Tag: Hague Convention

Upcoming Speaking Engagement on Interstate and International Jurisdiction

Honored to be asked to speak on interstate and international jurisdiction at the 2022 Marital & Family Law Review Course. The program is live this year at the Gaylord Palms Resort & Convention Center from January 21, 2022 to January 22, 2022.

Limited rooms are still available and an additional block of rooms was just made available at the nearby Courtyard Orlando Lake Buena Vista. The prestigious Certification Review course is one of largest and most popular CLE presentations, and is a partnership between the Florida Bar Family Law Section and the AAML Florida Chapter.

Interstate Child Custody

Family law today frequently involves interstate child custody, interstate family support, and The Hague Convention on international child abductions.

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

Florida and almost all U.S. states passed the UCCJEA into law. The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction 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 Florida. The ultimate determining factor in a Florida case then, is what is the “home state” of the child.

International Child Abductions

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

The issue of international child abductions is also a fast-moving area of law. The U.S. Supreme Court recently granted certiorari in a case less than two years after issuing its last Hague Convention opinion.

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

Interstate Family Support

The Uniform Interstate Family Support Act is one of the uniform acts drafted by the Uniform Law Commission. First developed in 1992, the UIFSA resolves interstate jurisdictional disputes about which states can properly establish and modify child support and spousal support orders. The UIFSA also controls the issue of enforcement of family support obligations within the United States.

In 1996, Congress passed the Personal Responsibility and Work Opportunity Act, which required all U.S. states adopt UIFSA, or face loss of federal funding for child support enforcement. Every U.S. state has adopted some version of UIFSA to resolve interstate disputes about support.

Certification Review Course

It is a privilege to be asked to speak on interstate jurisdiction and international child abductions at the annual Marital & Family Law Review Course again. The annual seminar is the largest and most prestigious advanced family law course in Florida. Last year’s audience included over 1,800 attorneys and judges from around the state.

The program is live this year, will not be broadcasted, and space is limited.

Register for the remaining spaces here.

Abu Dhabi’s Modernized Divorce Laws

News from the capital of the United Arab Emirates, Abu Dhabi, is that the country has modernized its divorce laws. The county has issued new rules governing divorce, inheritance, and child custody for non-Muslims living in the emirate.

Abu Dhabi Divorce

Bridging the Divorce Gulf

Abu Dhabi is one of seven sheikhdoms that make up the UAE and the new law affects only this sheikhdom. While the oil-rich emirate is the capital of the nation, Abu Dhabi’s population is dwarfed by that of neighboring Dubai.

The report on Sunday said Abu Dhabi would create a new court to handle these cases, which will be held in Arabic and English to be better understood by the emirate’s vast foreign worker population.

This latest development comes after news that more than half of all Emirati couples in Abu Dhabi face divorce within the first four years of marriage, according to research conducted by the Department of Community Development.

The emirate previously launched an initiative to raise awareness about the importance of seeking professional help at the first signs of conflict, with the aims of reducing divorce rates in the early stages of marriage.

Change in child custody will allow parents to share joint custody of their children, WAM reported. The law – which consists of 20 articles – also introduces the idea of civil marriage, allows wills to be drawn up granting inheritance to whomever a person chooses, and deals with paternity issues.

It is set to provide “a flexible and advanced judicial mechanism for the determination of personal status disputes for non-Muslims”, the Abu Dhabi Judicial Department said, according to The National newspaper.

Florida Religion and Divorce

I’ve written about the intersection of religion and divorce before – especially as it relates to vaccinations. Religion, religious beliefs, and religious practices are not statutory factors Florida courts consider when determining parental responsibility.

Nor is religion an area in which a parent may be granted ultimate responsibility over a child. Instead, the weight religion plays in custody disputes grew over time in various cases.

One of the earliest Florida cases in which religion was a factor in deciding parental responsibility restricted one parent from exposing the children to that parent’s religion.

The Mother was a member of The Way International, and the Father introduced evidence that The Way made the mother an unfit parent. He alleged The Way psychologically brainwashed her, that she had become obsessed, and was neglecting the children. The trial judge awarded custody to the mother provided that she severs all connections, meetings, tapes, visits, communications, or financial support with The Way, and not subject the children to any of its dogmas.

The Mother appealed the restrictions as a violation of her free exercise of religion. The appellate court agreed, and held the restrictions were unconstitutionally overbroad and expressly restricted the mother’s free exercise of her religious beliefs and practices.

Following that, and other decisions, Florida courts will not stop a parent from practicing their religion or from influencing the religious training of their child inconsistent with that of the other parent.

When the matter involves the religious training and beliefs of the child, the court generally does not make a decision in favor of a specific religion over the objection of the other parent. The court should also avoid interference with the right of a parent to practice their own religion and avoid imposing an obligation to enforce the religious beliefs of the other parent.

Modernizing an Insular Peninsula

The new law comes after authorities last year said they would overhaul the country’s Islamic personal laws, allowing unmarried couples to cohabitate, loosening alcohol restrictions and criminalizing so-called “honour killings” – a widely criticized tribal custom in which a male relative may evade prosecution for assaulting a woman he claims has dishonored her family.

At the time, the government said the legal reforms were part of efforts to improve legislation and the investment climate in the country, as well as to consolidate “tolerance principles”.

Abu Dhabi also ended its alcohol license system in September 2020. Previously, individuals needed a liquor license to buy, transport or have alcohol in their homes. The rule would apparently allow Muslims who have been barred from obtaining licenses to drink alcoholic beverages freely.

The UAE as a whole in September this year announced yet another plan to stimulate its economy and liberalize stringent residency rules for foreigners. In January, the UAE announced it was opening a path to citizenship for select foreign nationals, who make up nearly 80 percent of the population.

The UAE last year introduced a number of legal changes at the federal level, including decriminalizing premarital sexual relations and alcohol consumption. These reforms, alongside measures such as introducing longer-term visas, have been seen as a way for the Gulf state to make itself more attractive for foreign investment, tourism and long-term residency.

The broadening of personal freedoms reflects the changing profile of a country that has sought to bill itself as a skyscraper-studded destination for Western tourists, fortune-seekers and businesses. The changes also reflect the efforts of the emirates’ rulers to keep pace with a rapidly changing society at home.

The Reuters article is here.

 

China Child Custody and Abduction Problem

Child custody and abduction has become a big problem in little China. Experts argue about 80,000 children in China are estimated to have been abducted and hidden in divorce cases in 2019. Newly passed family laws in China may help resolve this problem.

China child abduction

Crouching Tiger, Hidden Child

As CNN reports, the child abductions mostly involved fathers snatching their sons aged six years old and under. Although the 80,000 estimate is based on 2019 divorce figures, legal experts say it reflects a consistent trend seen each year – and the real figure may be much higher, since many cases might not be publicly available or settled out of court.

China is proposing a new child protection law making it illegal for parents to “snatch and hide” their children to win custody battles. The amendments, which go into effect on June 1, were praised by some as a crucial step in protecting children and mothers.

But years of loose regulations and a hands-off approach by Chinese authorities have sowed doubts as to whether a new law will change anything, say experts on family law and parental abduction.

In many cases, the abducting parent moves and hides the children, typically with the help of their parents or family members. The left behind parent, usually the mother, is blocked from seeing their child because they don’t even know where their child is.

Florida Child Custody and Child Abduction

I’ve written and lectured on the problem of child abductions before. My new Florida Bar Journal article Like Home: The New Definition of Habitual Residence, discusses child abductions under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980 and the federal International Child Abduction Remedies Act.

In Florida there are a few civil laws helping parents who are the victim of child snatching. There are also criminal laws at the state and federal levels which can result in prison time.

Florida adopted the Uniform Child Custody Jurisdiction and Enforcement Act. The law was intended to make it harder for parents to snatch their children and take them across state lines to a state more likely to rule in their favor.

The Hague Convention is a treaty our county signed to deter child abductions by eliminating their primary motivation for doing so: to “deprive the abduction parent’s actions of any practical or juridical consequences.”

So, 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.

Joyless Bad Luck Club

In China, joint custody is rare. Usually after a breakup, children go with one parent rather than as co-parents. The tradition of a parent taking a child away from the other parent, when there’s a parental separation, is something that’s been in existence for a long time.

In China, it is suspected that in “at least half” of divorce disputes regarding child custody, parents “hide the children for various reasons.

Under the new family law, “it is not allowed to compete for custody rights by snatching or hiding underage children.” Those who violate the articles may “bear civil liability in accordance with the law,” or face unspecified penalties, according to the law.

Women have since been speaking out about their experiences with abusive partners or child abduction, with some high-profile cases helping increase visibility around the issue. Even government officials have spoken out in support of changing the marriage and custody law, including a delegate of the National People’s Congress.

There are additional steps that could be taken — providing protections for visitation rights during the divorce period, or laying out clearer standards on which behaviors constitute “snatching and hiding” children, said Chen, the chief of the Guangzhou court, in the Xinhua article.

By 2019, the amendments to the law were already being drafted and deliberated by the country’s legislative body, though the final articles still fell short of clearly defining the parameters and repercussions of the offence.

For mothers who have lost custody or visitation of their children, the new law comes too late.

The CNN article is here.

New Article “Like Home: The New Definition of Habitual Residence”

My new article “Like Home: The New Definition of Habitual Residence”, discusses habitual residence under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980 and the federal International Child Abduction Remedies Act. The article is now available in the Florida Bar Journal.

New Article

American courts have had different standards for determining a child’s “habitual residence” under the Hague Convention. The controversy? How to establish a child’s habitual residence and what appellate standard of review should be applied after making that determination. The U.S. Supreme Court has now squarely addressed the conflict about habitual residence.

This new article examines the Hague Convention on international child abductions, ICARA, the U.S. Supreme Court decision, and . . . the Wizard of Oz.

The article is available here.

One Year Ago: Live Hague Trial

One year ago was the last time I stepped into an actual courtroom for a live trial dealing with child custody and the Hague Convention. It was also a year ago that the U.S. Supreme Court decided Monasky v. Taglieri. A lot has happened to the world in one long year.

Texas holdem

Mexican Poker

My client and the Mother are dual citizens of Mexico and Cuba, and met in Cancun, Mexico. They are both professional musicians. Together they have a daughter who was five years old.

During the early years of their relationship, they all lived together in an apartment in Mexico and traveled to the United States and Cuba. When they separated, the Father moved to an apartment nearby, and he and his daughter would timeshare, he paid for her piano lessons, her private school tuition, and even the Mother’s rent.

On July 12, 2019, at approximately 11:30 a.m., the Mother called the Father that she had taken their daughter to an undisclosed location.

He suspected she took her to Florida, and even had a possible address for the Mother here. Unbeknownst to him, the Mother actually took their daughter to a small, west Texas town.

The same day, the Father went to the Cancun Police and filed a missing child report. A few days later, he filed a Hague application for the child’s return. He hired me to file a case in Miami federal court, which was transferred to a federal court in Texas when the child was discovered there.

Habitual Residence and the Hague Convention

While the abduction was going on, and a few days before our Texas trial, the U.S. Supreme Court decided a major Hague Child abduction case involving the habitual residence of a child.

The Florida Bar Journal recently published an article I wrote during the quarantine about the recent U.S. Supreme Court case. In Monasky v. Taglieri, the U.S. Supreme Court held that the determination of a child’s “habitual residence” for purposes of the Hague Convention depends on a totality-of-the-circumstances analysis and that a district court’s habitual-residence determination should be reviewed for clear error.

The Hague Convention on the Civil Aspects of International Child Abduction provides that a child wrongfully removed from his or her country of “habitual residence” must be returned to that country, which then has primary jurisdiction over any resulting custody proceedings.

A removal is “wrongful” if it is done in violation of the custody laws of the country of the child’s habitual residence. The Convention instructs that signatory states should “use the most expeditious proceedings available” to return the child to his or her habitual residence.

In Monasky, an American brought her infant daughter to Ohio from Italy after her Italian husband, Domenico Taglieri, became physically abusive. Taglieri petitioned for his daughter’s return under the Hague Convention, arguing that Italy was the daughter’s “habitual residence.”

The federal court agreed and found the parents had exhibited a “shared intention” to raise their daughter in Italy. The Sixth Circuit Court of Appeals affirmed with dissents. Monasky then petitioned the U.S. Supreme Court, arguing that establishment of a child’s habitual residence requires actual agreement between the parents.

The Supreme Court noted that the Hague Convention does not define “habitual residence.” Relying on the treaty and decisions from the countries who are signatories, the high court concluded habitual residence it is a “fact-driven inquiry into the particular circumstances of the case.”

The Supreme Court also noted that Monasky’s ‘actual agreement’ requirement would leave many children without a habitual residence, and outside the Convention’s domain and the Hague Convention always allows a court concerned about domestic violence to not order a child’s return 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.”

Texas Hold ‘Em?

One of the issues which had to be resolved in our trial was the habitual residence of the child, and whether the parents shared an intent to abandon it. During our trial in Texas, the U.S. District Court found the parents did not share an intent to change the child’s habitual residence, among other defenses, and ordered the child returned to the Father and to her home in Mexico.

Relying on the U.S. Supreme Court’s, brand new decision, the federal court found the daughter’s habitual residence is Mexico, and that she was wrongfully removed to the United States in violation of the Hague Convention.

At the same time the Coronavirus was raging across the world, the U.S. government just ordered the border with Canada closed, courts were closing around the country, and there was a real concern we wouldn’t be able to return to Mexico.

But we faced another, potentially bigger problem. How do you enforce a federal court order to return a child to Mexico when the entire world, including borders and flights home were slamming shut?

The alternative to us moving immediately to secure the child’s return to Mexico would be to ‘hold em’ in Texas. Acting quickly, the father and daughter made it safely home to the habitual residence of Mexico.

The U.S. Supreme Court decision is here.

 

International Child Custody and a Washington Woman in Saudi Arabia

In an interesting case involving international child custody and a Washington woman in Saudi Arabia, the woman who previously lost custody of her daughter in Saudi Arabia for being “too western”, is back! She traveled home for Christmas and is trying to stay in Washington state with the child.

International Child Custody

Shifting Sands

I’ve written about the case of Bethany Vierra Alhaidari before. Bethany, a 32-year-old student and yoga teacher, moved to Saudi Arabia to teach at a university in 2011. She divorced her Saudi husband, and sought custody of their four-year-old daughter. But the Saudi court concluded that she would not be a good parent.

“The mother is new to Islam, is a foreigner in this country, and continues to definitively embrace the customs and traditions of her upbringing. We must avoid exposing (the child) to these customs and traditions, especially at this early age.”

She started sleeping with her ex-husband, Ghassan al-Haidari, in a bid to get him to allow her and their daughter to spend Christmas with her family, in Washington state. It worked, but she did not return from the Christmas vacation.

Bethany is now asking a family court in Washington to give her custody of her five-year-old daughter Zaina. She said the custody agreement with her Saudi ex-husband was signed under duress and that she was not given a fair hearing by Saudi courts.

In recent years Saudi Arabia has attempted to shake off its image as one of the most repressive countries in the world for women.

In 2018, the government lifted a long-standing ban on women driving and made changes to the male guardianship system last year, allowing women to apply for passports and travel independently without permission from a man.

However, women continue to face numerous restrictions on their lives, and several women’s rights activists who campaigned for the changes have been detained and put on trial. Some of them are alleged to have been tortured in prison.

Florida and the UCCJEA

I’ve spoken about international child custody cases under the Hague Convention and the UCCJEA before. The UCCJEA and the Hague Convention are similar. The Hague Convention seeks to deter abducting parents by depriving the abducting 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.

However, many countries, like Saudi Arabia, are not signatories or treaty partners with us in the Hague Convention. Fortunately, when a country is not a signatory country, the UCCJEA may provide relief.

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.

That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say Washington. The ultimate determining factor in a Washington case then, is what is the “home state” of the child.

Alternatively, Washington could possibly hear the case if Washington was the Home State of the child within 6-months before filing or the children are in Washington and the court has emergency jurisdiction. In Bethany’s case, she is using a rarely used section of the UCCJEA.

A Washington Yogi in King Salman’s Court

Bethany appealed the Saudi ruling last August. But she said that it was ignored and that a Saudi judge forced her to reach a custody agreement. She went back to living with her ex-husband and at Christmas he allowed her to take Zaina to see her grandparents in Washington. They did not return.

She next filed a case with a court in Washington in January that cited a rarely-used clause in the Uniform Child Custody Jurisdiction and Enforcement Act.

Even though Saudi Arabia is not a signatory to the Hague Convention, the UCCJEA requires State courts to recognize and enforce custody determinations made by foreign courts as if they were State courts.

However, a court need not enforce a foreign court order or defer to a foreign court’s jurisdiction if the child-custody law of the foreign country violates fundamental principles of human rights.

The UCCJEA language comes from article 20 of the Hague Convention. The “human rights, or fundamental freedoms defense, is invoked on the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process.

Washington has some experience with this clause. In 2015, a court in Washington ruled that the state should not enforce custody decrees from Egypt because there was “clear and convincing evidence” that Egyptian child custody laws violated fundamental principles of human rights.

Bethany’s husband has asked a Washington family court to enforce the custody agreement registered in Saudi Arabia, saying that his ex-wife was seeking more favorable terms.

Parents don’t get to just move the child to a foreign state and then start a custody case if they don’t like the parenting plan they had in the child’s home state.

The Wall Street Journal article is here.

Texas Hold ‘Em: Hague Convention and More Good News on the Coronavirus

The national emergency has not stopped international child custody and Hague child abduction cases, but definitely made them more challenging. I recently came back from trial in a Texas federal court helping a father return his daughter to Mexico, and there is good news on the coronavirus front.

Hague Child Abduction Mexico

Oh, Mexico

My client and the Mother are dual citizens of Mexico and Cuba, and met in Cancun, Mexico. They are both professional musicians. Together they have a daughter who is currently five years old.

During the early years of their relationship, they all lived together in an apartment, and traveled together. When they broke up, the Father moved to an apartment nearby, and he and his daughter would timeshare, he paid for her piano lessons, her private school tuition, and even the Mother’s rent.

On July 12, 2019, at approximately 11:30 a.m., the Mother called the Father that she had taken their daughter to an undisclosed location.

He suspected she took her to Florida, and even had a possible address for the Mother here. Unbeknownst to him, the Mother actually took their daughter to a small, west Texas town.

The same day, the Father went to the Cancun Police and filed a missing child report. A few days later, he filed a Hague application for the child’s return. He hired me to file a case in Miami federal court, which was transferred to a federal court in Texas when the child was discovered there.

Habitual Residence and the Hague Convention

While the abduction was going on, and a few days before our Texas trial, the U.S. Supreme Court decided a major Hague Child abduction case involving the habitual residence of a child.

I have written about the recent U.S. Supreme Court case before. In Monasky v. Taglieri, the U.S. Supreme Court held that the determination of a child’s “habitual residence” for purposes of the Hague Convention depends on a totality-of-the-circumstances analysis and that a district court’s habitual-residence determination should be reviewed for clear error.

The Hague Convention on the Civil Aspects of International Child Abduction provides that a child wrongfully removed from his or her country of “habitual residence” must be returned to that country, which then has primary jurisdiction over any resulting custody proceedings.

A removal is “wrongful” if it is done in violation of the custody laws of the country of the child’s habitual residence. The Convention instructs that signatory states should “use the most expeditious proceedings available” to return the child to his or her habitual residence.

In Monasky, an American brought her infant daughter to Ohio from Italy after her Italian husband, Domenico Taglieri, became physically abusive. Taglieri petitioned for his daughter’s return under the Hague Convention, arguing that Italy was the daughter’s “habitual residence.”

The federal court agreed, and found the parents had exhibited a “shared intention” to raise their daughter in Italy. The Sixth Circuit Court of Appeals affirmed with dissents. Monasky then petitioned the U.S. Supreme Court, arguing that establishment of a child’s habitual residence requires actual agreement between the parents.

The Supreme Court noted that the Hague Convention does not define “habitual residence.” Relying on the treaty and decisions from the countries who are signatories, the high court concluded habitual residence it is a “fact-driven inquiry into the particular circumstances of the case.”

The Supreme Court also noted that Monasky’s ‘actual agreement’ requirement would leave many children without a habitual residence, and outside the Convention’s domain and the Hague Convention always allows a court concerned about domestic violence to not order a child’s return 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.”

Texas Hold Em

Texas Hold ‘Em?

One of the issues which had to be resolved in our trial was the habitual residence of the child, and whether the parents shared an intent to abandon it. During our trial in Texas, the U.S. District Court found the parents did not share an intent to change the child’s habitual residence, among other defenses, and ordered the child returned to the Father and to her home in Mexico.

Relying on the U.S. Supreme Court’s, brand new decision, the federal court found the daughter’s habitual residence is Mexico, and that she was wrongfully removed to the United States in violation of the Hague Convention.

At the same time the Coronavirus was raging across the world, the U.S. government just ordered the border with Canada closed, courts were closing around the country, and there was a real concern we wouldn’t be able to return to Mexico.

But we faced another, potentially bigger problem. How do you enforce a federal court order to return a child to Mexico when the entire world is shutting down? The alternative to us moving immediately to secure the child’s return to Mexico would be to ‘hold em’ in Texas. Acting quickly, the father and daughter made it safely home to the habitual residence of Mexico.

Good News and the Coronavirus

We are under quarantine, and we can expect that to continue in the near future. But that doesn’t mean there isn’t some good news to report. For instance:

  • Distilleries across the U.S. are making their own alcohol-based hand sanitizers and giving it away for free.
  • Restaurants, sports, and businesses are stepping up to combat the community effects of the novel coronavirus. The sports world is raising money for stadium employees, and Uber Eats is divvying out free delivery to help independent restaurants to name a few.

Air and Water pollution has plummeted in cities with high numbers of quarantined individuals. In fact, Venice’s waters are running clear for the first time and people are seeing fish.

  • China is re-opening parks and athletic centers, and loosening travel restrictions as the novel coronavirus comes under control in China, and parks and tourist attractions have reopened across the country.
  • Neighbors across the country are stepping up to make grocery runs for those who can’t leave their homes.

The U.S. Supreme Court decision is here.

Home in Milan: International Child Custody and the Hague

Last week, the Supreme Court decided a big international child custody case. The decision involved a baby brought here from Milan by her American Mother after her marriage to her Italian husband ended. At issue, where the baby’s ‘habitual residence’ is under the Hague Convention on the Civil Aspects of International Child Abduction – Italy or here.

Hague Milan Child Custody

An Italian Drama

The Hague Convention on the Civil Aspects of International Child Abduction is a treaty that requires a child wrongfully removed from his or her country of “habitual residence” be returned to that country.

A removal is “wrongful” if it is done in violation of the custody laws of the country of the child’s habitual residence. The Convention requires that the countries signing the treaty “use the most expeditious proceedings available” to return the child to his or her habitual residence.

The mother, Michelle Monasky, a U.S. citizen, brought her infant daughter to Ohio from Milan, Italy after her Italian husband, Domenico Taglieri, allegedly became physically abusive. Taglieri asked a U.S. court to order the daughter’s returned under the Hague Convention.

The father argued that Italy was the daughter’s “habitual residence.” The district court agreed, finding that the parents had a “shared intention” to raise their daughter in Italy. An appellate panel affirmed, but in a divided opinion.

The Mother asked the Supreme Court to decide the matter, and it did.

International Child Custody and the Hague

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 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 a child.

The key inquiry in many Hague Convention cases, and the dispositive inquiry in the Taglieri case, goes to the country of the child’s habitual residence. Habitual residence marks the place where a person customarily lives.

Many people don’t realize it, but the Hague Convention does not actually define the key term ‘habitual residence.’ There are a couple of ways to determine it. The primary way looks to the place where the child has become “acclimatized.” The back-up inquiry for young children too young to become acclimatized looks to where the parents intend their child to live.

Not abducted children

Under the Tuscan Sun

The Supreme Court affirmed the two lower courts and ordered the child returned to Italy, albeit five years later. The Court rejected the Mother’s argument that you need an “actual agreement” to determine habitual residence, and held that a child’s habitual residence depends on a totality-of-the-circumstances.

The Court noted that the Hague Convention does not define “habitual residence,” but relied on the Convention’s text, its negotiation and drafting history, and decisions from the courts.

The Hague Convention’s text alone does not definitively tell us what makes a child’s residence sufficiently enduring to be deemed “habitual.” It surely does not say that habitual residence depends on an actual agreement between a child’s parents.

No single fact, however, is dispositive across all cases. Common sense suggests that some cases will be straightforward: Where a child has lived in one place with her family indefinitely, that place is likely to be her habitual residence.

Relying on foreign law, the U.S. Supreme Court found that there was a “clear trend” among our treaty partners to treat the determination of habitual residence as a fact-driven inquiry into the particular circumstances of the case.

The U.S. Supreme Court also resolved a circuit split, and held that a trial court’s habitual-residence determination is primarily a question of fact, entitled to clear-error appellate review. The Court declined to remand for further fact finding, noting that the parties had not identified any additional facts that the district court did not already have an opportunity to consider during the four-day bench trial.

The U.S. Supreme Court decision is available here.

A Bitter Yemen: International Child Custody and the UCCJEA

A new international child custody case under New York’s UCCJEA law involves a couple from Yemen who lived in New York with the children. They traveled back to Yemen to celebrate Ramadan and Eid. The mom was expecting to return with the children, but the father decided to stay in Yemen, marry another woman, and divorce the mother.

Yemen Child Custody

When Life Gives You Yemen . . .

Upon learning the Father married another woman, the mother traveled back to the United States to be with her parents in New York, but left the Children behind in Yemen. The children have resided in Yemen with the Father since 2016.

This year, the Mother filed a child custody case in New York to order the Father to bring the children to New York; surrender his and the children’s passport and other travel documents, and force the Father to remain in New York.

Why New York? The Mother claimed the Father worked at a deli in New York, frequently travels for business to New York, and has other business ventures in there.

The Mother’s choice to file under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) and not the Hague Convention on the Civil Aspects of International Child Abduction is easy to explain: Yemen is not a signatory to the Hague Convention, so the Hague Convention doesn’t apply.

Florida International Child 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:

  1. 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
  2. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

However, many countries, like Yemen, are not signatories or treaty partners with us in the Hague Convention. Fortunately, when the country holding the abducted children is not a signatory country, the UCCJEA may provide relief.

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.

That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say New York. The ultimate determining factor in a New York case then, is what is the “home state” of the child.

Alternatively, New York could possibly hear the case if New York was the Home State of the child within 6-months before filing or the children are in New York and the court has emergency jurisdiction.

The home state seems to be one of the many obstacles for the Yemeni mother in New York.

. . . you may be stuck with Yemen-ade

The Mother – who appeared in court fully-covered in a burqa – also filed domestic violence petition against the Father seeking an order of protection on behalf of herself and the children, reporting that she had fled Yemen due to domestic violence and repeated acts of sexual and physical abuse committed against her by Father.

The Father moved to dismiss all of the Mother’s petitions on the basis that the New York court lacks subject matter jurisdiction under UCCJEA, because the children have undisputedly resided with him in Yemen for the last three years with the Mother’s consent.

They also were divorced in Yemen before the case was filed in New York. The Yemen divorce specifically refers to a settlement between the parties in which the Father got custody of the two older Children, the Mother got custody of the children.

In opposition to the Father’s Motions, the Mother argued that she and the children only stayed in Yemen out of fear of the Father’s retaliation and political connections with the Houthi government.

She also argued Yemen can’t be considered the children’s home state because Yemen is war-torn country, lawless and because of the human rights abuses in there.

The appellate court had to grant the Father’s motion to dismiss because Yemen is definitely not the children’s home state. It was undisputed that the children had been living in Yemen with Father for several years before she filed her UCCJEA case in New York.

Even if the court conceded that Yemen is in a civil war, and that Yemeni laws regarding domestic violence, child custody, and basic human rights do not conform to American law, home state jurisdiction is paramount under the UCCJEA.

The New York appellate decision is here.

 

International Child Abduction Oral Argument

Earlier this month, the U.S. Supreme Court heard oral argument in one of the rare cases involving the Hague Convention on International Child Abduction which reach the high court. At issue is how to define what a child’s habitual residence is, a definition sorely missing in these kinds of cases – especially when infants are involved.

international child abduction

From the Cathedral of Milan . . .

Monasky, a U.S. citizen, married Taglieri, an Italian citizen, in 2011. The couple moved to Milan, Italy, in 2013. The child at the center of this international child custody dispute, known as A.M.T., was born in Italy in February 2015.

Monasky testified that after they arrived in Milan, she was the victim of domestic violence, and although she was pregnant by then she did not move with Taglieri when he took a job a few hours away in Lugo. In 2015, Michelle Monasky left a domestic-violence safe house in Italy where she had been staying with her newborn daughter and traveled to her parents’ home in Ohio.

Domenico Taglieri, her husband, filed a lawsuit in Ohio, asking a federal court to order his daughter’s return to Italy. He relied on the Hague Convention on the Civil Aspects of International Child Abduction. In his case, the Hague Convention requires the Court to return the child, if wrongfully removed from her country of “habitual residence,” to be sent back.

But what’s the “habitual residence” of a child like Monasky and Taglieri’s daughter, who is too young to really know where she is? The U.S. Supreme Court heard oral argument in the couple’s case to decide that questions.

International Child Abduction

I have written – and spoke earlier this year – on international custody and child abduction cases under The Hague Convention.

The Convention’s mission is basic: to return children “to the State of their habitual residence” to require any custody disputes to be resolved in that country, and to discourage parents from taking matters into their own hands by abducting a child.

The key inquiry in many Hague Convention cases, and the dispositive inquiry in the Taglieri case, goes to the country of the child’s habitual residence. Habitual residence marks the place where a person customarily lives.

Many people don’t realize it, but the Hague Convention does not actually define the key term ‘habitual residence.’ There are a couple of ways to determine it. The primary way looks to the place where the child has become “acclimatized.” The back-up inquiry for young children too young to become acclimatized looks to where the parents intend their child to live.

The trial judge in the Taglieri case gave a lot of weight to the fact that the parents agreed to move to Italy for their careers and lived as a family before A.M.T.’s birth; they both secured full-time jobs in Italy, and the Mother pursued recognition of her academic credentials by Italian officials.

On the other hand, the mother argued she expressed a desire to divorce and return to the United States; contacted divorce lawyers and international moving companies and they jointly applied for the baby’s passport, so she could travel to the United States.

. . . to America’s Temple of Justice

Arguing on Monasky’s behalf before the U.S. Supreme Court, her lawyer Amir Tayrani observed that the Hague Convention was designed to protect children from wrongful removal from their habitual residences.

Tayrani faced a series of questions. Justice Ruth Bader Ginsburg asked whether under his approach some infants might not have a habitual residence at all for purposes of the convention, because their parents had never agreed on where to raise their child. Tayrani allowed that such a scenario could occur but suggested that it would be relatively rare, because it would only happen during the “unusual case” in which a couple’s relationship broke down during the mother’s pregnancy or immediately after birth.

But Ginsburg pointed out that many relationships that result in cases being brought under the Hague Convention are “so acrimonious that the chances of agreement are slim to none” which would leave children without a habitual residence. Justice Samuel Alito also seemed skeptical. Under that position, he told Tayrani, “either parent could snatch her. Possession would be ten-tenths of the law?”

Justice Elena Kagan proposed a rule that if a baby has lived somewhere her whole life, courts would normally presume the baby’s habitual residence to be the country in which she lived. Such a rule would be an “administrable rule” that “provides a lot of guidance” to the courts, and it would also deter abductions.

Roberts posited that “habitual residence” is a “meaningless concept for” infants. After all, Roberts observed, eight-week-old infants “don’t have habits. Well,” Roberts joked, “other than one or two.”

The father’s attorney told the justices that virtually all of the factors weigh in favor of Italy’s being A.M.T.’s habitual residence. She was there, he stressed, with both parents, and there are no other facts that would lead to a different conclusion.

The Scotus Blog article is here.