Category: International Law

Speaking on Interstate and International Custody

Posted by Ron Kauffman on

Honored to be speaking on interstate and international child custody issues at the prestigious Marital & Family Law Review Course in Orlando from January 26th to January 27th. I will be discussing federal and state statutes relating to child custody and family support, in addition to the Hague Convention on international child abductions. The event is co-sponsored by the Florida Bar Family Law Section and the American Academy of Matrimonial Lawyers.

Speaking International Child Custody

Interstate Custody

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

The Uniform Child Custody Jurisdiction and Enforcement Act, and The Uniform Interstate Family Support Act, can be critical laws to know in those cases.

International Child Abductions

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

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

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

Interstate Family Support

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

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

Certification Review Course

It is a privilege to be invited to speak on interstate custody and international child abductions at the annual Family Law Board Certification Review Seminar again. The annual seminar is the largest and most prestigious advanced family law course in the state. Last year’s audience included over 1,600 attorneys and judges from around the state.

The review course is co-presented by the Family Law Section of The Florida Bar, and the American Academy of Matrimonial Lawyers.

Registration information is available here.

International Academy of Family Lawyers

Posted by Ron Kauffman on

I am honored to announce my admission as a Fellow in the International Academy of Family Lawyers. The International Academy of Family Lawyers is a worldwide association of practicing lawyers who are recognized by their peers as the most experienced and expert family law specialists in their respective countries.

IAFL

International family law has become predominant in our work as our firm increasingly focuses on complex divorce and jurisdictional issues, interstate and international family law, child relocation, and Hague international child abduction cases.

The primary objective of the IAFL is to improve international family law practice throughout the world. It pursues that objective in a number of ways: creating a network of expertise in international family law around the world providing its fellows with information about both international and national developments in the law; offering advice and assistance to the wider public; promoting law reform and, where possible, harmonization of law.

Fellowship into the IAFL is by invitation only. The process is a rigorous one, designed to ensure that the high level of expertise within IAFL is maintained. Membership has grown steadily, and the number of countries now represented is 60 and IAFL has over 860 Fellows.

More information about the IAFL is available from their website here.

 

Child Abduction and an Old Fish

Posted by Ron Kauffman on

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

Posted by Ron Kauffman on

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.

 

International Divorce

Posted by Ron Kauffman on

When a spouse is from a foreign country, divorce can be complicated — especially when the couple works in one county, assets are in another country, a pension is in another, and the kids are in a fourth country. What are the issues in an international divorce?

Divorce Around the World

As the Economist reports, globalization has resulted in multi-national marriages, which is common among wealthy, highly mobile families. When they stop being high-earning families, life gets tricky, and international divorce can get even trickier.

Families which got used to living on huge bonuses are unable to continue with the commitments they have taken on — housing and school tuition, and the cost of living the high life.

Where to Sue?

So, who sues whom and where in an international divorce? The answer is more difficult than people think. A British divorce might give more money because British courts can disregard prenuptial agreements, and the cost of living is high in London.

In France, things could be very different. Adultery can be penalized, but in the typical French divorce, any alimony could be less and for eight years at most; and prenuptial agreements are binding.

However, in Florida, the outcome could be different still. Under Florida law, alimony is constantly under threat of a major revision by the legislature, and child support is governed by a formula. Courts may award attorneys’ fees, and prenuptial agreements are generally enforceable.

International Child Custody

Rules about children can differ too. I’ve written on international divorces, especially as they relate to child custody issues and The Hague Convention on abduction.

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:

  • The child must be under the age of 16 years of age;
  • The wrongful removal must be a violation of the left behind parent’s “rights of custody;”
  • 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”.

Hiding Assets

Hiding assets is a problem in every divorce. The problem of discovery of hidden wealth is even bigger in an international divorce because multiple countries, and multiple rules on discovery, can be involved.

The problems in an international divorce are more complicated because hiding assets from a spouse is much easier in some countries than in others.

Florida, at one extreme, requires complete disclosure of assets and liabilities. In fact, in Florida certain financial disclosure is mandatory. At the other extreme, are countries which require very little disclosure from people going through divorce.

Court Shopping

Choosing possible countries to file your divorce in can be construed as “forum shopping”.

The European Union introduced a reform called Brussels II, which prevents “forum shopping”, with a rule that the first court to be approached decides the divorce.

But the stakes are high: ending up in the wrong legal system, or with the wrong approach, may mean not just poverty but misery.

The Economist article is here.

 

Sharia Divorce in Germany

Posted by Ron Kauffman on

The European Court of Justice is considering whether a foreign divorce, granted by a Sharia court, is valid in Germany. The German case raises the issue of when foreign laws conflict with rights protected in other countries, an issue Florida has grappled with.

Sharia Divorce in Europe

On Thursday this week, the advocate general at the European Court of Justice (ECJ), issued an opinion saying that a foreign divorce under Sharia law should not be recognized.

The ECJ judgment is still pending; however, judges often follow such recommendations.

The case involves a couple from Syria with German nationality. They married in 1999 in Homs, Syria, before moving to Germany. Four years ago, in a Syrian Sharia court, the husband ended the marriage by repeating the word “talaq” (“I divorce you”) three times.

Florida Divorces and Sharia

I have written extensively on foreign divorce before, and the triple Talaq issue specifically. As the European case suggests, the Triple Talaq allows Muslim men to leave their wives instantaneously by saying “talaq,” meaning divorce, three times.

The thousand-year-old custom of triple talaq was recently banned by the Indian Supreme Court.

Florida has resolved the issue of the enforcement of foreign divorce in Florida to a certain extent when it enacted Florida Statute 61.0401. The statute prohibits courts in Florida from enforcing:

  • A choice of law provision in a contract selecting the law of a foreign country which contravenes the strong public policy of this state or that is unjust or unreasonable.
  • A forum selection clause in a contract that selects a forum in a foreign country if the clause is shown to be unreasonable or unjust or if strong public policy would prohibit the enforceability of the clause.
  • A judgment or order of a court of a foreign country is not entitled to comity if the foreign court offends the public policy of this state.

Florida Statutes do not mention Sharia, or any religious divorce law at all. However, in an international divorce case in Florida, to the extent the Syrian divorce (triple talaq) law violates the U.S. and Florida Constitution, the Syrian law may not be enforceable.

The European Divorce Debate

The European Union Divorce Law Pact, known in family law circles as “Rome III Regulation”, governs the recognition of private divorces, meaning divorces that were not granted by a state court.

Under Rome III, a foreign law is not applied in European courts if men and women do not have equal power in divorce proceedings.

Many Germans are concerned about the recognition of foreign divorces, especially when they are based on Sharia. “Many people have a one-sided understanding of Sharia law. There are problematic areas in traditional Sharia law, which allows corporal punishment for criminals; is patriarchal and does not recognize gender or religious equality.

When foreign laws are applied in Germany, their effect is subject to scrutiny, such that if it results in gross injustice and a violation of fundamental rights, the state will correct it. This has been standard practice in Germany for 100 years now.

“This is an election year. Europe is losing faith. If the ECJ now said, ‘This is applicable; we will examine the individual cases,’ then the headlines would read: ECJ says Sharia divorce is valid. And then I would not like to see how anti-Islam groups such as Pegida, AfD and the like would react.”

The Deutsche Welle, article is available here.