Tag: Child Custody Hague

Should You Marry Someone From Another State?

Posted by Ron Kauffman on

When Wisconsinites choose a spouse, there’s just something about those Minnesotans that they find irresistible. Time magazine looked at over 100 million interstate marriages to make the analysis. The analysis also raises the issue of interstate custody.

Do We Marry Local?

Time magazine recently did an analysis of which states were most compatible when it comes to marriages. To figure this out, Time examined data on 116 million “interstate marriages” in which the partners were born in different states.

For people from each state, they looked at the most common home states for their spouses compared to the national average.

While people are generally most likely to marry someone from the same home state as themselves — eat local, and “marry local,” you might say — those who choose a spouse born in a different state don’t tend to drift very far.

To be clear, while Texans are much more likely than most other people to marry a Louisianan, there are still more total marriages between Texans and Californians, since California is such a large state. Whether you’re from California or your spouse is from Texas, if you have a child, this could have an interstate custody issue.

Your Interstate Child

I’ve written on the issue of interstate custody before, and was recently invited to speak at a state-wide presentation. There are two major interstate, uniform acts that have been adopted by almost every state in the U.S. The first, UIFSA, deals with interstate children support. The Second, UCCJEA, deals with custody.

UIFSA is a uniform act drafted by the Uniform Law Commission, and forcibly adopted by all U.S. states by federal law. Historically, multiple orders, issued by different states, created confusion; courts were unsure which orders were to be enforced, and it was easy to reduce, delay and evade enforcement by moving across state lines.

The purpose of UIFSA is to improve and extend the enforcement of duties of support so that once a foreign support order is registered in Florida, it has the same effect as a Florida order.

The UCCJEA, like the UIFSA, is another uniform act drafted by the ULC, and adopted by all U.S. states except Massachusetts. Different states have different approaches to issues related to custody, and inconsistent rulings about custody could create major problems.

The UCCJEA and the UIFSA share common features and concepts, and in places, the two acts have nearly identical provisions. However, they deal with different family law issues (custody and support) which can strongly impact how the two Acts are implemented.

The general purposes of the UCCJEA are: to avoid jurisdictional competition and conflict with other courts in child custody matters; promote cooperation with other courts; insure that a custody decree is rendered in the state which enjoys the superior position to decide what is in the best interest of the child; deter controversies and avoid re-litigation of custody issues; facilitate enforcement of custody decrees; and promote uniformity of the laws governing interstate custody issues.

Idahoans Love Utahans

According to Time, some of these bonds are stronger than others. While Michiganders are about equally likely to pair off with someone from Wisconsin, Ohio or Indiana, people from Utah and Idaho share a deep, mutual connection.

If you were born in Utah, for example, you are 15 times more likely to marry an Idahoan than someone from elsewhere — a bond that may be strengthened by the fact that they have the largest concentrations of Mormons, according to a 2013 Gallup poll.

On the other hand, most connections between states are not mutual. A person from South Dakota has the most disproportionate chance of marrying someone from North Dakota.

However, the North Dakotans have a slightly higher penchant for marrying Minnesotans, as do those from Wisconsin.

Likewise, Mississippi is the soul state for those born in Tennessee, Louisiana and Alabama.

The Time magazine article is available here.

 

International Custody

Posted by Ron Kauffman on

Tennis ace Victoria Azarenka will miss the US Open this year because of an international custody battle with ex-boyfriend Billy McKeague over their 8-month-old son. The case was filed in California, but there may be a custody order from Belarus, where Victoria, Leo and Billy are all residents.

The case became an international custody case, and an international tennis affair, after the father, McKeague, filed for paternity and custody in Los Angeles, where Azarenka has a residence. A California judge informed the Belarusian born tennis star that she is unable to leave the state of California with her infant son as the custody dispute rages on.

With the case set to wrap in October, Azarenka will have to skip the U.S. Open, which kicks off Aug. 28 in New York, as she refuses to leave her child in the hands of her former boyfriend because she doesn’t believe he’s capable of caring for the child.

Hague Convention and Custody

Why would a California judge have a problem with allowing the mother to travel with her son to New York, – with the possibility of slipping off to Belarus – during a custody battle with a man she believes is not capable of caring for the child?

The answer is simple: the judge is concerned about international child abduction, and that raises the issue of the Hague Convention on the Civil Aspects of International Child Abduction. I’ve written about the subject of international child custody cases before.

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 or retained within the meaning of the Hague Convention, 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.

According to the Convention, Belarus’s accession to the Convention is effective only in the relationship between Belarus and those contracting states that have declared their acceptance of the accession. The United States has not recognized Belarusian participation in the Convention.

Game, set, match?

According to the New York Post, Azarenka’s attorney, told the California judge her client is more than willing to buy a plane ticket for McKeague and put him up in a hotel for the 2-week tournament.

“But for some reason the judge won’t defer to the Belarus court.”

When cases involve international custody, and there is a risk that a child could possibly be abducted to a foreign country without treaty agreements with the United States, judges are extremely careful about allowing travel – even to the U.S. Open.

The New York Post article is here.

 

Pakistan & The Hague Convention

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Thursday, September 1, 2016.

Pakistan might sign the Hague Convention on the Civil Aspects of International Child Abduction. What does The Hague have to do with child custody?

In Pakistan, The Hague Convention has received approval almost unanimously by the Cabinet. The only words of reluctance for it have been, predictably, from the Council of Islamic Ideology.

“As with the Women’s Protection Act, and the honor crimes bills, the necessity is to continue on the right path, despite the whimpering and protests of an archaic group.”

The Hague Abduction Convention is a treaty that many countries, including the United States, have joined. The purposes of the Convention are to protect children from abduction by a parent by:

(1) Encouraging the prompt return of abducted children to their country of habitual residence, and

(2) Securing rights of access to a child.

I’ve written about child custody issues before, The basic idea behind The Hague Convention is that child custody and visitation matters should generally be decided by the proper court in the country of the child’s habitual residence.

The Convention does not apply to every international parental child abduction case. First and foremost, your country must be a signatory country to the Convention. Additionally, you must show:

– That your child was wrongfully removed to or retained in another Convention country;

– The Convention was in force between the two countries when the wrongful removal or retention occurred

– The child is under the age of 16 at the time of filing of the application.

Under the Convention, a country may refuse to return an abducted child or grant access to the child if:

– There is a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation in his or her country of habitual residence;

– The child objects to being returned and has reached an age and degree of maturity at which the court can take account of the child’s views; or

– The return would violate the fundamental principles of human rights and freedoms of the country where the child is being held.

In Pakistan, the Convention is required if Pakistani children are stranded abroad and a parent with custody wants to force the child’s return. Many countries – such as the U.S. – advise against traveling to Pakistan because Pakistan is a non-signatory country.

The article in The Nation is here.

A Custody Case Goes to the U.S. Supreme Court

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, December 14, 2012.

Many international child child custody cases are governed by the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The Hague Convention is a treaty signed by the United States and 88 other members. It protects children from abduction across international lines by providing a procedure to quickly return them. But after the child has been returned, how does a parent appeal if they think the trial court got it wrong?

Most people don’t know this, but it is extremely rare to have your case heard by the United States Supreme Court. In family law cases, it is even rarer. However, the U.S. Supreme Court agreed to hear a case this term: the appeal of U.S. Army Sergeant Jeff Chafin, whose wife, Lynn, left the U.S. for Scotland with the couple’s daughter after a U.S. district court allowed it.

In Chafin, the question is whether the case is moot after the child has been returned to their country of habitual residence. Mrs. Chafin returned to Scotland with the child after a federal trial judge allowed it. The trial court determined Scotland was the child’s habitual residence. Sgt. Chafin appealed the order, claiming the U.S. was the habitual residence. The 11th Circuit Court of Appeals in Atlanta dismissed his appeal as moot. The 11th Circuit happens to be the federal appeals court governing Florida.

But appellate courts are split on whether to keep jurisdiction or dismiss them as moot. For example, the 4th Circuit in Virginia has ruled that removal of the child did not make the case moot. During oral argument before the U.S. Supreme Court, Chief Justice John Roberts Jr. I think correctly observed:

It seems to me, and I may be taking the opposite position from one of my colleagues, but the — the best thing is to hold things up briefly, so that the child doesn’t go overseas and then have to be brought back, particularly if you have situations where there can be an expeditious appeal.