Tag: Hague Convention

The Hague Convention Meets the Best Interest Test

Posted by Ron Kauffman on with 0 Comment

The United Nations Committee on the Rights of the Child determined that the Supreme Court of Chile violated the rights of a child after ordering the child returned to his habitual residence of Spain without applying the best interest test.

Hague Convention Best Interest Test

Answering An Andes Abduction

The Mother is a national of Chile. In 2015, she married the Father, a national of Spain. In January 2016, her son J.M., a dual Spanish Chilean citizen, was born in Chile. The Mother and her son left Chile to live with the Father in Spain in November 2016.

When J.M. was a little over a year old and living in Spain with both parents, medical professionals suspected he had a language delay and a form of autism.

Shortly after this spectrum diagnosis, the mother wanted to bring J.M. to Chile where she had arranged his treatment and support plan. The mother wanted to stay in Chile for at least two years.

In July 2017, the father signed an authorization for the mother to travel with J.M. to Chile, where the mother scheduled treatments and support for autism. They decided to stay in the country for at least two years. and had the father’s written approval to travel.

In 2018, one year after authorizing the travel, the father filed a complaint with the Central Authority in Spain, the Ministry of Justice, for wrongful abduction and/or retention of J.M. under the Hague Convention on the Civil Aspects of International Child Abduction.

In January 2019, two lower courts in Chile agreed with the Mother and rejected the father’s return petition. The courts rejected the father’s claim on the grounds that he had given the tacit, even explicit, consent to remain in Chile, which has been the child’s place of habitual residence since birth.

In September 2019, the Supreme Court of Chile overturned the lower courts’ decisions and ordered the child returned to Spain. The Supreme Court did not indicate the conditions under which J.M.’s return should take place, in whose company he should travel, or where and with whom he would ultimately reside and in what circumstances.

The Mother filed a complaint before the United Nations Committee on the Rights of the Child  in 2020.

Hague Child Abduction Convention

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

The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

While there are several defenses to a return of a child, the best interest of the child is not one of those defenses. That’s because the Hague Convention prioritizes expeditious determinations as being in the best interests of the child.

UN-Heard Of

The U.N. Committee held that the Chile Supreme Court’s order for the restitution of J.M. to Spain failed to conduct a best interests assessment required in all actions concerning children, and violated the child’s procedural guarantees under the Convention on the Rights of the Child.

The Committee noted that, under the Hague Convention, decisions on the return of children must be taken promptly to ensure that the child’s normal situation is duly restored. However, the Committee considered that the purpose and objective of the Hague Convention does not entail that a return of the child should be automatically ordered.

The Committee held that in international child abduction cases, states must first assess the factors that may constitute an exception to the duty to immediately return the child under articles 12, 13 and 20 of the Hague Convention, and then secondly, these factors must be evaluated in the light of the best interests of the child.

The Committee did not find that the child should necessarily remain in Chile. Instead, it found that the Supreme Court of Chile failed to apply the necessary procedural safeguards to ensure that return would not expose the child to harm or a situation contrary to his best interests:

A court applying the Hague Convention cannot be required to carry out the same level of examination of the best interests of the child as the courts called upon to decide on custody, visitation arrangements or other related issues . . . the judge ruling on the return must assess . . . the extent to which the return would expose him or her to physical or psychological harm or otherwise be clearly against his or her best interests.

The U.N. Committee ruled that Chile should re-assess the return petition, take into account the length of time elapsed, the extent of J.M.’s integration in Chile, and pay reparations for the violations suffered, including compensation.

The Committee also ruled that Chile should try a little harder to prevent future violations by ensuring the best interests of the child are a primary consideration in decisions concerning international return.

The U.N. Committee on the Rights of the Child press release is here.

International Child Abduction Action Report

Posted by Ron Kauffman on with 0 Comment

Every year international child abduction cases are reported to the Congress by the U.S. Department of State. These annual Action Reports show Congress the actions taken against countries determined to have been engaged in a pattern of noncompliance. So, which countries in our hemisphere were noncompliant?

International Abduction Action Report

2022 Action Report

Under the Hague Convention, the State Department is tasked as our Central Authority. The Central Authority facilitates implementation and operation of the Hague Convention on child abduction in the U.S.

After passage of the Sean and David Goldman International Child Abduction Prevention and Return Act, the State Department was later assigned the duty of submitting annual Action Reports on International Child Abduction to Congress on the specific actions taken in response to countries determined to have been engaged in a pattern of noncompliance.

The 2022 Annual Report is an overview of the Department’s efforts to support the resolution of international parental child abduction cases.

The Department also reports on their work with foreign governments and authorities to promote procedures to encourage the prompt resolution of existing international abduction cases. The aim is that, in general, international custody disputes should be resolved in the competent court of the country of the child’s habitual residence.

Countries which don’t meet their Convention obligations, or fail to work with the U.S. to resolve child abduction cases, can face “appropriate actions.”

Florida International Child Abduction

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

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.

The Hague Convention is implemented in the United States through the International Child Abduction Remedies Act. Then in 2014, the International Child Abduction Prevention and Return Act was signed into law.

Even if a country is a signatory country and treaty partners with the U.S., returning a wrongfully retained or abducted child may still be complicated because some signatory countries are not complying with the Convention. That is where the State Department’s Action Report comes in.

ICAPRA increases the State Department’s annual reporting requirements. Each year, the Department not only submits an Annual Report on International Child Abduction to Congress, it submits another report on the actions taken towards countries determined to have been engaged in a pattern of noncompliance.

A Carnival of Noncompliance

The State Department Action Report includes both countries where there is a treaty relationship with the United States under the 1980 Hague Child Abduction Convention, and countries where no treaty relationship exists.

The 2022 Action Report reviews the results of cases which were resolved the previous year. Some of the countries in our hemisphere which failed to regularly implement and comply with the Hague Convention include Argentina, Belize, Costa Rica, Ecuador, Honduras, Peru, Trinidad and Tobago, and Brazil.

Brazil has had the Convention in force with the U.S. since 2003. Brazil has also demonstrated a pattern of noncompliance for years. Complaints have criticized its judicial authorities for failing to regularly implement and comply with the Convention, and failing to take appropriate steps to locate children in abduction cases. Brazil has previously been cited for a pattern of noncompliance since 2006.

Brazil is also the country where David Goldman had to fight for his son Sean to be returned to the United States after his wrongful retention by his mother. Sean was only returned to the U.S. after 5 years. The Goldman’s bitter experience in Brazil led to the passage of the ICAPRA.

However, the country of Brazil is not entirely on siesta. Among other steps, Brazil increased its number of Hague Network Judges, published a manual for judges hearing Convention cases, and resolved eight U.S. cases on file – including the return of six children to the United States.

ICAPRA also adds steps the U.S. can take when a country refuses to cooperate in the resolution of overseas abduction and access cases involving American children. The steps can include: a demarche (a petition or protest through diplomatic channels); public condemnation; delay or cancelation of official, or state visits; suspension of U.S. development assistance; and even the withdrawal or suspension of U.S. security assistance.

The 2022 Action Report is available here.

Hague Convention, Domestic Violence, and Rights of Custody

Posted by Ron Kauffman on with 0 Comment

Questions arise about a parent’s right of custody in every international custody case, especially Hague Convention child abduction cases. A Colorado district court recently had to make the tough call whether a parent lost his rights of custody after a domestic violence injunction was put in place against him.

Hague Rights of Custody

Rocky Mountain High

In February 2015, an Australian citizen and a United States citizen married in Las Vegas. They lived in the U.S. for the next two years before traveling to Australia with their three-month-old son – who was born in Australia. They lived a nomadic lifestyle, taking numerous trips, moving frequently between rental properties, staying occasionally with family and friends, and camping in a trailer and tent.

In April 2021, while staying at an Airbnb, the parents had an argument which resulted in the Father being escorted to the police station. By the time he returned to the Airbnb, the Mother had left. The Mother had also obtained a temporary protection order against the father based on allegations of domestic violence.

The domestic violence protection order provided the Father:

must not approach to within 100 metres of where [Mother or the children] live[ ], work[ ] or frequent[ ]—except for the purposes of having contact with children but only as set out in writing between the parties or in compliance with an order under the Family Law Act or when contact with a child is authorised by a representative of the Department of Communities (Child Safety).

The order also provides that Father “must not contact or attempt to contact or arrange for someone else (other than a lawyer) to contact” Respondent or the children . . . and “must not follow or remain or approach to within 100 metres” of Mother or the children. The order was subsequently made permanent for a period of five years.

In May 2021, the Mother and the children came to the United States, and they have lived in Colorado ever since. The Father filed an action seeking return of the children under the Hague Convention and in breach of his custody rights under Australian law.

International Child Custody and the Hague Convention

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

Rights of custody can arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.

Slippery Slope

The Colorado judge found that the Father failed to show what custody rights, if any, he retained under the Australian Family Law Act. After the domestic violence injunction was made permanent for five years, the Father had the burden to prove what his rights of custody were after the injunction — a prerequisite to establishing that his children’s removal was in breach of his rights of custody.

The Father gave no evidence or testimony on the matter and the Court did not want to assume what remaining rights he had after the order and whether they were substantial enough that  removal of the children breached his rights.

Not every court has held that the entry of a domestic violence injunction meant the loss of rights of custody under the Hague Convention. In a Maryland case, a court found that a domestic violence injunction was aimed at protecting the safety of the Mother, rather than rescinding parental rights of the Father. Accordingly, the domestic violence injunction was not found to be the equivalent of an order rescinding parental rights.

The case is available here.

New Hague Child Abduction Case

Posted by Ron Kauffman on with 0 Comment

The U.S. Supreme Court issued a new opinion, its fifth, in a case involving the Hague Convention on the Civil Aspects of International Child Abduction. In settling the circuit court conflict, the Supreme Court addressed the undertakings requirement in grave risk cases.

Hague Convention

Last Supper for Undertakings Plus?

Narkis Golan is a U.S. citizen who married Isacco Saada, an Italian citizen in Milan, Italy. She soon moved to Milan, and their son, B.A.S., was born in Milan, They lived in Milan for the first two years of B.A.S.’ life.

But their marriage was violent from the beginning. The two fought on an almost daily basis and, during their arguments, Saada would sometimes push, slap, and grab Golan and pull her hair, yelled and swore at her and frequently insulted her and called her names. Much of Saada’s abuse of Golan occurred in front of his son.

In 2018, Golan flew with B.A.S. to the United States to attend her brother’s wedding. Rather than return as scheduled, she moved into a domestic violence shelter.

Saada filed in Italy a criminal complaint for kidnapping and initiated a civil proceeding seeking sole custody of B.A.S., and also filed a petition under the Hague Convention and ICARA in a New York District Court seeking to return their son to Italy.

The U.S. District Court granted Saada’s petition, determining Italy was the child’s habitual residence and that Golan had wrongfully retained him in violation of Saada’s rights of custody.

But the trial court found returning the child to Italy would expose him to a grave risk of harm because Saada was “violent — physically, psychologically, emotionally, and verbally — to” Golan and the child was present for much of it.

Records also indicated that Italian social services had also concluded that “‘the family situation entails a developmental danger’ for the child and that Saada had demonstrated no “capacity to change his behavior.”

The trial court still ordered the child’s return to Italy based on Second Circuit precedent that it “‘examine the full range of options that might make possible the safe return of a child to the home country’” before denying return. To comply with these precedents, the District Court required the parties to propose “‘ameliorative measures’” for the child’s safe return.

The trial court rejected Golan’s argument that Saada could not be trusted to comply with a court order, expressing confidence in the Italian courts’ abilities to enforce the protective order.

The Second Circuit affirmed, concluding the trial did not clearly err in determining that Saada likely would comply with the Italian protective order, given his compliance with other court orders and the threat of enforcement by Italian authorities of its order.

The U.S. Supreme Court granted certiorari to resolve the circuit split and decide whether ameliorative measures must be considered after a grave risk finding.

Florida Child Abduction

I have written and spoken on international custody and child abduction cases under the Hague Convention. The Convention is supposed to provide remedies for a left-behind parent, like Mr. Saada, to obtain a wrongfully removed or retained child to the country of their habitual residence.

When a child under 16 who was habitually residing in one signatory country is wrongfully removed to, or retained in, another signatory country, the Convention provides that the other country: “order the return of the child forthwith.”

There are defenses though. For example, in the Golan case, the court considered Article 13(b), which states that a court is not bound to order the return of the child if the court finds that return would expose the child to a “grave risk” of physical or psychological harm.

The grave risk defense is narrowly drawn. There is an assumption that courts in the left behind country can protect children, which is why courts in some circuits are required to consider ameliorative measures.

New Hague

Il Duomo di Washington D.C.

The Supreme Court noted that the interpretation of a treaty, like the Hague Convention, begins with its text, and nothing in the Convention’s text either forbids or requires consideration of ameliorative measures.

The Court held that judges may consider ameliorative measures with the grave risk determination, but the Convention does not require it. By requiring ameliorative measures, the Second Circuit’s rule re-wrote the treaty by imposing an atextual, categorical requirement that courts consider all possible ameliorative measures in exercising this discretion, regardless of whether such consideration is consistent with the Convention’s objectives.

The Court also held that a trial court “ordinarily should address ameliorative measures raised by the parties or obviously suggested by the circumstances of the case, such as in the example of the localized epidemic.”

First, any consideration of ameliorative measures must prioritize the child’s physical and psychological safety. Second, consideration of ameliorative measures should abide by the Convention’s requirement that courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute. Third, any consideration of ameliorative measures must accord with the Convention’s requirement that courts “act expeditiously in proceedings for the return of children.

The Court then remanded to allow the District Court to apply the proper legal standard. Recognizing that remand would delay the case, the opinion hinted the District Court will move “as expeditiously as possible to reach a final decision without further unnecessary delay.”

The opinion is here.

 

Upcoming Speaking Engagement on Interstate and International Jurisdiction

Posted by Ron Kauffman on with 0 Comment

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

Posted by Ron Kauffman on with 0 Comment

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

Posted by Ron Kauffman on with 0 Comment

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”

Posted by Ron Kauffman on with 0 Comment

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

Posted by Ron Kauffman on with 0 Comment

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

Posted by Ron Kauffman on with 0 Comment

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.