Category: International Child Custody

International Child Abduction Action Report

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.

Hague Convention, Domestic Violence, and Rights of Custody

Questions arise about a parent’s right of custody in every international custody case, especially Hague Convention child abduction cases. A Colorado district court recently had to make the tough call whether a parent lost his rights of custody after a domestic violence injunction was put in place against him.

Hague Rights of Custody

Rocky Mountain High

In February 2015, an Australian citizen and a United States citizen married in Las Vegas. They lived in the U.S. for the next two years before traveling to Australia with their three-month-old son – who was born in Australia. They lived a nomadic lifestyle, taking numerous trips, moving frequently between rental properties, staying occasionally with family and friends, and camping in a trailer and tent.

In April 2021, while staying at an Airbnb, the parents had an argument which resulted in the Father being escorted to the police station. By the time he returned to the Airbnb, the Mother had left. The Mother had also obtained a temporary protection order against the father based on allegations of domestic violence.

The domestic violence protection order provided the Father:

must not approach to within 100 metres of where [Mother or the children] live[ ], work[ ] or frequent[ ]—except for the purposes of having contact with children but only as set out in writing between the parties or in compliance with an order under the Family Law Act or when contact with a child is authorised by a representative of the Department of Communities (Child Safety).

The order also provides that Father “must not contact or attempt to contact or arrange for someone else (other than a lawyer) to contact” Respondent or the children . . . and “must not follow or remain or approach to within 100 metres” of Mother or the children. The order was subsequently made permanent for a period of five years.

In May 2021, the Mother and the children came to the United States, and they have lived in Colorado ever since. The Father filed an action seeking return of the children under the Hague Convention and in breach of his custody rights under Australian law.

International Child Custody and the Hague 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 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.

Rights of custody can arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.

Slippery Slope

The Colorado judge found that the Father failed to show what custody rights, if any, he retained under the Australian Family Law Act. After the domestic violence injunction was made permanent for five years, the Father had the burden to prove what his rights of custody were after the injunction — a prerequisite to establishing that his children’s removal was in breach of his rights of custody.

The Father gave no evidence or testimony on the matter and the Court did not want to assume what remaining rights he had after the order and whether they were substantial enough that  removal of the children breached his rights.

Not every court has held that the entry of a domestic violence injunction meant the loss of rights of custody under the Hague Convention. In a Maryland case, a court found that a domestic violence injunction was aimed at protecting the safety of the Mother, rather than rescinding parental rights of the Father. Accordingly, the domestic violence injunction was not found to be the equivalent of an order rescinding parental rights.

The case is available here.

New Hague Child Abduction Case

The U.S. Supreme Court issued a new opinion, its fifth, in a case involving the Hague Convention on the Civil Aspects of International Child Abduction. In settling the circuit court conflict, the Supreme Court addressed the undertakings requirement in grave risk cases.

Hague Convention

Last Supper for Undertakings Plus?

Narkis Golan is a U.S. citizen who married Isacco Saada, an Italian citizen in Milan, Italy. She soon moved to Milan, and their son, B.A.S., was born in Milan, They lived in Milan for the first two years of B.A.S.’ life.

But their marriage was violent from the beginning. The two fought on an almost daily basis and, during their arguments, Saada would sometimes push, slap, and grab Golan and pull her hair, yelled and swore at her and frequently insulted her and called her names. Much of Saada’s abuse of Golan occurred in front of his son.

In 2018, Golan flew with B.A.S. to the United States to attend her brother’s wedding. Rather than return as scheduled, she moved into a domestic violence shelter.

Saada filed in Italy a criminal complaint for kidnapping and initiated a civil proceeding seeking sole custody of B.A.S., and also filed a petition under the Hague Convention and ICARA in a New York District Court seeking to return their son to Italy.

The U.S. District Court granted Saada’s petition, determining Italy was the child’s habitual residence and that Golan had wrongfully retained him in violation of Saada’s rights of custody.

But the trial court found returning the child to Italy would expose him to a grave risk of harm because Saada was “violent — physically, psychologically, emotionally, and verbally — to” Golan and the child was present for much of it.

Records also indicated that Italian social services had also concluded that “‘the family situation entails a developmental danger’ for the child and that Saada had demonstrated no “capacity to change his behavior.”

The trial court still ordered the child’s return to Italy based on Second Circuit precedent that it “‘examine the full range of options that might make possible the safe return of a child to the home country’” before denying return. To comply with these precedents, the District Court required the parties to propose “‘ameliorative measures’” for the child’s safe return.

The trial court rejected Golan’s argument that Saada could not be trusted to comply with a court order, expressing confidence in the Italian courts’ abilities to enforce the protective order.

The Second Circuit affirmed, concluding the trial did not clearly err in determining that Saada likely would comply with the Italian protective order, given his compliance with other court orders and the threat of enforcement by Italian authorities of its order.

The U.S. Supreme Court granted certiorari to resolve the circuit split and decide whether ameliorative measures must be considered after a grave risk finding.

Florida Child Abduction

I have written and spoken on international custody and child abduction cases under the Hague Convention. The Convention is supposed to provide remedies for a left-behind parent, like Mr. Saada, to obtain a wrongfully removed or retained child to the country of their habitual residence.

When a child under 16 who was habitually residing in one signatory country is wrongfully removed to, or retained in, another signatory country, the Convention provides that the other country: “order the return of the child forthwith.”

There are defenses though. For example, in the Golan case, the court considered Article 13(b), which states that a court is not bound to order the return of the child if the court finds that return would expose the child to a “grave risk” of physical or psychological harm.

The grave risk defense is narrowly drawn. There is an assumption that courts in the left behind country can protect children, which is why courts in some circuits are required to consider ameliorative measures.

New Hague

Il Duomo di Washington D.C.

The Supreme Court noted that the interpretation of a treaty, like the Hague Convention, begins with its text, and nothing in the Convention’s text either forbids or requires consideration of ameliorative measures.

The Court held that judges may consider ameliorative measures with the grave risk determination, but the Convention does not require it. By requiring ameliorative measures, the Second Circuit’s rule re-wrote the treaty by imposing an atextual, categorical requirement that courts consider all possible ameliorative measures in exercising this discretion, regardless of whether such consideration is consistent with the Convention’s objectives.

The Court also held that a trial court “ordinarily should address ameliorative measures raised by the parties or obviously suggested by the circumstances of the case, such as in the example of the localized epidemic.”

First, any consideration of ameliorative measures must prioritize the child’s physical and psychological safety. Second, consideration of ameliorative measures should abide by the Convention’s requirement that courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute. Third, any consideration of ameliorative measures must accord with the Convention’s requirement that courts “act expeditiously in proceedings for the return of children.

The Court then remanded to allow the District Court to apply the proper legal standard. Recognizing that remand would delay the case, the opinion hinted the District Court will move “as expeditiously as possible to reach a final decision without further unnecessary delay.”

The opinion is here.

 

International Child Abduction Case Goes Blue

What happens when a German family court, a Michigan family court, and a U.S. District Court all get involved with the same international child abduction case to return wrongfully removed children at the same time? One Michigan family just found out.

International Child Custody

Going Blue

Father and Mother share two children. The mother, alleged that the children were wrongfully removed from Germany to the state of Michigan by their Father.

From the time of their births, the children lived with both parents in Plymouth, Michigan – about 20 miles from Michigan Stadium in Ann Arbor. Then the family moved to Germany in 2014. The children visited the United States multiple times during the time they lived in Germany.

The parties agreed that the father could take the children to visit relatives in the United States for the summer of 2020 until early September. However, the Father never returned to Germany with the children despite the Mother’s demands that he do so.

In November, the Mother filed a Hague return petition in U.S. District Court in Michigan. They tried mediation, but mediation was a failure.

Concurrently with the federal Hague action, [Mother] also filed a UCCJEA action in the family division of the Wayne County Circuit Court to register and enforce a Germany custody order requiring the return of the children from Michigan to their home state in Germany.

In December, a Wayne County family court judge ordered the Father to bring the children to state court so the Mother could return to Germany with the children in compliance with the German family court order awarding the Mother custody of the children.

In January, the Mother filed a motion to voluntarily dismiss the Hague return action because the federal Hague petition as moot after the children were returned to Germany in accordance with the Wayne County family court ruling.

But incredibly, the father opposed the dismissal of the mother’s Hague petition.

Florida International Child Custody

I’ve written and spoken about international child custody cases under the Hague Convention and the UCCJEA 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. What is unique about the Act is that Congress expressly provided for both original and concurrent federal jurisdiction. This means a parent has the option of either filing the petition in a state family court, or a federal U.S. district court.

Unlike the U.S. however, many countries are not signatories or treaty partners with us in the Hague Convention. That means that you cannot file a Hague return petition here, because both countries have to be treaty partners. Fortunately, when one of the countries is not a signatory to the Hague Convention, the UCCJEA may provide relief in state court.

Florida, Michigan, 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 vis-a-vis 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 Michigan. The ultimate determining factor in a Michigan case then, is what is the “home state” of the child.

Alternatively, Michigan could possibly hear the case if it was the Home State of the child within 6-months before filing or the children are in Michigan and the court has emergency jurisdiction.

Defense!

Back in Michigan federal court, on March 15, 2022, a U.S. Magistrate Judge issued a report recommending that the mother’s motion to dismiss be granted, and that this matter be dismissed with prejudice.

The Magistrate Judge explained that the only relief available under the Hague Convention petition is return of the children to Germany. Because this relief has already been affected by the Wayne County family court judge, the federal Hague petition is moot.

The father could not, as the respondent, obtain return of the children to the United States by continuing to litigate the Mother’s petition. Nevertheless, the father objected to the Magistrate Judge’s Report and Recommendation and asked for a trial.

The U.S. District Judge reviewed the Father’s objection, noted that it had failed to include any argument or cite to any legal authority holding contrary to the conclusions reached by the Magistrate Judge, and failed to identify any specific factual issues the Magistrate Judge erred on.

Accordingly, the Father was found to have waived any objection to the substantive analysis of the Magistrate Judge’s Report and Recommendation.

The Magistrate Judge’s order is here.

 

New Article “Like Home: The New Definition of Habitual Residence”

My new article “Like Home: The New Definition of Habitual Residence”, discusses habitual residence under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980 and the federal International Child Abduction Remedies Act. The article is now available in the Florida Bar Journal.

New Article

American courts have had different standards for determining a child’s “habitual residence” under the Hague Convention. The controversy? How to establish a child’s habitual residence and what appellate standard of review should be applied after making that determination. The U.S. Supreme Court has now squarely addressed the conflict about habitual residence.

This new article examines the Hague Convention on international child abductions, ICARA, the U.S. Supreme Court decision, and . . . the Wizard of Oz.

The article is available here.

90-Day Fiancé and International Child Custody

A 90 Day Fiancé star, Jihoon Lee, may soon become involved in an international child custody case after his estranged wife moved from South Korea to Utah with their son and a child from another relationship.

International Child Custody

Seoul to Soul

According to reports, Jihoon hasn’t reached out to estranged wife, Deavan Clegg in months amid their divorce, an insider exclusively reveals to In Touch.

“Things are very messy with the divorce right now. The papers have been filed, but Jihoon is currently on the run from trying to be served them,” the source continues. “Deavan’s lawyer is taking every step possible to make sure he is served and the divorce can be finalized soon so she can officially move on from their relationship.”

Jihoon is not taking his son’s removal to the United States well:

Being alone is so painful. I miss [my son] so much and I want to hug him. I felt broken without [my son] after not being together for a year. But now another man is pretending to be [my son’s] father and my wife’s husband. On paper, Deavan and I are still married.

While there has not been a report of a court action to return any child to South Korea, what are the remedies available if he wanted to do something about returning his child to South Korea?

Florida and International Child Abduction

I’ve written about international child custody cases under the Hague Convention and the UCCJEA before. The UCCJEA and the Hague Convention are similar. The Hague Convention seeks to deter abducting parents by depriving the abducting parent’s actions of any practical or juridical consequences.

When a child under 16 who was habitually residing in one signatory country is wrongfully removed to, or retained in, another signatory country, the Hague Convention provides that the other country: “order the return of the child forthwith” and “shall not decide on the merits of rights of custody.”

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.

However, many countries, unlike South Korea and the United States, are either not signatories or treaty partners with us in the Hague Convention. Fortunately, when a country is not a signatory country, the UCCJEA may provide relief.

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 vis-a-vis 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 Utah. The ultimate determining factor in a Utah case then, is what is the “home state” of the child.

90-Day Divorce?

Jihoon, 31, confirmed the separation from Deavan, 24, in August while their story line on season 2 of 90 Day Fiancé: The Other Way was still playing out on TV. Deavan then confirmed she moved back to America from the former couple’s marital home in South Korea with their son and her daughter from a previous relationship.

Since Deavan left Jihoon in South Korea, the couple have not been in communication. He reportedly blocked Deavan for five months now so it’s been hard to get a hold of him or even reached out to their son since he’s been back in America, so it’s nice to see Topher step in as a father figure.

Jihoon previously spoke out against Deavan’s claims, defending himself and explaining the reason why he blocked the mother of his son on all platforms.

“The reality is terrible. I know all this s–t. Like he’s going to have a new father. Do you know how it feels? My heart is always breaking. It happened without my knowledge,” Jihoon wrote in a statement via Instagram on September 3, revealing Deavan had not yet filed for divorce at the time. “And I don’t want to get involved in their lives. So I blocked them all. So extreme. But that’s how I organize my mind-set. I will never forget my son and love him forever.”

The In Touch article is here.

 

International Child Custody and a Washington Woman in Saudi Arabia

In an interesting case involving international child custody and a Washington woman in Saudi Arabia, the woman who previously lost custody of her daughter in Saudi Arabia for being “too western”, is back! She traveled home for Christmas and is trying to stay in Washington state with the child.

International Child Custody

Shifting Sands

I’ve written about the case of Bethany Vierra Alhaidari before. Bethany, a 32-year-old student and yoga teacher, moved to Saudi Arabia to teach at a university in 2011. She divorced her Saudi husband, and sought custody of their four-year-old daughter. But the Saudi court concluded that she would not be a good parent.

“The mother is new to Islam, is a foreigner in this country, and continues to definitively embrace the customs and traditions of her upbringing. We must avoid exposing (the child) to these customs and traditions, especially at this early age.”

She started sleeping with her ex-husband, Ghassan al-Haidari, in a bid to get him to allow her and their daughter to spend Christmas with her family, in Washington state. It worked, but she did not return from the Christmas vacation.

Bethany is now asking a family court in Washington to give her custody of her five-year-old daughter Zaina. She said the custody agreement with her Saudi ex-husband was signed under duress and that she was not given a fair hearing by Saudi courts.

In recent years Saudi Arabia has attempted to shake off its image as one of the most repressive countries in the world for women.

In 2018, the government lifted a long-standing ban on women driving and made changes to the male guardianship system last year, allowing women to apply for passports and travel independently without permission from a man.

However, women continue to face numerous restrictions on their lives, and several women’s rights activists who campaigned for the changes have been detained and put on trial. Some of them are alleged to have been tortured in prison.

Florida and the UCCJEA

I’ve spoken about international child custody cases under the Hague Convention and the UCCJEA before. The UCCJEA and the Hague Convention are similar. The Hague Convention seeks to deter abducting parents by depriving the abducting parent’s actions of any practical or juridical consequences.

When a child under 16 who was habitually residing in one signatory country is wrongfully removed to, or retained in, another signatory country, the Hague Convention provides that the other country: “order the return of the child forthwith” and “shall not decide on the merits of rights of custody.”

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.

However, many countries, like Saudi Arabia, are not signatories or treaty partners with us in the Hague Convention. Fortunately, when a country is not a signatory country, the UCCJEA may provide relief.

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 vis-a-vis 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 Washington. The ultimate determining factor in a Washington case then, is what is the “home state” of the child.

Alternatively, Washington could possibly hear the case if Washington was the Home State of the child within 6-months before filing or the children are in Washington and the court has emergency jurisdiction. In Bethany’s case, she is using a rarely used section of the UCCJEA.

A Washington Yogi in King Salman’s Court

Bethany appealed the Saudi ruling last August. But she said that it was ignored and that a Saudi judge forced her to reach a custody agreement. She went back to living with her ex-husband and at Christmas he allowed her to take Zaina to see her grandparents in Washington. They did not return.

She next filed a case with a court in Washington in January that cited a rarely-used clause in the Uniform Child Custody Jurisdiction and Enforcement Act.

Even though Saudi Arabia is not a signatory to the Hague Convention, the UCCJEA requires State courts to recognize and enforce custody determinations made by foreign courts as if they were State courts.

However, a court need not enforce a foreign court order or defer to a foreign court’s jurisdiction if the child-custody law of the foreign country violates fundamental principles of human rights.

The UCCJEA language comes from article 20 of the Hague Convention. The “human rights, or fundamental freedoms defense, is invoked on the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process.

Washington has some experience with this clause. In 2015, a court in Washington ruled that the state should not enforce custody decrees from Egypt because there was “clear and convincing evidence” that Egyptian child custody laws violated fundamental principles of human rights.

Bethany’s husband has asked a Washington family court to enforce the custody agreement registered in Saudi Arabia, saying that his ex-wife was seeking more favorable terms.

Parents don’t get to just move the child to a foreign state and then start a custody case if they don’t like the parenting plan they had in the child’s home state.

The Wall Street Journal article is here.

Texas Hold ‘Em: Hague Convention and More Good News on the Coronavirus

The national emergency has not stopped international child custody and Hague child abduction cases, but definitely made them more challenging. I recently came back from trial in a Texas federal court helping a father return his daughter to Mexico, and there is good news on the coronavirus front.

Hague Child Abduction Mexico

Oh, Mexico

My client and the Mother are dual citizens of Mexico and Cuba, and met in Cancun, Mexico. They are both professional musicians. Together they have a daughter who is currently five years old.

During the early years of their relationship, they all lived together in an apartment, and traveled together. When they broke up, the Father moved to an apartment nearby, and he and his daughter would timeshare, he paid for her piano lessons, her private school tuition, and even the Mother’s rent.

On July 12, 2019, at approximately 11:30 a.m., the Mother called the Father that she had taken their daughter to an undisclosed location.

He suspected she took her to Florida, and even had a possible address for the Mother here. Unbeknownst to him, the Mother actually took their daughter to a small, west Texas town.

The same day, the Father went to the Cancun Police and filed a missing child report. A few days later, he filed a Hague application for the child’s return. He hired me to file a case in Miami federal court, which was transferred to a federal court in Texas when the child was discovered there.

Habitual Residence and the Hague Convention

While the abduction was going on, and a few days before our Texas trial, the U.S. Supreme Court decided a major Hague Child abduction case involving the habitual residence of a child.

I have written about the recent U.S. Supreme Court case before. In Monasky v. Taglieri, the U.S. Supreme Court held that the determination of a child’s “habitual residence” for purposes of the Hague Convention depends on a totality-of-the-circumstances analysis and that a district court’s habitual-residence determination should be reviewed for clear error.

The Hague Convention on the Civil Aspects of International Child Abduction provides that a child wrongfully removed from his or her country of “habitual residence” must be returned to that country, which then has primary jurisdiction over any resulting custody proceedings.

A removal is “wrongful” if it is done in violation of the custody laws of the country of the child’s habitual residence. The Convention instructs that signatory states should “use the most expeditious proceedings available” to return the child to his or her habitual residence.

In Monasky, an American brought her infant daughter to Ohio from Italy after her Italian husband, Domenico Taglieri, became physically abusive. Taglieri petitioned for his daughter’s return under the Hague Convention, arguing that Italy was the daughter’s “habitual residence.”

The federal court agreed, and found the parents had exhibited a “shared intention” to raise their daughter in Italy. The Sixth Circuit Court of Appeals affirmed with dissents. Monasky then petitioned the U.S. Supreme Court, arguing that establishment of a child’s habitual residence requires actual agreement between the parents.

The Supreme Court noted that the Hague Convention does not define “habitual residence.” Relying on the treaty and decisions from the countries who are signatories, the high court concluded habitual residence it is a “fact-driven inquiry into the particular circumstances of the case.”

The Supreme Court also noted that Monasky’s ‘actual agreement’ requirement would leave many children without a habitual residence, and outside the Convention’s domain and the Hague Convention always allows a court concerned about domestic violence to not order a child’s return if “there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

Texas Hold Em

Texas Hold ‘Em?

One of the issues which had to be resolved in our trial was the habitual residence of the child, and whether the parents shared an intent to abandon it. During our trial in Texas, the U.S. District Court found the parents did not share an intent to change the child’s habitual residence, among other defenses, and ordered the child returned to the Father and to her home in Mexico.

Relying on the U.S. Supreme Court’s, brand new decision, the federal court found the daughter’s habitual residence is Mexico, and that she was wrongfully removed to the United States in violation of the Hague Convention.

At the same time the Coronavirus was raging across the world, the U.S. government just ordered the border with Canada closed, courts were closing around the country, and there was a real concern we wouldn’t be able to return to Mexico.

But we faced another, potentially bigger problem. How do you enforce a federal court order to return a child to Mexico when the entire world is shutting down? The alternative to us moving immediately to secure the child’s return to Mexico would be to ‘hold em’ in Texas. Acting quickly, the father and daughter made it safely home to the habitual residence of Mexico.

Good News and the Coronavirus

We are under quarantine, and we can expect that to continue in the near future. But that doesn’t mean there isn’t some good news to report. For instance:

  • Distilleries across the U.S. are making their own alcohol-based hand sanitizers and giving it away for free.
  • Restaurants, sports, and businesses are stepping up to combat the community effects of the novel coronavirus. The sports world is raising money for stadium employees, and Uber Eats is divvying out free delivery to help independent restaurants to name a few.

Air and Water pollution has plummeted in cities with high numbers of quarantined individuals. In fact, Venice’s waters are running clear for the first time and people are seeing fish.

  • China is re-opening parks and athletic centers, and loosening travel restrictions as the novel coronavirus comes under control in China, and parks and tourist attractions have reopened across the country.
  • Neighbors across the country are stepping up to make grocery runs for those who can’t leave their homes.

The U.S. Supreme Court decision is here.

A Royal International Child Custody Case

Child custody cases impact everyone, including world leaders as one recent British case proves. But the stakes in an international child custody matter can change when a parent who holds the power of a state government behind him, gets tough.

Royal Child Custody

A Royal Scam?

When you are concerned in your child custody case about the unlimited resources of the other side, knowing the children’s father is His Highness Sheikh Mohammed bin Rashid Al Maktoum the ruler of the Emirate of Dubai and Vice President and Prime Minister of the United Arab Emirates does not help.

Luckily, the children’s mother is Her Royal Highness Princess Haya bint Al Hussein. She is a daughter of His Majesty the late King Hussein of Jordan and the half-sister of the present ruler of Jordan, King Abdullah II.

The mother is the second official wife of the father, who, in addition, has a number of “unofficial” wives. These two children are the two youngest of the father’s 25 children.

In April 2019 the mother travelled to England with Jalila and Zayed. Although it was normal for the children and the mother to visit England, she made it clear soon after arrival that she and the children would not be returning to Dubai.

The Princess claims she fled the Gulf emirate with her children, saying she had become terrified of her husband’s threats and intimidation. The threats continued after the princess moved to London adding that the Sheikh had used the apparatus of the state “to threaten, intimidate, mistreat and oppress with a total disregard for the rule of law.”

In May 2019 the father commenced proceedings to order the children to be returned to the Emirate of Dubai. The mother initially contested the court’s jurisdiction by asserting that she enjoyed diplomatic immunity, it being the case that shortly after her arrival in England the government of the Hashemite Kingdom of Jordan appointed the mother to the post of First Secretary at the Jordanian Embassy in London

The father, as the ruler of the State of Dubai and as the Head of the Government of the UAE, claims and acknowledges that his position attracts certain immunities, and cannot be required to attend this court to give oral evidence.

In October 2019 the father substantially revised his position by no longer pursuing his application for the children to be returned to Dubai. He agreed that the children would now continue to live with their mother and be based with her in England.

Within the same time period, the father published a poem entitled “Luck strikes once”:

“My spirit is cured of you, girl. When your face appears, no pleasure I feel. Don’t say troublemakers are the ones to blame. It’s your fault, though you’re fairer than the moon…They say luck strikes once in a lifetime and if you lose luck you have no excuse”.

The mother took the poem as a direct reference to herself.

Florida Child Custody

I’ve written about child custody and domestic violence before. Florida does not use the term “custody” anymore, we have the parenting plan concept. For purposes of establishing a parenting plan, the best interest of the child is the primary consideration.

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 evidence of domestic violence, child abuse, child abandonment, or child neglect.

In Florida, the term “domestic violence” has a very specific meaning, and it is more inclusive than most people realize. It means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

When discussing family or household members, Florida law defines these to mean spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married.

In Florida, individuals who have experienced domestic violence have civil and criminal remedies to protect themselves from further abuse. Protection orders may include the victim’s children, other family members, roommates, or current romantic partner. This means the same no-contact and stay-away rules apply to the other listed individuals, even if the direct harm was to the victim.

This could include a parent leaving a series of anonymous notes in the other parent’s bedroom making threats such as “We will take your son – your daughter is ours – your life is over” or warning her to be careful; and leaving a gun on the bed with the muzzle pointing towards the door and the safety catch off.

Can’t Buy a Thrill

After listening to witnesses and the King’s poetry, a judge at the High Court in London found that the Father “acted in a manner from the end of 2018 which has been aimed at intimidating and frightening” his ex-wife Princess Haya, 45.

Judge Andrew McFarlane also said the Sheikh “ordered and orchestrated” the abductions and forced return to Dubai of two of his adult daughters from another marriage: Sheikha Shamsa in August 2000, and Sheikha Latifa in 2002 and again in 2018.

The judge made rulings after a battle between the estranged spouses over the welfare of their two children, but the Sheikh fought to prevent them from being made public. The U.K Supreme Court quashed that attempt.

The judge found that Haya’s allegations about the threats and abductions met the civil standard of proof on the balance of probabilities. Princess Haya also alleged that Sheikh Mohammed had made arrangements for Jalila — then aged 11 — to be married to the Crown Prince of Saudi Arabia, Mohammed bin Salman.

In 2002 the return was from the border of Dubai with Oman, and in 2018 it was by an armed commando assault at sea near the coast of India.” The judge said Shamsa, now 38, was abducted from the streets of Cambridge and “has been deprived f her liberty for much if not all of the past two decades.”

Sheikh Mohammed is also the founder of the successful Godolphin horse racing stable and last year received a trophy from Queen Elizabeth II after one of his horses won a race at Royal Ascot.

In a statement released after the rulings were published, the Sheikh said that “as a head of government, I was not able to participate in the court’s fact-finding process. This has resulted in the release of a ‘fact-finding’ judgment which inevitably only tells one side of the story.”

“I ask that the media respect the privacy of our children and to not intrude into their lives in the U.K.”

The Time article is here.

 

Home in Milan: International Child Custody and the Hague

Last week, the Supreme Court decided a big international child custody case. The decision involved a baby brought here from Milan by her American Mother after her marriage to her Italian husband ended. At issue, where the baby’s ‘habitual residence’ is under the Hague Convention on the Civil Aspects of International Child Abduction – Italy or here.

Hague Milan Child Custody

An Italian Drama

The Hague Convention on the Civil Aspects of International Child Abduction is a treaty that requires a child wrongfully removed from his or her country of “habitual residence” be returned to that country.

A removal is “wrongful” if it is done in violation of the custody laws of the country of the child’s habitual residence. The Convention requires that the countries signing the treaty “use the most expeditious proceedings available” to return the child to his or her habitual residence.

The mother, Michelle Monasky, a U.S. citizen, brought her infant daughter to Ohio from Milan, Italy after her Italian husband, Domenico Taglieri, allegedly became physically abusive. Taglieri asked a U.S. court to order the daughter’s returned under the Hague Convention.

The father argued that Italy was the daughter’s “habitual residence.” The district court agreed, finding that the parents had a “shared intention” to raise their daughter in Italy. An appellate panel affirmed, but in a divided opinion.

The Mother asked the Supreme Court to decide the matter, and it did.

International Child Custody and the Hague

I have written and spoken on international custody and child abduction cases 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 a child.

The key inquiry in many Hague Convention cases, and the dispositive inquiry in the Taglieri case, goes to the country of the child’s habitual residence. Habitual residence marks the place where a person customarily lives.

Many people don’t realize it, but the Hague Convention does not actually define the key term ‘habitual residence.’ There are a couple of ways to determine it. The primary way looks to the place where the child has become “acclimatized.” The back-up inquiry for young children too young to become acclimatized looks to where the parents intend their child to live.

Not abducted children

Under the Tuscan Sun

The Supreme Court affirmed the two lower courts and ordered the child returned to Italy, albeit five years later. The Court rejected the Mother’s argument that you need an “actual agreement” to determine habitual residence, and held that a child’s habitual residence depends on a totality-of-the-circumstances.

The Court noted that the Hague Convention does not define “habitual residence,” but relied on the Convention’s text, its negotiation and drafting history, and decisions from the courts.

The Hague Convention’s text alone does not definitively tell us what makes a child’s residence sufficiently enduring to be deemed “habitual.” It surely does not say that habitual residence depends on an actual agreement between a child’s parents.

No single fact, however, is dispositive across all cases. Common sense suggests that some cases will be straightforward: Where a child has lived in one place with her family indefinitely, that place is likely to be her habitual residence.

Relying on foreign law, the U.S. Supreme Court found that there was a “clear trend” among our treaty partners to treat the determination of habitual residence as a fact-driven inquiry into the particular circumstances of the case.

The U.S. Supreme Court also resolved a circuit split, and held that a trial court’s habitual-residence determination is primarily a question of fact, entitled to clear-error appellate review. The Court declined to remand for further fact finding, noting that the parties had not identified any additional facts that the district court did not already have an opportunity to consider during the four-day bench trial.

The U.S. Supreme Court decision is available here.