Tag: international child abduction

Establishing Foreign Paternity under UIFSA

Posted by Ron Kauffman on

A common family law issue involves UIFSA, in that a U.S. state can establish a child support order after proving the paternity of the father over a foreign born child. However, proof is required beyond mere admissions and agreement. Is being named on the birth certificate enough? One couple recently found out.

UIFSA Parentage

Love in Lansing

The Plaintiff lives in Brazil and is the mother of LCK, who was born in Brazil in late 2020. The purported father, who was the Defendant in the case, lives in Michigan. The case was heard in a town between Detroit and Lansing. Plaintiff contended that defendant is the father of LCK, arising out of a relationship between the parties in Michigan in January 2020.

Defendant did not deny that the parties had a relationship during that time. In August 2021, plaintiff sought child support from defendant under the Uniform Interstate Family Support Act (UIFSA), by filing an Application for Establishment of a Decision with the central authority in Brazil.

The application stated that defendant’s paternity of the child was “established or presumed,” and was supported by a Brazil birth certificate naming defendant as the child’s father.

The Livingston County Prosecutor initiated this action under UIFSA, filing the Application as a complaint.  Defendant responded, denying paternity and requesting that the child’s paternity be established.  Defendant also filed a -separate paternity action in the trial court.

In contrast to his denial of paternity in the child support case, defendant alleged in his paternity action that he is the father of LCK. In fact, the defendant earlier claimed he was the LCK’s father in the paternity action, and even signed an affidavit before the U.S. Consulate stating that he was the father.

However, in the international child support action under the UIFSA, he disputed his paternity of the child had been established under Brazil law. Plaintiff contended that defendant’s name on the child’s birth certificate established his paternity under Brazil law, precluding further inquiry into the child’s parentage under the UIFSA. Defendant disagreed, and asked the trial court to resolve the paternity action before determining the child support action. Plaintiff filed a motion to establish support, arguing without explanation that the birth certificate alone established defendant’s paternity of the child under Brazil law.

Plaintiff also asserted that while briefly visiting Brazil, defendant signed an acknowledgment of paternity at the United States Consulate to obtain a passport for the child, and sued plaintiff under the Hague Convention for abduction of the child.

Defendant did not respond to the motion, but at the hearing requested a determination of paternity under Michigan law. The trial court entered a Uniform Child Support Final Order on the basis that defendant had been established as the child’s father under Brazil law, and ordered defendant to pay plaintiff monthly child support of $1,567. The father appealed.

Florida UIFSA

I have written on international custody and support issues before. The Uniform Interstate Family Support Act is one of the uniform acts drafted by the Uniform Law Commission. First developed in 1992, 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.

One of the more important purposes of UIFSA is to extend enforcement to foreign support orders. A court in Florida, for example, must apply UIFSA to any support proceeding involving a foreign support order from a foreign tribunal. A “foreign tribunal” means a court, administrative agency, or quasi-judicial entity of a foreign country which is authorized to establish, enforce, or modify support orders or to determine parentage of a child.

Spartan Findings

On appeal, the Defendant contended the trial court erred by determining his parentage of the child had been determined under Brazil law without permitting him to challenge the parentage of the child.

A trial court can establish child support under UIFSA only upon finding, after notice and an opportunity to be heard, that defendant had a duty of support based on the putative father’s paternity. In doing so, the trial court was obligated to apply the procedural and substantive law of Michigan.

In determining Defendant was the father based on the Brazilian birth certificate, the trial court accepted plaintiff’s contention under Brazil law, any man designated as the father on a child’s birth certificate is thereby determined by law to be the father of that child, and that defendant therefore was precluded from raising the defense of non-parentage.

However, the trial court accepted the contention that parentage had been established under Brazil law without any proof and without any authority to support plaintiff’s assertion.

Plaintiff also argued that she established paternity because of Defendant’s past claims that he was the child’s father in the paternity action, and that he even signed an affidavit before the U.S. Consulate stating that he was the child’s father.

But on appeal, the question was whether the was precluded from challenging the child’s parentage by virtue of a previous legal determination in Brazil or elsewhere.  Defendant’s past assertions of parentage are not relevant to this narrow inquiry.

Even though defendant consistently sought to establish the parentage of the child, he never conceded the issue had been determined under Brazil law.  The trial court’s reliance on plaintiff’s unsupported assertion that the birth certificate naming defendant as the father constituted a determination of parentage under Brazil law, was insufficient.

The trial court’s order was vacated, and the case was remanded to the trial court for further proceedings in which plaintiff must demonstrate that defendant’s parentage of the child has been determined under Brazilian law.

The Michigan Court of Appeals opinion is here.

Divorce Ignorance

Posted by Ron Kauffman on

A new report by two law professors in England is showing a great deal about the public’s ignorance of divorce laws. Overall, the public’s understanding about finance and property on divorce was considered poor. However, those fortunate enough to have consulted lawyers previously were considered knowledgeable.

London divorce town

Keeping calm and carrying on

The legal experts say that thousands of people going through their divorces could be losing out due to “do it yourself” divorces. The professors from the University of Bristol authored a new report where 20,000 members of the public in England and Wales answered questions on divorce-related laws about dividing finances and property.

For example, given 10 statements about the law and asked to say whether each was true or false, the public correctly identified an average of 4.5 statements. In fact, just over half (55 per cent) of the public correctly identified at least half of the statements.

Statements Which Are Not True (in England):

  • The law says that all assets and debts should be split 50:50, regardless of whose name they were in during the marriage
  • Legally, an individual is not entitled to a share of their ex-spouse’s pension
    The law says that if an individual contributed more money during the marriage, then they are usually entitled to more than 50 per cent of the assets

Interestingly, people with higher qualifications or incomes were somewhat more likely than those with lower level qualifications or incomes to know what the law was in relation to financial remedies on divorce.

Florida Divorce

The official term for divorce in Florida is “dissolution of marriage”, and you don’t need fault as a ground for divorce. Florida abolished fault as a ground for divorce. I’ve written about divorce issues before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your spouse’s political views. Instead, you just need to state under oath that your marriage is “irretrievably broken”.

Before the no-fault divorce era, people who wanted to get divorce either had to reach agreement in advance with the other spouse that the marriage was over, or throw mud at each other and prove wrongdoing like adultery or abuse.

No-fault laws were the result of trying to change the way divorces played out in court. No fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

Florida abolished fault as grounds for filing a divorce. The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.” Additionally, the mental incapacity of one of the parties, where the party was adjudged incapacitated for the prior three year, is another avenue.

Dodgy Results?

The report also showed that women were more likely to know about aspects of the law relevant to having children, and men to know somewhat more about the law around the division of assets.

Additionally, and not surprisingly, divorcees were somewhat more knowledgeable about the law than others. But still, their percentages appear to be mere guesswork: they identified an average of 5.2 statements correctly compared to 4.4 statements among those who had not been through a divorce. However, the differences between divorcees and others were not large, with levels of misconception still high among divorcees.

Having a lawyer was important to knowing your rights. Among divorcees who had divorced in the previous five years: those who had used more formal routes to reaching an arrangement, or consulted or used a lawyer, tended to know more about the laws around finances on divorce than those who had not.

Those with higher levels of assets to divide on divorce tended to have a greater understanding than those with lower levels or no assets. Divorcees with dependent children were more knowledgeable than other divorcees in relation to the law around the legal position of parents with main care of their children and around the child maintenance formula, although there were still high levels of misunderstanding among parents on these issues.

With do it yourself divorces, when couples settle how to split finances without courts, the law allows them to agree any split they want. More people are now coming up with their “own solutions” surrounding divorce settlements as there is no longer legal aid in England and Wales. The findings highlighted that women had a greater understanding around law relating to children, whilst men were more likely to know the law on assets.

The professor said the lack of legal aid leads to less awareness and knowledge which is “potentially problematic” because it means that people are relying on “their own misunderstanding of the law which tends to lead to poor settlements”.

The majority of the divorcing population in England and Wales reach arrangements relating to their finances and property outside of the formal family justice system, and also that one in five divorcees seek advice and support from family and friends during the divorce process.

For these reasons, it is important to know what level of knowledge people have, and whether there are misconceptions which might be influencing the decisions made by divorcees and the advice family and friends provide.

The BBC article is here.

Speaking on the Hague Convention and Interstate Child Custody

Posted by Ron Kauffman on

Honored to be invited to speak about the Hague Convention and other interstate child custody jurisdiction issues at the 2025 Marital & Family Law Review Course. The program will be presented at the Loews Royal Pacific Resort at Universal Orlando from January 24, 2025 to January 25, 2025. The prestigious Certification Review course is one of largest and most popular family law presentations, and is a partnership between the Florida Bar Family Law Section and the AAML Florida Chapter.

Hague Convention

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 over 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 should become familiar with the Hague 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 the harmful effects of international abductions by requiring the prompt return to their habitual residence.

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 invited to speak on the Hague Convention and interstate and international family law issues 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, hearing officers, and judges.

Register here for remaining spaces, if any.

International Child Custody and Hague Convention

Posted by Ron Kauffman on

A frequent international child custody issue involves the Hague Child Abduction Convention. Return of abducted children to their habitual residence is required unless defenses are established, in which case ameliorative measures can be considered. Is that also true in a war zone? A court in Montana just decided that question.

Hague Convention2

Home on the Range?

The parents are Ukrainians. They married in the Ukraine and lived in the city of Odessa, Ukraine in an apartment. In February 2022, Russia invaded Ukraine. The parties began to hear explosions and air raid sirens in Odessa based on Russian aerial attacks, and they were forced to sleep in their basement at times.

In August 2023, the father arranged for the mother and their child to stay with family friends in Moldova due to the increased bombing of Odessa. On August 26, 2023, the mother informed the father that she was intending to fly to Montana with the child to be with her mother and sister.

The father began to take steps to secure the return of the child to the Ukraine by filing a Hague application and filing a return petition in Montana.

Florida Hague Convention

I will be speaking about the Hague Convention and international child custody issues at the prestigious Marital & Family Law Review Course in Orlando later this month. The event is co-sponsored by the Florida Bar Family Law Section and the American Academy of Matrimonial Lawyers.

What happens if your children are wrongfully abducted or retained overseas? If that happens, you must become familiar with the Convention on the Civil Aspects of International Child Abduction, also known as The Hague Convention. This international treaty exists to protect children from international abductions by requiring the prompt return to their habitual residence.

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.

If your children are wrongfully taken out of the country or wrongfully retained after the time for returning them passed, the Hague Convention can help you get them back.

A Mess in Odessa

At the trial in Montana, it was not disputed that the father established a prima facie case under the Convention. However, the mother argued return to Ukraine would expose the child to a “grave risk” of physical or psychological harm.

The district judge noted that the conflict in Ukraine did not, by itself, trigger the grave risk exception because it’s not sufficient to simply find that because the country is at war, children cannot be returned․

Instead, the focus should be on the risk a child would face in the part of the county she will return to and whether that will imperil her unacceptably. For example, some courts have found that return to certain cities or eastern Ukraine poses a grave risk.

Additionally, the fact that a child has grown accustomed to life in the U.S. was not a valid concern under the grave risk exception, as it is the abduction that causes the pangs of subsequent return. Also, the exception does not provide a license for a court in the abducted-to country to speculate on where the child would be happiest or who would be the better parent. And grave risk does not encompass a home where money is in short supply, or where educational or other opportunities are more limited. Even if a “grave risk” is shown, a court has “the discretion to consider ameliorative measures that could ensure the child’s safe return.

Here, the court found that return to a different city in the Ukraine, Chernivtsi, a city and oblast in southwestern Ukraine was at less risk than the eastern portion of the country such as Odessa. It was also noted that many Ukrainians had relocated to the western part of the country since the invasion.

The Mother’s argument that her voluntary parole status in the United States should be considered. However, to the extent the mother faced a Hobson’s choice, it is a dilemma of her own making. The record showed that the father was willing to allow her and the child to reside outside of Ukraine, but close enough for contact, while custody was determined.

Instead the Mother chose to come to the United States, as opposed to Moldova or another neighboring country, for the undisputed reason that her family was here. Neither the Convention nor this Court’s decision are constrained by that choice.

Based on those facts the court ordered the return of the Child to Chernivtsi, Ukraine and awarded fees and costs.

The order is here.

Registration for the certification review course is here (if available)

Speaking on the Hague Convention and Interstate Custody

Posted by Ron Kauffman on

Honored to be invited to speak on interstate custody and the Hague Convention at the prestigious Marital & Family Law Review Course in Orlando from January 24th to January 25th. The seminar is co-sponsored by the Florida Bar Family Law Section and the American Academy of Matrimonial Lawyers.

Divorce Religion

Raising Arizona

A recent state court case in Arizona applied both the Hague Convention and state law to order law enforcement to immediately pick up a child allegedly being retained in Arizona by the child’s Father. The Father argued that his due process was violated by not providing an opportunity to be heard.

A child was subject to a parenting time order in Mexico. The child otherwise resided with the Mother, Cohen, in Mexico, and the Father, Gbele, to timeshare in the United States.

On December 20, 2023, the Mother filed a petition under the Hague Convention in Arizona state court alleging the Father refused to return the child to Mexico under their Mexican order, and seeking an order for the child’s removal to Mexico.

The trial court found that the Father had not been served, authorized service by alternative means, and temporarily restrained the Father from removing the child from Arizona. After the Mother filed a notice that the Father was served with process, the trial court entered a “pick-up order” to transfer custody to the Mother in Mexico based on testimony at an earlier hearing that the child is imminently likely to suffer serious physical harm or be removed from this state without the issuance” of the order.

The Father asked to vacate the pick-up order for lack of jurisdiction and due process. On the final hearing day, the court neither took evidence nor decided the merits of the petition. Instead, it determined the Father could not challenge the pick-up order because that order did not resolve any of the Mother’s claims from the petition, and therefore was not a final judgment.

The trial court also refused to vacate the pick-up order as moot because the relief of return was effectuated and awarded the Mother travel expenses. The Father appealed.

Florida UCCJEA and Hague Convention

Parents move from state to state for various reasons. It is a subject matter I have written and spoken about many times. Whether children are moved by parents wrongfully or not, moving your children creates interstate custody and support and problems.

What happens if your children are wrongfully abducted or retained overseas? If that happens, you must become familiar with the Convention on the Civil Aspects of International Child Abduction, also known as The Hague Convention. This international treaty exists to protect children from international abductions by requiring the prompt return to their habitual residence.

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.

The UCCJEA is a uniform act which promotes cooperation with other courts and ensures that a custody decree is rendered in the state which is in a superior position to decide the best interest of the child.

The UCCJEA helps to facilitate enforcement of custody decrees – even when the custody decrees come from a foreign country – and has the aspirational goal of promoting uniformity of the laws governing custody issues. Under the UCCJEA, a foreign country should be treated as a US state for the purposes of applying the UCCJEA.

Arizona Appeal

On appeal, the Mother argued the appeal was moot because the child was returned to Mexico, where it is undisputed the child is subject to a custody proceeding. The appellate court held that mootness is a discretionary doctrine, and in addition to the pick-up order, the Father also challenged the award of transportation costs, which was sufficient to prevent the appeal from being moot.

The Mother also argued that the trial court had discretion to order the child’s immediate removal under ICARA, which implements the Hague Convention in the United States. ICARA enacted provisional measures “to protect the well-being of the child involved or to prevent the child’s further removal or concealment before the final disposition of the petition.”

In rejecting the provisional measures, the court found there was neither allegation nor evidence concerning the child’s well being or any risk of further removal by the Father and the court’s order was not a final disposition of the petition.

Even if ICARA’s provisional remedies allowed the trial court discretion to enforce a provisional remedy, ICARA also provides that no court may order a child removed from a person having physical control of the child unless the applicable requirements of State law are satisfied.

Under Arizona and federal constitutions you are guaranteed due process. Additionally, under Arizona law, a petition to  enforce a foreign child custody order generally requires notice and a hearing before the trial court may order that the petitioner take immediate custody of a child. On remand, the appellate court direct the trial judge to determine whether to dismiss the petition in light of the child’s removal.

The opinion is available here.

North Korea Divorce Requirements

Posted by Ron Kauffman on

North Korea, similar to many countries, has requirements to initiate a divorce proceeding. Just as many U.S. states have requirements before filing for divorce, North Korea has its requirements too. Frustrated by the number of divorces, the Supreme Leader of North Korea has just added a new requirement: any couple that divorces will now be sent to labor camps.

North Korea Divorce

Your North Korean Divorce

Kim Jong Un, at 42 years of age, is North Korea’s “Supreme Leader”. He is also the “general secretary of the Worker’s Party”, and the “marshal of the Korean People’s Army”. Kim Jong Un follows in his father’s and grandfather’s footsteps and rules the socialist paradise of North Korea.

As “Comrade General Secretary”, Kim Jong Un recently declared that dissolving your marriage demonstrates anti-socialist sympathies, which therefore warrants punishment. This declaration from the “Marshal of the Democratic People’s Republic of Korea” represents a toughening of existing divorce laws, which previously only punished the party seeking the divorce — even in cases of physical abuse.

The “Sun of Juche’s” new divorce law, in an effort to protect the family structure, requires that spouses be imprisoned once the divorce is finalized. As one resident of the northern Ryanggang province reportedly said:

“I went to the Kimjongsuk County People’s Court … where 12 people received divorce decrees. Immediately after the verdict, they were transferred to the county labor training camp. Until last year, when a couple divorced, only the person who first filed for divorce was sent to a labor training camp. Starting this month, all divorced couples will be sent to labor training camps.”

According to Kim Jon Un, who is sometimes known as the “Only and Unique Successor and Leader of the Juche Revolution”, the act of divorce is not only considered an affront to socialism, but also to the Confucian values that tie into the thinking of those in the north and south.

Florida Divorce Requirements

I have written on divorce jurisdiction issues, such as residency and other requirements to obtain a divorce, many times before. Similar to North Korea, Florida has its own requirements to obtain a divorce. For example, Florida has a six-month residency requirement before filing for divorce.

Durational residency – as a pre-condition to divorce – has been considered by many courts and upheld as a valid requirement. The Supreme Court of the United States has consistently recognized the unique status of marriage and has left the entire field of marriage and divorce laws to the individual states.

Florida has a compelling state interest in requiring a durational residency so that Florida avoids intruding on the rights and interests of other states that might otherwise be paramount. There is another important reason.

Domicile of a divorcing party is essential, not merely because of technical jurisdictional rules, but because a divorce can be obtained ex parte, by constructive service of process which can have permanent future effect on the lives and property of third persons as well as the rights of sister states.

Accordingly, U.S. states must go slow, must be careful, and owe a duty to other states and other affected parties to make a record in support of a divorce final judgment that can withstand collateral attack and which will merit full faith and credit by other states.

Stigmatizing Divorce

The foundation of North Korean-style socialism, with its emphasis on the people and the masses, depends on whether family cells are managed effectively. That’s why – to North Korea’s “Brilliant Comrade” – divorce is considered an abnormal event and the breakup of the family.

Broken families are classified as social problems, and the children of these families often do not get along with other children and suffer various forms of discrimination, such as not being called on in school.

The socialist party’s firmly held position is that revolutionizing the family is equivalent to revolutionizing society and that improving the members of the family is equivalent to improving members of society. As a result, government officials who are divorced are considered to have failed to revolutionize their family, and are often unable to rise in rank or hold important positions.

Notwithstanding the “Beloved Father’s” efforts, reports from North Korea show divorce rates increased on the back of the Covid-19 lockdown. Initially, the “Father Marshal” started an education campaign to prevent, specifically women, from getting divorces.

To prevent divorces, lectures were given to members of the Socialist Women’s Union, the largest women’s organization in the country, under the theme:

“Let’s thoroughly eliminate the phenomenon of divorce and build a harmonious family, the cell of society.”

When that didn’t work, the “Supreme Leader of our Party, State and Armed Forces” tried other deterrents. The most obvious deterrents, publicly shaming the parents of divorcees, and publicly shaming the officials of  state owned companies responsible for high divorce rates among the workforce, were applied.

Surprisingly, given the socialist party’s campaign and other deterrents, divorces did not significantly decrease. So, the “Respected Comrade Supreme Leader” had no real choice but to act even more punitively by sending divorcing couples to forced labor camps. As one resident is reported to have said:

My brother divorced after three years of marriage. His wife first submitted a divorce application to the court and received a divorce ruling. She was sent to a labor camp for six months, while he has to do one month.

The London Evening Standard article is here.

Hague Convention and the Mature Child Exception

Posted by Ron Kauffman on

A  common international custody issue under the Hague Convention involves a wrongfully removed child when there is an exception to being returned home. One such exception is the mature child exception. How mature does a child have to be in order to avoid being returned to the child’s habitual residence? A recent Florida case analyzes that question.

Hague Mature Child 2

Oh Mexico

The Father and Mother are the parents of a child born in Mexico in 2013. They lived together in Mexico until approximately one year after the child was born. After their separation, a Mexican court granted custodial rights and child support obligations. The custody order also contained a clause which prohibited Mother from removing minor child from Mexico without Father’s consent.

Then in December 2022, the Mother abducted the child to the United States. After learning his child was abducted, the Father filed a return petition under the Hague Convention in Florida.

The Mother opposed returning the child by arguing that the child was “sufficiently mature and intelligent to object to being repatriated to Mexico.” The trial court conducted an in-camera interview with the child who was then ten years old and had been exclusively with Mother in Florida for over a year. The child testified she lived in an apartment with Mother and her little brother and was attending school and taking English classes. She enjoyed playing at parks and wanted to join a football team.

She also admitted seeing Mother crying and being told by Mother that Father wanted minor child to go back to Mexico and that “I’m afraid that you might be sending me back to Mexico and that I won’t be able to see my mom.” The Mother testified she not only told minor child about the proceedings, but also told her she feared minor child “would be taken back to Mexico and no longer be with me.”

The trial judge denied the Hague return petition after applying the mature child exception. The father appealed.

Hague Convention

I have written and spoken on international custody and child abduction cases under the Hague Convention. The Convention’s mission is basic: to return children to their country of habitual residence.

In the recent Mexican case, the father had to prove by a preponderance of the evidence that the child was a habitual resident of Mexico immediately before her abduction, the removal was in breach of his custody rights under Mexican law, and he was actually exercising rights of custody, or would have been so exercised but for the removal. If so, the child must be promptly returned to Mexico unless there is an exception to return.

The key inquiry in this recent case was the mature child exception. A court may refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is ap­propriate to take account of its views. A court may find that the child’s objection in and of itself is conclusive—it does not have to be coupled with another defense to be sustained.

Talking ’bout Mexico

On appeal, the district court noted that the child was exceptionally bright and articulate, she calmly and clearly conveyed her reluctance to return to Mexico, and conveyed significant family ties, teachers, and friends in Florida.

But in determining whether the mature child exception applies, courts primarily consider whether the child is sufficiently mature, has a particularized objection to being returned and whether the objection is the product of undue influence.

Here, the ten-year-old child’s preference to remain with Mother in Florida was based primarily on: friends, a desire to attend high school, and an upcoming school trip to Orlando. The appellate court found these to be generic and near-sighted responses and demonstrated the child’s inability to maturely comprehend or appreciate the long-term impact of her decisions.

This was especially true considering the child provided no significant testimony as to her life in Mexico or how life in Mexico differed from life in the United States. Also, her fear of return was based solely on not wanting to be separated from her Mother and return to Mexico does not necessarily mean she will be separated from Mother as Mother is free to return with her to Mexico.

Importantly, only a child’s objection is sufficient to trump the Convention’s strong presumption in favor of return, not the child’s mere preference. Here, the child just didn’t want to be separated from her mom. The only fear of returning to Mexico was being separated from Mother and not an unwillingness to live in Mexico.

Finally, the child’s objection was clearly the product of Mother’s undue influence. For example the Mother admitted she told minor child about the legal proceedings and about her fears of minor child being returned to Mexico.

The court reversed and remanded for the trial court to grant return to Mexico.

The opinion is here.

Hague Convention Now Settled Defense

Posted by Ron Kauffman on

An increasingly litigated area of international child custody involves returning a child to their habitual residence under the Hague Convention. However, there are also defenses to a return under the Convention. Recently, a Florida court answered the question whether a wrongfully retained child in Florida was now settled here and need not be returned.

Hague Convention

Return to Machu Picchu?

In the Florida case, a Father and Mother married in Peru in 2012. One child was born during the marriage, and all three are Peruvian citizens. They divorced in 2015, had joint custody, but the child lived primarily with Mother.

In 2021, Mother wanted to visit Florida. The parents signed a travel authorization for the trip from September 2021, through October 2021. However, the Mother and Child never returned. More than a year later, Father filed a state court petition for return of the child to Peru.

The trial court found that Father had rights of custody, had been exercising his rights at the time of the wrongful retention and Peru was the child’s habitual residence.

However, the trial court found that the Father was aware that the Mother was not returning to Peru with the Child before the October return date and that the Mother established, by a preponderance of the evidence, the “well settled” or “now settled” recognized exception under the Hague Convention. The Father appealed.

Florida 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 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.

However, a child need not be returned if it is demonstrated that the child is now settled in the new environment. The U.S. State Department’s interpretation of what “settled” means includes factors such as 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; friends and relatives and participation in school activities, such as team sports, youth groups, or school clubs for example.

Unsettling

The appellate court found that the “well settled in her new environment” exception to the Hague Convention, is not specifically defined in either the Convention itself or in the federal implementing statute ICARA.

But, a child has been considered to be “settled ‘within the meaning of the Convention when a child has significant connections to their new home that indicate that the child has developed a stable, permanent, and non-transitory life in their new country to such a degree that return would be to child’s detriment.

The appellate court reviewed the extensive testimony and the record which adequately shows that the trial court received competent substantial evidence. Accordingly, the appellate court held that Father failed to establish that clear error was committed by the trial court in finding that Mother met her burden of proof on this exception and in thereafter exercising its discretion to not return Child to Peru. Accordingly, the final order denying Father’s petition for return of Child to Peru is affirmed.

The opinion is here.

Recognizing International Divorce Decrees

Posted by Ron Kauffman on

A recent Texas case resolves an important dispute over recognizing international divorce decrees. A couple filed for divorce in Texas. Then, the husband traveled to his home country of Pakistan for a ‘quicky’ divorce. Does the Texas court have to honor the international divorce decree?

International Divorce

Longhorns in Lahore

The parties were married in Pakistan in 2009 and later moved to Texas. Husband filed an original petition for divorce in Dallas County district court in 2021. He asked for a divorce, the division of their property, and for the court to decide child custody.

Eight months later, Husband filed a “Notice of Filing of Foreign Judgment.”  He attached a “Divorce Registration Certificate” that was issued in 2022 by the Union Council in his home town of Lahore, Pakistan.

The Pakistani certificate lists addresses in Lahore for both parties. The Husband asked the Texas court to recognize the Pakistani divorce decree, and he also amended his divorce petition. He dropped his demand for a divorce as they were divorced now in Pakistan.

But the Pakistani divorce decree did not “dispose of the parties’ marital interest in various assets” or decide custody so he asked Texas to decide those issues. The Wife objected to recognizing the foreign judgment.

In 2023, after a hearing, the Texas family court sustained Wife’s objection to the recognition of the Pakistani decree, and rendered a final decree of divorce on June 7, 2023. The Husband appealed.

Florida Comity and International Divorce

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

However, in our mobile society many couples have multiple residences where they reside. Some of those residences can be in other countries, and more than one country may have jurisdiction. Will a foreign divorce decree be recognized in the U.S.?

Generally, comity is the recognition that a country gives to the legislative, executive or judicial acts of another country, having due regard both to international duty and convenience, and to the rights of its own citizens.

A U.S. state will respect and give effect to the laws and judicial decisions of another jurisdiction, provided that they do not conflict with public policy. Comity ensures that international divorce decrees will be recognized and enforced across different countries.

Cowboys, Curry, and Comity

On appeal, the Husband argued the court didn’t have subject matter jurisdiction to grant a divorce because they were no longer married. The appellate court noted that states, however, are not required to give full faith and credit to every single foreign divorce decree. Dismissal of a case based on comity is a matter of discretion for a trial court.

In this case, the only evidence the Wife received notice about the Pakistani divorce proceeding was an email from the Husband stating: “I am attaching NADRA divorce certificate for your records” and a one-sentence text message saying: “to fulfill religious obligation, I have pronounced verbal divorce today.”

The Husband argued Pakistan is not required to follow Texas-specific due process laws or rules. The appellate court agreed Pakistan did not have to follow American notions of due process. But, a U.S. court can refuse to recognize judgments obtained without due process. Since there was never notice to Wife of the Pakistani proceedings until after a judgment was rendered, she was deprived of minimum due process, and the international decree was not recognized.

The opinion is available at MKFL International Family Law.

Florida’s New Safe Exchange Locations Law

Posted by Ron Kauffman on

A new law amending Florida parenting plans this month deals with the concept of a ‘safe exchange location’. Every child custody and timesharing case must have a court approved parenting plan in which parents share decision-making and physical custody of their children. In some timesharing cases, the places parents do their pickups and drop-offs can be a problem. Family lawyers in Florida will be interested in the new changes to parenting plans.

Safe Exchange

Cassie Carli Law

Florida parenting plans not only govern the relationship between parents relating to decision making, but must contain a timesharing schedule for the parents and the children. Ideally, a parenting plan should attempt to address all issues concerning the minor child like the child’s education, health care, and physical, social, and emotional well-being.

But a frequent problem has been the place where exchanges of the child for timesharing takes place. Timesharing exchanges commonly occur in either parent’s homes, or well-lit parking lots of popular establishments, rest stops at the midway point between both parents, the child’s school, or a common landmark such as a specific coffee shop. There is really no limit to the location parents can agree to for the timesharing exchange.

However, when the parents have a contentious relationship, it is generally preferable that the exchange be made in a public, well-lit location with security cameras and high foot traffic by other people. Usually, parents are able to agree on a change in exchange location and deviate from the location prescribed in the parenting plan as needed.

Some sheriff and police departments allow parents to use their lobbies as an exchange location, but there is no standard process or procedure for all locations and many disapproved of the process.

The new law is often called  the “Cassie Carli law.’ The law was named for Cassie Carli, who was a 37-year-old mother from Navarre, Florida. Cassie went missing after a custody exchange with her ex-boyfriend. Days after she went missing, Cassie was found buried in Alabama.

Under the new law effective this month, every sheriff in Florida must:

  • designate at least one parking lot as a neutral safe exchange location for use by parents of a common child and
  • identify minimum requirements that each designated safe exchange location must satisfy, including a purple light or signage in the parking lot and a camera surveillance system.

Starting this July, family courts in Florida can order that exchanges of a child be conducted at a neutral safe exchange location if there is a risk or an imminent threat of harm to one of the parents or the child during the exchange.

The bill amends the domestic violence statute to allow the petitioner to request that the court require timesharing exchanges to be conducted at a safe exchange location, and to authorize or require the court to order the use of a neutral exchange location in an ex parte order for a temporary injunction under certain circumstances.

The bill also amends the law to provide that a parenting plan must generally designate authorized locations for the exchange of the child and may be required to take place at a neutral safe exchange location if there is a risk or an imminent threat of harm to one of the parents or the child during the exchange; the court finds such a requirement necessary to ensure the safety of a parent or the child; and such a requirement is in the best interest of the child.

Florida’s new designated safe exchange locations are not always staffed but are considered a secure environment because of the video surveillance and proximity to law enforcement. Police suggest that if anything occurs during the exchange to call 911 immediately.

The bill became effective July 1, 2024.