Tag: divorce international

Hague Convention Now Settled Defense

Posted by Ron Kauffman on

An increasingly litigated area of international child custody involves returning a child to their habitual residence under the Hague Convention. However, there are also defenses to a return under the Convention. Recently, a Florida court answered the question whether a wrongfully retained child in Florida was now settled here and need not be returned.

Hague Convention

Return to Machu Picchu?

In the Florida case, a Father and Mother married in Peru in 2012. One child was born during the marriage, and all three are Peruvian citizens. They divorced in 2015, had joint custody, but the child lived primarily with Mother.

In 2021, Mother wanted to visit Florida. The parents signed a travel authorization for the trip from September 2021, through October 2021. However, the Mother and Child never returned. More than a year later, Father filed a state court petition for return of the child to Peru.

The trial court found that Father had rights of custody, had been exercising his rights at the time of the wrongful retention and Peru was the child’s habitual residence.

However, the trial court found that the Father was aware that the Mother was not returning to Peru with the Child before the October return date and that the Mother established, by a preponderance of the evidence, the “well settled” or “now settled” recognized exception under the Hague Convention. The Father appealed.

Florida and the Hague Convention

I have written and spoken on international custody and child abduction under the Hague Convention. The Convention’s mission is basic: to return children to the State of their habitual residence to require any custody disputes to be resolved in that country, and to discourage parents from taking matters into their own hands by abducting 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.

However, a child need not be returned if it is demonstrated that the child is now settled in the new environment. The U.S. State Department’s interpretation of what “settled” means includes factors such as the child’s age; the stability and duration of the child’s residence in the new environment; whether the child attends school or day care consistently or inconsistently; friends and relatives and participation in school activities, such as team sports, youth groups, or school clubs for example.

Unsettling

The appellate court found that the “well settled in her new environment” exception to the Hague Convention, is not specifically defined in either the Convention itself or in the federal implementing statute ICARA.

But, a child has been considered to be “settled ‘within the meaning of the Convention when a child has significant connections to their new home that indicate that the child has developed a stable, permanent, and non-transitory life in their new country to such a degree that return would be to child’s detriment.

The appellate court reviewed the extensive testimony and the record which adequately shows that the trial court received competent substantial evidence. Accordingly, the appellate court held that Father failed to establish that clear error was committed by the trial court in finding that Mother met her burden of proof on this exception and in thereafter exercising its discretion to not return Child to Peru. Accordingly, the final order denying Father’s petition for return of Child to Peru is affirmed.

The opinion is here.

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.

Islamic Triple Talaq Divorce and the UCCJEA

Posted by Ron Kauffman on

Under Islamic law a husband can get a divorce pretty easily. It’s called the “triple talaq” and involves merely saying the word “talaq” three times. Will enforcement of the triple talaq in the U.S. under the UCCJEA be enforced? A married couple from India is battling the triple talaq divorce in Louisiana.

Triple Talaq UCCJEA

No Place Like Home

Khan and Azeez are citizens of, and were married in, India. However, they moved and have been residing in the United States since 2007.  They have two children. When they traveled to India in 2018, Khan deserted his wife and took her passport. He was granted a divorce under Islamic law by saying the word “talaq” (divorce) three times. However, triple talaq divorces were declared illegal and unconstitutional in India in 2019. This was made retroactive to 2018 under the Muslim Women Protection of Rights on Marriage Act.

When Azeez eventually got a new passport and was able to return to the United States in 2019, she immediately filed a petition for dissolution of marriage in Illinois. In his answer, Khan objected to the Illinois family court taking jurisdiction over his case because he was already divorced in India by saying “talaq” three times.

The Illinois trial court denied Khan’s exception under the Uniform Child Custody Jurisdiction and Enforcement Act, and basic principles of human rights. The trial court held that the divorce by talaq and any subsequent child custody determinations were invalid.

In 2019, the Illinois court rendered a judgment finding the India divorce judgment based on triple talaq was invalid. The Illinois court dissolved the marriage, set child custody, and awarded spousal and child support under Illinois law.

Then in 2023, Khan filed a petition in Louisiana seeking to have his Indian divorce judgment recognized under Louisiana law. Azeez filed an exception of res judicata. The Louisiana trial court granted Azeez’s exception and dismissed Khan’s claims and Khan appealed.

Florida and the UCCJEA

I have written about the UCCJEA and the issues of religion and divorce before. The UCCJEA is a uniform act created to avoid jurisdictional competition and conflict with other courts in child custody matters.

The UCCJEA also promotes cooperation with other courts and ensures that a custody decree is rendered in the state which is in a superior position to decide the best interest of the child.

The UCCJEA helps to facilitate enforcement of custody decrees – even when the custody decrees come from a foreign country – and has the aspirational goal of promoting uniformity of the laws governing custody issues. Under the UCCJEA, a foreign country should be treated as a US state for the purposes of applying the UCCJEA.

However, a U.S. court does need not always recognize a foreign country’s order under the UCCJEA. For example, if the child custody law of a foreign country violates fundamental principles of human rights, the foreign final judgment may not be recognized here.

Triple Talaq Trouble

Khan argued on appeal that the Illinois proceeding was never made executory, and the divorce decree admitted into evidence by the Louisiana court was incompetent and inadmissible evidence because it was not admitted via an ordinary proceeding which would allow Khan to present evidence.

Generally, foreign judgments are entitled to full faith and credit in Louisiana. In fact, courts in the U.S. are required to give full faith and credit to judgments of courts of other states under the U.S. Constitution. The UCCJEA is applicable to foreign judgments, and sets forth specific rules regarding the recognition, modification, and enforcement of child custody determinations. The statute applies to international cases as well as domestic cases.

The purpose of the UCCJEA is to “provide clearer standards for which States can exercise original jurisdiction over a child custody determination. The UCCJEA permits registration of an out of state custody determination. The use of the word may in the statute indicates that registration of the judgment is permissive.

Under the UCCJEA, a court has a duty to recognize and enforce an out-of-state child custody determination if the other state exercised jurisdiction in compliance with the UCCJEA or the determination was made under factual circumstances complying with the jurisdictional standards of the UCCJEA and the determination has not been modified.

Here, Khan argued that every foreign judgment afforded full faith and credit by this state must first have a full evidentiary hearing in order to make the judgment “executory.”  But the former wife in this case was not seeking to execute the Illinois judgment. Thus, the only question before the court was whether the trial court’s finding that the Illinois judgment was entitled to full faith and credit was erroneous.

The former wife successfully proved that a valid judgment was executed in Illinois; thus, res judicata applied to prohibit litigation of the same issues arising out of the same facts.  Accordingly, the trial court did not err in granting full faith and credit to the Illinois judgment.

The appellate opinion is here.

New Article Hague Abduction Convention Not Your Typical Custody Case

Posted by Ron Kauffman on

My new article “The Hague Abduction Convention: Not Your Typical Custody Case”, discusses a problem frequently encountered by lawyers representing parents in international child custody disputes. The problem is parents treating their Hague Abduction Convention case as if it were any other custody case. The article is now available on the KidSide website.

Hague Court

Hague Abduction Convention

The Hague Abduction Convention is the primary mechanism to ensure the return of children who have been wrongfully removed or retained from their country of habitual residence. The two main purposes behind the Convention are to protect children from the harm of an international abduction and secure the left behind parent’s rights of access to their child.

However, many parents confuse the purposes of the Convention, mistakenly thinking their best defense rests on proving what a better parent they are. It comes as a surprise to many people to learn that the judge in a Convention case does not even have jurisdiction to hear their child custody dispute.

But before any defenses are even asserted, a parent seeking a child’s return must first prove their case. To prove a case under the Convention, a Petitioner must demonstrate where the habitual residence of the child was before the wrongful removal; that the removal breached custody rights; and at the time of the child’s removal those rights were actually exercised.

There are a limited number of available defenses under the Hague Abduction Convention, and those defenses are different from a typical child custody case. They are different because the purposes of the Convention are different. Given that courts in a Convention case cannot decide the merits of the custody dispute, typical arguments about the best interest of the child don’t have much traction, leaving a limited number of defenses.

KidSide

Child abduction cases under the Hague Convention have a negative impact on children. Add to that, the growing number of high-conflict court cases, like divorce and domestic violence. Because of the growing number of high-conflict cases, there is always a lack of support for kids caught in the legal system.

That’s where KidSide comes in.

KidSide is a 501(c)3 which supports the Family Court Services Unit of the Miami-Dade County, Florida courthouse – the largest judicial circuit in Florida. KidSide can use your support as it supports Family Court Services.

Together, they have been providing crucial services to children and families for more than 20 years. The Unit assists all judges and general magistrates with some of the Court’s most difficult family cases by providing solution-focused and brief therapeutic interventions.

KidSide helps the Family Court Services Unit provide services for families at no cost in the areas of alienation, child/family assistance, co-parenting, crisis assistance, marital reconciliation, parenting coordination, reunification, time-sharing, supervised visitation, and monitored exchanges.

They are staffed with dedicated professionals who are committed to helping families reduce their level of conflict and provide supportive services for the entire family system with particular sensitivity to children.

You can support KidSide by clicking here.

The Kidside article is here.

The Myth of Cross-Border Asset Protection

Posted by Ron Kauffman on

International Prenup

Is cross-border asset protection a myth? As the world becomes more mobile, issues relating to foreign prenuptial agreements, and the type of marital regime people enter, have taken on greater importance.

Prenuptial agreements are not only becoming more common, but are crossing international borders. The situation in which a couple marries in one country, owns assets in other countries, and live in yet another country, has now become commonplace.

I am honored to be speaking at a webinar on the Myth of Cross-Border Asset Protection on April 5th with Juan Francisco Zarricueta from Santiago Chile, and our two moderators, Vanessa L Hammer of Chicago, and Melissa A. Kucinski, from Washington, D.C.

The Webinar is sponsored by the American Academy of Matrimonial Lawyers and is open to everyone. One hour of CLE is available.

Registration information is available here.

Reducing Divorce Waiting Periods

Posted by Ron Kauffman on

With many countries and U.S. states, having divorce waiting periods, the District of Columbia’s recent legislation, which is reducing its waiting period, is big news. The D.C. Council gave unanimous approval to legislation that eliminated long waiting periods to file for divorce. The waiting period was considered especially harmful to survivors of domestic violence filing for divorce.

divorce waiting period

Waiting in Vain

D.C. law previously allowed a couple to divorce after six months of living separately, only if both parties mutually and voluntarily agreed to it. If a spouse contested the divorce, D.C. law required the couple to remain legally married for a year. Now if one spouse wants a divorce, they can file for one at any time — without any waiting period.

“It made no sense at all that someone might be chained to their abuser or their partner when they didn’t want to be. This was a common sense reform that allows people to move on with their lives and also provide some extra supports for survivors of domestic violence.”

The D.C. Council unanimously approved the bill in November 2023, and the new law took effect last week. The new D.C. law also requires judges to consider domestic violence history, including physical, emotional and financial abuse, when determining alimony or property distribution and it explicitly allows judges to award exclusive use of a family home to either spouse while awaiting litigation.

Florida Divorce Waiting Period

I’ve written about divorce waiting periods, and your rights in divorce before. Like the District of Columbia and other U.S. states, Florida also has a divorce waiting period of sorts. In Florida, no final judgment of dissolution of marriage may be entered until at least 20 days have elapsed from the date of filing the original petition for dissolution of marriage.

 The thinking behind waiting periods in Florida reflects the protective regard Florida holds toward the preservation of marriage and a public policy that marriage is the foundation of home and family.

In some cases the waiting period is longer. For instance, no dissolutions in Florida are allowed in cases of an incapacitated spouse unless the party alleged to be incapacitated has been adjudged incapacitated for a preceding period of at least 3 years. However, the court, on a showing that injustice would result from this delay, may enter a final judgment of dissolution of marriage at an earlier date.

Tired of Waiting

This change to the D.C. law will eliminate one of the many barriers people face when leaving abusive partners. The up-to-one year waiting period, which was established in the 1970s, was considered by many to be outdated and paternalistic.

Half of all states have a waiting period between the filing of divorce papers and when the marriage is legally dissolved, which can range from six months to even longer in some states. But why?

It has long been a recognized public policy by many states that encouraging and preserving the institution of marriage was a societal benefit. These days that notion may seem like an anachronistic legal concept. But the public policy underlying the presumption that marriage is a good institution still exists in many state statutes. Delaying a divorce then, comes from the theory that a couple, if they had more time, could preserve their marriage.

The Washington Post article 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.

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.