Tag: divorce international

UCCJEA and Wrongful Removal

Posted by Ron Kauffman on

Does a Montana court have UCCJEA jurisdiction to order a parenting plan over a Montana child after the wrongful removal of a child to another country if a parent delays more than a year after trying to legally return the child? The Supreme Court of Montana just addressed that international child custody question.

UCCJEA Montana 2

Little Trouble in Big Sky Country

In 2020, the parties and child moved from Colorado to Montana. Beginning in June 2022 until May 2023, the child resided and attended public school in the Netherlands. But then in May 2023, the child and Mother returned to Montana so the Mother could reconcile with the Father.

On August 11, 2023, the Mother abducted the child without the knowledge or consent of the Father, and returned to the Netherlands. On February 13, 2024, the Mother filed a divorce and custody petition in the Netherlands.

On January 17, 2025, the Father filed a petition to return the child to the USA in a Dutch Court, using the Hague Abduction Convention. His petition was denied, with a conclusion that it was filed more than one year from the wrongful removal, and the child was now settled in the Netherlands.

However, the Dutch court also found that the Mother’s removal of the child from Montana was wrongful, meaning the United States was the child’s “habitual residence”.

The Father’s appeal in the Dutch courts was dismissed. In September of 2025, Father filed an Emergency Motion for Temporary Custody and Petition for Permanent Parenting Plan in the Nineteenth Judicial District Court (Montana District Court).

The Montana District Court dismissed Father’s petition and motion based on its conclusion that it did not have jurisdiction to overturn the decision of the Court of Appeal of The Hague and that Montana is no longer the “home state” of the child since she had not resided in Montana for more than two years before Father filed this action in Montana.

Father filed his notice of appeal of the Montana District Court’s order with this Court in early October.

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.

Montana 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 vis-a-vis 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 Montana. The ultimate determining factor in a Montana case then, is what is the “home state” of the child.

In Florida, the “home state” of a child means the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding. In the case of a child younger than 6 months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

Back to Dutton Ranch?

Relying on the UCCJEA, the Montana Supreme Court found under the UCCJEA, priority is given to “home-state jurisdiction for child custody proceedings, under which a state has jurisdiction if it is the child’s ‘home state.’”

A child’s “home state” is “the state in which a child lived with a parent or a person acting as parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.”
Here, Montana was no longer the child’s “home state” as defined by the UCCJEA. Father filed his petition and motion for emergency custody in early September 2025, nearly 25 months after the child was last in Montana.

Father did not file a Hague petition for the return of the child until approximately a year and a half after the child was wrongfully removed from the United States. It is unclear why Father delayed filing a Hague petition for so long.

However, the Netherlands District Court suggests that the parties were negotiating travel and parenting arrangements for the child uring this time. Nonetheless, during that delay the child became settled in her new environment in the Netherlands as the District Court of The Hague concluded and the Court of Appeal of The Hague affirmed.

Montana lost home-state jurisdiction since she had not resided here for the preceding six months before Father filed for custody in the Montana UCCJEA. Under ordinary circumstances Montana courts should treat a foreign country as if it were a state of the United States for the purposes of applying the UCCJEA according to the plain language of the statute.

Finally, the Father failed to point to any legal authority whereby a finding that a child was wrongfully taken from her place of habitual residence, yet now settled in her new environment, overrides a judgment of another jurisdiction that it may properly exercise child custody jurisdiction.

The Montana Supreme Court affirmed the Montana District Court and concluded the Father must pursue his parenting interests in the Netherlands District Court because he waited approximately a year and a half before taking legal action to return his child to Montana, and as a result Montana lost child custody jurisdiction.

The opinion is available here.

International Custody and Brazil

Posted by Ron Kauffman on

After a mother wrongfully retains a child in Brazil, the father in New Jersey files a Hague Abduction Convention petition in Brazil, and an international custody case under the UCCJEA in Pennsylvania. But is New Jersey the home state if the child has never been there? An appellate court answers that question.

Brazil UCCJEA Hague

A Thrill in Brazil

The child, G.O. was born in September 2020, and lived with his parents in Pennsylvania until April 2021. Then, just before G.O. turned six months old, the parents took their child to Brazil in May 2021 for a one month vacation to see the Mother’s family.

The Father returned to the U.S, but the Mother refused to return with the child, and remained in Brazil with G.O. In July 2021, the Father filed an Emergency Petition to return G.O. from Brazil in Philadelphia. The Mother argued that she had filed for custody in Brazil.

In January 2022, the Mother filed an Emergency Petition for Custody in Pennsylvania, where they used to live, but the Father had moved to New Jersey, and had been residing there for over four months. The Pennsylvania court ruled in December 2024 that Pennsylvania no longer had exclusive, continuing jurisdiction under the UCCJEA to consider custody. The Father appealed.

Florida International Custody

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

When a child under 16 who was habitually residing in one signatory country is wrongfully removed to, or retained in, another signatory country, the Hague Convention provides that the other country: “order the return of the child forthwith” and “shall not decide on the merits of rights of custody.”

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.

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 vis-a-vis the child.

Another important aspect of the UCCJEA is the concept of continuing exclusive jurisdiction. Under the UCCJEA, the state originally making a custody determination retains exclusive continuing jurisdiction until it determines that the child, the child’s parents, and any person acting as a parent no longer have a significant connection with the state, or until any state determines that the child, the child’s parents, and any person acting as a parent no longer reside in the decree-granting state.

Fulfilled in Brazil

On appeal, the Father argued the trial court erred when it divested itself of jurisdiction without properly considering its own prior orders affirming jurisdiction, and by disregarding the Brazilian court’s Hague Convention ruling, which determined that the U.S. is the habitual residence and the Mother’s retention in Brazil unlawful.

The purpose of the UCCJEA, the appellate court noted, is to avoid jurisdictional  competition, promote cooperation between courts, deter child abductions and facilitate the enforcement of custody orders of other states.

Jurisdiction under the UCCJEA is based on the home state of the child, where the child lived with a parent for at least six consecutive months immediately before the commencement of a child custody case. When a child is six months of age or younger, home state means the state in which the child lived from birth with a parent.

Here, having found the Pennsylvania court was the home state and properly had jurisdiction, the question became did Pennsylvania lose exclusive continuing jurisdiction when the Mother, child and Father had all left the state.

However, the family court incorrectly held that Brazil had not determined a court of the United States would be the more appropriate forum. In fact, the Brazilian found that the U.S. courts were the more appropriate forum for deciding custody than Brazil.

Additionally, even if Brazil had home state jurisdiction to decide custody, under the Hague Convention, the courts in Brazil are not permitted to decide on the merits of rights of custody until it has been determined that the child should not be returned under the Convention.

Finally, if Pennsylvania had allowed the Mother to wrongfully retain G.O. in Brazil to create exclusive jurisdiction, the appellate court reasoned it would be rewarding the Mother for forum shopping and unjustified behavior.

The opinion is here.

Comity and International Divorce

Posted by Ron Kauffman on

A foreign couple that married and lived in Indiana received an international divorce from their home country of Bosnia and Herzegovina. After they returned to the U.S., the Wife filed for divorce a second time in Indiana. An appellate court in Indiana now has to determine if the one divorce is enough for a couple.

Comity Property

Comity of Errors

In the Indiana case, the Husband and Wife are citizens of Bosnia and Herzegovina, a country on the Balkan Peninsula in southeastern Europe. The country is home to medieval villages and the Ottoman-era bridge where Archduke Franz Ferdinand was assassinated, igniting World War I.

In 2017, the couple were married in Indianapolis, where they both lived. In 2022, after the couple returned to Bosnia and Herzegovina, they jointly filed a petition to dissolve their marriage in a court in Tuzla, a small town in the north of Bosnia and Herzegovina.

Their divorce petition did not mention they owned marital property in Indiana. The Bosnian court granted them a dissolution of their marriage, returning them to being single.

But then on 2023, the Wife filed a new petition for dissolution of marriage, this time in and Indiana Superior Court requesting the court to divide their real estate in Indiana. The Husband moved the court in Indiana to dismiss the case under principles of comity, citing the Bosnian proceeding which had already dissolved their marriage.

The trial court granted Husband’s motion to dismiss because of the previous divorce in Bosnia and Herzegovina. But then the trial court reversed itself, and granted the Wife’s Motion to Correct Errors, finding that the foreign final judgment did not address the couple’s property in Indiana.

Florida Comity

I have written about comity and international divorce before. As a general rule, the final judgments of courts in foreign countries are subject to recognition and enforcement in this country.

Any foreign divorce decree should be recognized in Florida as a valid judgment, and should be entitled to comity, where the parties have been given notice and the opportunity to be heard, where the foreign court had original jurisdiction and where the foreign decree does not offend the public policy of the State of Florida.

Comity does not require Florida public policy to be supplanted by foreign law. That’s because comity is not technically a law, but a practice for convenience and expediency. If it would be contrary to Florida law or contravene some established and important Florida policy, comity would not be applied. So, before enforcing a foreign judgment, a Florida court has to review the foreign judgment to make sure it complies with the rule of comity.

Additionally, foreign courts generally do not have the jurisdiction to decide issues relating to real property located in Florida. Accordingly, Florida courts have consistently held that foreign judgments affecting Florida real property are not entitled to comity or enforcement.

Comity Genius

Back in Indiana, the Husband argued res judicata prevented the Wife from filing a divorce petition in Indiana after receiving a divorce in Bosnia. The Wife countered that res judicata did not apply because the Bosnian judgment was not rendered on the merits regarding the marital property located in Indiana.

The appellate court agreed. While the Bosnian court dissolved the parties’ marriage, it is undisputed that it did not address the division of marital property in Indiana. As such, res judicata did not apply.

Next, the Husband argued the trial court erred in declining to dismiss the case under principles of comity. Comity was found to be important in avoiding conflicting results and in discouraging repeated litigation of the same question.

Generally, where a divorce action concerns the same parties and the same subject matter, comity should require dismissing a subsequent divorce filed in a different jurisdiction. However, in the Indiana case there was no danger the parties would be subject to multiple or inconsistent judgments, since the real estate disposition was not at issue in the Bosnian proceeding.

The Indiana Appellate Court opinion is here.

Divorce Loans

Posted by Ron Kauffman on

Divorces are financially draining, often requiring you to deplete your savings or obtain loans during the process to cover lawyer fees, expert witness fees, and other costs. Whether a divorce loan is right for your divorce is making world news after a Chinese businesswoman sued her young employee after loaning him money for his divorce.

Divorce Loans

Big Trouble in Little China

A businesswoman named Zhu from Chongqing, a city located in south-western China, is counting her losses after giving a former employee she had an affair with Rs 3,000,000 (US$420,000) to fund his divorce and payoff his wife for child support.

The younger man, known as He, joined Zhu’s company while both were married to other people. Zhu quickly developed feelings for him and the two began an affair. They agreed to divorce their respective spouses and start afresh together.

To help her young lover divorce his wife, Chen, Zhu transferred three million renminbis directly to the wife as settlement. The sum was described as “compensation” for the divorce and as financial support for the upbringing of their child. With the money paid, He finalized his divorce and moved in with Zhu.

About a year after moving in together, Zhu and He decided they were incompatible, and separated. But then Zhu demanded her divorce loan back. Ultimately, Zhu filed a lawsuit against the now divorce coupled, He and Chen, and demanded they both repay her divorce loan to He.

Florida Divorce Loans

I have written about international divorces and marital debts before. In a dissolution of marriage, whether to classify loans as marital or nonmarital may depend on a few factors. For example, when was the loan given, what was its purpose, and were the purposes marital or nonmarital.

Generally, the cut-off date for determining whether a loan is marital or nonmarital is the date of the filing of the petition for dissolution of marriage, unless otherwise agreed by the parties. Accordingly, any loans incurred before the filing date are presumed to be marital liabilities unless proven otherwise. However, loans incurred after the filing date are generally classified as nonmarital liabilities unless they meet specific criteria.

House of Flying Daggers

During the first trial, the court sided with Zhu, arguing that the funds violated public order and good customs, thus deeming it an “invalid gift.” Consequently, the court ruled that the money should be refunded.

The divorced couple, Chen and He, then filed an appeal. An upper-level court determined that Zhu had not provided sufficient evidence to prove that she had gifted the money to Chen. Instead, the money was classified as a payment made on behalf of He for divorce compensation and child-rearing expenses, stated the appellate court.

The appellate court said Zhu had failed to prove the payment was a personal gift to Chen. Instead, it was regarded as money He owed his wife as part of the divorce settlement and for child-rearing expenses.

The upper-level court also criticized Zhu’s conduct, observing that she had used her wealth to hasten a divorce, and then sought to undo her gift when the romance faltered. The judges noted her lack of integrity in attempting to reclaim the payment under such circumstances.

The South China Morning Post article is here.

Excessive Snoring Grounds for Divorce

Posted by Ron Kauffman on

Could excessive snoring be grounds for a divorce? Recent news out of Israel has many people dreaming about a peaceful night’s sleep after a court ruled on whether, if left untreated, snoring could lead to financial liability and a divorce.

Sleep Divorce

Sleep Divorce

A study conducted amongst 2,000 married couples in the United Kingdom found that approximately 12% of the couples cited that snoring was one of the problems that contributed to the downfall of their relationship. About 18% revealed that they regularly argued about snoring, while 30% admitted that they had to resort to sleeping in separate rooms.

Obstructive Sleep Apnea is a pervasive sleep disorder that affects a significant portion of the population, with approximately 11% of women and 26% of men in America suffering from it..

A couple in Israel saw that their marriage deteriorated amid mutual accusations, leading to divorce with an agreement to settle the other issue later. During the divorce trial, the wife accused the husband of “excessive snoring.”

While the husband admitted the issue, he countered, “When I snored, she’d scream, get angry, hit the wall, curse and order me to go to the child’s room, even withholding intimacy.”

The wife sought full financial payment plus additional compensation, while the husband argued her demands caused the split.

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. Interestingly, given the recent attack on no-fault divorce, it was former Governor Ronald Reagan of California who signed the nation’s first no-fault divorce bill.

The no fault divorce law eliminated the need for couples to fabricate spousal wrongdoing in pursuit of a divorce; indeed, one likely reason for Reagan’s decision to sign the bill was that his first wife, Jane Wyman, had unfairly accused him of “mental cruelty” to obtain a divorce in 1948.

I’ve written about no-fault divorce issues before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your husband’s snoring and untreated sleep apnea. 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.

A Snoozer of a Decision

Back in the Holy Land, a court deliberated extensively on whether a husband’s snoring justifies divorce and alimony payments. After a lengthy review, a three-judge panel ruled that the husband could have addressed his snoring but failed to do so.

The court ordered him to pay 130,000 shekels (about $35,000) as compensation as demanded by his wife. After consulting historical rulings and modern medical insights, the judges wrote:

“We face a unique case where both husband and wife agree he snores during sleep, driving her to frustration and anger. His snoring led her to leave the bedroom, halt intimacy and fuel mutual resentment, insults and curses.”

They noted that snoring is treatable through medical consultation, devices, therapies or diet adjustments. Since the husband recognized his snoring deeply irritated his wife, he should have sought treatment for an admitted issue.

“Per the Jewish sages, if a person can change and doesn’t, he is deemed to have willfully driven his wife away, obligating him to pay. His snoring was solvable and his failure to act makes him liable for the full ketubah and supplement.”

The three judges diverged on the compensation amount. One judge advocated for the full 260,000 shekels ($70,000), while the two other judges argued the wife’s behavior also contributed to the rift, proposing 130,000 shekels. The majority upheld the lower sum in the final ruling.

The article is here.

International Custody, Hague Convention, and the Settled Defense

Posted by Ron Kauffman on

In a recent international custody case for return under the Hague Convention, a mother asserts a defense her son is settled in the U.S. and shouldn’t be returned. But his grades are bad, he misses school, and his connections to his stepfather’s family come at the expense of his longer relationship with family in Brazil. After the trial court orders him returned to Brazil, will the appellate court reverse?

Hague Now Settled

Boa Sorte

Both parents, and the child A.R., are all citizens and natives of Brazil. The parents were married in 2011, and lived in Belo Horizonte, Brazil (meaning “beautiful horizon” and pictured above). In 2016 they separated, and finally divorced in 2021. The parents shared custody of A.R., but A.R. lived with the mother. The mother then began a relationship with a man who immigrated to the United States.

The father signed a passport application that included a travel authorization permitting A.R. to travel outside of Brazil. The mother and A.R. then flew to Mexico, where they crossed the Mexico-United States border in 2022. She then applied for asylum.

Upon discovering the abduction, the father filed a petition to return A.R. to Brazil. The trial court in the U.S. found the father had met his prima facie burden to show A.R. was wrongfully removed from Brazil. Then, it rejected all the affirmative defenses the mother raised about consent, the now settled defense and the grave risk of harm. The Mother appealed.

Florida and the Hague Convention

I have spoken and written about the Hague Abduction Convention and international child custody issues before. The Hague Abduction Convention establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained.

The International Child Abduction Remedies Act is the statute in the United States that implements the Hague Abduction Convention. Under the Act, a person may petition a court authorized to exercise jurisdiction in the country where a child is located for the return of the child to his or her habitual residence in another signatory country, so the underlying child custody dispute can be determined in the proper jurisdiction.

The Hague Convention applies only in jurisdictions that have signed the convention, and its reach is limited to children under 16 years of age. Essentially, The Hague Convention helps families more quickly revert back to the “status quo” child custody arrangement before the wrongful child abduction. The Hague Convention exists to protect children from international abductions by requiring the prompt return to their habitual residence.

But there are defenses too. If return proceedings have been commenced after the expiration of a period of one year, courts can order the return of a child to their habitual residence, unless it is demonstrated that the child is now settled in its new environment.

Não Me Deixe Só

In rejecting the settled defense at the trial level, and ordering the child returned to Brazil, the district court analyzed several factors: age, stability and duration of the residence; whether the child consistently attended school; friends and relatives; involvement in the community and in extracurricular activities; employment and financial stability; and immigration status.

But on appeal, the circuit court found A.R. had lived in the same community for nearly three years, a significant amount of time for a school-age child. Also, his mother has steady employment and income. Those facts, standing alone, weigh heavily in favor of finding A.R. to be “now settled.”

A.R., it was also found, benefitted from a supportive extended family. He had a step-aunt and step-uncle who lived nearby and saw him twice a month. Despite A.R.’s poor grades and disruptive behavior, he arrived from Brazil unable to read or write in Portuguese, let alone in English, and was “meeting expectations of the classroom.”

The circuit court also found that A.R. attended church twice a month, participated in a youth group, had several friends of Brazilian descent, and importantly, played on a Massachusetts soccer team twice a week.

The circuit court remanded for the district court to decide whether, in the exercise of equitable discretion, returning A.R. to Brazil is warranted despite the appellate court finding that his status was “now settled.”

The case is here.

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.

Travel Restrictions to Hague Convention Countries

Posted by Ron Kauffman on

A recurring international custody problem is should a court place travel restrictions on parents who want to travel internationally to only travel to Hague Convention countries with the children? A married couple from China finds out the extent to which a family court can place such travel restrictions.

Travel Restrictions

China Visit

Zhenzhen Wang (the Wife) and Shengyi Ye (the Husband) were married in Iowa in 2008.  They share two children—a son and a daughter. In 2019, Shengyi took a job as a professor in China, while Zhenzhen and the children remained in Iowa.

In 2022, the wife and children visited the husband in China. One day while driving in the car, the parents started fighting, which resulted in the husband abandoning the wife and the children on the side of the road.  She took a taxi back to his apartment, where she discovered he had removed the children’s passports, travel documents, and birth certificates from her backpack.

Although he at first denied taking the documents, he later refused to give them back, preventing her and the children from leaving the country. It ultimately took Zhenzhen “six or seven months” to reorder all of the travel documents and return to Iowa.

When the wife and children returned home to Iowa, she petitioned to dissolve the marriage. Shengyi then filed a competing lawsuit in China, which was ultimately dismissed.

The Iowa court awarded her sole legal custody of the children. After considering his prior conduct preventing the children from returning to home to the U.S., and that China may not enforce a United States custodial order, the court required that the father have visitation with the children only in the U.S.

The court also provided him up to ten consecutive weeks of visitation with the children over the summer, and up to four weeks at a time should he travel to the United States during the school year. The husband appealed, arguing that he should be able to take the children to China for visitation.

Florida and the Hague Convention

I often speak and write about the Hague Abduction Convention and international child custody issues. The International Child Abduction Remedies Act is the statute in the United States that implements the Hague Abduction Convention.

Under the Act, a person may petition a court authorized to exercise jurisdiction in the country where a child is located for the return of the child to his or her habitual residence in another signatory country, so the underlying child custody dispute can be determined in the proper jurisdiction.

But it is important to know that the Convention applies as between contracting states only to wrongful removals or retentions occurring after its entry into force in those states. The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession.

In plain language, the Convention enters into force between an acceding State and a member Contracting State only when the Contracting State accepts the acceding State’s accession to the Convention.

Appellate Decision

The appellate court noted that limiting a parent’s ability to travel internationally with his or her children implicates heightened, and at times conflicting, interests. On the one hand, despite the virtues of our state, the court noted:

“[t]he world does not end at the borders of Iowa.”

Children should not easily be denied the opportunity to build meaningful relationships with a parent who resides outside of the United States or fully experience their dual heritage. On the other hand, there may be problems securing the return from a foreign country of a child to a custodial parent in the United States.

The danger of retention of a child in a country where retrieving the child is difficult, if not impossible, is a major factor for a court to weigh. Courts also consider other factors, such as the parent’s domicile, the reasons for visiting, the children’s safety, the age of the children, the parents’ relationship, the viability of bonds or other return measures, and the character and integrity of the parent seeking out-of-country visitation as gleaned from past comments and conduct.

The Iowa Court of Appeals ultimately affirmed. The appeals court noted that China is not a party to the Hague Convention, so the mother would have no recourse should the husband refuse to return the children to the United States.

The Court of Appeals of Iowa decision is here.

Hague Abduction Convention and Force Majeure Clause

Posted by Ron Kauffman on

Under the Hague Child Convention does a force majeure clause in a marital settlement agreement hold any weight? The question is a frequent international custody issue which arises after parents enter into an agreement allowing their children to travel internationally. In one recent case, two Israeli parents agreed to their children visiting the United States for 60-days with some exceptions.

Force Majeure

Parents at War

The parties in the Hague case are the parents of two children who were both born and raised in Israel. The family members are all Israeli citizens too, but the Mother was also a U.S. citizen. The parties divorced in 2019 in Israel. After the divorce, the Israeli family court awarded the Father with visitation rights, and ordered him to pay child support.

The Mother argued the Father never exercised his rights of custody. However, the Mother would also travel internationally alone, and leave the children with their Father and his new wife. The Father was found to have exercised his visitation rights with the children.

In January 2023, the Mother filed an action in Israel to collect back child-support from the Father. The parents reached an agreement in the Israeli family court in which they stopped collection proceedings, and in return, the Father agreed to let the Mother travel abroad with their two children under certain conditions.

The Mother was allowed to travel internationally with the Children for 60 days. She could extend the 60-day period either by agreement with the Father, and/or limitations unrelated to the Mother’s own actions, such as strikes, COVID-related restrictions, etc.

Then Israel was brutally attacked on October 7, 2023. A month later, the Mother flew with the Children, and her two twins from another relationship, to Florida. The Father agreed to the trip, but then objected after the Mother told him that she planned to keep the Children in Florida until at least January 23, 2024 – 76 days after leaving Israel – and possibly longer if the war persisted.

By April 2024, the Mother had still not returned the Children. Then she dropped the bomb on the Father: she had “discovered that we have peace of mind and a calm life here” and told him that the children didn’t want to return to Israel.

The Father was trapped. He was not allowed to travel to the U.S., and was restricted from holding a passport, due to his owing child-support. The Father then filed a petition for return of the children to Israel under the Hague Convention in a Florida federal court.

At the time of trial from January to February 2025, the parties disagreed as to whether the conditions in Israel, and in particular, whether the cities where each of them lived were safe to return to and an exception to return under their agreement.

Florida Hague Convention

I often speak and write about the Hague Abduction Convention and international child custody issues. In fact, I successfully represented the Father in this Israeli case. What do you do if your children are wrongfully abducted or retained internationally?

The Hague Abduction Convention establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained.

The International Child Abduction Remedies Act is the statute in the United States that implements the Hague Abduction Convention. Under the Act, a person may petition a court authorized to exercise jurisdiction in the country where a child is located for the return of the child to his or her habitual residence in another signatory country, so the underlying child custody dispute can be determined in the proper jurisdiction.

The Hague Convention applies only in jurisdictions that have signed the convention, and its reach is limited to children under 16 years of age. Essentially, The Hague Convention helps families more quickly revert back to the “status quo” child custody arrangement before the wrongful child abduction.

The Hague Convention exists to protect children from international abductions by requiring the prompt return to their habitual residence. But there are defenses too. In the Israeli case, one defense asserted  involved an agreement containing a force majeure clause. Essentially, the court was not bound to order the return of the children if the Mother demonstrated by a preponderance of the evidence that the Father gave prior consent to the retention or subsequently acquiesced in their retention.

The argument was central to the case because the Mother relied on language in the agreed child support order that allowed her to travel abroad with the children for up to 60 days unless there was some limitation unrelated to the Mother’s own actions, “e.g., strikes, COVID-related restrictions, etc.”

Force Majeure?

At trial, the Mother argued that, even if the Father had a right of custody under Israeli law, the conditions in Israel following the October 7, 2023 attack qualify as a limitation unrelated to Respondent under the language of the Agreement, which would permit her to keep the Children in Florida beyond 60 days.

The district court disagreed. “The term ‘limitation’ in the Agreement does not encompass the Mother’s personal judgment or view that returning the Children to Israel is unsafe.” In looking at the parties’ agreement, the district court concluded that, based on its customary and normal meaning, “[t]he agreement itself illustrates this definition [of limitation], citing examples such as ‘strikes’ and ‘COVID-19-related restrictions’ – situations that physically restrict Respondent’s ability to return the Children.”

The district court found that a qualifying limitation under the Agreement is one that impedes or prevents the Mother from returning the Children, not one that merely makes return undesirable according to the Mother.

The case is analyzed at MKFL International Family Law here.

Divorce Ignorance

Posted by Ron Kauffman on

A new report by two law professors in England is showing a great deal about the public’s ignorance of divorce laws. Overall, the public’s understanding about finance and property on divorce was considered poor. However, those fortunate enough to have consulted lawyers previously were considered knowledgeable.

London divorce town

Keeping calm and carrying on

The legal experts say that thousands of people going through their divorces could be losing out due to “do it yourself” divorces. The professors from the University of Bristol authored a new report where 20,000 members of the public in England and Wales answered questions on divorce-related laws about dividing finances and property.

For example, given 10 statements about the law and asked to say whether each was true or false, the public correctly identified an average of 4.5 statements. In fact, just over half (55 per cent) of the public correctly identified at least half of the statements.

Statements Which Are Not True (in England):

  • The law says that all assets and debts should be split 50:50, regardless of whose name they were in during the marriage
  • Legally, an individual is not entitled to a share of their ex-spouse’s pension
    The law says that if an individual contributed more money during the marriage, then they are usually entitled to more than 50 per cent of the assets

Interestingly, people with higher qualifications or incomes were somewhat more likely than those with lower level qualifications or incomes to know what the law was in relation to financial remedies on divorce.

Florida 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 issues before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your spouse’s political views. 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.

Florida abolished fault as grounds for filing a divorce. The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.” Additionally, the mental incapacity of one of the parties, where the party was adjudged incapacitated for the prior three year, is another avenue.

Dodgy Results?

The report also showed that women were more likely to know about aspects of the law relevant to having children, and men to know somewhat more about the law around the division of assets.

Additionally, and not surprisingly, divorcees were somewhat more knowledgeable about the law than others. But still, their percentages appear to be mere guesswork: they identified an average of 5.2 statements correctly compared to 4.4 statements among those who had not been through a divorce. However, the differences between divorcees and others were not large, with levels of misconception still high among divorcees.

Having a lawyer was important to knowing your rights. Among divorcees who had divorced in the previous five years: those who had used more formal routes to reaching an arrangement, or consulted or used a lawyer, tended to know more about the laws around finances on divorce than those who had not.

Those with higher levels of assets to divide on divorce tended to have a greater understanding than those with lower levels or no assets. Divorcees with dependent children were more knowledgeable than other divorcees in relation to the law around the legal position of parents with main care of their children and around the child maintenance formula, although there were still high levels of misunderstanding among parents on these issues.

With do it yourself divorces, when couples settle how to split finances without courts, the law allows them to agree any split they want. More people are now coming up with their “own solutions” surrounding divorce settlements as there is no longer legal aid in England and Wales. The findings highlighted that women had a greater understanding around law relating to children, whilst men were more likely to know the law on assets.

The professor said the lack of legal aid leads to less awareness and knowledge which is “potentially problematic” because it means that people are relying on “their own misunderstanding of the law which tends to lead to poor settlements”.

The majority of the divorcing population in England and Wales reach arrangements relating to their finances and property outside of the formal family justice system, and also that one in five divorcees seek advice and support from family and friends during the divorce process.

For these reasons, it is important to know what level of knowledge people have, and whether there are misconceptions which might be influencing the decisions made by divorcees and the advice family and friends provide.

The BBC article is here.