitute an urgent situation, the government plans to provide clear examples. The revision also includes measures against unpaid child support that will oblige a parent to provide minimum payments even if no agreement is reached upon divorce.

Japan had been the only country among the Group of Seven industrialized nation with no joint custody system, causing it to receive criticism in parental abduction cases. In cases involving Japanese spouses who took children away from foreign partners after the failure of marriages, foreign parents had difficulty seeing their children in Japan.

In 2020, the European Parliament adopted a resolution urging Japan to improve its child custody rules, under which European parents in Japan have little recourse in the event of domestic child abduction by a Japanese spouse.

The Kyodo News article is here.

Right to Parenting and Gender Transition

Does the right to parenting to direct the moral or religious training of a child end when gender transition is at issue? In a recent family law case, that question was put to the test after a trial judge’s comments to the child led one father to try and disqualify the judge.

Gender Parent rights

Gender Transition and Parental Rights

The father is a Christian minister and youth pastor. He opposed, on moral and religious grounds, gender transitions for his minor child a biological male – before adulthood.

In 2016, the child was removed from the mother’s custody because of her substance abuse issues. The father was not an offending parent, and the child was not adjudicated dependent as to the father.

After a reunification with the mother, the child later ran away from the mother after the mother had relapsed. Importantly, the mother had given the child sex-reassignment hormones which she had bought on the internet without a lawful prescription.

The child then moved in with the father. However, the father refused to seek any sex-reassignment treatment, and opposed any form of gender transition before adulthood.

The Department of Children and Families (“DCF”) moved for an emergency modification of placement for the child, seeking to remove the child from the custody of both the mother and the nonoffending father.

The only grounds that DCF provided for why the child should be removed from the father’s custody was not allowing the child to live and dress as a female or pursue gender transition.

The trial judge removed the child from the custody of the father because the father: seemed to be unaware and unaccepting of the child’s current emotional situation and ensuing needs based on the father’s opposition to gender transition for the child before adulthood.

The father asked for the child to be returned to his custody on the grounds that it is unlawful to infringe on parental rights in the absence of any findings of actual or prospective abuse, abandonment, or neglect.

The day before the hearing, the trial judge interviewed the child in-camera. The trial judge referred to the child by female pseudonyms, as well as “sister” and “young lady.” The trial judge also told the child that she could order the child’s father to submit to “professional help,” as a way to change the father’s moral or religious beliefs. As a parting remark, the trial judge told the child, “Chin up, sister.”

The father moved to disqualify the trial judge. The trial judge promptly entered a written order denying the motion to disqualify as “legally insufficient.” The father then petitioned the appellate court to disqualify the trial judge.

Parental Rights v. Right to a New Judge

In Florida, a party in a lawsuit may move to disqualify a trial judge if “the party reasonably fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.

In Florida, children do not belong equally to parents and the state. Rather, their protection is first entrusted to the parents, extended family next, and then, if necessary, the state.

On appeal, the panel found the father had a right to rely on his moral or religious beliefs to direct his child’s upbringing. The father was also found to have a right to refuse to allow the child to further the child’s gender transition before adulthood under Florida law. Moreover, the father’s opposition to gender transition before adulthood is not prohibited by Florida law.

The trial judge’s pre-hearing remarks — referring to the child by female pseudonyms, telling the child “you are one smart, strong[,] [t]ogether, young lady,” and to “[c]hin up, sister”— implied a foregone conclusion, before hearing the father’s motion, that the trial judge was supportive of the child’s gender transition before adulthood and opposed to the father’s reliance upon his moral or religious beliefs to otherwise direct the child’s upbringing.

The trial judge’s in-camera interaction with the child went beyond mere attempts to establish a rapport with the child. The trial judge verbally expressed an inclination to order the father to submit to “professional help,” in an effort to change his moral or religious beliefs.

However, one judge on the panel dissented. While the dissenter had no quarrel with the father’s parental right to direct his child’s upbringing, or with Florida’s statutory protection of that right, the dissenting judge felt the trial judge was simply attempting to relate to the child on the child’s terms. To the dissent, the trial judge’s comments were completely appropriate.

The opinion is here.

New Article Hague Abduction Convention Not Your Typical Custody Case

My new article “The Hague Abduction Convention: Not Your Typical Custody Case”, discusses a problem frequently encountered by lawyers representing parents in international child custody disputes. The problem is parents treating their Hague Abduction Convention case as if it were any other custody case. The article is now available on the KidSide website.

Hague Court

Hague Abduction Convention

The Hague Abduction Convention is the primary mechanism to ensure the return of children who have been wrongfully removed or retained from their country of habitual residence. The two main purposes behind the Convention are to protect children from the harm of an international abduction and secure the left behind parent’s rights of access to their child.

However, many parents confuse the purposes of the Convention, mistakenly thinking their best defense rests on proving what a better parent they are. It comes as a surprise to many people to learn that the judge in a Convention case does not even have jurisdiction to hear their child custody dispute.

But before any defenses are even asserted, a parent seeking a child’s return must first prove their case. To prove a case under the Convention, a Petitioner must demonstrate where the habitual residence of the child was before the wrongful removal; that the removal breached custody rights; and at the time of the child’s removal those rights were actually exercised.

There are a limited number of available defenses under the Hague Abduction Convention, and those defenses are different from a typical child custody case. They are different because the purposes of the Convention are different. Given that courts in a Convention case cannot decide the merits of the custody dispute, typical arguments about the best interest of the child don’t have much traction, leaving a limited number of defenses.

KidSide

Child abduction cases under the Hague Convention have a negative impact on children. Add to that, the growing number of high-conflict court cases, like divorce and domestic violence. Because of the growing number of high-conflict cases, there is always a lack of support for kids caught in the legal system.

That’s where KidSide comes in.

KidSide is a 501(c)3 which supports the Family Court Services Unit of the Miami-Dade County, Florida courthouse – the largest judicial circuit in Florida. KidSide can use your support as it supports Family Court Services.

Together, they have been providing crucial services to children and families for more than 20 years. The Unit assists all judges and general magistrates with some of the Court’s most difficult family cases by providing solution-focused and brief therapeutic interventions.

KidSide helps the Family Court Services Unit provide services for families at no cost in the areas of alienation, child/family assistance, co-parenting, crisis assistance, marital reconciliation, parenting coordination, reunification, time-sharing, supervised visitation, and monitored exchanges.

They are staffed with dedicated professionals who are committed to helping families reduce their level of conflict and provide supportive services for the entire family system with particular sensitivity to children.

You can support KidSide by clicking here.

The Kidside article is here.