Category: International Child Custody

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.

A Bitter Yemen: International Child Custody and the UCCJEA

A new international child custody case under New York’s UCCJEA law involves a couple from Yemen who lived in New York with the children. They traveled back to Yemen to celebrate Ramadan and Eid. The mom was expecting to return with the children, but the father decided to stay in Yemen, marry another woman, and divorce the mother.

Yemen Child Custody

When Life Gives You Yemen . . .

Upon learning the Father married another woman, the mother traveled back to the United States to be with her parents in New York, but left the Children behind in Yemen. The children have resided in Yemen with the Father since 2016.

This year, the Mother filed a child custody case in New York to order the Father to bring the children to New York; surrender his and the children’s passport and other travel documents, and force the Father to remain in New York.

Why New York? The Mother claimed the Father worked at a deli in New York, frequently travels for business to New York, and has other business ventures in there.

The Mother’s choice to file under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) and not the Hague Convention on the Civil Aspects of International Child Abduction is easy to explain: Yemen is not a signatory to the Hague Convention, so the Hague Convention doesn’t apply.

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 abducting parent by eliminating their primary motivation for doing so: to “deprive the abduction 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:

  1. 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
  2. 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 Yemen, are not signatories or treaty partners with us in the Hague Convention. Fortunately, when the country holding the abducted children 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 New York. The ultimate determining factor in a New York case then, is what is the “home state” of the child.

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

The home state seems to be one of the many obstacles for the Yemeni mother in New York.

. . . you may be stuck with Yemen-ade

The Mother – who appeared in court fully-covered in a burqa – also filed domestic violence petition against the Father seeking an order of protection on behalf of herself and the children, reporting that she had fled Yemen due to domestic violence and repeated acts of sexual and physical abuse committed against her by Father.

The Father moved to dismiss all of the Mother’s petitions on the basis that the New York court lacks subject matter jurisdiction under UCCJEA, because the children have undisputedly resided with him in Yemen for the last three years with the Mother’s consent.

They also were divorced in Yemen before the case was filed in New York. The Yemen divorce specifically refers to a settlement between the parties in which the Father got custody of the two older Children, the Mother got custody of the children.

In opposition to the Father’s Motions, the Mother argued that she and the children only stayed in Yemen out of fear of the Father’s retaliation and political connections with the Houthi government.

She also argued Yemen can’t be considered the children’s home state because Yemen is war-torn country, lawless and because of the human rights abuses in there.

The appellate court had to grant the Father’s motion to dismiss because Yemen is definitely not the children’s home state. It was undisputed that the children had been living in Yemen with Father for several years before she filed her UCCJEA case in New York.

Even if the court conceded that Yemen is in a civil war, and that Yemeni laws regarding domestic violence, child custody, and basic human rights do not conform to American law, home state jurisdiction is paramount under the UCCJEA.

The New York appellate decision is here.

 

International Child Abduction Oral Argument

Earlier this month, the U.S. Supreme Court heard oral argument in one of the rare cases involving the Hague Convention on International Child Abduction which reach the high court. At issue is how to define what a child’s habitual residence is, a definition sorely missing in these kinds of cases – especially when infants are involved.

international child abduction

From the Cathedral of Milan . . .

Monasky, a U.S. citizen, married Taglieri, an Italian citizen, in 2011. The couple moved to Milan, Italy, in 2013. The child at the center of this international child custody dispute, known as A.M.T., was born in Italy in February 2015.

Monasky testified that after they arrived in Milan, she was the victim of domestic violence, and although she was pregnant by then she did not move with Taglieri when he took a job a few hours away in Lugo. In 2015, Michelle Monasky left a domestic-violence safe house in Italy where she had been staying with her newborn daughter and traveled to her parents’ home in Ohio.

Domenico Taglieri, her husband, filed a lawsuit in Ohio, asking a federal court to order his daughter’s return to Italy. He relied on the Hague Convention on the Civil Aspects of International Child Abduction. In his case, the Hague Convention requires the Court to return the child, if wrongfully removed from her country of “habitual residence,” to be sent back.

But what’s the “habitual residence” of a child like Monasky and Taglieri’s daughter, who is too young to really know where she is? The U.S. Supreme Court heard oral argument in the couple’s case to decide that questions.

International Child Abduction

I have written – and spoke earlier this year – 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.

The trial judge in the Taglieri case gave a lot of weight to the fact that the parents agreed to move to Italy for their careers and lived as a family before A.M.T.’s birth; they both secured full-time jobs in Italy, and the Mother pursued recognition of her academic credentials by Italian officials.

On the other hand, the mother argued she expressed a desire to divorce and return to the United States; contacted divorce lawyers and international moving companies and they jointly applied for the baby’s passport, so she could travel to the United States.

. . . to America’s Temple of Justice

Arguing on Monasky’s behalf before the U.S. Supreme Court, her lawyer Amir Tayrani observed that the Hague Convention was designed to protect children from wrongful removal from their habitual residences.

Tayrani faced a series of questions. Justice Ruth Bader Ginsburg asked whether under his approach some infants might not have a habitual residence at all for purposes of the convention, because their parents had never agreed on where to raise their child. Tayrani allowed that such a scenario could occur but suggested that it would be relatively rare, because it would only happen during the “unusual case” in which a couple’s relationship broke down during the mother’s pregnancy or immediately after birth.

But Ginsburg pointed out that many relationships that result in cases being brought under the Hague Convention are “so acrimonious that the chances of agreement are slim to none” which would leave children without a habitual residence. Justice Samuel Alito also seemed skeptical. Under that position, he told Tayrani, “either parent could snatch her. Possession would be ten-tenths of the law?”

Justice Elena Kagan proposed a rule that if a baby has lived somewhere her whole life, courts would normally presume the baby’s habitual residence to be the country in which she lived. Such a rule would be an “administrable rule” that “provides a lot of guidance” to the courts, and it would also deter abductions.

Roberts posited that “habitual residence” is a “meaningless concept for” infants. After all, Roberts observed, eight-week-old infants “don’t have habits. Well,” Roberts joked, “other than one or two.”

The father’s attorney told the justices that virtually all of the factors weigh in favor of Italy’s being A.M.T.’s habitual residence. She was there, he stressed, with both parents, and there are no other facts that would lead to a different conclusion.

The Scotus Blog article is here.

 

Social Media and International Child Custody

An American woman living in Saudi Arabia has been punished in her international child custody divorce. During the divorce trial, her Saudi ex-husband was able to introduce exhibits from her social media account into evidence. The social media evidence proved fatal to her custody case.

ocial media international child custody

Desert Justice

Though she succeeded with the divorce, her custody battle appeared to reach a dead end after a Saudi judge awarded custody of their daughter Zeina to the husband’s mother, who lives with him, despite video evidence Ms. Vierra submitted to the court that she said showed her ex-husband doing drugs and verbally abusing her in front of their daughter.

“It’s like 10,000 times worse here because so much is at risk for women when they go to court. I genuinely thought that there would still be justice served here, and I kind of put everything on that.”

Saudi courts prioritize ensuring that children are raised in accordance with Islam. According to court documents, the judge accepted Ms. Vierra’s ex-husband’s arguments that she was unfit to raise Zeina because she was a Westerner, and ran a yoga studio.

Social Media and International Child Custody

Divorce trials usually require the introduction of sensitive and personal evidence. For example, it is common to hire private investigators to film spouses, or use forensic accountants to hunt for strange credit card charges.

Sometimes though, the evidence falls in your lap. Facebook and other social media sites are often filled with very personal information which is increasingly being used in divorce trials. You may have heard of some examples:

  • A Husband posts his status as single and childless on Facebook while seeking primary custody of his children.
  • A mother is accused of never attending her kids’ school events because of her online gaming addiction. Evidence subpoenaed from World of Warcraft tracks her on-line with her boyfriend at the time when she was supposed to be with the children.
  • A husband denies he has any anger management issues, but posts on Facebook; “If you have the balls to get in my face, I’ll kick your ass into submission.”
  • A mom denies in court that she ever smokes marijuana, but then uploads photos of herself smoking pot on Facebook.

Is the evidence admissible? And if so, how do you prove the evidence is real and not maliciously put there? The Florida Bar Commentator published an article I wrote about using Facebook evidence at trial.

The article discusses the evidentiary potential of social media sites, and the peculiar challenges of authenticating materials from the internet. Social media websites like Facebook have had an astronomical growth worldwide, and are showing up in divorce trials.

The article suggests some of the benefits and obstacles in gathering and using Facebook and other social media evidence at trial. The article also reviews the then leading national cases on social media websites, and outlines when it is necessary to use computer forensic firms and other sources to ensure that the evidence is properly admitted.

Your Desert Kingdom Divorce

The status of women in Saudi Arabia is changing. Many women now enjoy new reforms in the law which allow women to drive, and even to a certain degree, vote. The election allowing it was for municipal councils with few powers, but the reform is a milestone for many women.

But the dramatic changes have not touched the most fundamental restriction on Saudi women, a guardianship system that gives men control over many critical parts of their wives.

The guardianship system’s rules extend to women who marry Saudis, like Ms. Vierra. Even after she divorced her husband last year, Ms. Vierra’s ex-husband remains her guardian. Wielding his guardianship powers, he prevented her from going home to see her family at Christmas and let her legal residency expire, which left her stuck, unable to access her bank account or leave Saudi Arabia.

During the divorce trial, he told the court that Ms. Vierra, did not speak Arabic well, and that she was an atheist. He also submitted photos of her in a bikini, in yoga pants . . . with her hair uncovered! This social media evidence of Ms. Vierra wearing forbidden yoga pants, in a country that requires women to wear loose abayas in public, was devastating at the divorce trial.

The court accepted his testimony at face value, she said, while hers was legally worthless unless she could bring in male witnesses to back her up. She tried to counter with videos of him that she said showed him rolling a joint to smoke hashish, talking on the phone about his marijuana use and screaming at Ms. Vierra, all with Zeina in the room. Though he acknowledged his drug use, he accused her in court of giving him the drugs and of forcing him to say he was an atheist, both of which Ms. Vierra denies.

In the end, the judge found both parents unfit to raise Zeina, awarding custody instead to the husband’s mother. But Ms. Vierra did not find this comforting; she said her ex-husband’s sister had testified that their mother had hit them and emotionally abused them as children.

“This is not just my story — there’s much worse. It’s hard to believe stuff like this can happen.”

The Independent article is here.

 

New International Child Custody Laws

Trying to combat a growing problem of parental child abduction, EU lawmakers adopted new rules to better protect children and bring quicker resolutions to child custody fights. What are in Europe’s new international child custody laws?

Brussels

The EU’s recent actions are a retooling of the Brussels IIa regulation, a cornerstone of EU judicial cooperation in cross-border matters involving marriage, divorce, separation, annulment and child custody.

A rise in international families – currently estimated at 16 million – and subsequent cross-border family disputes – 140,000 divorces and 1,800 children abducted by a parent annually – led the European Commission to propose amending the Brussels IIa regulation to make it more efficient.

“When parents decide to separate, children can be caught in the middle, and it gets even more complicated when the parents come from different EU countries. In these difficult situations everybody should focus on what is best for the child,” justice commissioner Vera Jourova said in a statement. “With the new rules, judicial cooperation will be faster and more efficient to make sure the children’s well-being comes first.”

The new rules aim to further enhance cross-border judicial proceedings on the basis of mutual trust between EU countries. By removing the remaining obstacles to the free movement of decisions, simplifying the procedures and enhancing their efficiency, the best interests of the child will be better protected.

It is hoped the new rules will bring legal certainty, reduce costs and, most importantly, limit the length of proceedings in international child abduction cases, for the benefit of both children and their parents

Florida Child Custody

Rules about children can differ around the world. I’ve discussed international child custody laws, especially as they relate to child abduction and The Hague Convention on child abduction. Child custody and timesharing is a matter I have written about specifically.

The Hague Abduction Convention is a multilateral treaty developed by The Hague Conference on Private International Law to provide for the prompt return of a child internationally abducted by a parent from one-member country to another.

There are three essential elements to every Hague Convention case:

  1. The child must be under the age of 16 years of age;
  2. The wrongful removal must be a violation of the left behind parent’s “rights of custody;”
  3. The left behind parent’s rights of custody “were actually being exercised or would have been exercised but for the removal.”

So, if a child under the age of sixteen has been wrongfully removed, the child must be promptly returned to the child’s country of habitual residence, unless certain exceptions apply.

The catch, of course, is that a child must be taken from a signatory country to another signatory country, and that is where understanding The Hague Convention comes in.

Even signatory countries may be bad at abiding by the convention, especially when it means enforcing the return of children to a parent alleged to have been abusive.

The annual State Department report to Congress on observance of The Hague Convention lists Honduras as “non-compliant” and nine other countries (Brazil, Bulgaria, Chile, Ecuador, Germany, Greece, Mexico, Poland and Venezuela) as showing “patterns of non-compliance”.

EU New Rules

The changes concern mainly proceedings related to parental responsibility matters and international child abduction and will have a positive impact on all procedures involving children by:

Settling cross-border child abduction cases faster

The deadlines applying to different stages of the child return procedure will be limited to a maximum period of 6 weeks for the first instance court and 6 weeks for each court of appeal. Also, Central Authorities will process applications for return faster.

Ensuring the child is heard

Children who are capable of forming their own views, will be given the opportunity to express these views in all proceedings concerning them. This will apply to matters of parental responsibility and international child abduction cases. Determining how and by whom the child is heard is a matter left to national law.

Ensuring effective enforcement of decisions in other Member States

With the new rules, the exequatur, an intermediate procedure required to obtain cross-border enforcement, will be abolished for all decisions. Under the new rules, enforcement can be rejected or suspended largely under the same conditions in all Member States, increasing legal certainty for all citizens and in particular the children concerned.

Improving cooperation between Member States’ authorities

Good cooperation between the Central Authorities of different Member States in handling child cases is an indispensable prerequisite for mutual trust. The new rules promote better cooperation between Central Authorities, which are the direct point of contact for parents. Also, child welfare authorities will be better integrated into this cross-border cooperation.

The new rules also clarify the sensitive issue of the placement of a child in another Member State, and set up a clear procedure to obtain consent from the Member State where the child is to be placed.

Setting out clearer rules on the circulation of authentic instruments and agreements

Considering the growing number of Member States which allow out-of-court agreements on legal separation and divorce or on matters of parental responsibility, the new rules will facilitate the circulation of the instruments and agreements.

“I am very glad that following our proposal the Council adopted new rules to ensure that any disputes between parents who disagree after separation can be quickly solved. This is about putting children first.”

The Europa article is here.

 

 

Child Abduction and an Old Fish

The U.S. Supreme Court does not typically hear child custody cases, but just agreed to hear an international child abduction case. A baby brought here from Italy by her Mother after her marriage collapsed has to return the baby to Italy. Incredibly, the decision may rest on how smelly a five-week-old, unrefrigerated dead fish is.

Child Custody

That’s Amore

The father, Taglieri is an Italian, and the Mother, Monasky, is an American. They met in Illinois. Taglieri, who was already an M.D., was studying for his Ph.D. and worked with Monasky, who already had a Ph.D.

They married in Illinois in 2011 and two years later, moved to Italy to pursue their careers in Milan, where they each found work. Their marriage had problems, including physical abuse.

In June 2014, Taglieri took a job at a hospital three hours from Milan. Monasky stayed in Milan, where she worked at a different hospital. Monasky had a difficult pregnancy, which, when combined with the long-distance separation, strained the relationship further. To make matters worse, she didn’t speak Italian or have a valid driver’s license, increasing her dependence.

During this time, the two argued but also jointly applied for Italian and American passports for their daughter. Two weeks later, Monasky left for the United States, taking their eight-week-old with her.

Taglieri filed an action in Italian court to terminate Monasky’s parental rights, which was granted. Then he filed a petition in Ohio seeking A.M.T.’s return under the Hague Convention.

International Child Abduction

I have written – and spoke earlier this year – 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.

When the order hits your eye like a dead fish…

The issue for the appellate court was how they should review the trial judge’s ruling that Italy is the habitual residence of the baby girl.

The trial judge in this case gave a lot of weight to the fact that the parents agreed to move to Italy for their careers and lived as a family before A.M.T.’s birth; they both secured full-time jobs in Italy, and the Mother pursued recognition of her academic credentials by Italian officials.

On the other hand, the mother argued she expressed a desire to divorce and return to the United States; she contacted divorce lawyers and international moving companies and they jointly applied for the baby’s passport, so she could travel to the United States.

Faced with these facts the trial judge can rule in either direction, and after fairly considering all of the evidence, the trial judge found that Italy was A.M.T.’s habitual residence. The Sixth Circuit Court of Appeals decided:

We leave this work to the district court unless the fact findings “strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.”

The U.S. Supreme Court will consider how appellate courts review a trial judge’s ruling on habitual residence. Is it reviewed under de novo standard, under a deferential version of de novo review, or under clear-error review?

Another question being considered is whether a subjective agreement between an infant ‘s parents is necessary to establish habitual residence when the infant is too young to acclimate.

The opinion is here.

 

International Child Custody just got Bigger in Japan

Japan’s legislature, the National Diet, just enacted a law to force parents to comply with child custody orders. Seems simple enough, but this is a game changer in Japan, as enforcement in Japan has been, and can be in other countries, one of the biggest obstacles to resolving international child custody cases.

International Child Custody

Lost in Translation

I’ve written about international child custody cases in Japan before, specifically Japan’s compliance with abducted children under the Hague Convention.

Many have found that international child custody cases in Japan was a Battle Royale. People have long suspected that Japan is not really compliant with The Hague. Although Japan signed the Convention in 2013, a lot of people thought Japan did so only because of international pressure.

For example, people have pointed out that Japan has expanded Hague Convention exceptions making some of them mandatory and requiring Japanese courts to consider more things when defenses are asserted.

There were many Tokyo Stories about Japanese courts considering if it was “difficult for parents to care for a child” – a factor outside the scope of the Convention – which allows Japanese parents to complain about the challenges of being away from home.

Enforcement was always a huge problem in international child custody cases in Japan. Japan cannot enforce their orders. The law Japan passed to implement The Hague forbids the use of force and says children must be retrieved from the premises of the parent who has taken them.

According to research, about 3 million children in Japan have lost access to one parent after divorce in the past 20 years – about 150,000 a year.

For foreign fathers fighting international child custody cases, “this poses major problems, because they have a different mentality and they can’t comprehend losing custody or the right to visit their child. So, even when foreign parents win their case in a Japanese court, enforcement is patchy.

The State Department’s 2018 report described “limitations” in Japanese law including requirements that “direct enforcement take place in the home and presence of the taking parent, that the child willingly leave with the taking parent, and that the child face no risk of psychological harm.”

Spirited Away

Before the revision, the civil implementation law had no clear stipulation regarding international child custody cases. Court officials had to rely on a clause related to asset seizures to enforce court orders, a tactic that was criticized for treating children as property.

The legislation originally required a parent living with a child to be present when the child was handed over to the other parent. With the revision, however, the law allows custody transfers to take place in the presence of just one parent, rather than both.

The revision removes this requirement to prevent parents without custody rights from thwarting child handovers by pretending they are not at home. In consideration of the children’s feelings, the revision requires in principle that parents with custody rights be present during handovers.

The amended law urges courts and enforcement officials to make sure handovers do not adversely affect children’s mental or physical well-being. The new rules will take effect within one year of promulgation.

Last Samurai

The National Diet also enacted an amendment specifically to its legislation implementing the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

The new amendment was drafted in response to criticism about Japan’s international child custody cases, mentioned above: that handovers of children from Japan could not be carried out, even though Japan singed the Hague Convention designed to prevent parental abductions of children.

Historically, Japan maintained a system of sole custody. In a large majority of cases, when a dispute reaches court, mothers are typically awarded custody after divorce. It is not unusual for children to stop seeing their fathers when their parents break up.

The civil implementation law was also amended to allow Japanese courts to obtain information on debtors’ finances and property. The change is aimed at helping authorities seize money and property from parents who fail to meet their court-ordered child support obligations and from people who do not compensate victims of crime.

Ran

The U.S. Department of State ran to remove Japan from its list of countries said to be showing a pattern of noncompliance with the Hague Convention as a result of the Diet’s new laws. In its annual report, the department noted Japan’s legislative efforts to better enforce the Hague Convention on the Civil Aspects of International Child Abduction, which Japan joined in 2014.

But the department “remains highly concerned about both the lack of effective mechanisms for the enforcement of Convention orders and the sizable number of pre-Convention abduction cases”.

U.S. Rep. Chris Smith, a New Jersey Republican, criticized the department’s removal of Japan from the list:

“It cannot be denied that the Japanese government has done little to help reunite those American children who have been separated from their left-behind parents.”

The Japan Times article is available here.

 

Child Abduction Defense

International child custody always has the potential of a wrongful abduction. A parent who keeps their child in another country after a vacation, may face accusations the retention is in violation of the Hague Convention. Is there an international child abduction defense?

Hague Convention on Child Abduction

I’m of course talking about The Convention on the Civil Aspects of International Child Abduction done at the Hague on October 25, 1980. The Convention created procedures for the prompt return of children who have been wrongfully retained.

I have written and spoken on international child custody issues and the Hague Convention before. The left behind parent will typically file an application with their local Central Authority for transmission to the Central Authority in the country where the retained children are.

The elements of wrongful retention under the Convention include:

  • the habitual residence of the child was in the country to which return is sought;
  • the retention breached custody rights;
  • the left behind parent was exercising custody rights; and
  • the child is under 16.

If proven, the Convention requires courts to order the child to be returned to the child’s habitual residence, unless the party removing the child can establish at least one of several affirmative defenses.

There’s a Defense to Child Abduction?

In fact, there are a few affirmative defenses which can be raised by the alleged taking parent to prevent a court from ordering the prompt return of a child to the child’s habitual residence.

Rights of Custody

A typical defense is that the left behind parent was not exercising rights of custody at the time of the retention of the child. A custody ruling from a court from the child’s habitual residence may establish a right of custody.

The Hague Convention does not define the key term “exercise” of rights of custody, but many courts have found that they should liberally find “exercise” when a parent keeps regular contact with the child.

Consent

Another defense which can be raised is consent. A court not have to order the return of a child if the alleged taking parent can show the left behind parent gave prior consent to the retention or afterwards acquiesced.

Well Settled

Although there are more defenses, another defense often raised under the Convention is that the child is now “well-settled” in the new environment.

A court is not bound to order the return of a child if the alleged taking parent can prove that the case was filed more than one year after the wrongful retention, and the child is now settled in the new environment.

The Convention does not provide a definition of the term “settled.” But, some things to consider can include

  • The child’s age;
  • The stability and duration of the child’s residence in the new environment;
  • Whether the child attends school or day care consistently or inconsistently;
  • Whether the child has friends and relatives in the new area or does not;
  • The child’s participation in community or extracurricular school activities

The Hague

Keep in mind that the Convention does not consider who, between the parents, should have custody. Instead, the goal of the Convention is to determine whether the child has been wrongfully retained and if so, return the child.

International child abduction cases have some defenses a parent may want to think about before consenting to the other parent taking a quick vacation overseas to see relatives.

More information from the State Department on the Convention is available here.