Tag: child support international

Fighting Paternity and UCCJEA Jurisdiction

Posted by Ron Kauffman on

A husband and wife, who marry in Brazil, agree the husband does not have paternity and is not the legal father of their daughter. But that does not stop them from fighting UCCJEA jurisdiction in Florida. What happens when the court disagrees with them that he’s not the Father? A married couple just found out the results in an interesting international child custody case.

UCCJEA Paternity

The Girl from Ipanema

The Wife is a Brazilian citizen living in Rio de Janeiro not far from the famous beach. The Husband is a U.S. citizen, a commercial airline pilot, and resides in Florida. The parties met online in 2014. They later were married in Rio de Janeiro, Brazil in 2016.

The wife had a daughter born in Brazil in 2015, the year before they got married. Interestingly, while the wife acknowledged she was the biological mother, the parties stipulated that the husband was not the biological father.

However, the Husband added his last name to the child’s name on the child’s birth certificate in Brazil. Later, they went to the U.S. Consulate in Brazil, and had a Consular Report of Birth Abroad Certificate issued for the child using his citizenship and his last name for the child.

Next, they had issued a U.S. passport and a Brazilian passport for the child using his last name as the father as well. It was later found that the husband held himself out as the father of his daughter during the marriage. The parties owned one marital asset, a home in Naples, Florida.

In 2021, the Husband filed a petition for divorce in Florida seeking only the following relief: (1) a dissolution of marriage and (2) and equitable distribution of the home in Naples. The Wife filed an answer denying allegations but did not raise the issue of the child, custody, or child support.

During the case, the parties entered a partial marital settlement agreement resolving all of the financial issues, including equitable distribution of the home. However, nothing was agreed, or mentioned, about their daughter.

Instead, the parties filed a stipulation that the husband was not the father of the child. Additionally, the husband filed an objection before trial that the court lacked jurisdiction to hear child support and custody under the UCCJEA because Florida was not the home state of the child.

The family judge entered a amended final judgment finding that the husband was the legal father of the child, and reserved jurisdiction on child support.

The Husband filed a motion for reconsideration arguing that under the UCCJEA, a court in Florida has jurisdiction to make an initial child custody determination only if Florida is the home state of the child or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent continues to live in Florida. The court denied the motion for reconsideration and the husband appealed.

Florida UCCJEA

I have written about international child custody issues before. The UCCJEA is a uniform act drafted to avoid jurisdictional competition and conflict with other state courts in child custody matters; promote cooperation with other courts; ensure 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 custody issues.

An important aspect of the UCCJEA is that it only covers child custody determinations. Under the UCCJEA, a “child custody determination” means a judgment, decree, or other order of a court providing for the legal custody, physical custody, residential care, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The definition does not include an order relating to child support or other monetary obligation of an individual.

The UCCJEA deals with “child custody proceedings,” which are defined as proceedings in which legal custody, physical custody, residential care, or visitation with respect to a child is an issue. Child Custody proceedings do not include proceedings involving juvenile delinquency, contractual emancipation, or enforcement.

Although not part of the UCCJEA, under Florida law, the husband could have also faced additional challenges. For instance, if a mother of any child born out of wedlock and the reputed father intermarry, the child is deemed and held to be the child of the husband and wife, as though born within wedlock.

Boa Sorte

On appeal, the third district affirmed that the husband was the legal father of their daughter. The court noted that the UCCJEA was a jurisdictional act which controls custody disputes and only applies where custody is at issue.

The term custody includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.

But, a child custody determination does not include an order relating to child support or other monetary obligation of an individual. In this case, the appellate court found that the parties did not dispute custody of the minor child. As a result, the trial court had subject matter jurisdiction over the action.

The opinion is here.

Speaking on the Hague Convention and Interstate Child Custody

Posted by Ron Kauffman on

Honored to be invited to speak about the Hague Convention and other interstate child custody jurisdiction issues at the 2025 Marital & Family Law Review Course. The program will be presented at the Loews Royal Pacific Resort at Universal Orlando from January 24, 2025 to January 25, 2025. The prestigious Certification Review course is one of largest and most popular family law presentations, and is a partnership between the Florida Bar Family Law Section and the AAML Florida Chapter.

Hague Convention

Interstate Child Custody

Family law today frequently involves interstate child custody, interstate family support, and The Hague Convention on international child abductions. Parents are increasingly moving from state to state and country to country for various reasons. Whether children are moved by parents wrongfully or not, that moving makes interstate and international child custody complicated. The Uniform Child Custody Jurisdiction and Enforcement Act, and The Hague Convention on Child Abduction, can work together in those cases.

Florida and almost all U.S. states passed the UCCJEA into law. The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction over the child. That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say Florida. The ultimate determining factor in a Florida case then, is what is the “home state” of the child.

International Child Abductions

I have written about the Hague Convention before. All family lawyers should become familiar with the Hague Convention on the Civil Aspects of International Child Abduction, also known as The Hague Convention on Child Abduction. This international treaty exists to protect children from the harmful effects of international abductions by requiring the prompt return to their habitual residence.

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 the Hague Convention and interstate and international family law issues at the annual Marital & Family Law Review Course again. The annual seminar is the largest and most prestigious advanced family law course in Florida. Last year’s audience included over 1,800 attorneys, hearing officers, and judges.

Register here for remaining spaces, if any.

Exclusivity and International Child Support Orders

Posted by Ron Kauffman on

In the Unites States, once a court of a state has entered a child custody or child support order, the state keeps control of the custody and child support matter unless specific things happen. This exclusivity is true in international child support orders and recently came into play in a case starting in Australia.

Foreign Child Support

A Blunder Down Under?

In 2010, an Australian court awarded two parents equal timesharing of their daughter and incorporated their binding child support agreement. But then in 2018, the Australian court entered another consent order. The parents agreed that the Mother and their daughter could relocate permanently to the United States.

As part of their agreement, the court ordered a long-distance timesharing schedule and added their previous 2018 Child Support Order which provided:

The parents agree to terminate their child support agreement requiring the Father to pay support while the daughter remained in the U.S.

The Father stayed in Australia and the Mother and daughter moved to North Carolina. Soon after, Mother and daughter moved to Florida. This time, they relocated without providing Father with their new address, preventing him from exercising his timesharing rights and contact with their daughter. The Father filed an action in Florida seeking to register and enforce their Australian timesharing order under the Uniform Child Custody Jurisdiction and Enforcement Act.

The Mother filed her own petition asking the Florida court to modify timesharing and child support because the Father had not exercised his timesharing rights, resulting in increased timesharing on her part. The Father moved to dismiss her modification petition, arguing that the Australian court had continuing, exclusive jurisdiction under the Uniform Interstate Family Support Act. The trial court allowed Mother to file an amended petition and denied Father’s motion to dismiss. The Father then petitioned for a writ of prohibition to prevent the trial court from exercising jurisdiction over Mother’s petition to modify the Australian support order.

Florida and Exclusive Jurisdiction

I have written on international custody and support issues before. The Uniform Interstate Family Support Act is one of the uniform acts drafted by the Uniform Law Commission. First developed in 1992, 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.

One of the more important purposes of UIFSA is to determine the “controlling” order in the event of multiple orders being entered in multiple states and countries. What distinguishes UIFSA is that all states will be enforcing the same amount because there is only one controlling order. Another important feature is that UIFSA adopted a concept that there should be only one court with the exclusive jurisdiction to modify a current support order. The UIFSA uses the term continuing, exclusive jurisdiction.

Back to the Billabong

On appeal, the district court ruled that under UIFSA, Florida courts may modify foreign orders only when a foreign country lacks or refuses jurisdiction to modify its child support order pursuant to its laws or lacked or refused jurisdiction.

In this case, the Mother never alleged that Australia lacked jurisdiction or refused to modify nor did she seek modification in Australia. Because Australia did not lack jurisdiction or refuse to exercise jurisdiction to modify support, the Florida court could not exercise jurisdiction under UIFSA to modify the Australian child support order.

Additionally, the court noted that the Father never waived his objection to the Florida court’s jurisdiction to modify the Australian child support order. Because the Australian court has continuing, exclusive jurisdiction to modify its support order, the Florida court lacked jurisdiction over Mother’s petition to modify child support. The appellate court granted prohibition, and the case was remanded with directions to grant Father’s motion to dismiss Mother’s petition to modify the foreign child support order.

The decision is available here.

Interstate Alimony Awards

Posted by Ron Kauffman on

Are interstate alimony awards enforceable and modifiable in Florida after an interstate divorce? An Alabama ex-spouse who moved to Florida discovers the answer is more complex than many family lawyers might think. This recent case shows how a court should treat interstate alimony awards.

Interstate Alimony 2

Sweet Home Alabama

The parties divorced in 2004 and a Final Judgment of Divorce was entered in Alabama. That judgment adopted the parties’ marital settlement agreement. Under their agreement, the husband agreed to pay the wife $1,000 per month in alimony. But over time, the wife was receiving her ex-husband’s Social Security benefits, and that raises an issue about whether social security benefits reduce a spouse’s obligation to pay alimony and child support.

Later, the husband relocated to Florida. In 2013, the wife filed a Verified Petition to Establish Foreign Decree as Florida Order and for Enforcement of their agreement in Florida. In 2014, that family judge signed an order declaring it would apply Alabama law to resolve the legal issues raised in the wife’s petition in interpreting the agreement. The court also concluded that Social Security benefits may be used to satisfy an alimony obligation, or stated another way, were a credit against alimony due.

Over the years, while her petition remained pending in the family court, the wife challenged whether her former spouse was entitled to a credit against the required alimony payments for the payments she was receiving through his Social Security benefits.

In 2022, a Florida court denied her motions, finding that because she was receiving, through her ex-husband’s Social Security benefits, payments in excess of the alimony obligation, the alimony obligation was “terminated as a matter of law.”

Florida Social Security Benefits and Alimony

Under Alabama law, Social Security is the same as an insurance policy with a private carrier, similar to a parent insuring against death or loss of physical ability to fulfill moral and legal obligations to dependent children. Just as insurance payments may fulfill and discharge alimony, Alabama law reasons, why shouldn’t Social Security benefits apply to child support as well as alimony obligations?.

Florida is different. Court do not allow a spouse to unilaterally use social security disability payments, for example, as a set-off against past due alimony unless there is some compelling equitable criteria and considerations or a settlement agreement provides for it.

Alabama Getaway

The wife appealed. On appeal, the court held that while the agreement adopted under Alabama final judgment requires the husband to pay alimony, the trial court correctly determined that the wife did not establish that her ex-husband failed to meet his alimony obligation.

The trial court applied Alabama law and concluded that the payment of his Social Security benefits satisfied his alimony obligation in full.

However, the Florida family court had also concluded that his alimony and life insurance obligations were “terminated as a matter of law.”

The family court erred in declaring alimony was terminated in two ways. First, a Florida court lacks jurisdiction to terminate an alimony final order of another state under the Uniform Interstate Family Support Act.

Second, under Alabama law, an alimony obligation is not terminated through the payment of Social Security benefits. Rather, the party required to pay alimony receives a credit against an alimony obligation for Social Security payments or benefits received by the other party.

The opinion is here.

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.