Tag: international child abduction

New Article Hague Abduction Convention Not Your Typical Custody Case

Posted by Ron Kauffman on

My new article “The Hague Abduction Convention: Not Your Typical Custody Case”, discusses a problem frequently encountered by lawyers representing parents in international child custody disputes. The problem is parents treating their Hague Abduction Convention case as if it were any other custody case. The article is now available on the KidSide website.

Hague Court

Hague Abduction Convention

The Hague Abduction Convention is the primary mechanism to ensure the return of children who have been wrongfully removed or retained from their country of habitual residence. The two main purposes behind the Convention are to protect children from the harm of an international abduction and secure the left behind parent’s rights of access to their child.

However, many parents confuse the purposes of the Convention, mistakenly thinking their best defense rests on proving what a better parent they are. It comes as a surprise to many people to learn that the judge in a Convention case does not even have jurisdiction to hear their child custody dispute.

But before any defenses are even asserted, a parent seeking a child’s return must first prove their case. To prove a case under the Convention, a Petitioner must demonstrate where the habitual residence of the child was before the wrongful removal; that the removal breached custody rights; and at the time of the child’s removal those rights were actually exercised.

There are a limited number of available defenses under the Hague Abduction Convention, and those defenses are different from a typical child custody case. They are different because the purposes of the Convention are different. Given that courts in a Convention case cannot decide the merits of the custody dispute, typical arguments about the best interest of the child don’t have much traction, leaving a limited number of defenses.

KidSide

Child abduction cases under the Hague Convention have a negative impact on children. Add to that, the growing number of high-conflict court cases, like divorce and domestic violence. Because of the growing number of high-conflict cases, there is always a lack of support for kids caught in the legal system.

That’s where KidSide comes in.

KidSide is a 501(c)3 which supports the Family Court Services Unit of the Miami-Dade County, Florida courthouse – the largest judicial circuit in Florida. KidSide can use your support as it supports Family Court Services.

Together, they have been providing crucial services to children and families for more than 20 years. The Unit assists all judges and general magistrates with some of the Court’s most difficult family cases by providing solution-focused and brief therapeutic interventions.

KidSide helps the Family Court Services Unit provide services for families at no cost in the areas of alienation, child/family assistance, co-parenting, crisis assistance, marital reconciliation, parenting coordination, reunification, time-sharing, supervised visitation, and monitored exchanges.

They are staffed with dedicated professionals who are committed to helping families reduce their level of conflict and provide supportive services for the entire family system with particular sensitivity to children.

You can support KidSide by clicking here.

The Kidside article is here.

Speaking on Interstate and International Custody

Posted by Ron Kauffman on

Honored to be speaking on interstate and international child custody issues at the prestigious Marital & Family Law Review Course in Orlando from January 26th to January 27th. I will be discussing federal and state statutes relating to child custody and family support, in addition to the Hague Convention on international child abductions. The event is co-sponsored by the Florida Bar Family Law Section and the American Academy of Matrimonial Lawyers.

Speaking International Child Custody

Interstate Custody

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.

The Uniform Child Custody Jurisdiction and Enforcement Act, and The Uniform Interstate Family Support Act, can be critical laws to know in those cases.

International Child Abductions

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.

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 interstate custody and international child abductions at the annual Family Law Board Certification Review Seminar again. The annual seminar is the largest and most prestigious advanced family law course in the state. Last year’s audience included over 1,600 attorneys and judges from around the state.

The review course is co-presented by the Family Law Section of The Florida Bar, and the American Academy of Matrimonial Lawyers.

Registration information is available here.

Divorce Capital of the World

Posted by Ron Kauffman on

London has become known as the ‘divorce capital of the world’, proving that where you file your divorce can be of extreme importance. File in the wrong jurisdiction, like Afghanistan, and your divorce can be deemed a nullity. But file in the right jurisdiction, and you could get a windfall.

Divorce Capital

London Calling

Russian tycoon Vladimir Potanin, is currently making a legal challenge in the UK Supreme Court next week over a $6b marital settlement sought by his ex-wife, Natalia Potanina, which helped to make London’s reputation as the “divorce capital” of the world.

The couple married in 1983 in Russia. During the 1990s, Potanin had a reputed $20bn fortune, including shares in companies or other business entities that were not registered in his name – though Potanin was their beneficial owner, according to information contained in a 2021 Court of Appeal ruling.

Potanina was initially awarded roughly $41.5mn in 2014 by Russia’s courts but has claimed she is entitled to a far larger share of her husband’s fortune.

Potanina, who is Russian but who also has had a home in England since 2014, is now seeking half of the assets beneficially owned by her former husband. The case has prompted what one recent Court of Appeal ruling described as a “blizzard of litigation”.

In 2019, Potanina turned to the High Court in London, citing Part III of the Matrimonial and Family Proceedings Act 1984, legislation that gives the English courts the power to make financial orders if a marriage has been annulled outside the UK.

Potanina alleged in proceedings at the High Court that she had “made exhaustive efforts to obtain justice in Russia” but that the sum awarded in Moscow “does not even begin to meet my reasonable needs”. Her attempt to bring a claim in England was initially blocked by the High Court in 2019 on the grounds that the couple had little connection with Britain.

In the 2019 ruling, Mr Justice Jonathan Cohen said that if her claim went ahead, “there is effectively no limit to divorce tourism”. However, the Court of Appeal reversed the decision in 2021 paving the way for Potanina to bring the action in England.

Potanin is seeking to overturn that Court of Appeal ruling at the Supreme Court in a two-day hearing this month. If he loses the appeal, the battle is expected to move to the family courts.

Florida Divorce Jurisdiction

International divorces often bring up the issue of jurisdiction. Who sues whom, how do you sue for divorce, and in what country are problems in an international divorce case. The answers are more difficult than people think as I have written before.

A British divorce might give more money because British courts can disregard prenuptial agreements, and the cost of living is high in London. However, in Florida, the outcome could be different still.

Rules about children and hiding assets is a problem in every divorce, especially in international cases. The problem of discovery of hidden wealth is even bigger in an international divorce because multiple countries, and multiple rules on discovery, can be involved. The problems in an international divorce are more complicated because hiding assets from a spouse is much easier in some countries than in others.

Florida, at one extreme, requires complete disclosure of assets and liabilities. In fact, in Florida certain financial disclosure is mandatory. At the other extreme, there are countries which require very little disclosure from people going through divorce.

Choosing possible countries to file your divorce in can be construed as “forum shopping”. The European Union introduced a reform which tried to prevent “forum shopping”, with a rule that the first court to be approached decides the divorce. But the stakes are high: ending up in the wrong legal system, or with the wrong approach, may mean not just poverty but misery.

Residency for divorce is a very important jurisdictional requirement in every case. Generally, the non-filing party need not be a resident in the state in order for the court to divorce the parties under the divisible divorce doctrine. The court’s personal jurisdiction over the non-filing spouse is necessary only if the court enters personal orders regarding the spouse.

The durational domicile or residency requirement goes to the heart of the court’s ability to divorce the parties, because the residency of a party to a divorce creates a relationship with the state to justify its exercise of power over the marriage.

Rudie Can’t Fail

Potanin’s appeal of the order granting permission for Potanina to bring her claim in England, could become one of the biggest settlement cases recorded in the country. Potanin, who was hit with sanctions by the British government in 2022 because of his support for the Kremlin after Russian president Vladimir Putin ordered the full-scale invasion of Ukraine, is due to begin on October 31st.

London’s reputation as the “divorce capital of the world” was earned because of a perception that courts there were awarding large financial settlements to financially weaker spouses.

The ruling on appeal is expected to have significant ramifications for other cases, particularly in relation to whether ex-partners can turn to the English courts to obtain a more favorable payouts.

The Financial Times article is here.

Child Abduction and the Grave Risk Exception

Posted by Ron Kauffman on

Few people outside of international family law attorneys know that even if a child abduction is proven, courts don’t have to return a child if the grave risk exception, or another treaty defense, is proved. The grave risk defense took center stage at a recent appeal of a child abduction case.

brazil child abduction

Garota De Ipanema

The mother, Dos Santos, and the father, Silva, met in 2011 in Brazil. They have one child together, a daughter who was born in 2012 in Brazil. The three lived together in Brazil until April 2020, when the parents separated.

In August 2021, the mother left Brazil with their daughter and traveled to the United States. The mother did so without the father’s consent to move the child permanently. to the US.

After he learned that his daughter was in the US, the father filed an application with the Brazilian central authority for the return of his child under the Hague Convention. The Brazilian government referred the matter to the United States Department of State-the United States’s central authority under the Convention.

No one disputed at trial that the mother wrongly removed her daughter from the her habitual residence in Brazil and from the lawful joint custody of her father, and abducted her to the US. Normally, that would mean the child would be promptly returned to Brazil.

But the mother claimed returning their daughter posed a grave risk that the child will be exposed to physical or psychological harm or an otherwise intolerable situation.

Hague Child Abduction Convention

I have written and spoken on international custody and child abduction under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

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

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

While there are several defenses to a return of a child, the grave risk defense is one of the frequently relied on, and misunderstood defenses available under the Convention.

Mas que nada

Generally, the Hague Convention has six exceptions. In the recent Brazilian case, the mother alleged the grave risk defense. Under this defense, return to Brazil is not required if there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

However, the grave-risk exception is narrowly construed and has a higher burden of proof than most of the other defenses. At the trial, the judge found that the mother had failed to establish that the child will face a grave risk of physical or psychological harm should she be returned to Brazil.

Without an established exception, the trial court granted the father’s petition for return of the child to Brazil

The Mother appealed and the appellate court reversed. The mother described an altercation between the father and her subsequent boyfriend which may have been videotaped. But the video recording was not brought in as evidence. The court also heard from two other witnesses who saw the mother with bruises and a witness who testified about threatening social media messages.

Importantly, the trial judge didn’t believe the father’s testimony. To the appellate court, that meant the trial judge should have considered the father’s testimony as corroborating substantive evidence that the mother’s allegations were true.

Because the trial judge thought there were some issues with the father, including “anger management issues” and “making threats to people”, a majority of the appellate panel felt the trial judge mistakenly felt her hands were tied.

The appellate decision is here.

UCCJEA and Gender Dysphoria

Posted by Ron Kauffman on

The UCCJEA, the scaffold of our interstate child custody system, has two dueling new exceptions related to child gender dysphoria. What will be the impact on interstate child custody lawyers with the latest UCCJEA changes sweeping the country?

UCCJEA Sex

An Increasing Health Care Concern

Children in the U.S. can identify as a gender different from the one they were assigned at birth. The number of children identifying as gender nonconforming and transgender is growing.

Health technology company Komodo Health Inc., attempted to quantify the number of children seeking and receiving care by analyzing millions of health insurance claims. Between 2017 and 2021, the number of new diagnoses of children aged 6-17 with gender dysphoria increased by nearly 178 percent.

Of these cases, a smaller number of children with gender dysphoria are choosing medical interventions to express their identity. Appropriate treatment for children diagnosed with gender dysphoria is the subject of debate internationally, and not surprisingly, among different U.S. states.

Dysphoria in the UCCJEA

I have written and spoken on many issues related to the UCCJEA as a family law attorney. Next month I will be presenting an introduction to the UCCJEA for foreign lawyers at the IV Congreso Internacional de AIJUDEFA in Mexico.

The UCCJEA is a uniform act created to avoid jurisdictional competition and conflict with other courts in child custody matters. The UCCJEA also 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; and has the aspirational goal of promoting uniformity of the laws governing custody issues.

One of the ways the UCCJEA helped to avoid jurisdictional competition in child custody matters is by solving the historic problem of different courts issuing different orders covering the same child. Under the UCCJEA one state is a child’s home state, and the home state keeps exclusive jurisdiction to modify the custody arrangement unless, for example, the child is another state and there is an emergency.

uccjea

Dueling Banjos

Periodically, child custody disputes can become emergencies. The UCCJEA provides deliverance from such disputes by authorizing any state – even if it is not the home state of the child – to take temporary emergency jurisdiction to protect a child subject to, or threatened with, mistreatment or abuse.

California recently amended its version of the UCCJEA. California Governor Gavin Newsom – fresh from having visited Florida to poke fun of Gov. DeSantis – signed a bill expanding temporary emergency jurisdiction in California under the UCCJEA.

Effective this year, California courts are now authorized to assume temporary emergency jurisdiction of children in California, who are subjected to, or threatened with, mistreatment or abuse, “or because the child has been unable to obtain gender-affirming health care or gender-affirming mental health care.”

Florida recently amended its version of the UCCJEA. Gov. DeSantis – fresh from having visited California to poke fun of Gov. Newsom – signed a bill expanding temporary emergency jurisdiction in Florida under the UCCJEA.

Effective this year, Florida courts are now authorized to assume temporary emergency jurisdiction of children in Florida, who are subjected to, or threatened with, mistreatment or abuse, “or It is necessary in an emergency to protect the child because the child has been subjected to or is threatened with being subjected to sex-reassignment prescriptions or procedures.”

The California Senate bill is here. The Florida Senate bill is here.

International Child Abduction Compliance Report

Posted by Ron Kauffman on

Each year, a country’s compliance with laws governing international child abduction is evaluated in a report issued by the U.S. Department of State. These annual reports show Congress the countries determined to have been engaged in a pattern of noncompliance. They also show if any countries cited in the past improved.

Compliance Report

2023 Report

Under the Hague Convention, the U.S. 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.

In 2022, a total of 165 abducted children were returned to the United States.

The 2023 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 compliance 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 annual reporting 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.

Don’t cry for me, Argentina

The State Department reports include 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, such as Russia.

The 2023 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, Brazil, Ecuador, Honduras, and Peru.

The Convention has been in force between the United States and Argentina since 1991.  In 2022, Argentina had continued to demonstrate a pattern of noncompliance.  Specifically, the Argentine judicial authorities failed to regularly implement and comply with the provisions of the Convention.

As a result of this failure, 50 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. Granted, there was only 2 abduction cases in Argentina. One case was resolved with the return of the child, and the other one is still unresolved after a year. Argentina was previously cited for demonstrating a pattern of noncompliance in the 2015-2022 Annual Reports.

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 2023 Report is available here.

The Importance of Divorce Jurisdiction

Posted by Ron Kauffman on

The jurisdiction where you file your divorce can be of extreme importance. File in the wrong jurisdiction, and your divorce can be deemed a nullity. In Afghanistan, where divorce is taboo, the Taliban have started to void divorce judgments granted under the previous government.

Divorce Jurisdiction

Trouble in Kabul

Reports from Afghanistan are flowing in about women, who were abused for years by their ex-husbands, who have now had to go into hiding with their children after the Taliban tore up their divorce decrees.

A small number of women, under the previous US-backed government, were granted a legal separation in Afghanistan. However, when Taliban forces swept into power in 2021, husbands claimed they had been forced into divorce and the Taliban are ordering women back to their husbands.

“My daughters and I cried a lot that day. I said to myself, ‘Oh God, the devil has returned.”

The Taliban government, which imposes strict Islamic law, has placed severe restrictions on women’s lives that some have called “gender-based apartheid”. Afghan women have been denied education, restrictions on movement, and a lack of participation in the economy.

Importantly, lawyers say that several women have reported being dragged back into abusive marriages after Taliban commanders voided their divorce judgments.

Florida Divorce Jurisdiction

I have written about jurisdiction in Florida divorce cases before. In Florida, there is no common law right to a divorce. Divorce in Florida is formally called a “dissolution of marriage”, and the cause of action for dissolution of marriage is entirely dependent on Florida Statutes.

The only true jurisdictional requirement imposed by statute in Florida is to show that one of the parties to the marriage has resided six months in the state of Florida before the filing of the petition for dissolution of marriage.

The importance of meeting the statutory requirement is important as it allows you to obtain recognition of your divorce judgment in other states under the full faith and credit clause of the United States Constitution.

Although Florida’s residency requirement sounds simple enough, it is a jurisdictional requirement which must be alleged and proved in every case. Failure to do so, renders your divorce null and void.

Bad News in Kunduz

According to the UN’s mission in Afghanistan, nine in ten women will experience physical, sexual or psychological violence from their partner. However, divorce is considered more taboo than domestic violence is in Afghanistan. Worse, the culture remains unforgiving to women who part with their husbands.

Under the previous US-backed government, divorce rates were steadily rising in some cities, where the small gains in women’s rights were largely limited to education and employment.
As awareness grew, women realized that separating from abusive husbands was possible.

Under the US-backed regime, special family courts with women judges and lawyers were established to hear such cases, but the Taliban authorities have made their new justice system an all-male affair.

Divorces under the new Taliban government are limited to when a husband was a classified drug addict or has left the country. In cases of domestic violence, or when a husband does not agree to a divorce, divorce is not permitted.

Child marriages are also an ongoing phenomenon in Afghanistan. In one case, Sana was 15 when she married her cousin who was 10 years older than her. With the help of a free legal service project Sana won a divorce from her husband in court — but her relief was shattered when Taliban commanders came knocking.

Threatened with losing custody of her four daughters, she returned to her ex-husband who by then had also married another woman. She escaped after he announced the engagement of her daughters to Taliban members.

The oppressive measures against women in Afghanistan are aggravating the economic woes of the country. A report by the International Crisis Group states that many western countries, and even private donors, have canceled donations fearing backlash from funding such an oppressive regime.

India’s NDTV article is here.

International Divorce and Comity

Posted by Ron Kauffman on

International divorce cases may require recognition or enforcement in your home country. But when your international divorce decree is subject to dismissal for lack of jurisdiction though, it is not a laughing matter. That is where knowing about the concept of comity may help.

Divorce Comity

Comity Hour

Carmen filed her divorce in Nebraska, claiming she and her husband Arlin were married in Omaha, had no children, that her husband was a Nebraska resident and that she is “not now a party to any other pending action for divorce, separation or dissolution of marriage.” Carmen wanted a divorce to divide their property and debts.

Carmen’s husband tried to dismiss the divorce for lack of jurisdiction. While he admitted they got married in Nebraska on March 8, 2003, he said they were also married in Venezuela on March 11, 2003.

The punchline: they were already legally divorced in Venezuela.

Since they were no longer legally married, the husband asked the court to dismiss the divorce for lack of subject matter jurisdiction and other grounds.

Florida Divorce and Comity

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, when children are involved, or you are seeking financial assistance, such as alimony, child support, or a division of property, the court needs to have jurisdiction over your spouse too.

There are even more complex, multi-state laws which impact if a court can hear a divorce, the children’s issues, or the family support issues.

Recognizing a foreign divorce is different. In general, where courts in one country have concurrent jurisdiction over substantially similar parties and claims, the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed with that divorce. This is known as the principle of priority.

While the principle of priority is not a duty, as a matter of comity, courts may stay a pending divorce on the grounds that a case involving the same subject matter and parties is pending in the court of another U.S. state. But the principle of comity applies – not only to proceedings pending in two different U.S. state courts – but to divorce cases pending in foreign courts too.

Comity Isn’t Pretty

Back in Nebraska, the parties focused their arguments exclusively on whether the Venezuelan divorce decree should be recognized as valid in Nebraska under principles of comity.

The family court dismissed Carmen’s complaint with prejudice, stating: The question before the Court is whether the Venezuelan Decree is valid. On that issue, Carmen argued the Venezuelan decree was invalid and she was therefore entitled to seek a decree of dissolution in Nebraska.

Arlin, on the other hand, argued the Venezuelan decree was valid in Nebraska and the parties were already legally divorced, so the Nebraska dissolution action should be dismissed. The family court agreed with the husband and found the Venezuelan decree was valid in Nebraska. The Wife appealed.

The Supreme Court of Nebraska reversed. The court reasoned that the husband’s evidence did not show the trial court lacked subject matter jurisdiction over the divorce. As long as the trial court had met the basic requirements, it had jurisdiction.

The family court confused the doctrine of comity with subject matter jurisdiction. The doctrine of priority is not the same thing as subject matter jurisdiction. A subsequent court does not lack the judicial power over a divorce. The issue of whether a foreign divorce decree should be recognized, the principle of comity, is not a matter of subject matter jurisdiction – or grounds for dismissal.

Whether the Venezuelan divorce decree is entitled to recognition under principles of comity was still a contested issue in the divorce, and that issue did not impact the family court’s subject matter jurisdiction.

The Supreme Court of Nebraska opinion is here.

The Hague Convention Meets the Best Interest Test

Posted by Ron Kauffman on

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

Hague Convention Best Interest Test

Answering An Andes Abduction

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

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

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

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

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

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

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

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

Hague Child Abduction Convention

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

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

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

UN-Heard Of

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

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

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

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

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

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

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

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

International Child Abduction Action Report

Posted by Ron Kauffman on

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.