Tag: Foreign Divorce

Changing Gender and Child Custody

Florida courts do not weigh a parent’s gender when determining child custody. However, in some countries, gender matters. Why? Because the law can make a presumption that during a child’s “tender” years, around age four and under, the mother is awarded child custody. One father in Ecuador decided to tilt the odds in his favor by changing his gender.

Gender Custody

Paying the Cuenta in Cuenca

On the morning of December 30, 2022, in the dusty town of Santa Ana de los Cuatro Ríos de Cuenca, Ecuador, René Salinas Ramos decided to change his gender from male to female and fight for custody of his two daughters. Salinas had a major complaint about the country’s child custody laws. Namely, the laws gave more rights to the mother than the father.

“My actions are not against anyone in particular but against the system. Being a father in this country, Ecuador, is punished and seen only as a provider.”

The Father was interviewed by La Voz del Tomebamba radio. During the interview he showed his new country ID card, which has his new gender data, “FEMENINO.” However, his ID contains the same names with which he was enrolled with originally over 47-years ago.

While the ID card has his gender as “femenino”, he still identifies himself as a cisgender male. Ecuador passed a law in 2015 that allows people to legally change their gender on government-issued documents.

Florida Child Custody

I’ve written about child custody before. Unlike Ecuador for example, Florida does not apply the “tender years doctrine” anymore. Florida has the parenting plan concept. For purposes of establishing a parenting plan, the best interest of the child, not the gender of the parent, is the primary consideration.

In Florida, the best interests of the child are determined by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including the mental and physical health of the parents.

Some of those factors include the demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required, and of course, the mental and physical health of the parents. None of the statutory factors involve the gender or sex of the parent and child.

It is also the public policy of Florida that each minor child has frequent and continuing contact with both parents after the parents separate and to encourage both parents to share the rights and responsibilities, and joys, of childrearing.

When it comes to the parents’ gender, Florida makes no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.

In Florida, the court must order that the parental responsibility for a minor child be shared by both parents unless shared parental responsibility would be detrimental to the child.

Género, patria y libertad!

According to Salinas, his daughters live with their mother in an environment in the midst of violence. These allegations of violence are reportedly denounced. Salinas boasts that now that he is a woman, he can be a mother and is on an equal footing to fight for the parental authority of his daughters.

“It is more than five months that I do not see my daughters. I can also be a mother, I know how to cook, give love, iron and other activities of a mother.”

However Salinas never explained what prevents Salinas from approaching the children. In the Father’s opinion, justice is biased in favor of women when it comes to parenting and, according to Salinas, to be on an equal footing, he no longer wants to be called dad, but mom.

“The laws say that the one who has the right is the woman. As of this moment, I am female. Now I’m also a mom, that’s how I consider myself. I am very sure of my sexuality. What I have sought is that I want to be a mother, so that I can also give the love and protection of a mother.”

Until this matter is resolved the children have to stay with their mother he told the media. The law is taking away our right to be parents and changing his official ID to show a new gender “is a proof of love.”

Salinas Ramos is reportedly the first man in Ecuador to use gender laws to gain the upper hand in a custody battle, and news of the gender change has set off criticism from transgender activists in the South American country.

Money may also be an issue. According to reports, the judicial system portal may reflect that the Father maintains a debt with his former and current spouse. This amounts to $10,766 for alimony.

Regarding the breach of this responsibility, Salinas justified that in the case of the current spouse he made an agreement, because he paid all the basic services and school obligations. Additionally, he mentioned a document signed by the mother in which she renounces the debt, but Salinas did not show it, and the document does not appear to be recorded in the computer system either.

Salinas hopes that the issue of the possession of girls will continue to be debated not only at the social level, but also in the Assembly. He acknowledged that after his gender change on the ID he has received calls for support from organizations and even politicians, but he does not want the issue to be mixed with the campaign and preferred not to approach them.

The La Voz Del Tomebamba article is here. (en Español)

International Divorce and Comity

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

Divorce Comity

Comity Hour

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

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

The punchline: they were already legally divorced in Venezuela.

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

Florida Divorce and Comity

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

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

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

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

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

Comity Isn’t Pretty

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

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

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

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

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

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

The Supreme Court of Nebraska opinion is here.

An American learns about Divorce and Housing in Saudi Arabia

An American nurse involved in a long divorce battle in Saudi Arabia, and claims authorities have consistently discriminated against her because she is a foreign woman, is getting a quick lesson on who pays for temporary housing costs in the desert kingdom.

Divorce Housing Costs

Shifting Sands

Teresa Malof, 51, says she has been mistreated in her attempts to divorce her ex-husband Mazen al-Mubarak, the father to her three children. Malof, who is originally from Cincinnati, Ohio, married al-Mubarak in 2000 and filed for divorce in 2015. While the divorce was approved, the settlement is now bogged down in the courts and entering its fifth year.

al-Mubarak, the son of Saudi Arabia’s former ambassador to Qatar, has used his wife’s unfamiliarity with the Saudi legal system and inability to speak Arabic to turn the tables against her, she told Insider.

The most obvious injustice, in Malof’s view, is that al-Mubarak lived alone in a house in Riyadh for many years, for which she paid the mortgage of $2,831 a month for years while he lived in it alone.

According to Insider, which has reviewed official Saudi court documents, the court documents confirm that she launched legal proceedings to evict her ex-husband, made payments for the house while he lived there, and that she submitted formal complaints about the judge’s conduct.

It came to a head in August 2018 when she broke into her house and changed the locks while al-Mubarak was abroad, she said. Malof claimed that recently the judge in her case abruptly annulled her divorce, making her technically married again. Malof contends that the judge did not have the power to do this.

“I just want it to be finished,” Malof told Insider. “Foreign women are discriminated against here in the courts.”

The US Embassy in Riyadh confirmed to Insider that it was assisting Malof. US Embassy press attaché Peter Brown said: “We are aware of the case and providing appropriate consular services. Due to pending legal proceedings, we have nothing further to share.”

Florida Divorce Housing Costs

I’ve written about the marital house during a divorce before. In a dissolution of marriage, temporary alimony can be awarded so that the home mortgage is paid for. Each party’s sources of income and ability to pay are factors to be considered in determining whether alimony is appropriate, and if so, in what amounts.

There are a few other issues when it comes to housing in divorce:

Children’s Issues

Until a divorce parenting plan in place, if you are interested in maintaining a meaningful relationship in your child’s life, leaving the home before a timesharing agreement is entered may show a lack of real interest in the child’s daily life.

Moving out can create the appearance of a new ‘primary residential parent’ by default. Worse, if the process takes a long time, it creates a new status quo.

Cost

The person leaving during a divorce may still have to contribute for the expenses of the home while also paying for a new home. It can be costly, and prohibitive expensive when you know that the process will take a long time.

Settlement

Staying in the same home could create an incentive to negotiate a final settlement because living with your soon to be ex-spouse is very uncomfortable. However, if someone moves out, the person remaining in the home is sitting pretty and may be less inclined to settle.

Fold Up the Tent?

Malof told Insider that her house, in the al-Khozama district of Riyadh, was part of the agreement when the two split. She said al-Mubarak agreed to pay for $183,000 for it, but has yet to produce the money. Malof has been prevented from selling the house by the judge’s decision to freeze the deed at the request of al-Mubarak. Malof has compiled a wide-ranging list of grievances against the court.

She claims that the judge has held court hearings without her knowledge, has omitted evidence from court minutes, has refused to give her an interpreter, credited her with making statements that she never uttered, and has met with al-Mubarak separately behind closed doors.

Malof says she was not informed of hearings on April 11, June 25, and September 5 last year. The last of these, she says, was the one where the judge froze the deed on her house, blocking her from selling it. Malof told Insider that the judge “has put several times in the minutes that there is an ‘agreement’ between me and al-Mubarak and the house is shared, which is not true.” Minutes are the formal legal record of how a case is progressing.

The case follows that of Bethany Vierra, a US citizen who became trapped in Saudi Arabia by the Kingdom’s guardianship laws in March, and later lost custody of her child when her ex-husband used images of her in a bikini to show she was unfit to parent.

Malof’s and Vierra’s stories highlight the reality for non-Saudis under their legal system, which is based on the Qur’an, which contains God’s revelations to the Prophet Muhammad, and the Sunnah, the traditions of the Prophet Muhammad.

In some cases, evidence submitted to court is invalid unless witnessed by two Muslim men.

Malof was given an attorney by the Saudi government’s Human Rights Commission at first, but has now hired her own, Hazim al-Madani. “I have lived in this country for more than twenty years” she told Insider. “Going public and talking badly about Saudi Arabia has never been my goal. However, what choice do I have?”

The Insider article is here.

 

Sharia Divorce in Germany

The European Court of Justice is considering whether a foreign divorce, granted by a Sharia court, is valid in Germany. The German case raises the issue of when foreign laws conflict with rights protected in other countries, an issue Florida has grappled with.

Sharia Divorce in Europe

On Thursday this week, the advocate general at the European Court of Justice (ECJ), issued an opinion saying that a foreign divorce under Sharia law should not be recognized.

The ECJ judgment is still pending; however, judges often follow such recommendations.

The case involves a couple from Syria with German nationality. They married in 1999 in Homs, Syria, before moving to Germany. Four years ago, in a Syrian Sharia court, the husband ended the marriage by repeating the word “talaq” (“I divorce you”) three times.

Florida Divorces and Sharia

I have written extensively on foreign divorce before, and the triple Talaq issue specifically. As the European case suggests, the Triple Talaq allows Muslim men to leave their wives instantaneously by saying “talaq,” meaning divorce, three times.

The thousand-year-old custom of triple talaq was recently banned by the Indian Supreme Court.

Florida has resolved the issue of the enforcement of foreign divorce in Florida to a certain extent when it enacted Florida Statute 61.0401. The statute prohibits courts in Florida from enforcing:

  • A choice of law provision in a contract selecting the law of a foreign country which contravenes the strong public policy of this state or that is unjust or unreasonable.
  • A forum selection clause in a contract that selects a forum in a foreign country if the clause is shown to be unreasonable or unjust or if strong public policy would prohibit the enforceability of the clause.
  • A judgment or order of a court of a foreign country is not entitled to comity if the foreign court offends the public policy of this state.

Florida Statutes do not mention Sharia, or any religious divorce law at all. However, in an international divorce case in Florida, to the extent the Syrian divorce (triple talaq) law violates the U.S. and Florida Constitution, the Syrian law may not be enforceable.

The European Divorce Debate

The European Union Divorce Law Pact, known in family law circles as “Rome III Regulation”, governs the recognition of private divorces, meaning divorces that were not granted by a state court.

Under Rome III, a foreign law is not applied in European courts if men and women do not have equal power in divorce proceedings.

Many Germans are concerned about the recognition of foreign divorces, especially when they are based on Sharia. “Many people have a one-sided understanding of Sharia law. There are problematic areas in traditional Sharia law, which allows corporal punishment for criminals; is patriarchal and does not recognize gender or religious equality.

When foreign laws are applied in Germany, their effect is subject to scrutiny, such that if it results in gross injustice and a violation of fundamental rights, the state will correct it. This has been standard practice in Germany for 100 years now.

“This is an election year. Europe is losing faith. If the ECJ now said, ‘This is applicable; we will examine the individual cases,’ then the headlines would read: ECJ says Sharia divorce is valid. And then I would not like to see how anti-Islam groups such as Pegida, AfD and the like would react.”

The Deutsche Welle, article is available here.