Tag: Child custody

Foreign Custody and Sex Discrimination

Posted by Ron Kauffman on

A recent interstate child custody case from Mali sheds light on sex discrimination in foreign courts. Should an American court honor a foreign court’s custody order if the foreign country favors men over women in custody cases? An Indiana court just answered that question.

A Mother appealed to the Indiana Court of Appeals a trial judge’s refusal to modify a child custody order from the west-African nation of Mali in favor of the Father.

The Mother argued that the trial judge was not required to enforce the Malian court’s order under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) because the order from Mali was the product of laws that violate fundamental human rights.

Indiana, like Florida, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Under the UCCJEA courts must enforce foreign custody decrees if it was issued by the country that was the child’s home state.

Enforcement is especially required if everyone was given notice and opportunity to be heard, and the child custody laws of the foreign country don’t violate fundamental principles of human rights.

The big question was whether Mali child custody laws violate human rights principles as Indiana courts understand them.

Florida and the UCCJEA

I’ve written and spoken many times on international custody involving the UCCJEA and The Hague.

The UCCJEA is a uniform act, and was adopted by all U.S. states except Massachusetts; which still follows the older UCCJA.

The UCCJEA was made to harmonize custody, visitation, timesharing and parental responsibility because different states and countries have different approaches to family law issues.

Florida treats foreign countries as if they were states of the United States for purposes of applying the UCCJEA. So, a child custody order made in a foreign country in substantial conformity with Florida’s UCCJEA must be recognized and enforced here.

However, under the UCCJEA Florida does not need to enforce or recognize the foreign order if the child custody law of a foreign country violates fundamental principles of human rights.

That was the issue the Indiana court had to decide.

The Indiana Case

The Mother and Father are both dual citizens of France and Mali, and divorced in Mali. Both parties asked for custody of the children.

After the trial, but before the Mali court issued an order, the Mother took the children to France, and the Malian court then awarded the Father custody.

The Mother never returned the children, unsuccessfully sought Mali and France then moved to Indiana and filed her case there.

The Indiana court rejected the Mother’s argument under the UCCJEA that the custody laws of Mali violate fundamental human rights because it favors men over women.

The Mother argued that Mali’s divorce law is fault-based, have a preference for men in child custody decisions because under Mali law, the following were tru:

  • The husband owes protection to his wife, the wife obedience to her husband.
  • The husband is deemed the head of the household,
  • The husband has the right to choose the family residence, and the wife must live with him and he must receive her.
  • A woman is prohibited from running a business without her husband’s permission.
  • Mali has failed to outlaw female genital mutilation

However, the Indiana court found that Mali did not actually apply the statutory custody presumption in favor of Father.

Instead the Indiana court found that under Mali law, custody could be awarded to Father or Mother. Additionally, in the Mali case under review, the best interests of the children controlled this decision.

The Female Genital Mutilation Argument

A 1999 United States Agency for International Development funded study in Mali was conducted, and found that 93.7% of women had gone through some form of female genital mutilation, usually when they are young.

The Indiana court rejected the Mother’s argument about Mali’s failure to outlaw female genital mutilation – in part because it noted that the father had condemned the practice.

Under the UCCJEA, while female genital mutilation is itself a human rights violation, Mali’s failure to pass a law specifically prohibiting the practice does not in and of itself constitute a violation of fundamental principles of human rights.

The Indiana Court of Appeals decision is here.

 

British Grandparent Rights

Posted by Ron Kauffman on

A British grandmother who wanted to assert some grandparent rights for her grandchild, fought local authorities after a recommendation that the baby be put up for adoption. She won, and now the child is in her custody.

In Britain, the parents of the child were unable to look after the baby, and the paternal grandmother put herself forward to be the special guardian, a role similar to foster care.

The grandparent rights case, heard in Britain last month, raises questions about the challenges faced by families trying hold on to children as special guardians for their relatives’ children – mostly grandparents.

Florida Grandparent Visitation

I’ve written about grandparent rights to visitation several times. The U.S. Supreme Court, in Troxel v. Granville, held that the Due Process Clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

So, as long as a parent is adequately caring for his or her child, there will normally be no reason for the state to inject itself into the private realm of the family. The basic presumption in Troxel is that fit parents act in the best interests of their children.

However, the Troxel court did not hold that the Due Process Clause requires a showing of harm or potential harm to the child as a condition to granting rights of visitation. That is a Florida law.

Instead, the U.S. Supreme Court left those decisions for the states to decide on a case-by-case basis.

It surprises many Floridians – because of the large percentage of grandparents here – but grandparent don’t have visitation rights here.

Grandparent rights to custody and time-sharing do not really exist in Florida without showing harm to the child; otherwise, it is deemed to violate parents’ privacy.

British Grandparent Battle

The grandparent rights case involved a professional who works with children, initially received what the judge described as “very positive and full assessments” about her suitability as a caregiver.

However, more than five months after care proceedings began it was followed by a second negative report who questioned her commitment. At this point, the social work team recommended that the baby instead be put up for adoption.

When the case came to court, the judge ordered that the grandmother should become the baby’s special guardian after all.

Describing the hearing, the judge said the grandmother had “expressed profound dissatisfaction about the way in which she had been assessed and treated”.

The protracted battle has meant the baby only recently joined the grandmother after a long stay in foster care.

The judge paid tribute to the grandmother as “an intelligent and courteous woman” who had “put herself out considerably to offer her grandchild the opportunity of being cared for within the natural family”.

The Buzzfeed article on grandparent rights is here.

 

Rape and Child Custody

Posted by Ron Kauffman on

As the Hollywood sex abuse scandal widens, another issue comes to mind: can someone convicted of criminal sexual misconduct get child custody of the offspring he fathers? It may seem like an unbelievable question, but a Michigan mother just found out it is very real.

In Sandusky, Michigan, a district court judge just stayed his order which granted an alleged rapist joint custody and parenting time as father of an 8-year-old boy after the judge learned details of the case.

According to USA Today, a standardized form was used in the original case the lawyer for the boy’s mother said. The boy’s mother had requested welfare benefits. To qualify for payments, she had to file a paternity complaint.

This young woman … completed and signed a paternity questionnaire in which she disclosed the alleged father’s name and address. She further signed an agreement to cooperate with pursuing paternity and signed a statement authorizing the disclosure of her address.

Federal law requires state departments of health and human services to establish paternity and pursue a child-support order from a court, Bob Wheaton, the Michigan department’s spokesman, wrote in email.

The department would need to be notified by the custodial parent of any reason to determine good cause not to pursue a child support order.

Rape Survivor Child Custody Act

This is actually a national problem.

Each year, there are approximately 32,000 pregnancies resulting from rape, according to a 1996 study by the American Journal of Obstetrics and Gynecology.

This used to happen so much, I’ve actually written about this nationwide phenomenon of a rapist getting custody before.

Originally, in Pennsylvania, State Senator Randy Vulakovich and Representative Joe Hackett introduced the Rape Survivor Child Custody and Support Act in the Senate and House, respectively.

Congress also got involved. President Obama signed the Rape Survivor Child Custody Act into law as part of the bipartisan Justice for Victims of Trafficking Act.

The Rape Survivor Child Custody Act boosts funding for states that allow women to petition for the termination of parental rights based on clear and convincing evidence that a child was conceived through rape.

Back in Michigan

The standard form that the boy’s mother was asked to fill out doesn’t have anywhere to state her concerns. The county is now reviewing its handling of paternity complaints.

The judge, Gregory Ross, scheduled a hearing after halting his September order. That order also had required the father to pay $346 a month in child support and maintain health-care coverage.

Christopher Mirasolo, now 27, of Brown City, Mich., pleaded guilty to attempted third-degree criminal sexual conduct in the Sept. 6, 2008, assault of the woman, who was 12 years old when he was 19.

Sanilac County released the alleged rapist after 6½ months in jail. He also later pleaded no contest to third- and fourth-degree criminal sexual conduct in a March 29, 2010, incident involving a 15-year-old girl, serving four years in state prison for that crime, and is a registered sex offender.

The USA Today article is here.

 

Vaccinations and Custody

Posted by Ron Kauffman on

In Michigan, a judge reduced a mother’s child custody rights after she refused to vaccinate her son. What is the relationship between custody and vaccinations?

Michigan’s Vaccination Case

In Michigan, Oakland County Judge Karen McDonald ruled Wednesday that Rebecca Bredow will no longer have primary custody of the boy but will have joint custody with her ex-husband, James Horne.

Horne wanted to vaccinate the boy, and Bredow agreed to do so last November. But she didn’t. She says vaccinations go against her religious beliefs.

Custody and Vaccinations

Generally, shared parental responsibility is a relationship ordered by a court in which both parents retain their full parental rights and responsibilities.

Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their child.

In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends.

In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

Issues relating to a child’s physical health and medical treatment, including the decision to vaccinate, are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court.

At the trial, the test applied is the best interests of the child. Determining the best interests of a child is no longer entirely subjective

Instead, the decision is based on an evaluation of certain factors affecting the welfare and interests of the child and the circumstances of the child’s family.

Florida Vaccinations

I’ve written about the decision to vaccinate and custody in Florida before.

In Florida, a court can carve out an exception to shared parental responsibility, giving one parent “ultimate authority” to make decisions, such as the responsibility for deciding on vaccinations.

There are at least two cases in Florida dealing with the decision to vaccinate and custody, and they conflict!

In one case, a Florida court heard the conflicting positions on immunization and decided that it would be in the child’s best interest to allow the anti-vaccination Mother to make the ultimate decision regarding the child’s immunization.

Ten years later, a different Florida court heard conflicting testimony, and decided it was in the child’s best interest to award the pro-vaccination Father ultimate responsibility to make decisions regarding the minor child’s vaccinations.

The decision to vaccinate raises interesting family law issues. It is important to know what your rights and responsibilities are in Florida.

Vaccination and Jail

Back in Michigan, Judge McDonald found Bredow in contempt of court last week and ordered her jailed. She also granted temporary custody to Horne and ordered the boy to be vaccinated. He received four immunizations on Monday.

Bredow told reporters Wednesday she was “in shock” by the court’s decision. Her attorney plans to appeal.

Spanking and Child Custody

Posted by Ron Kauffman on

‘Spare the rod spoil the child’ sayeth Proverbs. Canada is still debating a bill in their parliament to outlaw spanking. Can you spank without fear of losing child custody or it impacting time-sharing in Florida?

Spanking Worldwide

A bill to criminalize spanking returned to the floor of the Canadian Senate in late February of this year, and this week is currently on its second reading. If S-206 passes, it will go to the House of Commons, where the Liberal majority has pledged its support.

According to the U.N., Slovenia is the 51st state worldwide to fully prohibit all corporal punishment of children, the 30th Council of Europe member state, and the 21st European Union state to do so.

The bill’s original sponsor believes that spanking harms children’s psyches. But those who believe disciplining children with spanking should be an option, are worried that their actions could lead to criminal charges against parents and child seizures by the government.

Spanking in Florida

In Florida you’re not supposed to hit your children. Florida has strong laws for the protection against domestic violence. Domestic violence includes any assault, battery or any other offense resulting in physical injury of a family member by another family member.

However, parents have to discipline their children, and as the good book says, he who loves his child is careful to discipline him. I’ve written about spanking and custody before. In Florida, parents have a right to discipline their child in a reasonable manner.

A parent’s right to administer reasonable corporal punishment to discipline a child is not a crime when it does not result in harm to the child.

Harm, by the way, does not mean just bruises or welts for instance. Harm also means that the discipline is likely to result in physical injury, mental injury, or emotional injury. Even if you don’t physically harm a child, your actions could be criminal.

Florida’s parental privilege to use corporal discipline does not give absolute immunity either. Your run-of-the-mill spanking may be protected from charges of child abuse, but punching your child, pushing him onto the floor and kicking him is not.

So, is it open season on kids? Hardly. Guardians and judges are analyzing you, and you don’t want to start off your custody case explaining why you beat your kids. The excuse: “this fellow does what the bible says” will not score a lot of points in a courtroom.

Besides, some studies suggest that time-outs work just as well as spanking for immediate punishment, and that for long-term effectiveness, spanking decreases compliance. Worse, spanking may increase child aggression.

While there are some limited privileges for discipline, there are major risks to your custody case, your criminal defense case, and most importantly, to your children.

Back in Canada

Some in Canada argue that the bill lumps child discipline and child abuse into the same category. Were the children of spanking parents more violent because of spanking, or did their parents spank more than others because their children were more violent?

The Lifesitenews article is here.

 

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.

 

Religious Upbringing and Divorce

Posted by Ron Kauffman on

Divorce agreements can dictate the religious upbringing of a child: which church to attend, or how strict a religious education should be. What happens after divorce if an ultra-orthodox mother concludes she is a lesbian and wants to live a normal life?

The New York Case

In last week’s New York case involving the Weisbergers, the parents agreed to give the children a Hasidic Jewish upbringing in all details, in the home or outside of home, including which school the children attend.

Three years after the divorce, the mother came out as a lesbian, disparaged the basic tenets of Hasidic Judaism, allowed the children to wear non-Hasidic clothes, permitted them to violate the Sabbath and kosher dietary laws, and referred to them by names that were not traditionally used in the Hasidic community.

The trial judge ruled in favor of the father, circumstances had changed so much that he should have sole custody because of the mother’s transition from an ultra-Orthodox Hasidic lifestyle to a “more progressive, albeit Jewish, secular world.”

The court noted that the mother’s conduct was in conflict with the parties’ agreement, which “forbade living a secular way of life in front of the children or while at their schools.” The court posited that had there been no agreement it might have considered the parties’ arguments differently.

Florida Religious Upbringing

In Florida, there is no provision in our laws purporting to authorize such judicial enforcement in married parents. Religion and divorce is a matter I’ve written on before.

In a divorce action, the court’s powers over custody of children are found in the Florida Statutes. When a court is required to decide an issue as to the custody or support of minor children, the sine qua non of the exercise of those powers is the best interests of the child.

There is absolutely nothing in the statutory listing that expressly makes the religious training of the child a factor that the court should consider.

The Florida Statutes command all parents to confer on all major decisions affecting the welfare of their child, and to reach an agreement as to any required decision.

When the matter involves the religious training and beliefs of the child, courts cannot make a decision in favor of a specific religion over the objection of the other parent. Generally, a child’s religion is no proper business of judges.

New York Law Changes

The appeals court in New York reversed the father having sole custody of the children, and final decision-making authority over medical, mental health issues, with supervised therapeutic visitation to the mother.

When presented as an issue, religion may be considered as one of the factors in determining the best interest of a child, although it alone may not be the determinative factor.

Clauses in custody agreements that provide for a specific religious upbringing for the children will only be enforced so long as the agreement is in the best interests of the children.

Importantly, no agreement of the parties can bind the court to a disposition other than that which a weighing of all of the factors involved shows to be in the children’s best interest.

The Washington Post article is here.

 

Relocations

Posted by Ron Kauffman on

The New Jersey Supreme Court recently overturned a decades-old law, and set a new standard, in the best interest of children in relocation disputes. Relocation disputes arise when one of the parents wants to move away with the child after divorce or separation.

The court ruling Tuesday affects cases in which parents have divorced and one wants to leave New Jersey with a child against the wishes of the other parent.

The old law focused on whether the move would “cause harm” to the child. With the court ruling, divorced parents now must prove the move is in the child’s best interest.

Florida Divorce Relocation

In Florida, “relocation” is defined as changing a parent’s principal residence to a new one at least 50 miles away from his or her current address for at least 60 consecutive days. Relocation is a topic that I have lectured and written on before.

Florida has a relocation statute, which in addition to defining relocations, sets out the requirements a parent needs to fill to legally relocate by agreement or court order.

The relocation statute is very technical, and lays out very specific factors a relocation parent must prove, and the court must consider to determine if the proposed relocation is in the best interests of the child.

There is no presumption in favor of or against a request to relocate with the child even though the move will materially affect the current schedule of contact, access, and time-sharing with the nonrelocating parent.

Instead, the court looks at specific factors, such as: the child’s relationship with the relocating parent and with the non-relocating parent, the age and needs of the child, the ability to preserve the relationship with the non-relocating parent; and the child’s preference, among others.

New Jersey Supreme Court Case

The recent New Jersey Supreme Court decision stems from a 2015 case in which a father tried to keep his daughters from moving to Utah with his ex-wife after the divorce.

Jamie Taormina Bisbing, the primary custodian of her twin daughters, planned to move with them to Utah after getting remarried.

Her divorce settlement required she get written consent from her ex-husband, Glenn, before moving. Glenn Bisbing argued that his daughters should remain in New Jersey.

A trial court permitted the girls and their mother to move to Utah, but an appellate court later reversed that decision, saying the “best interests of the child standard” should be applied.

Matheu Nunn, the father’s attorney, said the state Supreme Court ruling resolves the issue of why the “best interest” standard was applied to all other custody rulings except for cases where a parent is separated from a child.

The New Jersey Supreme Court changes the burden of proof in New Jersey from the old standard in which there was a presumption that children were happiest when their custodial parent was the happiest.

The new standard brings New Jersey law into line with Florida, which puts the burden of proof on the parent who wants to relocate and it reflects a growing trend in New Jersey to consider the rights of both parents.

The US News article is here.

 

Anatomy of Sole Custody

Posted by Ron Kauffman on

Grey’s Anatomy star, Jesse Williams’ estranged wife, Aryn Drake-Lee, is requesting sole custody of the couple’s two children, citing the actor’s unpredictable work schedule, a dangerous driving incident and his alleged “revolving door” of women. When is sole custody awarded in court?

According to news reports, in court documents filed on August 11, the real estate broker claims that she is responsible for the day-to-day care of the kids because of the Grey’s Anatomy star’s busy schedule.

“Jesse would ‘join in’ when he was available and home, but he rarely took care of the children without my or the nanny’s help and presence,” the documents say.

“Jesse became distant, secretive and was home less and less, traveling for unexplained reasons while telling the kids, ‘Daddy is at work.’ We tried marriage counseling in the fall of 2016, but were unsuccessful. Jesse eventually moved out at the end of March 2017.”

Florida Sole Custody

The question about an award of sole custody of children frequently comes up in consultations, and is a matter I’ve written about before. Many people are surprised to learn that the term “custody” is no longer recognized in Florida.

Florida replaced the “custody” term for the “parenting plan” concept in order to avoid labeling parents as “visiting parent” or “primary parent” in the hopes of making child custody issues less controversial.

Under Florida’s parenting plan concept, both parents enjoy shared parental responsibility and a time-sharing schedule. “Shared parental responsibility” means both parents retain full parental rights and responsibilities, and have to confer with each other so that major decisions affecting their child are made jointly.

A time-sharing schedule, as the name suggests, is simply a timetable that is included in the parenting plan that specifies the times, including overnights and holidays, that your child spends with each parent.

Florida’s parenting plan concept has changed sole custody into “sole parental responsibility.” The term means that only one parent makes decisions regarding the minor child, as opposed to the shared parental responsibility terms, where both parents make decisions jointly.

How do you get sole custody in Florida?

Sole parental responsibility, or sole custody as people generally call it, has been made more difficult to obtain. Florida’s public policy is for each child to have frequent and continuing contact with both parents after a divorce.

Because of Florida’s public policy, courts order shared parental responsibility unless the court finds that shared parental responsibility would be detrimental to the child.

In those cases where detriment is proved, the court orders sole parental responsibility to one parent, with or without time-sharing with the other parent, if it is in the best interests of the minor child.

The Anatomy of Sole Custody

Drake-Lee allegedly claims in court documents that her husband has “not recognized and prioritized the children’s schedule over his own and their need to maintain it daily, even on weekends, whether or not a parent is working.”

She also claims that her ex does not make the children’s school pick-up and drop-off a priority, and tries to make the nanny drive the kids, although that’s not what she was hired to do.

However, in previous court documents Williams has claimed that Drake-Lee has declined his requests to spend more time with the children. “Aryn restricts my time with the children and decides when, and for how long I may have them,”

The US Weekly article is 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.