Tag: child support international

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 Child Custody and the Death Penalty

Posted by Ron Kauffman on

Whether a U.S. state court will have subject matter jurisdiction over a foreign order in an international child custody case turns on whether a parent is subject to the death penalty in the country originally granting child custody. That painful issue is addressed in a recent appeal from the state of Washington.

Custody Death Penalty

Desert Heat

The Father, Ghassan, appealed a Washington state court’s jurisdiction and award of custody of his child, ZA, to the Mother Bethany. Ghassan and Bethany married in Saudi Arabia in 2013. Bethany is a U.S. citizen, and Ghassan is a citizen of Saudi Arabia. The couple had one child, ZA, in Saudi Arabia.

In 2017, Bethany filed for divorce in Saudi Arabia. In January 2019, a Saudi judge granted the divorce and custody of ZA to Bethany. But then in April, the father sued for custody of ZA on behalf of the paternal grandmother. The parties had a bitter custody battle in which the father accused Bethany of gender mixing, adultery, and insulting Islam.

The father presented damning evidence in the Saudi family court, including photographs of the mother in a bikini in the U.S., and a video of her doing yoga.

Adultery, insulting Islam, and insulting Saudi Arabia are crimes in Saudi Arabia which carry the death penalty. The Saudi judge derided Bethany as a foreigner, who embraced western cultural traditions, and even worse, lamented the child spoke fluent English!

The Saudi court awarded custody to the paternal grandmother who lived with the father. Bethany wisely reconciled with her ex, and convinced him to give her custody rights in exchange for her forfeiting child support. With the father’s permission to travel to Washington for a visit with her family, the mother and daughter left the sand dunes of Arabia for the Evergreen State.

The Battle Near-ish Seattle

Bethany filed a petition for temporary emergency jurisdiction under the UCCJEA and then a permanent parenting plan and child support. The father moved to dismiss for lack of personal and subject matter jurisdiction. In the alternative, he asked the court to enforce the Saudi Arabia custody order and waiver of all financial rights.

The family court denied enforcement of the Saudi order and the mother’s waiver of child support. The family court ruled that Washington had jurisdiction in a custody case if “the child custody law of a foreign country violates fundamental principles of human rights.” The father appealed.

Then in 2021, Washington amended its UCCJEA to add a provision that Washington need not recognize another country’s custody order if:

the law of a foreign country holds that apostasy, or a sincerely held religious belief or practice, or homosexuality are punishable by death, and a parent or child may be at demonstrable risk of being subject to such laws.

On appeal, the Washington Court of Appeals applied Washington’s new amendment to the UCCJEA. The Court of Appeals ruled that a Washington court need not enforce the Saudi child custody decree, and may exercise jurisdiction over custody, because Saudi Arabia punishes “apostacy” by death.

The Court of Appeals found that ample evidence supported the family judge’s ruling that the mother faced a death sentence if she returned to Saudi Arabia for her religious and political beliefs. Additionally, the father did not dispute that Bethany could receive the death sentence on her return to Saudi Arabia.

The unpublished opinion is here.

Divorce Capital of the World

Posted by Ron Kauffman on

London has become known as the ‘divorce capital of the world’, proving that where you file your divorce can be of extreme importance. File in the wrong jurisdiction, like Afghanistan, and your divorce can be deemed a nullity. But file in the right jurisdiction, and you could get a windfall.

Divorce Capital

London Calling

Russian tycoon Vladimir Potanin, is currently making a legal challenge in the UK Supreme Court next week over a $6b marital settlement sought by his ex-wife, Natalia Potanina, which helped to make London’s reputation as the “divorce capital” of the world.

The couple married in 1983 in Russia. During the 1990s, Potanin had a reputed $20bn fortune, including shares in companies or other business entities that were not registered in his name – though Potanin was their beneficial owner, according to information contained in a 2021 Court of Appeal ruling.

Potanina was initially awarded roughly $41.5mn in 2014 by Russia’s courts but has claimed she is entitled to a far larger share of her husband’s fortune.

Potanina, who is Russian but who also has had a home in England since 2014, is now seeking half of the assets beneficially owned by her former husband. The case has prompted what one recent Court of Appeal ruling described as a “blizzard of litigation”.

In 2019, Potanina turned to the High Court in London, citing Part III of the Matrimonial and Family Proceedings Act 1984, legislation that gives the English courts the power to make financial orders if a marriage has been annulled outside the UK.

Potanina alleged in proceedings at the High Court that she had “made exhaustive efforts to obtain justice in Russia” but that the sum awarded in Moscow “does not even begin to meet my reasonable needs”. Her attempt to bring a claim in England was initially blocked by the High Court in 2019 on the grounds that the couple had little connection with Britain.

In the 2019 ruling, Mr Justice Jonathan Cohen said that if her claim went ahead, “there is effectively no limit to divorce tourism”. However, the Court of Appeal reversed the decision in 2021 paving the way for Potanina to bring the action in England.

Potanin is seeking to overturn that Court of Appeal ruling at the Supreme Court in a two-day hearing this month. If he loses the appeal, the battle is expected to move to the family courts.

Florida Divorce Jurisdiction

International divorces often bring up the issue of jurisdiction. Who sues whom, how do you sue for divorce, and in what country are problems in an international divorce case. The answers are more difficult than people think as I have written before.

A British divorce might give more money because British courts can disregard prenuptial agreements, and the cost of living is high in London. However, in Florida, the outcome could be different still.

Rules about children and hiding assets is a problem in every divorce, especially in international cases. 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, there are countries which require very little disclosure from people going through divorce.

Choosing possible countries to file your divorce in can be construed as “forum shopping”. The European Union introduced a reform which tried to prevent “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.

Residency for divorce is a very important jurisdictional requirement in every case. Generally, the non-filing party need not be a resident in the state in order for the court to divorce the parties under the divisible divorce doctrine. The court’s personal jurisdiction over the non-filing spouse is necessary only if the court enters personal orders regarding the spouse.

The durational domicile or residency requirement goes to the heart of the court’s ability to divorce the parties, because the residency of a party to a divorce creates a relationship with the state to justify its exercise of power over the marriage.

Rudie Can’t Fail

Potanin’s appeal of the order granting permission for Potanina to bring her claim in England, could become one of the biggest settlement cases recorded in the country. Potanin, who was hit with sanctions by the British government in 2022 because of his support for the Kremlin after Russian president Vladimir Putin ordered the full-scale invasion of Ukraine, is due to begin on October 31st.

London’s reputation as the “divorce capital of the world” was earned because of a perception that courts there were awarding large financial settlements to financially weaker spouses.

The ruling on appeal is expected to have significant ramifications for other cases, particularly in relation to whether ex-partners can turn to the English courts to obtain a more favorable payouts.

The Financial Times article is here.

Comity and an International Divorce in Texas

Posted by Ron Kauffman on

International divorce cases may require recognition here, or comity, as one couple from Pakistan discovered. After a woman received nothing from her husband’s talaq divorce in Pakistan, she then sought a property division in a Texas divorce from her real estate developer husband. Is the Texas family court required to recognize the Pakistan divorce decree as valid?

Comity International Divorce

A Scam in Pakistan?

The former wife, Azhar, and her former husband, Choudhri, were married in Pakistan. At that time, Azhar lived in Pakistan and her husband lived in Texas. After obtaining her visa, she traveled to Houston where they lived together as husband and wife.

The Wife returned to Pakistan to renew her visa. Reports claim she was tricked into going back to Pakistan so her husband could take advantage of Sharia Law to divorce her. While she was in Pakistan, he initiated a talaq divorce, the results of which meant she got nothing from the marriage.

Texas Hold‘em

The Wife filed for divorce in Texas, and the Husband tried to dismiss the case. Following the hearing, the trial court denied the Husband’s motion to dismiss based on comity, finding:

“enforcement of the certificate of divorce issued in Pakistan would be contrary to Texas public policy and would, if enforced, violate the Wife’s basic right to due process.”

Around the same time, the former wife was also challenging the Pakistan divorce in the Pakistan courts. At first, the Pakistan trial court ruled in the former wife’s favor, declaring their divorce void. But the former husband appealed, and the Pakistani appellate court reversed and dismissed the wife’s case. On appeal to the Supreme Court of Pakistan, the high court affirmed.

Back in Texas, the trial court entered a new order recognizing the Pakistan Supreme Court’s judgment that the divorce was valid. The Texas court dismissed the wife’s divorce action, and dismissed her property division claim with prejudice.

The wife appealed, arguing the trial court should not have granted comity to the Pakistani divorce because she was not personally served, and was only provided notice five days prior to the divorce by publication in a local circular.

In some cases, American courts may defer to the sovereignty of foreign nations according to principles of international comity. But U.S. states are not always required to give full faith and credit to foreign country judgments. For instance, a U.S. court will often decline to recognize a foreign divorce judgment if it was obtained without due process.

On appeal the Texas court found the original order dismissing the Texas divorce was made prior to the Pakistan Supreme Court’s involvement. The second Texas trial order recognizing the Pakistan Supreme Court was deserving of comity, and the Texas appellate court affirmed.

The opinion is available from MK Family Law here.

Child Abduction and the Grave Risk Exception

Posted by Ron Kauffman on

Few people outside of international family law attorneys know that even if a child abduction is proven, courts don’t have to return a child if the grave risk exception, or another treaty defense, is proved. The grave risk defense took center stage at a recent appeal of a child abduction case.

brazil child abduction

Garota De Ipanema

The mother, Dos Santos, and the father, Silva, met in 2011 in Brazil. They have one child together, a daughter who was born in 2012 in Brazil. The three lived together in Brazil until April 2020, when the parents separated.

In August 2021, the mother left Brazil with their daughter and traveled to the United States. The mother did so without the father’s consent to move the child permanently. to the US.

After he learned that his daughter was in the US, the father filed an application with the Brazilian central authority for the return of his child under the Hague Convention. The Brazilian government referred the matter to the United States Department of State-the United States’s central authority under the Convention.

No one disputed at trial that the mother wrongly removed her daughter from the her habitual residence in Brazil and from the lawful joint custody of her father, and abducted her to the US. Normally, that would mean the child would be promptly returned to Brazil.

But the mother claimed returning their daughter posed a grave risk that the child will be exposed to physical or psychological harm or an otherwise intolerable situation.

Hague Child Abduction Convention

I have written and spoken on international custody and child abduction under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

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 or retaining a child.

The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

While there are several defenses to a return of a child, the grave risk defense is one of the frequently relied on, and misunderstood defenses available under the Convention.

Mas que nada

Generally, the Hague Convention has six exceptions. In the recent Brazilian case, the mother alleged the grave risk defense. Under this defense, return to Brazil is not required 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.

However, the grave-risk exception is narrowly construed and has a higher burden of proof than most of the other defenses. At the trial, the judge found that the mother had failed to establish that the child will face a grave risk of physical or psychological harm should she be returned to Brazil.

Without an established exception, the trial court granted the father’s petition for return of the child to Brazil

The Mother appealed and the appellate court reversed. The mother described an altercation between the father and her subsequent boyfriend which may have been videotaped. But the video recording was not brought in as evidence. The court also heard from two other witnesses who saw the mother with bruises and a witness who testified about threatening social media messages.

Importantly, the trial judge didn’t believe the father’s testimony. To the appellate court, that meant the trial judge should have considered the father’s testimony as corroborating substantive evidence that the mother’s allegations were true.

Because the trial judge thought there were some issues with the father, including “anger management issues” and “making threats to people”, a majority of the appellate panel felt the trial judge mistakenly felt her hands were tied.

The appellate decision is here.

International Child Abduction Compliance Report

Posted by Ron Kauffman on

Each year, a country’s compliance with laws governing international child abduction is evaluated in a report issued by the U.S. Department of State. These annual reports show Congress the countries determined to have been engaged in a pattern of noncompliance. They also show if any countries cited in the past improved.

Compliance Report

2023 Report

Under the Hague Convention, the U.S. State Department is tasked as our Central Authority. The Central Authority facilitates implementation and operation of the Hague Convention on child abduction in the U.S.

After passage of the Sean and David Goldman International Child Abduction Prevention and Return Act, the State Department was later assigned the duty of submitting annual Action Reports on International Child Abduction to Congress on the specific actions taken in response to countries determined to have been engaged in a pattern of noncompliance.

In 2022, a total of 165 abducted children were returned to the United States.

The 2023 Annual Report is an overview of the Department’s efforts to support the resolution of international parental child abduction cases.

The Department also reports on their work with foreign governments and authorities to promote procedures to encourage the prompt resolution of existing international abduction cases. The aim is that, in general, international custody disputes should be resolved in the competent court of the country of the child’s habitual residence.

Countries which don’t meet their Convention obligations, or fail to work with the U.S. to resolve child abduction cases, can face “appropriate actions.”

Florida International Child Abduction

I’ve written and spoken about international child abduction compliance under the Hague Convention before. The Hague Convention seeks to deter child abductions by a parent by eliminating their primary motivation for doing so: to “deprive the abduction parent’s actions of any practical or juridical consequences.”

The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The Hague Convention is implemented in the United States through the International Child Abduction Remedies Act. Then in 2014, the International Child Abduction Prevention and Return Act was signed into law.

Even if a country is a signatory country and treaty partners with the U.S., returning a wrongfully retained or abducted child may still be complicated because some signatory countries are not complying with the Convention. That is where the State Department’s annual reporting comes in.

ICAPRA increases the State Department’s annual reporting requirements. Each year, the Department not only submits an Annual Report on International Child Abduction to Congress, it submits another report on the actions taken towards countries determined to have been engaged in a pattern of noncompliance.

Don’t cry for me, Argentina

The State Department reports include both countries where there is a treaty relationship with the United States under the 1980 Hague Child Abduction Convention, and countries where no treaty relationship exists, such as Russia.

The 2023 Action Report reviews the results of cases which were resolved the previous year. Some of the countries in our hemisphere which failed to regularly implement and comply with the Hague Convention include Argentina, Belize, Brazil, Ecuador, Honduras, and Peru.

The Convention has been in force between the United States and Argentina since 1991.  In 2022, Argentina had continued to demonstrate a pattern of noncompliance.  Specifically, the Argentine judicial authorities failed to regularly implement and comply with the provisions of the Convention.

As a result of this failure, 50 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. Granted, there was only 2 abduction cases in Argentina. One case was resolved with the return of the child, and the other one is still unresolved after a year. Argentina was previously cited for demonstrating a pattern of noncompliance in the 2015-2022 Annual Reports.

ICAPRA also adds steps the U.S. can take when a country refuses to cooperate in the resolution of overseas abduction and access cases involving American children. The steps can include: a demarche (a petition or protest through diplomatic channels); public condemnation; delay or cancelation of official, or state visits; suspension of U.S. development assistance; and even the withdrawal or suspension of U.S. security assistance.

The 2023 Report is available here.

China’s Divorce Laws Mean Fewer Marriages

Posted by Ron Kauffman on

China may be learning an old lesson that strict divorce laws can mean fewer marriages. In addition to the country’s recent worries about the imminent decline in its population, the number of people in China getting married for the first time has been dropping too.

Strict Divorce Law

Hidden Dragon

Although China has 1.4 billion people, the most in the world, its births are set to fall to record lows this year, demographers say, dropping 11.5% from 2020. China’s fertility rate in 2021 was below the OECD standard for a stable population, and among the lowest in the world.

Over the past year or so, China has enacted tax deductions, longer maternity leave, enhanced medical insurance, housing subsidies, and extra money for a third child, but the desire among Chinese women to have children is the lowest in the world.

Adding to the problem is China’s diminishing marriage rate, which slumped again. The number getting married for the first time dropped to 11.6 million last year, almost 700,000 down on the previous year. This was well down on a peak of 23.9 million in 2013.

Faced with mounting fertility problems and a soaring divorce rate, the ruling Communist Party in China introduced a rule last year to keep unhappy marriages together by forcing couples to undergo a 30-day “cooling off” period before finalizing a divorce.

The new law appears to have worked, according to government officials, marriage registration authorities have seen a drop in divorces that many local governments claimed was because of the controversial measure.

But along with that decline in the divorce rate, the number of marriage registrations plunged to a 36-year low in 2021. The fall in marriages has contributed to a plummet in birthrates, a worrying sign in China’s rapidly graying society and a phenomenon more familiar in countries like Japan and South Korea.

Florida No-Fault Divorce

The official term for divorce in Florida is “dissolution of marriage”, and you don’t need fault as a ground for divorce. Florida abolished fault as a ground for divorce.

I’ve written about divorce trends before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your husband’s alleged infidelity with a congresswoman. Instead, you just need to state under oath that your marriage is “irretrievably broken.”

Before the no-fault divorce era, people who wanted to get divorce either had to reach agreement in advance with the other spouse that the marriage was over, or throw mud at each other and prove wrongdoing like adultery or abuse.

No-fault laws were the result of trying to change the way divorces played out in court. No fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

The Great Wall to Marriage

Posters on social media in China have hailed the “wise” decision made by young people not marrying, and said they too would not be getting married. One user wrote:

“Marriage is like a gamble. The problem is that ordinary people can’t afford to lose, so I choose not to take part.”

The controversial measures enacted by the Chinese Communist Party have led to a dramatic fall in the divorce rate but critics have said it disadvantages women, particularly those without an independent source of income.

A divorce seeker has to wait for 30 days after making an application, and longer if the partner refuses to get divorce. Not to mention many people’s divorce requests were not approved even when they were suffering from cheating and domestic violence.

The director of the Guangdong Population Development, told Yicai news:

Young people face increasing life pressures, and cannot afford the burden of getting married, which traditionally involves buying a house and raising children. Young people prefer the freedom of single life.

The average age of people who get married for the first time also increased significantly, from 24.89 in 2010 to 28.67 in 2020, according to the China Population Census Yearbook 2020. A 2021 report published by iiMedia Research also highlighted growing numbers of people consciously identifying themselves as celibate.

Four per cent of 3,900 single respondents between the age 20 and 45 identified themselves as “steadfast celibates”, with another 21 per cent describing themselves as “less-determined celibates”.

Most of the self-declared celibates were women over 30, who were better-educated with a higher income in first-tier cities, according to the report.

The South China Morning Post article is here.

International Divorce and Comity

Posted by Ron Kauffman on

International divorce cases may require recognition or enforcement in your home country. But when your international divorce decree is subject to dismissal for lack of jurisdiction though, it is not a laughing matter. That is where knowing about the concept of comity may help.

Divorce Comity

Comity Hour

Carmen filed her divorce in Nebraska, claiming she and her husband Arlin were married in Omaha, had no children, that her husband was a Nebraska resident and that she is “not now a party to any other pending action for divorce, separation or dissolution of marriage.” Carmen wanted a divorce to divide their property and debts.

Carmen’s husband tried to dismiss the divorce for lack of jurisdiction. While he admitted they got married in Nebraska on March 8, 2003, he said they were also married in Venezuela on March 11, 2003.

The punchline: they were already legally divorced in Venezuela.

Since they were no longer legally married, the husband asked the court to dismiss the divorce for lack of subject matter jurisdiction and other grounds.

Florida Divorce and Comity

I have written about international divorce issues before. In Florida, a person must have resided in Florida for 6 months before the filing of the petition for the court to have jurisdiction over your divorce. The term “reside” generally means a legal residence in Florida with an intention to stay there, as opposed to a temporary residence.

However, when children are involved, or you are seeking financial assistance, such as alimony, child support, or a division of property, the court needs to have jurisdiction over your spouse too.

There are even more complex, multi-state laws which impact if a court can hear a divorce, the children’s issues, or the family support issues.

Recognizing a foreign divorce is different. In general, where courts in one country have concurrent jurisdiction over substantially similar parties and claims, the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed with that divorce. This is known as the principle of priority.

While the principle of priority is not a duty, as a matter of comity, courts may stay a pending divorce on the grounds that a case involving the same subject matter and parties is pending in the court of another U.S. state. But the principle of comity applies – not only to proceedings pending in two different U.S. state courts – but to divorce cases pending in foreign courts too.

Comity Isn’t Pretty

Back in Nebraska, the parties focused their arguments exclusively on whether the Venezuelan divorce decree should be recognized as valid in Nebraska under principles of comity.

The family court dismissed Carmen’s complaint with prejudice, stating: The question before the Court is whether the Venezuelan Decree is valid. On that issue, Carmen argued the Venezuelan decree was invalid and she was therefore entitled to seek a decree of dissolution in Nebraska.

Arlin, on the other hand, argued the Venezuelan decree was valid in Nebraska and the parties were already legally divorced, so the Nebraska dissolution action should be dismissed. The family court agreed with the husband and found the Venezuelan decree was valid in Nebraska. The Wife appealed.

The Supreme Court of Nebraska reversed. The court reasoned that the husband’s evidence did not show the trial court lacked subject matter jurisdiction over the divorce. As long as the trial court had met the basic requirements, it had jurisdiction.

The family court confused the doctrine of comity with subject matter jurisdiction. The doctrine of priority is not the same thing as subject matter jurisdiction. A subsequent court does not lack the judicial power over a divorce. The issue of whether a foreign divorce decree should be recognized, the principle of comity, is not a matter of subject matter jurisdiction – or grounds for dismissal.

Whether the Venezuelan divorce decree is entitled to recognition under principles of comity was still a contested issue in the divorce, and that issue did not impact the family court’s subject matter jurisdiction.

The Supreme Court of Nebraska opinion is here.

Speaking on International Child Custody in Morocco

Posted by Ron Kauffman on

Looking forward to speaking about international child custody on a panel with IAFL fellow attorneys: Sarah Hutchinson from England, Elisha D. Roy from the U.S., and Frances Goldsmith from France. We will be discussing international issues arising under the UCCJEA for non-U.S. attorneys.

UCCJEA Moroccoa

Hot Child Custody Issues

From the beaches of Sarasota to the Sahara desert, international child custody today is a hot issue – and admittedly a little dry too. The Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA) and The Hague Convention on international child abductions are two well-known laws with international importance which can impact your case.

Parents are increasingly moving from country to country for various reasons. Whether children are moved by parents wrongfully or not, that moving makes international child custody complicated.

The UCCJEA is a uniform state law regarding jurisdiction in child custody cases. It specifies which court should decide a custody case, not how the court should decide the case. The  UCCJEA and The Hague Convention on Child Abduction can overlap in certain cases, and the jurisdiction of each law can differ in important ways too.

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, enforce an existing child custody determination, and modify one. There are also several foreign laws which can interact with your child custody determination.

More information on the IAFL can be found here.

Presumption of Paternity is Big in Japan

Posted by Ron Kauffman on

In family law, the presumption of paternity is one of the strongest in Florida. Japan is about to change its 19th-century law about the paternity. The change in the law of paternity for children born after divorce will help Japanese children facing difficulties getting healthcare and education.

Paternity Japan

Spirited Away

Under a Japanese 1898 Civil Code that’s still in force, a child born to a woman within 300 days of divorce is considered to be that of her former husband, even if she has remarried.

Many women opt not to register their children rather than comply with the regulation, especially in cases of domestic abuse. The country’s practice of registering its citizens under household units has hampered attempts by campaigners to gain the right for married couples to retain separate names, as well as to introduce same-sex marriage.

Japan consistently lags other developed countries in terms of gender equality. It was ranked 116th out of 146 countries in the annual Global Gender Gap Report released by the World Economic Forum in July.

Japan is also one of 32 countries that maintain discriminatory restrictions on remarriage for women after divorce, according to the Organization for Economic Co-operation and Development.

According to a lawyer who succeeded in getting the remarriage ban for women shortened to 100 days from six months in a 2015 Supreme Court ruling, the amendment also indicates a belated shift toward prioritizing the rights of children.

Japan’s Cabinet approved draft legislation Friday to scrap a rule that has prevented the new husband of a woman who has remarried from assuming paternity over a child born within some 10 months of the woman’s divorce from her previous partner.

Florida Paternity Presumption

I have written about Florida family law matters, including paternity changes, before. In Florida, the law presumes that the husband of the biological mother of a child is the child’s legal father. This presumption is one of the strongest rebuttable presumptions known to law, and is based on the child’s interest in legitimacy and the public policy of protecting the welfare of the child.

Because of the strength of this presumption in Florida, many courts have held that a person claiming to be a “putative” father does not have the right to seek to establish paternity of a child who was born into an intact marriage if the married woman and her husband object.

In some courts, the presumption of legitimacy of a child is so strong, it may never be rebutted. The Florida Supreme Court, however, has reaffirmed that the presumption of legitimacy afforded to a child born within an intact marriage is exactly that: a presumption. And the presumption of legitimacy may be rebutted in certain, rare circumstances.

Big in Japan

The change in the law of Japan is aimed at addressing a problem in which some children of divorced women have been left off family registers to avoid former husbands being recognized as fathers. This has resulted in difficulties in children accessing health, education, and other services.

Under what would be the first change to the century-old Civil Code provisions regarding paternity and marriage, a rule banning women from remarrying within 100 days of a divorce, long considered discriminatory, is also set to be scrapped.

A Justice Ministry survey found about 70 percent of 793 individuals not included in family registers as of August this year had mothers who did not submit birth notifications because of the current legal paternity rule.

Many women, in addition to those who have fled from domestic violence, have opted not to submit notifications of the birth of their child with their current partners in order to avoid having their former husbands recognized as the legal father.

The Cabinet of Prime Minister Fumio Kishida also gave the nod to giving mothers and children the right to file for court arbitration with regard to paternity disputes. At present, former husbands can deny paternity over children born within 300 days of a divorce.

The period for filing for arbitration will be set at within three years of knowledge about a birth. Under the current arbitration system, which has been limited to former husbands seeking to deny paternity, the period was set at one year.

The revisions also include deleting the parental right to punish children, while clearly stating that physical punishment and verbal and physical actions that harm a child’s healthy development are not permissible.

Registration and paternity rules are particularly important in Japan, where birth out of wedlock is rare and widely frowned-upon. About 2% of children are born to unmarried parents, while the average across OECD countries is 41%.

The Japan Times article is here.