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New Hague Child Abduction Case

Posted by Ron Kauffman on

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.

 

New International Child Custody Laws

Posted by Ron Kauffman on

Trying to combat a growing problem of parental child abduction, EU lawmakers adopted new rules to better protect children and bring quicker resolutions to child custody fights. What are in Europe’s new international child custody laws?

Brussels

The EU’s recent actions are a retooling of the Brussels IIa regulation, a cornerstone of EU judicial cooperation in cross-border matters involving marriage, divorce, separation, annulment and child custody.

A rise in international families – currently estimated at 16 million – and subsequent cross-border family disputes – 140,000 divorces and 1,800 children abducted by a parent annually – led the European Commission to propose amending the Brussels IIa regulation to make it more efficient.

“When parents decide to separate, children can be caught in the middle, and it gets even more complicated when the parents come from different EU countries. In these difficult situations everybody should focus on what is best for the child,” justice commissioner Vera Jourova said in a statement. “With the new rules, judicial cooperation will be faster and more efficient to make sure the children’s well-being comes first.”

The new rules aim to further enhance cross-border judicial proceedings on the basis of mutual trust between EU countries. By removing the remaining obstacles to the free movement of decisions, simplifying the procedures and enhancing their efficiency, the best interests of the child will be better protected.

It is hoped the new rules will bring legal certainty, reduce costs and, most importantly, limit the length of proceedings in international child abduction cases, for the benefit of both children and their parents

Florida Child Custody

Rules about children can differ around the world. I’ve discussed international child custody laws, especially as they relate to child abduction and The Hague Convention on child abduction. Child custody and timesharing is a matter I have written about specifically.

The Hague Abduction Convention is a multilateral treaty developed by The Hague Conference on Private International Law to provide for the prompt return of a child internationally abducted by a parent from one-member country to another.

There are three essential elements to every Hague Convention case:

  1. The child must be under the age of 16 years of age;
  2. The wrongful removal must be a violation of the left behind parent’s “rights of custody;”
  3. The left behind parent’s rights of custody “were actually being exercised or would have been exercised but for the removal.”

So, if a child under the age of sixteen has been wrongfully removed, the child must be promptly returned to the child’s country of habitual residence, unless certain exceptions apply.

The catch, of course, is that a child must be taken from a signatory country to another signatory country, and that is where understanding The Hague Convention comes in.

Even signatory countries may be bad at abiding by the convention, especially when it means enforcing the return of children to a parent alleged to have been abusive.

The annual State Department report to Congress on observance of The Hague Convention lists Honduras as “non-compliant” and nine other countries (Brazil, Bulgaria, Chile, Ecuador, Germany, Greece, Mexico, Poland and Venezuela) as showing “patterns of non-compliance”.

EU New Rules

The changes concern mainly proceedings related to parental responsibility matters and international child abduction and will have a positive impact on all procedures involving children by:

Settling cross-border child abduction cases faster

The deadlines applying to different stages of the child return procedure will be limited to a maximum period of 6 weeks for the first instance court and 6 weeks for each court of appeal. Also, Central Authorities will process applications for return faster.

Ensuring the child is heard

Children who are capable of forming their own views, will be given the opportunity to express these views in all proceedings concerning them. This will apply to matters of parental responsibility and international child abduction cases. Determining how and by whom the child is heard is a matter left to national law.

Ensuring effective enforcement of decisions in other Member States

With the new rules, the exequatur, an intermediate procedure required to obtain cross-border enforcement, will be abolished for all decisions. Under the new rules, enforcement can be rejected or suspended largely under the same conditions in all Member States, increasing legal certainty for all citizens and in particular the children concerned.

Improving cooperation between Member States’ authorities

Good cooperation between the Central Authorities of different Member States in handling child cases is an indispensable prerequisite for mutual trust. The new rules promote better cooperation between Central Authorities, which are the direct point of contact for parents. Also, child welfare authorities will be better integrated into this cross-border cooperation.

The new rules also clarify the sensitive issue of the placement of a child in another Member State, and set up a clear procedure to obtain consent from the Member State where the child is to be placed.

Setting out clearer rules on the circulation of authentic instruments and agreements

Considering the growing number of Member States which allow out-of-court agreements on legal separation and divorce or on matters of parental responsibility, the new rules will facilitate the circulation of the instruments and agreements.

“I am very glad that following our proposal the Council adopted new rules to ensure that any disputes between parents who disagree after separation can be quickly solved. This is about putting children first.”

The Europa article is here.

 

 

Child Abduction and an Old Fish

Posted by Ron Kauffman on

The U.S. Supreme Court does not typically hear child custody cases, but just agreed to hear an international child abduction case. A baby brought here from Italy by her Mother after her marriage collapsed has to return the baby to Italy. Incredibly, the decision may rest on how smelly a five-week-old, unrefrigerated dead fish is.

Child Custody

That’s Amore

The father, Taglieri is an Italian, and the Mother, Monasky, is an American. They met in Illinois. Taglieri, who was already an M.D., was studying for his Ph.D. and worked with Monasky, who already had a Ph.D.

They married in Illinois in 2011 and two years later, moved to Italy to pursue their careers in Milan, where they each found work. Their marriage had problems, including physical abuse.

In June 2014, Taglieri took a job at a hospital three hours from Milan. Monasky stayed in Milan, where she worked at a different hospital. Monasky had a difficult pregnancy, which, when combined with the long-distance separation, strained the relationship further. To make matters worse, she didn’t speak Italian or have a valid driver’s license, increasing her dependence.

During this time, the two argued but also jointly applied for Italian and American passports for their daughter. Two weeks later, Monasky left for the United States, taking their eight-week-old with her.

Taglieri filed an action in Italian court to terminate Monasky’s parental rights, which was granted. Then he filed a petition in Ohio seeking A.M.T.’s return under the Hague Convention.

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.

When the order hits your eye like a dead fish…

The issue for the appellate court was how they should review the trial judge’s ruling that Italy is the habitual residence of the baby girl.

The trial judge in this 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; she contacted divorce lawyers and international moving companies and they jointly applied for the baby’s passport, so she could travel to the United States.

Faced with these facts the trial judge can rule in either direction, and after fairly considering all of the evidence, the trial judge found that Italy was A.M.T.’s habitual residence. The Sixth Circuit Court of Appeals decided:

We leave this work to the district court unless the fact findings “strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.”

The U.S. Supreme Court will consider how appellate courts review a trial judge’s ruling on habitual residence. Is it reviewed under de novo standard, under a deferential version of de novo review, or under clear-error review?

Another question being considered is whether a subjective agreement between an infant ‘s parents is necessary to establish habitual residence when the infant is too young to acclimate.

The opinion is here.

 

Child Abduction Defense

Posted by Ron Kauffman on

International child custody always has the potential of a wrongful abduction. A parent who keeps their child in another country after a vacation, may face accusations the retention is in violation of the Hague Convention. Is there an international child abduction defense?

Hague Convention on Child Abduction

I’m of course talking about The Convention on the Civil Aspects of International Child Abduction done at the Hague on October 25, 1980. The Convention created procedures for the prompt return of children who have been wrongfully retained.

I have written and spoken on international child custody issues and the Hague Convention before. The left behind parent will typically file an application with their local Central Authority for transmission to the Central Authority in the country where the retained children are.

The elements of wrongful retention under the Convention include:

  • the habitual residence of the child was in the country to which return is sought;
  • the retention breached custody rights;
  • the left behind parent was exercising custody rights; and
  • the child is under 16.

If proven, the Convention requires courts to order the child to be returned to the child’s habitual residence, unless the party removing the child can establish at least one of several affirmative defenses.

There’s a Defense to Child Abduction?

In fact, there are a few affirmative defenses which can be raised by the alleged taking parent to prevent a court from ordering the prompt return of a child to the child’s habitual residence.

Rights of Custody

A typical defense is that the left behind parent was not exercising rights of custody at the time of the retention of the child. A custody ruling from a court from the child’s habitual residence may establish a right of custody.

The Hague Convention does not define the key term “exercise” of rights of custody, but many courts have found that they should liberally find “exercise” when a parent keeps regular contact with the child.

Consent

Another defense which can be raised is consent. A court not have to order the return of a child if the alleged taking parent can show the left behind parent gave prior consent to the retention or afterwards acquiesced.

Well Settled

Although there are more defenses, another defense often raised under the Convention is that the child is now “well-settled” in the new environment.

A court is not bound to order the return of a child if the alleged taking parent can prove that the case was filed more than one year after the wrongful retention, and the child is now settled in the new environment.

The Convention does not provide a definition of the term “settled.” But, some things to consider can include

  • The child’s age;
  • The stability and duration of the child’s residence in the new environment;
  • Whether the child attends school or day care consistently or inconsistently;
  • Whether the child has friends and relatives in the new area or does not;
  • The child’s participation in community or extracurricular school activities

The Hague

Keep in mind that the Convention does not consider who, between the parents, should have custody. Instead, the goal of the Convention is to determine whether the child has been wrongfully retained and if so, return the child.

International child abduction cases have some defenses a parent may want to think about before consenting to the other parent taking a quick vacation overseas to see relatives.

More information from the State Department on the Convention is available here.

 

International Custody and Abductions

Posted by Ron Kauffman on

Can you go to jail for helping parents abduct their own children? A few people in Australia face criminal charges for violation of international custody orders and could go to jail on child abduction charges.

International Custody

Who Can it be Now?

A vigilante group that allegedly financed and assisted women in Australia to abduct their own children and keep them hidden in violation of international custody orders issued by family courts in Australia has been caught by police.

Police charge the group with using many tactics, including: dyeing their hair, changing their names and altering their dates of birth

Police allege that for the past decade the group, headed by a doctor, has operated a sophisticated syndicate of “like-minded people”, who used clandestine methods to abduct and move children around the country.

Hague International Child Abduction

I’ve written on international custody issues, and specifically the Hague treaty on International Child Abduction, and will be speaking on the subject at the prestigious AAML Florida Bar Certification Review Course in Orlando in January.

The Hague Convention on the Civil Aspects of International Child Abduction provides remedies for a “left-behind” parent. The Convention seeks to deter abducting parents 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:

  • a child is removed from his or her country of habitual residence and the removal 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.

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.”

Throw a few on the barbie

This is a very big international custody and child abduction case. Four people have been charged over organizing and financing an abduction syndicate which allegedly assisted in the parental abduction of children against international custody orders. Police have also identified a yacht, purchased and re-fitted for $140,000, used to transport abducted children to New Zealand or South Africa.

During the two-year investigation, 10 missing children were safely located in the custody of a parent who had abducted them. Five of those were reportedly linked to the syndicate.

It is alleged the group did not go by any name, but operated on a “word-of-mouth” basis, using a variety of encrypted phone applications to communicate and to

“The actions of this group do not protect children. What it does is potentially endanger the safety and wellbeing of them.”

The Sydney Morning Herald article is here.

 

International Custody

Posted by Ron Kauffman on

The European Union is reporting that increasing rates of international divorces – and cross-border child abductions – have become a real problem in international custody cases. The same is true in the United States. There are some treaties to deal with international custody cases everyone should know about.

International Custody

Go Dutch

The emphasis within the EU is that laws on conflict resolution need to be improved. The ministers in the EU are proposing that EU law should further emphasize protecting the rights of the child, and that decisions on parental child abduction cases must be made by practicing and experienced family judges.

The EU proposes to strengthen the rights of children throughout the dispute resolution procedure between divorcing couples.

If a child is abducted to another EU country by one of their parents, the EU proposes that the matter must be dealt with by practicing and experienced family judges, to ensure the best interests of the child are prioritized.

Hague Child Abductions

I have written – and will be speaking in January – on international custody and child abduction cases under The Hague Convention. The Hague Convention on the Civil Aspects of International Child Abduction is supposed to provide remedies for a “left-behind” parent, like Mr. Cook, to obtain the wrongfully removed or retained children 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 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.”

There are defenses though. For example, the court considered whether there is a grave risk that the child’s return would expose them to physical or psychological harm or otherwise place the child in an intolerable situation.

Dutch Oven

According to EU policy makers, the child is the weakest link in disputes between parents during international custody cases, and therefore needs all the protection the EU can give. Notably, the hearing of the child is a key issue which merits detailed provisions.

Ministers in the EU also want to improve information-sharing and cooperation between the member states for international custody and divorce cases. The Commission estimates that there are 16 million international families in the EU and sets the number of international divorces in the EU at around 140,000 per year. There are around 1,800 parental child abductions within the EU every year.

The Europa article is here.

 

O Mundo é um Moinho: Brazil and Child Abduction

Posted by Ron Kauffman on

Two Brazilian grandparents arrested at Miami International Airport this week are charged with conspiracy and international parental kidnapping for helping move their grandson to Brazil. This is an interesting international custody and child abduction case.

Garota de Ipanema

As the New York Times reports, the father and mother were married in Texas in February 2008 and had Nicolas, their only child, a year later.

The Mother, Marcelle Guimaraes, filed for divorce in September 2012, and the couple shared custody.

The Mother, who is also facing criminal kidnapping and conspiracy charges, used the pretext of a family wedding to get Chris to allow Nico to travel to Brazil.

After arriving in Brazil though, Marcelle filed for sole custody and, according to the criminal complaint, misled Chris about her decision to remain permanently.

Once in Brazil, the Mother wrote to the father:

I have better conditions to raise our son, and I am willing to talk about visitation. My wish is that we can get into an agreement soon, so we can all move on with our lives.

Filho Maravilha

The Father, Dr. Chris Brann, who lives in Houston, said he had often struggled to get permission to see his son in more than 20 trips to Brazil since 2013.

What is unique about this child abduction case is that Chris got federal help. Wednesday, FBI agents arrested Chris’s former in-laws when they landed in Miami, and charged them with conspiracy and international parental abduction.

If convicted of child abduction, each grandparent faces up to five years in federal prison for the conspiracy, and a maximum of three years if convicted of the kidnapping charge.

The Hague Convention

I’ve written, and recently spoke at the Marital and Family Law Review Course, on international custody issues.

Child abduction is a growing problem. Between 2008 and 2016, nearly 10,500 children have been abducted overseas by a parent. Studies show these children are at grave risk of serious emotional and psychological problems.

The Hague Abduction Convention was meant to prevent this. It is a multilateral treaty to provide for the prompt return of a child internationally abducted by a parent from one-member country to another.

There are three essential elements to every Hague Convention case:

  • The child must be under the age of 16 years of age;
  • The wrongful removal must be a violation of the left behind parent’s “rights of custody;”
  • The left behind parent’s rights of custody “were actually being exercised or would have been exercised but for the removal.”

Aquarela do Brasil

The catch about child abduction and the The Hague Convention is that a child must be taken from one signatory country to another signatory country. However, even if two countries are signatories, compliance can be wildly different.

For example, in its 2017 report, the State Department said:

“judicial authorities in Brazil persistently failed to regularly implement and comply with the provisions of the Convention.”

Mas Que Nada

The grandparents, Carlos Otavio Guimaraes, the President of ED&F Man Brasil, and his wife, Jemima Guimaraes, were arrested in Miami after leaving Brazil. They are dual US-Brazilian citizens.

Prosecutors allege Jemima conspired to resettle her grandson in Brazil, because the child had been enrolled in her school in Brazil months before the trip.

The grandfather, Carlos Guimaraes, is also being charged. The grandfather allegedly misled the Father into consenting to the Brazil trip by emailing the Father a flight itinerary showing the mother and child flying back in July.

The New York Times article is here.

 

Hague Convention in Japan

Posted by Ron Kauffman on

James Cook wants his 4 kids back. His estranged wife, Hiromi Arimitsu, says they want to stay with her in Japan, and they’ve been fighting in Japanese courts for almost three years. Isn’t The Hague Convention supposed to make international custody cases easier?

Japanese Cooks

If child custody battles are messy and expensive when the parents live in the same city, they’re much worse when they live in different countries, and are fighting over where the children should live.

For three years of their lives, the Cook kids have not had their dad. Kids need their dad, they need both their parents. I can’t describe to you the hell that this has been.

Cook, who studied Japanese in college, and Arimitsu, a Japanese woman who attended a university in Minnesota, lived in the U.S. for almost the whole time they had been together.

Three years ago, Cook agreed that Arimitsu could take their 4 children to Japan for the summer – with a notarized agreement that she would bring them back. When that ended, they agreed that Arimitsu and the kids stay a little longer, while Cook looked for work.

By the end of the year, Cook realized his family wasn’t coming back. The problem: court officers failed to enforce the order, saying the children refused to be returned, and the Osaka High Court nullified the enforcement order under the grave risk of harm defense.

Hague Child Abductions

I have written – and will be speaking later this month – on international custody and child abduction cases under The Hague Convention.

The Hague Convention on the Civil Aspects of International Child Abduction is supposed to provide remedies for a “left-behind” parent, like Mr. Cook, to obtain the wrongfully removed or retained children 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 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.”

There are defenses though. For example, in the Cook case, the court considered whether there is a grave risk that the children’s return would expose them to physical or psychological harm or otherwise place the child in an intolerable situation.

Outside Japan, the grave risk exception is very narrowly drawn because the exception can swallow the rule, and also, there is a belief that courts in the left behind country can protect children – just as easily as Japan can.

Big in Japan

Many suspect Japan is not really compliant with The Hague. Japan signed the Convention in 2013 – and only because of international pressure.

Under their law, Japan expanded the grave risk exception by making it a mandatory defense. Japan also requires Japanese courts to consider more things when the defense is asserted, such as whether there is “a risk”, as opposed to a grave risk.

Japanese courts also can consider if it’s difficult for parents to care for a child – a factor outside the scope of the Convention – which allows Japanese parents to complain about the challenges of being away from home.

The U.S. has determined that Japan was one of just two “Convention Countries That Have Failed to Comply with One or More of Their Obligations under The Hague Abduction Convention.”

Enforcement is a big problem in Japan. Japan cannot enforce their orders. The law Japan passed to implement The Hague forbids the use of force, and says children must be retrieved from the premises of the parent who has taken them.

According to research, about 3 million children in Japan have lost access to one parent after divorce in the past 20 years – about 150,000 a year.

For now, that leaves James Cook, who has found work with a medical device company, sitting in Minnesota, having no contact with his kids.

The Standard-Examiner article is here.

 

Madonna and Interstate Custody

Posted by Ron Kauffman on

Madonna is locked in an interstate custody battle over her son, who is refusing to leave his father’s home in London, and return to her home in New York City. Sadly, these disputes happen more frequently as people become increasingly mobile.

Madonna’s interstate custody case is interesting on several levels, because it involves domestic (meaning American) family law and international family law issues.

The complex nature of the issues are why I have previously written about the education problems in Madonna’s interstate custody disputes.

Madonna and Guy Ritchie were divorced in 2008. They have a son together. A New York court judge ordered the son to return to Madonna in New York. The 15-year-old has been living with his father at his London home.

So, what happens if Guy ignores the New York court order? Madonna may be able to rely on various international and American statutes to help resolve their interstate custody dispute.

The Uniform Child Custody Jurisdiction and Enforcement Act

American courts are governed by the UCCJEA, a state law every U.S. State has adopted except for Massachusetts. The UCCJEA generally provides the basis for determining which state’s court should resolve custody disputes, and also governs the enforcement of other states’ custody and parenting time orders.

The UCCJEA sets out the rules for which state can establish a new custody order, enforce your rights under an existing order, or modify the terms of another state’s child custody decree. The UCCJEA also has rules for determining when a state can take Emergency Jurisdiction over an interstate custody case.

The Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty the U.S. turned into a U.S. federal law. The Hague Convention provides remedies for a “left-behind” parent, like Madonna.

By filing a Hague petition for return in another signatory country, a left behind parent may be able to obtain the return of a wrongfully removed child to the country of the child’s habitual residence.

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.”

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

The Huffington Post article is here.

Interstate Custody Hague and UCCJEA

Posted by admin on

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Interstate Custody on Monday, December 12, 2016.

Parents move from state to state. Sometimes, children are moved by parents wrongfully, creating interstate custody problems. The Uniform Child Custody Jurisdiction and Enforcement Act and the Hague Convention on Child Abduction can work together in those cases as a recent New York case shows.

In New York, an appellate court recently reconciled the UCCJEA and Hague in the interstate custody case of Krymko v. Krymko. A husband and wife and child moved from Canada to New York.

After about five months in New York, the mother took the child back to Canada without the father’s consent and she promptly filed for custody there.

The father filed his own custody action in New York, applied for the return of the child under the Hague Convention, and instituted a Hague Convention case in Canada.

The Canadian court ruled that the child had been “habitually resident” in New York on the day that she was taken back to Canada, and ordered that the mother return the child to New York.

The mother brought the child back to New York but asked New York to dismiss the New York case because New York was not the “home state” of the child under the UCCJEA.

I have written on custody issues before, and I will be speaking at the Marital & Family Law Review Course in January on the UCCJEA and the Hague. The Review Course is the premier advanced, continuing education opportunity for marital and family law attorneys in Florida.

The “home state” is generally defined under the UCCJEA as “the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding.

The mother claimed that the child had been in New York for only five months before being taken back to Canada.

The New York court held that, even if the time in New York was less than the required six months, the subsequent stay in Canada, was found by a Canadian court to be wrongful.

Accordingly, the stay in Canada would be deemed to be a “period of temporary absence” within the meaning of the UCCJEA, which should be added to the prior period of five months so as to constitute the required six-month period.

Additionally, the New York court noted that even if the six-month rule had not been satisfied, New York had initial custody jurisdiction because Canada declined the case.

The case illustrates the interplay between the UCCJEA and the Hague Convention when dealing with interstate custody issues.