Tag: hague rights of custody

International Custody and Brazil

Posted by Ron Kauffman on

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

Brazil UCCJEA Hague

A Thrill in Brazil

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

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

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

Florida International Custody

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

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

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

Florida and almost all U.S. states passed the UCCJEA into law. The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child.

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

Fulfilled in Brazil

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

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

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

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

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

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

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

The opinion is here.

International Child Abduction Action Report

Posted by Ron Kauffman on

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

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.