Child Custody and Trial by Combat

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While most issues in child custody cases are settled, those which are not are decided in a bench trial – a trial presided over by a judge. Family cases are not generally tried by jury. One man, however, asked for a seldom seen alternative resolution for his case: trial by combat.

Child custody trial

Child Custody but with Honor

The father, in a motion he filed in court, asked the presiding family judge to allow him to fight his former wife and her attorney in a duel, so he can “rend their souls” from their bodies.

The father also asked the court to give him 12 weeks “lead time” in order to buy or forge two Samurai swords. The father wanted help resolving his dispute of reasonable telephone and video communication with the children. The father also asked for money from his ex-wife to pay for property taxes of their former house.

“Trial by combat was still regarded as a legitimate method for dispute resolution when the Constitution was ratified by the United States and by the original 13 colonies. To this day, trial by combat has never been explicitly banned or restricted as a right in these United States.”

Court records in the case since the parties’ initial filing are filled with assertions by the father that his communication with the children is lacking when the children are with his ex-wife, who has primary physical care.

When asked, the father told the Des Moines Register that he got the idea after reading about a 2016 case in New York. Apparently, New York Supreme Court Justice, Philip G. Minardo, acknowledged in an order that, in theory, the court had the power to permit a trial by combat.

The New York Supreme Court considered the issue after a Staten Island lawyer asked the judge to authorize trial by combat. The request for trial by combat was sought to resolve a civil suit for damages. The movant felt trial by combat would clear the lawyer’s good name, after the lawyer was accused of helping a client fraudulently transfer assets.

Florida Child Custody

I’ve written about child custody before – especially about problems parents were having during the outbreak of the coronavirus pandemic. Unlike Iowa for example, Florida does not use the term “custody” anymore. Florida has the parenting plan concept. For purposes of establishing a parenting plan, the best interest of the child is the primary consideration.

In Florida, the best interests of the child are determined by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including the mental and physical health of the parents.

Some of those factors include the demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required, and of course, the mental and physical health of the parents. None of the statutory factors involve Samurai swords.

Till Death Do Us Part

In what can only be described as a shameful day for the entire legal profession, the ex-wife’s attorney chickened out:

“Although the respondent and potential combatant do have souls to be rended, they respectfully request that the court not order this done. We humbly request the court deny this motion, as the potentially life-ending ramifications surely outweigh the severity of the petitioner’s proposed legal remedy of trying to avoid responsibility for property taxes and to acquire additional telephonic communication.”

The family judge was not amused, temporarily suspended the father’s visitation, and ordered a psychological evaluation.

The evaluation determined he is not troubled, but has “adjustment disorder with mixed emotional features,” the father told he Des Moines Register. “It essentially says I’m not crazy, I just don’t like being denied access to my children,” he said.

The Des Moines Register article is here.

Divorce Planning and Residency

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As cold winds begin to blow, marriages start to feel the chill. Recent statistics show divorce rates rising by nearly 10 percent in some places. This means divorce planning. Your residency, the state where you file your divorce, can have a big impact on the outcome.

Divorce Residency

 

Florida Divorce and Taxes

The 2018 Tax Cuts and Jobs Act increased the tax incentives for people to move to Florida, both for older and younger taxpayers. One reason is because Florida is one of only a few U.S. states with no state income tax. Another reason is the dolphins.

New York, unlike Florida, has income tax rates exceeding eight percent. In New York, there is also an additional income tax levied within New York City. Similarly, California has a state income tax. The rates in California can reach up to 12.3 percent, in addition to a one percent mental health services tax applied to incomes exceeding $1m.

However, the tax implications aren’t the only impacts to consider when deciding to change your residency. Residency and domicile are the terms often used around the country in different states to describe the location of a person’s home, the place to which a person intends to return and remain, even if they reside elsewhere.

Because a lot of interest has developed in changing residence and domicile – primarily for the best tax savings – the question remains: do you qualify? States examine many factors to determine your permanent home.

The residency analysis can include how much time is spent in a state, where your car is registered, where you bank, what state you vote in, what you declare on your tax returns, and where your dentist or doctor is.

State and local tax laws differ from state to state, and they are enforced based on your place of residence. While there are major tax implications of changing your home, there are some important divorce issues to consider on top of the tax savings.

Florida Divorce and Residency

I have written about divorce planning in the past. In Florida, divorce is called “dissolution of marriage”. In order to file for dissolution of marriage in Florida, at least one of the spouses to the marriage must reside six months in the state before the filing of the petition.

Residency under Florida law usually means an actual presence in Florida coupled with an intention at that time to make Florida the residence.

In Florida, there is a difference between domicile and residence. A person’s domicile in Florida, involves the subjective intent of the person. Residence, on the other hand, is a matter of objective fact.

Although the state residency requirement has been construed to mean you must reside in Florida for the six months immediately preceding the divorce filing, courts have recognized exceptions. For example, Florida allows military and government personnel to file for divorce – without proving their actual presence in the state during the six-month statutory period – prior to the filing of their petitions of dissolution.

Under this exception, when a Florida resident is stationed outside the state by the military, the person did not lose their Florida residency, and could file for divorce – even though she had not been physically present in the state for the immediately preceding six-month period.

Moving to the Sunshine State

Before picking up and moving your residence or domicile to Florida to save on state income taxes, there are other things you may want to consider that can impact your legal rights and your savings.

For one, there’s a difference between equitable distribution states and community property states. The effect of moving from an equitable distribution state to a state with community property ownership, may have a huge impact on your property rights.

Many western states are community property states. In California, a community property state, marriage makes two people one legal “community.” Any property or debt acquired by one person during the marriage belongs to the community. In a divorce proceeding, community property is generally split equally by the court.

Conversely, Florida is an equitable distribution state.  In a divorce proceeding the court distributes the marital assets and liabilities with only the premise that the distribution should be equal. However, there may be a justification for an unequal distribution based on certain statutory factors.

The differences between states are not limited to property division. Each state has different local laws to deal with alimony, child support, child custody, and even prenuptial and postnuptial agreements.

Changing the state you live in can be complex, and there are factors besides the tax savings to consider before making any change.

The Crain’s Chicago article is here.

Child Custody and Transgender Identity

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A recent child custody case in Indiana tries to balance the parents’ constitutional rights to free speech and religion against a child’s transgender identity. The state of Indiana removed a child from the parents over how the parents dealt with their child’s transgender identity. Then, the Court of Appeals of Indiana was asked to weigh in.

Custody Transgender Identity

Custody in the Crossroads of America

The case started in May 2021, when the Department of Child Services (“DCS”) received a report alleging that the mother was verbally and emotionally abusing her 16-year-old child by using rude and demeaning language regarding the teen’s transgender identity. As a result, the teenager had thoughts of self-harm.

Ten days later, DCS received a second report alleging both parents were involved in being verbally and emotionally abusive because they do not accept their child’s transgender identity — and the abuse was getting worse.

A case manager investigated, and reported the child had been suffering from an eating disorder. The other findings included that the parents had withdrawn the child from school and DCS was unaware of the intent to enroll the child in a new school; they had discontinued the child’s therapy; the child did not feel mentally and/or emotionally safe , and would be more likely to have thoughts of self-harm and suicide if returned.

DCS filed a petition alleging the child’s physical or mental condition was seriously impaired or seriously endangered due to the parents’ neglect and/or the child’s physical or mental health was seriously endangered due to injury by the parents’ acts or omissions.

The juvenile court issued an order finding that it was in the child’s best interest to be removed from the home due to the parents’ “inability, refusal or neglect to provide shelter, care, and/or supervision at the present time.”

At the close of a subsequent hearing, the court informed the parties that it would leave in place its earlier order prohibiting the parents from discussing the child’s transgender identity during visitation, found the child needed services and therapy, in which the parents were ordered to participate and ordered that the child would remain in the current home or placement with DCS supervision.

The parents appealed, claiming the order was clearly erroneous, violated their constitutional rights to the care, custody and control of their child, and violated their rights to the free exercise of religion and freedom of speech.

Florida Child Custody

I’ve written about child custody and issues involving the constitution before, primarily between the parents. The case in Indiana however, is not between the child’s parents, but between the parents and the State of Indiana.

Other cases can involve disputes between parents over how to handle the social gender transition of a child. In Florida shared parental responsibility is the preferred relationship between parents. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

Issues relating to a child’s health are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court. At the trial, the test applied is the best interests of the child.

Determining the best interests of a child is based on an evaluation of statutory factors, and one equitable catch-all factor, affecting the welfare and interests of the child and the circumstances of the child’s family.

The statute authorizes one parent to have ultimate responsibility for certain decisions. For example, health care is an area of ultimate responsibility a court can award. When a decision on health goes to trial, the court grants one parent ultimate responsibility to make that decision.

Hoosiers or Abusers?

The Court of Appeals rejected the parents’ religious freedom arguments. The Father testified that the parents were not allowed to affirm their child’s transgender identity, or use their child’s preferred pronouns, based on their sincerely held religious beliefs.

But the appellate court found that the order was based on the child’s medical and psychological needs, not on the parents’ disagreement with the child’s transgender identity. Put differently, the child’s removal was not based on the fact the parents didn’t accept the child’s transgender identity, and their future reunification was not contingent on the parents violating their religious beliefs or being forced to affirm the child’s transgender identity.

Accordingly, the order did not impose a substantial burden on their free exercise of religion. Moreover, the appellate panel found that protecting the child’s health and welfare was a compelling interest justifying state action that is contrary to the parents’ religious beliefs.

The Court of Appeals also rejected the parents’ freedom of speech arguments. The trial court recognized that the child’s eating disorder and self-isolation were connected to the discord at home about the child’s transgender identity.

Accordingly, the trial court’s limitation on the parents from discussing the topic directly targets the State’s compelling interest in addressing the child’s eating disorder and psychological health, as opposed to the content of the parents’ speech itself.

The order was found to be narrowly tailored because it restricted the parents from discussing the topic with the child only during visitation. However, the order permitted the topic to be discussed in family therapy.

Limiting the parents to only discussing the issue in family therapy was seen to allow the family to work on conflict management, so that they will eventually be able to safely talk about it outside of therapy. Accordingly, the order restricting conversation of this topic outside of family therapy was a permissible prior restraint.

The Court of Appeals of Indiana opinion is here.

Presumption of Paternity is Big in Japan

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In family law, the presumption of paternity is one of the strongest in Florida. Japan is about to change its 19th-century law about the paternity. The change in the law of paternity for children born after divorce will help Japanese children facing difficulties getting healthcare and education.

Paternity Japan

Spirited Away

Under a Japanese 1898 Civil Code that’s still in force, a child born to a woman within 300 days of divorce is considered to be that of her former husband, even if she has remarried.

Many women opt not to register their children rather than comply with the regulation, especially in cases of domestic abuse. The country’s practice of registering its citizens under household units has hampered attempts by campaigners to gain the right for married couples to retain separate names, as well as to introduce same-sex marriage.

Japan consistently lags other developed countries in terms of gender equality. It was ranked 116th out of 146 countries in the annual Global Gender Gap Report released by the World Economic Forum in July.

Japan is also one of 32 countries that maintain discriminatory restrictions on remarriage for women after divorce, according to the Organization for Economic Co-operation and Development.

According to a lawyer who succeeded in getting the remarriage ban for women shortened to 100 days from six months in a 2015 Supreme Court ruling, the amendment also indicates a belated shift toward prioritizing the rights of children.

Japan’s Cabinet approved draft legislation Friday to scrap a rule that has prevented the new husband of a woman who has remarried from assuming paternity over a child born within some 10 months of the woman’s divorce from her previous partner.

Florida Paternity Presumption

I have written about Florida family law matters, including paternity changes, before. In Florida, the law presumes that the husband of the biological mother of a child is the child’s legal father. This presumption is one of the strongest rebuttable presumptions known to law, and is based on the child’s interest in legitimacy and the public policy of protecting the welfare of the child.

Because of the strength of this presumption in Florida, many courts have held that a person claiming to be a “putative” father does not have the right to seek to establish paternity of a child who was born into an intact marriage if the married woman and her husband object.

In some courts, the presumption of legitimacy of a child is so strong, it may never be rebutted. The Florida Supreme Court, however, has reaffirmed that the presumption of legitimacy afforded to a child born within an intact marriage is exactly that: a presumption. And the presumption of legitimacy may be rebutted in certain, rare circumstances.

Big in Japan

The change in the law of Japan is aimed at addressing a problem in which some children of divorced women have been left off family registers to avoid former husbands being recognized as fathers. This has resulted in difficulties in children accessing health, education, and other services.

Under what would be the first change to the century-old Civil Code provisions regarding paternity and marriage, a rule banning women from remarrying within 100 days of a divorce, long considered discriminatory, is also set to be scrapped.

A Justice Ministry survey found about 70 percent of 793 individuals not included in family registers as of August this year had mothers who did not submit birth notifications because of the current legal paternity rule.

Many women, in addition to those who have fled from domestic violence, have opted not to submit notifications of the birth of their child with their current partners in order to avoid having their former husbands recognized as the legal father.

The Cabinet of Prime Minister Fumio Kishida also gave the nod to giving mothers and children the right to file for court arbitration with regard to paternity disputes. At present, former husbands can deny paternity over children born within 300 days of a divorce.

The period for filing for arbitration will be set at within three years of knowledge about a birth. Under the current arbitration system, which has been limited to former husbands seeking to deny paternity, the period was set at one year.

The revisions also include deleting the parental right to punish children, while clearly stating that physical punishment and verbal and physical actions that harm a child’s healthy development are not permissible.

Registration and paternity rules are particularly important in Japan, where birth out of wedlock is rare and widely frowned-upon. About 2% of children are born to unmarried parents, while the average across OECD countries is 41%.

The Japan Times article is here.

The Hague Convention Meets the Best Interest Test

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The United Nations Committee on the Rights of the Child determined that the Supreme Court of Chile violated the rights of a child after ordering the child returned to his habitual residence of Spain without applying the best interest test.

Hague Convention Best Interest Test

Answering An Andes Abduction

The Mother is a national of Chile. In 2015, she married the Father, a national of Spain. In January 2016, her son J.M., a dual Spanish Chilean citizen, was born in Chile. The Mother and her son left Chile to live with the Father in Spain in November 2016.

When J.M. was a little over a year old and living in Spain with both parents, medical professionals suspected he had a language delay and a form of autism.

Shortly after this spectrum diagnosis, the mother wanted to bring J.M. to Chile where she had arranged his treatment and support plan. The mother wanted to stay in Chile for at least two years.

In July 2017, the father signed an authorization for the mother to travel with J.M. to Chile, where the mother scheduled treatments and support for autism. They decided to stay in the country for at least two years. and had the father’s written approval to travel.

In 2018, one year after authorizing the travel, the father filed a complaint with the Central Authority in Spain, the Ministry of Justice, for wrongful abduction and/or retention of J.M. under the Hague Convention on the Civil Aspects of International Child Abduction.

In January 2019, two lower courts in Chile agreed with the Mother and rejected the father’s return petition. The courts rejected the father’s claim on the grounds that he had given the tacit, even explicit, consent to remain in Chile, which has been the child’s place of habitual residence since birth.

In September 2019, the Supreme Court of Chile overturned the lower courts’ decisions and ordered the child returned to Spain. The Supreme Court did not indicate the conditions under which J.M.’s return should take place, in whose company he should travel, or where and with whom he would ultimately reside and in what circumstances.

The Mother filed a complaint before the United Nations Committee on the Rights of the Child  in 2020.

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.

While there are several defenses to a return of a child, the best interest of the child is not one of those defenses. That’s because the Hague Convention prioritizes expeditious determinations as being in the best interests of the child.

UN-Heard Of

The U.N. Committee held that the Chile Supreme Court’s order for the restitution of J.M. to Spain failed to conduct a best interests assessment required in all actions concerning children, and violated the child’s procedural guarantees under the Convention on the Rights of the Child.

The Committee noted that, under the Hague Convention, decisions on the return of children must be taken promptly to ensure that the child’s normal situation is duly restored. However, the Committee considered that the purpose and objective of the Hague Convention does not entail that a return of the child should be automatically ordered.

The Committee held that in international child abduction cases, states must first assess the factors that may constitute an exception to the duty to immediately return the child under articles 12, 13 and 20 of the Hague Convention, and then secondly, these factors must be evaluated in the light of the best interests of the child.

The Committee did not find that the child should necessarily remain in Chile. Instead, it found that the Supreme Court of Chile failed to apply the necessary procedural safeguards to ensure that return would not expose the child to harm or a situation contrary to his best interests:

A court applying the Hague Convention cannot be required to carry out the same level of examination of the best interests of the child as the courts called upon to decide on custody, visitation arrangements or other related issues . . . the judge ruling on the return must assess . . . the extent to which the return would expose him or her to physical or psychological harm or otherwise be clearly against his or her best interests.

The U.N. Committee ruled that Chile should re-assess the return petition, take into account the length of time elapsed, the extent of J.M.’s integration in Chile, and pay reparations for the violations suffered, including compensation.

The Committee also ruled that Chile should try a little harder to prevent future violations by ensuring the best interests of the child are a primary consideration in decisions concerning international return.

The U.N. Committee on the Rights of the Child press release is here.

Enforceability of Islamic Prenuptial Agreement

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The Texas Supreme Court recently had to decide whether an Islamic prenuptial agreement is enforceable. Especially interesting is whether the agreement’s, Arbitration by Fiqh Panel Clause, can be enforced in a family law case involving children.

Texas Islamic Agreement

‘All My Exes Live In Texas’

The Wife, Ayad, and her Husband, Latif married in 2008. In connection with their marriage, they signed an “Islamic Pre-Nuptial Agreement”.

In the Islamic Pre-Nuptial Agreement, they said: “Belief that Islam . . . is binding on them in all spheres of life, and that any conflict which may arise between the husband and the wife will be resolved according to the Qur’an, Sunnah, and Islamic Law in a Muslim court, or in its absence by a Fiqh Panel.”

The three-person Figh Panel will be selected and provides that the panel “will not represent the parties in conflict, but rather, serve as impartial arbitrators and judges, guided by Islamic Law and its principles.” The majority decision of the Fiqh Panel will be binding and final.

Although the Wife’s signature appears on the Islamic Pre-Nuptial Agreement, she alleges that she did not become aware of its contents—or even see it—until she and her husband began experiencing marital difficulties in 2020.

The Wife argues she was “defrauded” into signing a prenup that violated her fundamental rights. In January 2021, she filed for divorce and sought to be appointed joint managing conservator of the couple’s six-year-old son.

Wife argued the term “Islamic Law” was too indefinite; the Agreement was void because it violated public policy; Husband’s previous breaches of the Agreement had excused Ayad from performing; and the Agreement was unconscionable.

The trial court held a hearing on Husband’s motion to enforce, and concluded it would order the parties to arbitrate under the Agreement. The court held a second hearing in which it gave each party twenty minutes to address solely whether the Agreement was entered into voluntarily.

The trial court ruled it had no discretion under the Texas General Arbitration Act but to enforce the Agreement and refer the parties to arbitration per the terms of their Agreement, but would review the award to determine if it violated constitutional rights or public policy, and would hold a hearing to determine whether the award was in the best interest of the child.

The Wife sought review in the Supreme Court of Texas.

Florida and Islamic Prenuptial Agreements

I’ve written about religious prenuptial agreements, such as the Mahr (Islamic Prenuptial Agreement) before. Prenuptial agreements are not just for celebrities. Anyone who brings personal or business assets into their marriage can benefit from a prenuptial agreement.

Prenups are also important to have in place before a couple starts investing in businesses, buying properties, and accumulating mountains of debt. Many religions, especially Islam, have terms couples want to be governed by in the event of divorce.

But just having a prenup is not enough. Prenups are frequently challenged in court. Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable.

Florida also adopted the Uniform Premarital Agreement Act. The UPAA requires that all premarital agreements be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.

Because prenuptial agreements may be challenged in court, Florida courts must consider things such as fraud, duress, coercion, in addition to the constitutionality of prenups, whether they violate Florida law or Florida public policy.

‘Deep in the Heart of Texas’

The Supreme Court of Texas agreed with the Wife that the family court was required to hear and determine her challenges to the Agreement’s validity and enforceability before referring the parties to arbitration.

The Family Code, which provides that a trial court “may” refer suits for dissolution of marriage to either binding or nonbinding arbitration based on the parties’ written agreement is subject to certain limits.

Before arbitration, if a party to a divorce asserts that the agreement to arbitrate is not valid or enforceable,” then the court may order arbitration only if it determines that the agreement is valid and enforceable.

Here, the court incorrectly concluded it “must refer parties to arbitration when it is contracted by the parties,” and that it had “no discretion but to enforce the Agreement.” Since the trial court did not resolve the Wife’s challenges in its order compelling arbitration, and incorrectly concluded it could not, the trial court erred.

The Texas Supreme Court opinion is here.

Hurricane Ian

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As we prepare for the arrival of Hurricane Ian, you are advised that our law office, all Miami-Dade County clerk offices, and all Miami-Dade County courthouses will be closed on Wednesday, September 28th and Thursday, September 29th. We will be working remotely to help address all of your family law concerns. Reach out to us by phone or email. We’re prepared to support you.

Hurricane Ian

Stay safe. For information regarding Hurricane Ian click here.

Equitable Distribution of Boudoir Photos in Divorce

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How a family court decides the equitable distribution of boudoir photos, complete with intimate inscriptions and nude photographs, is never easy. A Utah family court recently ordered a woman to hand over her most intimate photographs to her ex-husband and a third-party photographer he chose.

Equitable distribution Boudoir

‘Utah: Life Elevated’

A former wife was married for 25 years and together for 27. As expected, the process of splitting their assets would be complex in a long marriage. The issue became so complex, negotiations failed and a one-day bench trial had to be held.

After the trial, the family judge ordered the former wife to surrender her most intimate photographs of herself to a third-party photographer for editing, and then ordered that the edited photos be given to her ex-husband for his viewing pleasure.

“You don’t know where to turn because you don’t know the law and you have not only your ex-husband who you were married to for years (thinking) that forcing you to distribute basically porn is OK … you have his attorney that also thinks that’s OK. And then you bring it in front of a judge, and he thinks it’s OK.”

The family court’s finding of facts dated July 7th — the day the divorce was finalized — found that the nude photos were given as gifts to the former husband earlier in their marriage, and therefore he “has the right to retain them and the memories they provide.”

The court also found the former wife has a right for her intimate photos to not be in her ex-husband’s possession. So how did the family judge decide the steamy issue? The judge ordered her to turn the images over to the original photographer for editing.

That person is then to do whatever it takes to modify the pages of the pictures so that any photographs of the former wife in lingerie or that sort of thing or even without clothing are obscured and taken out, but the (photo inscriptions) are maintained for the memory’s sake.

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.

However, 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.

In Florida, nonmarital assets which are not divided include things such as assets acquired before the marriage; assets you acquired separately by non-interspousal gift, and assets excluded as marital in a valid written agreement.

Conversely, marital assets which are subject to division, generally include things like assets and liabilities acquired during the marriage, the enhancement in value of some nonmarital assets – and for anyone giving their spouse a gift of sensual boudoir photographs – interspousal gifts during the marriage.

Wisdom of Solomon

Despite the ruling, the original photographer refused to edit the images over a concern about ethics and legal repercussions to her photography business. Being a boudoir photographer, her clients trust her with their images and privacy, and the photographer took that responsibility seriously.

The judge then made a second ruling, and ordered the former wife to give the images to a different photographer for editing. She was also ordered to retain the original photos for 90-days before destroying them, in case her ex-husband wasn’t satisfied with the edits.

The former wife said her ex-husband isn’t happy with the edited photos, though she feels that she has complied with the court’s order, and she feels that her ex-husband’s demand for the photos was an attempt to control and hurt her.

“If all he was truly interested in was the inscriptions, he got those. I’ve complied with the court’s order, even though I believe strongly that (the) order (is) violating on many levels and has affected my emotional and mental health. I can’t imagine doing this to someone else.”

The ex-husband said his former wife’s description of the situation is her perspective. This is not my perspective nor the perspective of an impartial judge. It appears that she has intentionally misrepresented and sensationalized several aspects of a fair proceeding to manipulate the opinions of others for attention and validation of victimhood.

One attorney was quoted as saying equitable distribution in a divorce always involves a balancing of interests but the judge here has just made a mistake in the balancing of interests and has tipped things much too far in one direction.

The Salt Lake Tribune article is here.

International Child Abduction Action Report

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Every year international child abduction cases are reported to the Congress by the U.S. Department of State. These annual Action Reports show Congress the actions taken against countries determined to have been engaged in a pattern of noncompliance. So, which countries in our hemisphere were noncompliant?

International Abduction Action Report

2022 Action Report

Under the Hague Convention, the State Department is tasked as our Central Authority. The Central Authority facilitates implementation and operation of the Hague Convention on child abduction in the U.S.

After passage of the Sean and David Goldman International Child Abduction Prevention and Return Act, the State Department was later assigned the duty of submitting annual Action Reports on International Child Abduction to Congress on the specific actions taken in response to countries determined to have been engaged in a pattern of noncompliance.

The 2022 Annual Report is an overview of the Department’s efforts to support the resolution of international parental child abduction cases.

The Department also reports on their work with foreign governments and authorities to promote procedures to encourage the prompt resolution of existing international abduction cases. The aim is that, in general, international custody disputes should be resolved in the competent court of the country of the child’s habitual residence.

Countries which don’t meet their Convention obligations, or fail to work with the U.S. to resolve child abduction cases, can face “appropriate actions.”

Florida International Child Abduction

I’ve written and spoken about international child abduction cases under the Hague Convention before. The Hague Convention seeks to deter child abductions by a parent by eliminating their primary motivation for doing so: to “deprive the abduction parent’s actions of any practical or juridical consequences.”

The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, 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.

The Hague Convention is implemented in the United States through the International Child Abduction Remedies Act. Then in 2014, the International Child Abduction Prevention and Return Act was signed into law.

Even if a country is a signatory country and treaty partners with the U.S., returning a wrongfully retained or abducted child may still be complicated because some signatory countries are not complying with the Convention. That is where the State Department’s Action Report comes in.

ICAPRA increases the State Department’s annual reporting requirements. Each year, the Department not only submits an Annual Report on International Child Abduction to Congress, it submits another report on the actions taken towards countries determined to have been engaged in a pattern of noncompliance.

A Carnival of Noncompliance

The State Department Action Report includes both countries where there is a treaty relationship with the United States under the 1980 Hague Child Abduction Convention, and countries where no treaty relationship exists.

The 2022 Action Report reviews the results of cases which were resolved the previous year. Some of the countries in our hemisphere which failed to regularly implement and comply with the Hague Convention include Argentina, Belize, Costa Rica, Ecuador, Honduras, Peru, Trinidad and Tobago, and Brazil.

Brazil has had the Convention in force with the U.S. since 2003. Brazil has also demonstrated a pattern of noncompliance for years. Complaints have criticized its judicial authorities for failing to regularly implement and comply with the Convention, and failing to take appropriate steps to locate children in abduction cases. Brazil has previously been cited for a pattern of noncompliance since 2006.

Brazil is also the country where David Goldman had to fight for his son Sean to be returned to the United States after his wrongful retention by his mother. Sean was only returned to the U.S. after 5 years. The Goldman’s bitter experience in Brazil led to the passage of the ICAPRA.

However, the country of Brazil is not entirely on siesta. Among other steps, Brazil increased its number of Hague Network Judges, published a manual for judges hearing Convention cases, and resolved eight U.S. cases on file – including the return of six children to the United States.

ICAPRA also adds steps the U.S. can take when a country refuses to cooperate in the resolution of overseas abduction and access cases involving American children. The steps can include: a demarche (a petition or protest through diplomatic channels); public condemnation; delay or cancelation of official, or state visits; suspension of U.S. development assistance; and even the withdrawal or suspension of U.S. security assistance.

The 2022 Action Report is available here.

Divorce Rates in the Arab World

Posted by Ron Kauffman on with 0 Comment

The increase in international divorce rates, due in part to changes in the nature of family and family life, can be seen thoughout the Arab world. Lebanon, in particular, is reporting a marked jump in divorces as more statistics become available.

Arab Divorce Rates

As the Simoom Blows

The Arab world is not insulated from the profound socio-economic changes around the world, and this is evident from the rise in the number of couples choosing to separate in several Middle Eastern and North African countries.

A recent study by the Egyptian Cabinet’s Information and Decision Support Center found that Kuwait, Egypt, Jordan and Qatar are the Arab countries with the highest divorce rates.

In Kuwait, 48 percent of all marriages end in divorce, 40 percent in Egypt, 37.2 percent in Jordan, 37 percent in Qatar, and 34 percent in both the UAE and Lebanon.

Sheikh Wassim Yousef Al-Falah, a Shariah judge at Beirut’s religious court, told Arab News recently:

“On some days, we have up to 16 divorce cases in this court alone. The increasing divorce rate is a phenomenon that we have not seen before, although we do not favor divorce and focus on reconciliation.”

Experts believe this trend has been driven by a combination of economic pressures, evolving societal norms, legal reforms and, above all, the changing role of women.

Florida Divorce

I’ve written international divorce rates before. In the United States, many complained that no-fault divorce led to an increase in divorce rates here. Historically in Florida, in order to obtain a divorce one had to prove the existence of legal grounds such as adultery.

Proving fault often required additional expenses on behalf of the aggrieved party, only serving to make the divorce process more expensive and cumbersome than it already was.

In the years leading up to the enactment of “no-fault” divorce, courts often granted divorces on bases that were easier to prove, the most common being “mental cruelty.”

Over time, the “no-fault” movement expanded to other states, although interestingly it only reached the typically progressive state of New York in 2010. Whether or not it is intimacy or communication, you do not need to list a reason for a divorce other than an irretrievable break in the marriage.

Like the Cedars of Lebanon

Through much of history, especially among the more conservative cultures of the Arab world, a woman’s place was long considered to be in the home, handling the needs of the family, while male relatives studied and went to work.

Now, as Arab nations modernize their economies and reform their legal systems, women are becoming more independent, increasingly pursuing higher education, progressing in their careers, and choosing to marry and have children later in life.

As a result, Arab women have developed a keener awareness of their civil rights, personal ambitions and self-respect. They increasingly refuse to tolerate domestic violence and are capable of supporting themselves financially.

“The current statistics compiled by the religious courts that handle the personal status of Lebanese citizens and foreigners residing in Lebanon reflect an increase in divorce requests, especially those submitted by women.”

In Lebanon, where a large segment of the population has moved abroad to find jobs with better salaries, the difficulty of maintaining a long-distance relationship also appears to play a part in marriage breakdown.

Reforms to the legal status of women in Lebanon have drawn particular attention in recent years, with the introduction of a slew of legislation designed to protect them from sexual harassment and domestic abuse. However, human rights monitors say the reforms do not go far enough.

Lebanon’s 2019 financial collapse and the effects of the COVID-19 pandemic appear to have piled further pressure on relationships as living standards plummeted, people lost their jobs and households were forced into long periods of constant close proximity under lockdown.

Several countries around the world reported spikes in domestic violence during the pandemic and Lebanon is no exception. The nation’s economic woes and disruption to court procedures during the health crisis appear to be making matters worse.

The figures for divorce in Lebanon might be somewhat skewed by the growing use of marriage as a means of gaining citizenship in another country, as waves of young people move abroad in search of better opportunities.

In Lebanon, where a large segment of the population has moved abroad to find jobs with better salaries, the difficulty of maintaining a long-distance relationships also appears to play a part in marriage breakdown.

Lebanese citizens will often move between sects to facilitate a divorce. Couples from the Maronite sect, for instance, the courts of which forbid the annulment of marriage in all but the most extreme circumstances, might turn instead to the Catholic or Orthodox sects, which allow the annulment of marriages.

They might even turn to the Sunni sect to access divorce procedures before converting back to their original sect. According to Shariah, divorce — known as khula — has been permitted since the time of Prophet Muhammad.

Obtaining a divorce in a Sunni religious court is considered easier than in a Shiite religious court, after these courts developed new rules that raised the age for child custody, amended the dowry and banned underage marriage.

Family values are cherished in Arab culture, and authorities — both religious and secular — tend to prefer that parents stay together for the sake of their children. Experts believe marriage counseling, better education for young couples, more open discussions about relationships, and even a relaxation of the social taboos surrounding premarital social interaction between men and women could help reduce overall divorce rates.

The Arab News article is here.