Tag: family law international

Hague Convention and the Mature Child Exception

Posted by Ron Kauffman on

A  common international custody issue under the Hague Convention involves a wrongfully removed child when there is an exception to being returned home. One such exception is the mature child exception. How mature does a child have to be in order to avoid being returned to the child’s habitual residence? A recent Florida case analyzes that question.

Hague Mature Child 2

Oh Mexico

The Father and Mother are the parents of a child born in Mexico in 2013. They lived together in Mexico until approximately one year after the child was born. After their separation, a Mexican court granted custodial rights and child support obligations. The custody order also contained a clause which prohibited Mother from removing minor child from Mexico without Father’s consent.

Then in December 2022, the Mother abducted the child to the United States. After learning his child was abducted, the Father filed a return petition under the Hague Convention in Florida.

The Mother opposed returning the child by arguing that the child was “sufficiently mature and intelligent to object to being repatriated to Mexico.” The trial court conducted an in-camera interview with the child who was then ten years old and had been exclusively with Mother in Florida for over a year. The child testified she lived in an apartment with Mother and her little brother and was attending school and taking English classes. She enjoyed playing at parks and wanted to join a football team.

She also admitted seeing Mother crying and being told by Mother that Father wanted minor child to go back to Mexico and that “I’m afraid that you might be sending me back to Mexico and that I won’t be able to see my mom.” The Mother testified she not only told minor child about the proceedings, but also told her she feared minor child “would be taken back to Mexico and no longer be with me.”

The trial judge denied the Hague return petition after applying the mature child exception. The father appealed.

Hague Convention

I have written and spoken on international custody and child abduction cases under the Hague Convention. The Convention’s mission is basic: to return children to their country of habitual residence.

In the recent Mexican case, the father had to prove by a preponderance of the evidence that the child was a habitual resident of Mexico immediately before her abduction, the removal was in breach of his custody rights under Mexican law, and he was actually exercising rights of custody, or would have been so exercised but for the removal. If so, the child must be promptly returned to Mexico unless there is an exception to return.

The key inquiry in this recent case was the mature child exception. A court may refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is ap­propriate to take account of its views. A court may find that the child’s objection in and of itself is conclusive—it does not have to be coupled with another defense to be sustained.

Talking ’bout Mexico

On appeal, the district court noted that the child was exceptionally bright and articulate, she calmly and clearly conveyed her reluctance to return to Mexico, and conveyed significant family ties, teachers, and friends in Florida.

But in determining whether the mature child exception applies, courts primarily consider whether the child is sufficiently mature, has a particularized objection to being returned and whether the objection is the product of undue influence.

Here, the ten-year-old child’s preference to remain with Mother in Florida was based primarily on: friends, a desire to attend high school, and an upcoming school trip to Orlando. The appellate court found these to be generic and near-sighted responses and demonstrated the child’s inability to maturely comprehend or appreciate the long-term impact of her decisions.

This was especially true considering the child provided no significant testimony as to her life in Mexico or how life in Mexico differed from life in the United States. Also, her fear of return was based solely on not wanting to be separated from her Mother and return to Mexico does not necessarily mean she will be separated from Mother as Mother is free to return with her to Mexico.

Importantly, only a child’s objection is sufficient to trump the Convention’s strong presumption in favor of return, not the child’s mere preference. Here, the child just didn’t want to be separated from her mom. The only fear of returning to Mexico was being separated from Mother and not an unwillingness to live in Mexico.

Finally, the child’s objection was clearly the product of Mother’s undue influence. For example the Mother admitted she told minor child about the legal proceedings and about her fears of minor child being returned to Mexico.

The court reversed and remanded for the trial court to grant return to Mexico.

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.

Recognizing International Divorce Decrees

Posted by Ron Kauffman on

A recent Texas case resolves an important dispute over recognizing international divorce decrees. A couple filed for divorce in Texas. Then, the husband traveled to his home country of Pakistan for a ‘quicky’ divorce. Does the Texas court have to honor the international divorce decree?

International Divorce

Longhorns in Lahore

The parties were married in Pakistan in 2009 and later moved to Texas. Husband filed an original petition for divorce in Dallas County district court in 2021. He asked for a divorce, the division of their property, and for the court to decide child custody.

Eight months later, Husband filed a “Notice of Filing of Foreign Judgment.”  He attached a “Divorce Registration Certificate” that was issued in 2022 by the Union Council in his home town of Lahore, Pakistan.

The Pakistani certificate lists addresses in Lahore for both parties. The Husband asked the Texas court to recognize the Pakistani divorce decree, and he also amended his divorce petition. He dropped his demand for a divorce as they were divorced now in Pakistan.

But the Pakistani divorce decree did not “dispose of the parties’ marital interest in various assets” or decide custody so he asked Texas to decide those issues. The Wife objected to recognizing the foreign judgment.

In 2023, after a hearing, the Texas family court sustained Wife’s objection to the recognition of the Pakistani decree, and rendered a final decree of divorce on June 7, 2023. The Husband appealed.

Florida Comity and International Divorce

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

However, in our mobile society many couples have multiple residences where they reside. Some of those residences can be in other countries, and more than one country may have jurisdiction. Will a foreign divorce decree be recognized in the U.S.?

Generally, comity is the recognition that a country gives to the legislative, executive or judicial acts of another country, having due regard both to international duty and convenience, and to the rights of its own citizens.

A U.S. state will respect and give effect to the laws and judicial decisions of another jurisdiction, provided that they do not conflict with public policy. Comity ensures that international divorce decrees will be recognized and enforced across different countries.

Cowboys, Curry, and Comity

On appeal, the Husband argued the court didn’t have subject matter jurisdiction to grant a divorce because they were no longer married. The appellate court noted that states, however, are not required to give full faith and credit to every single foreign divorce decree. Dismissal of a case based on comity is a matter of discretion for a trial court.

In this case, the only evidence the Wife received notice about the Pakistani divorce proceeding was an email from the Husband stating: “I am attaching NADRA divorce certificate for your records” and a one-sentence text message saying: “to fulfill religious obligation, I have pronounced verbal divorce today.”

The Husband argued Pakistan is not required to follow Texas-specific due process laws or rules. The appellate court agreed Pakistan did not have to follow American notions of due process. But, a U.S. court can refuse to recognize judgments obtained without due process. Since there was never notice to Wife of the Pakistani proceedings until after a judgment was rendered, she was deprived of minimum due process, and the international decree was not recognized.

The opinion is available at MKFL International Family Law.

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.

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.