Tag: international child abduction

Divorce Rates in the Arab World

Posted by Ron Kauffman on

The increase in international divorce rates, due in part to changes in the nature of family and family life, can be seen thoughout the Arab world. Lebanon, in particular, is reporting a marked jump in divorces as more statistics become available.

Arab Divorce Rates

As the Simoom Blows

The Arab world is not insulated from the profound socio-economic changes around the world, and this is evident from the rise in the number of couples choosing to separate in several Middle Eastern and North African countries.

A recent study by the Egyptian Cabinet’s Information and Decision Support Center found that Kuwait, Egypt, Jordan and Qatar are the Arab countries with the highest divorce rates.

In Kuwait, 48 percent of all marriages end in divorce, 40 percent in Egypt, 37.2 percent in Jordan, 37 percent in Qatar, and 34 percent in both the UAE and Lebanon.

Sheikh Wassim Yousef Al-Falah, a Shariah judge at Beirut’s religious court, told Arab News recently:

“On some days, we have up to 16 divorce cases in this court alone. The increasing divorce rate is a phenomenon that we have not seen before, although we do not favor divorce and focus on reconciliation.”

Experts believe this trend has been driven by a combination of economic pressures, evolving societal norms, legal reforms and, above all, the changing role of women.

Florida Divorce

I’ve written international divorce rates before. In the United States, many complained that no-fault divorce led to an increase in divorce rates here. Historically in Florida, in order to obtain a divorce one had to prove the existence of legal grounds such as adultery.

Proving fault often required additional expenses on behalf of the aggrieved party, only serving to make the divorce process more expensive and cumbersome than it already was.

In the years leading up to the enactment of “no-fault” divorce, courts often granted divorces on bases that were easier to prove, the most common being “mental cruelty.”

Over time, the “no-fault” movement expanded to other states, although interestingly it only reached the typically progressive state of New York in 2010. Whether or not it is intimacy or communication, you do not need to list a reason for a divorce other than an irretrievable break in the marriage.

Like the Cedars of Lebanon

Through much of history, especially among the more conservative cultures of the Arab world, a woman’s place was long considered to be in the home, handling the needs of the family, while male relatives studied and went to work.

Now, as Arab nations modernize their economies and reform their legal systems, women are becoming more independent, increasingly pursuing higher education, progressing in their careers, and choosing to marry and have children later in life.

As a result, Arab women have developed a keener awareness of their civil rights, personal ambitions and self-respect. They increasingly refuse to tolerate domestic violence and are capable of supporting themselves financially.

“The current statistics compiled by the religious courts that handle the personal status of Lebanese citizens and foreigners residing in Lebanon reflect an increase in divorce requests, especially those submitted by women.”

In Lebanon, where a large segment of the population has moved abroad to find jobs with better salaries, the difficulty of maintaining a long-distance relationship also appears to play a part in marriage breakdown.

Reforms to the legal status of women in Lebanon have drawn particular attention in recent years, with the introduction of a slew of legislation designed to protect them from sexual harassment and domestic abuse. However, human rights monitors say the reforms do not go far enough.

Lebanon’s 2019 financial collapse and the effects of the COVID-19 pandemic appear to have piled further pressure on relationships as living standards plummeted, people lost their jobs and households were forced into long periods of constant close proximity under lockdown.

Several countries around the world reported spikes in domestic violence during the pandemic and Lebanon is no exception. The nation’s economic woes and disruption to court procedures during the health crisis appear to be making matters worse.

The figures for divorce in Lebanon might be somewhat skewed by the growing use of marriage as a means of gaining citizenship in another country, as waves of young people move abroad in search of better opportunities.

In Lebanon, where a large segment of the population has moved abroad to find jobs with better salaries, the difficulty of maintaining a long-distance relationships also appears to play a part in marriage breakdown.

Lebanese citizens will often move between sects to facilitate a divorce. Couples from the Maronite sect, for instance, the courts of which forbid the annulment of marriage in all but the most extreme circumstances, might turn instead to the Catholic or Orthodox sects, which allow the annulment of marriages.

They might even turn to the Sunni sect to access divorce procedures before converting back to their original sect. According to Shariah, divorce — known as khula — has been permitted since the time of Prophet Muhammad.

Obtaining a divorce in a Sunni religious court is considered easier than in a Shiite religious court, after these courts developed new rules that raised the age for child custody, amended the dowry and banned underage marriage.

Family values are cherished in Arab culture, and authorities — both religious and secular — tend to prefer that parents stay together for the sake of their children. Experts believe marriage counseling, better education for young couples, more open discussions about relationships, and even a relaxation of the social taboos surrounding premarital social interaction between men and women could help reduce overall divorce rates.

The Arab News article is here.

Hague Convention, Domestic Violence, and Rights of Custody

Posted by Ron Kauffman on

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

Hague Rights of Custody

Rocky Mountain High

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

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

The domestic violence protection order provided the Father:

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

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

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

International Child Custody and the Hague Convention

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

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

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

Slippery Slope

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

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

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

The case is available here.

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.

 

Messy Divorce in Mesopotamia

Posted by Ron Kauffman on

A messy divorce is underway in Mesopotamia. Florida is a no-fault divorce state. But, in states and countries where fault must be proven to obtain a divorce, Iraq is making headlines after a newlywed husband filed for divorce because of the song his wife played at their wedding.

50 Ways to Leave Your Lover

Some are calling it the most urgent divorce in the history of Ur. News reports show that a husband is seeking to divorce his wife because at their wedding party the bride played one of the most provocative and popular songs to flow out of the Euphrates river valley.

According to the Gulf News, the Wife chose the song “Mesaytara.” The title translates to ‘I am dominant’ or ‘I will control you.’  The lyrics are even more provocative and include:

“I am dominant; you will be ruled under my strict instructions; I will drive you crazy if you looked at other girls on the street; Yes, I’m dominant; You’re my piece of sugar; As long as you’re with me, you’ll walk under my command.”

The song is performed by Lamis Kan a popular singer from Egypt. The song appears to be the main reason behind the couple’s divorce at the wedding.

The official ‘Mesaytara’ music video is available here.

The bride was reportedly dancing to the rhythm of the song, which the groom and his family considered a provocation. Therefore, the groom entered into an argument with the bride and her family, following which he ended up divorcing her. The incident took place in Baghdad, but is rattling all of ancient Babylon.

Florida No Fault Divorce

I have written about the causes of divorce before. 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.

So, if your spouse has committed fraud, adultery, or worse, wants the band to play the “Baby Shark Dance” at the wedding party, you don’t need to allege that as grounds for divorce.

The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your spouse’s political activism. 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 collaboration or weakening the revolutionary spirit.

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.

You’ve Lost that Lovin’ Feelin’

Remarkably, this latest divorce out of Iraq is not even the first time that Lamis Kan’s “Mesaytara” led to the divorce of newlyweds in the Middle East. Last year, a Jordanian man broke up with his finance during their wedding celebrations after she played the song.

According to a video circulated on social media last year, the young man was heard screaming at his wife, who posted a picture of him kissing her hand, along with the song.

The song exposed the husband to an embarrassing situation in front of his friends and family, who stated that he was a “happy rabbit” instead of an “unhappy lion”.

In yet another incident, Lebanon witnessed a similar incident years ago due to the song “I love you Donkey”. According to local media reports, A groom divorced his wife at the wedding after she danced to the song.

The groom said that the bride told him to prepare a surprise for him in the next song in a bid to show that she “loves a donkey”. The groom said that he felt great anger after hearing the song, which prompted him to divorce his bride immediately without hesitation.

The Gulf News article is here.

Upcoming Speaking Engagement on Interstate and International Jurisdiction

Posted by Ron Kauffman on

Honored to be asked to speak on interstate and international jurisdiction at the 2022 Marital & Family Law Review Course. The program is live this year at the Gaylord Palms Resort & Convention Center from January 21, 2022 to January 22, 2022.

Limited rooms are still available and an additional block of rooms was just made available at the nearby Courtyard Orlando Lake Buena Vista. The prestigious Certification Review course is one of largest and most popular CLE presentations, and is a partnership between the Florida Bar Family Law Section and the AAML Florida Chapter.

Interstate Child Custody

Family law today frequently involves interstate child custody, interstate family support, and The Hague Convention on international child abductions.

Parents are increasingly moving from state to state and country to country for various reasons. Whether children are moved by parents wrongfully or not, that moving makes interstate and international child custody complicated. The Uniform Child Custody Jurisdiction and Enforcement Act, and The Hague Convention on Child Abduction, can work together in those cases.

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

That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say Florida. The ultimate determining factor in a Florida case then, is what is the “home state” of the child.

International Child Abductions

I have written about the Hague Convention before. All family lawyers have to become more familiar with the Convention on the Civil Aspects of International Child Abduction, also known as The Hague Convention on Child Abduction. This international treaty exists to protect children from international abductions by requiring the prompt return to their habitual residence.

The issue of international child abductions is also a fast-moving area of law. The U.S. Supreme Court recently granted certiorari in a case less than two years after issuing its last Hague Convention opinion.

The Hague Convention applies only in jurisdictions that have signed the convention, and its reach is limited to children ages 16 and under. Essentially, The Hague Convention helps families more quickly revert back to the “status quo” child custody arrangement before an unlawful child abduction.

Interstate Family Support

The Uniform Interstate Family Support Act is one of the uniform acts drafted by the Uniform Law Commission. First developed in 1992, the UIFSA resolves interstate jurisdictional disputes about which states can properly establish and modify child support and spousal support orders. The UIFSA also controls the issue of enforcement of family support obligations within the United States.

In 1996, Congress passed the Personal Responsibility and Work Opportunity Act, which required all U.S. states adopt UIFSA, or face loss of federal funding for child support enforcement. Every U.S. state has adopted some version of UIFSA to resolve interstate disputes about support.

Certification Review Course

It is a privilege to be asked to speak on interstate jurisdiction and international child abductions at the annual Marital & Family Law Review Course again. The annual seminar is the largest and most prestigious advanced family law course in Florida. Last year’s audience included over 1,800 attorneys and judges from around the state.

The program is live this year, will not be broadcasted, and space is limited.

Register for the remaining spaces here.

Child Support and the 8,000 Year Travel Ban

Posted by Ron Kauffman on

Family laws are ancient and modern. Over the years, wise judges have learned to maintain the status quo by preventing parents from leaving the country during a case. But one Australian father, who allegedly owes millions in child support, just received an 8,000-year travel ban. This travel ban prevents him from leaving the holy land until the year 9999 in his ongoing international divorce.

Israel Travel Ban 2

Thou Shall Not Leave the Jurisdiction

Noam Huppert, a 44-year-old citizen of Australia was married to an Israeli woman and they have two young children together. The family court in Israel issued a “stay-of-exit” order against Noam, sometimes referred to in Israel as a “Tsav.” He apparently cannot lift the travel ban order – and leave the country – until he pays his outstanding child support payments.

“The total in the year 2013 was roughly 7.5 million shekels (roughly $3.34 million)”

Israel’s laws regarding child support may be ancient, but why 8,000 years? It has been reported that placing the travel ban’s expiration date of 9999  in the court order was probably because it was the highest possible date that fit in the field and he owed a lot of child support.

The US State Department regularly includes a warning about travel. The civil and religious courts in Israel actively exercise their authority to bar certain individuals, including non-residents, from leaving the country until they pay their debts or other legal claims against them are resolved.

The US State Department also warns travelers that the US Embassy is unable to cancel the debt of a US citizen or guarantee their departure from Israel when they face a travel ban from leaving the country until debts are resolved.

Mr. Huppert, who works as an analytical chemist for a pharmaceutical company, told the Australian news service NewsAU that Israeli courts had ruled he owed 5,000 shekels per month for each child until they turned 18.

Florida International Divorce

I’ve written about international divorce issues before. International divorce frequently involves understanding various issues in foreign laws, and especially, jurisdiction. Jurisdiction involves questions about who sues whom, where do you sue, how do you sue for international divorce, and what country’s laws apply.

Which country’s laws apply can be tricky, and even well represented clients can end up owing big. Recently a British court ordered the ruler of Dubai, Sheikh Mohammed bin Rashid al-Maktoum, to pay his ex-wife Princess Haya bint al-Hussein more than $728 million in one of the largest divorce settlements ever handed down by a British court.

Rules against wrongfully abducting or retaining children in a foreign country, or leaving the jurisdiction, is a problem in every divorce – especially in international cases. One of the ways courts in Florida prevent child abductions and secure the payment of child support is travel bans.

So, in any proceeding in which there is a parenting plan involved, if there is a risk that a parent may remove a child from the state or country, or simply conceal the whereabouts of a child, courts have a lot of options at their disposal.

The powers of Florida courts to prevent the wrongful removal of a child can be as simple as ordering parents not to remove the child without the notarized written permission of both parents and a court order, limiting travel to Hague Convention countries.

In addition, Florida courts can require parents to surrender the child’s passport, place the child’s name in the Children’s Passport Issuance Alert Program of the United States Department of State and/or post a bond or other security as a financial deterrent to abduction.

But parents can also lose their travel privileges in the United States for owing unpaid child support. For instance, the U.S. Department of State issues passports to U.S. citizens for foreign travel. If a parent owes more than $2,500 in past-due support, the Department of State automatically denies any application for a U.S. passport until the past-due child support is paid. This includes requests to renew, replace or add pages to an existing passport.

Woe to the shepherd who abandons the flock

In Israel, the family court in a divorce case can issue a ban on the children or a parent leaving the country when one of the parents requests it. The reason a ban can be issued by a court in Israel is because of the fear that one of the parents will take the children abroad and never return. This is especially true in a country such as Israel, with many immigrants.

Israeli courts can also issue the travel ban when a husband refuses to give his wife the “Get”, or as in the case of the Australian father, when a father refuses to pay, or is late on, the monthly children’s support.
It is possible to leave by legal means if a travel ban is in place. Similar to other jurisdictions, a father would have to provide guaranties and guarantors in order to leave the country.

Israel’s government allows you to check if you have a travel ban on their website to avoid a court ordered travel ban from interfering with your travel.

The Australia News Corp article is here.

Abu Dhabi’s Modernized Divorce Laws

Posted by Ron Kauffman on

News from the capital of the United Arab Emirates, Abu Dhabi, is that the country has modernized its divorce laws. The county has issued new rules governing divorce, inheritance, and child custody for non-Muslims living in the emirate.

Abu Dhabi Divorce

Bridging the Divorce Gulf

Abu Dhabi is one of seven sheikhdoms that make up the UAE and the new law affects only this sheikhdom. While the oil-rich emirate is the capital of the nation, Abu Dhabi’s population is dwarfed by that of neighboring Dubai.

The report on Sunday said Abu Dhabi would create a new court to handle these cases, which will be held in Arabic and English to be better understood by the emirate’s vast foreign worker population.

This latest development comes after news that more than half of all Emirati couples in Abu Dhabi face divorce within the first four years of marriage, according to research conducted by the Department of Community Development.

The emirate previously launched an initiative to raise awareness about the importance of seeking professional help at the first signs of conflict, with the aims of reducing divorce rates in the early stages of marriage.

Change in child custody will allow parents to share joint custody of their children, WAM reported. The law – which consists of 20 articles – also introduces the idea of civil marriage, allows wills to be drawn up granting inheritance to whomever a person chooses, and deals with paternity issues.

It is set to provide “a flexible and advanced judicial mechanism for the determination of personal status disputes for non-Muslims”, the Abu Dhabi Judicial Department said, according to The National newspaper.

Florida Religion and Divorce

I’ve written about the intersection of religion and divorce before – especially as it relates to vaccinations. Religion, religious beliefs, and religious practices are not statutory factors Florida courts consider when determining parental responsibility.

Nor is religion an area in which a parent may be granted ultimate responsibility over a child. Instead, the weight religion plays in custody disputes grew over time in various cases.

One of the earliest Florida cases in which religion was a factor in deciding parental responsibility restricted one parent from exposing the children to that parent’s religion.

The Mother was a member of The Way International, and the Father introduced evidence that The Way made the mother an unfit parent. He alleged The Way psychologically brainwashed her, that she had become obsessed, and was neglecting the children. The trial judge awarded custody to the mother provided that she severs all connections, meetings, tapes, visits, communications, or financial support with The Way, and not subject the children to any of its dogmas.

The Mother appealed the restrictions as a violation of her free exercise of religion. The appellate court agreed, and held the restrictions were unconstitutionally overbroad and expressly restricted the mother’s free exercise of her religious beliefs and practices.

Following that, and other decisions, Florida courts will not stop a parent from practicing their religion or from influencing the religious training of their child inconsistent with that of the other parent.

When the matter involves the religious training and beliefs of the child, the court generally does not make a decision in favor of a specific religion over the objection of the other parent. The court should also avoid interference with the right of a parent to practice their own religion and avoid imposing an obligation to enforce the religious beliefs of the other parent.

Modernizing an Insular Peninsula

The new law comes after authorities last year said they would overhaul the country’s Islamic personal laws, allowing unmarried couples to cohabitate, loosening alcohol restrictions and criminalizing so-called “honour killings” – a widely criticized tribal custom in which a male relative may evade prosecution for assaulting a woman he claims has dishonored her family.

At the time, the government said the legal reforms were part of efforts to improve legislation and the investment climate in the country, as well as to consolidate “tolerance principles”.

Abu Dhabi also ended its alcohol license system in September 2020. Previously, individuals needed a liquor license to buy, transport or have alcohol in their homes. The rule would apparently allow Muslims who have been barred from obtaining licenses to drink alcoholic beverages freely.

The UAE as a whole in September this year announced yet another plan to stimulate its economy and liberalize stringent residency rules for foreigners. In January, the UAE announced it was opening a path to citizenship for select foreign nationals, who make up nearly 80 percent of the population.

The UAE last year introduced a number of legal changes at the federal level, including decriminalizing premarital sexual relations and alcohol consumption. These reforms, alongside measures such as introducing longer-term visas, have been seen as a way for the Gulf state to make itself more attractive for foreign investment, tourism and long-term residency.

The broadening of personal freedoms reflects the changing profile of a country that has sought to bill itself as a skyscraper-studded destination for Western tourists, fortune-seekers and businesses. The changes also reflect the efforts of the emirates’ rulers to keep pace with a rapidly changing society at home.

The Reuters article is here.

 

China Child Custody and Abduction Problem

Posted by Ron Kauffman on

Child custody and abduction has become a big problem in little China. Experts argue about 80,000 children in China are estimated to have been abducted and hidden in divorce cases in 2019. Newly passed family laws in China may help resolve this problem.

China child abduction

Crouching Tiger, Hidden Child

As CNN reports, the child abductions mostly involved fathers snatching their sons aged six years old and under. Although the 80,000 estimate is based on 2019 divorce figures, legal experts say it reflects a consistent trend seen each year – and the real figure may be much higher, since many cases might not be publicly available or settled out of court.

China is proposing a new child protection law making it illegal for parents to “snatch and hide” their children to win custody battles. The amendments, which go into effect on June 1, were praised by some as a crucial step in protecting children and mothers.

But years of loose regulations and a hands-off approach by Chinese authorities have sowed doubts as to whether a new law will change anything, say experts on family law and parental abduction.

In many cases, the abducting parent moves and hides the children, typically with the help of their parents or family members. The left behind parent, usually the mother, is blocked from seeing their child because they don’t even know where their child is.

Florida Child Custody and Child Abduction

I’ve written and lectured on the problem of child abductions before. My new Florida Bar Journal article Like Home: The New Definition of Habitual Residence, discusses child abductions under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980 and the federal International Child Abduction Remedies Act.

In Florida there are a few civil laws helping parents who are the victim of child snatching. There are also criminal laws at the state and federal levels which can result in prison time.

Florida adopted the Uniform Child Custody Jurisdiction and Enforcement Act. The law was intended to make it harder for parents to snatch their children and take them across state lines to a state more likely to rule in their favor.

The Hague Convention is a treaty our county signed to deter child abductions by eliminating their primary motivation for doing so: to “deprive the abduction parent’s actions of any practical or juridical consequences.”

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

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

Joyless Bad Luck Club

In China, joint custody is rare. Usually after a breakup, children go with one parent rather than as co-parents. The tradition of a parent taking a child away from the other parent, when there’s a parental separation, is something that’s been in existence for a long time.

In China, it is suspected that in “at least half” of divorce disputes regarding child custody, parents “hide the children for various reasons.

Under the new family law, “it is not allowed to compete for custody rights by snatching or hiding underage children.” Those who violate the articles may “bear civil liability in accordance with the law,” or face unspecified penalties, according to the law.

Women have since been speaking out about their experiences with abusive partners or child abduction, with some high-profile cases helping increase visibility around the issue. Even government officials have spoken out in support of changing the marriage and custody law, including a delegate of the National People’s Congress.

There are additional steps that could be taken — providing protections for visitation rights during the divorce period, or laying out clearer standards on which behaviors constitute “snatching and hiding” children, said Chen, the chief of the Guangzhou court, in the Xinhua article.

By 2019, the amendments to the law were already being drafted and deliberated by the country’s legislative body, though the final articles still fell short of clearly defining the parameters and repercussions of the offence.

For mothers who have lost custody or visitation of their children, the new law comes too late.

The CNN article is here.

New Article “Like Home: The New Definition of Habitual Residence”

Posted by Ron Kauffman on

My new article “Like Home: The New Definition of Habitual Residence”, discusses habitual residence under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980 and the federal International Child Abduction Remedies Act. The article is now available in the Florida Bar Journal.

New Article

American courts have had different standards for determining a child’s “habitual residence” under the Hague Convention. The controversy? How to establish a child’s habitual residence and what appellate standard of review should be applied after making that determination. The U.S. Supreme Court has now squarely addressed the conflict about habitual residence.

This new article examines the Hague Convention on international child abductions, ICARA, the U.S. Supreme Court decision, and . . . the Wizard of Oz.

The article is available here.

One Year Ago: Live Hague Trial

Posted by Ron Kauffman on

One year ago was the last time I stepped into an actual courtroom for a live trial dealing with child custody and the Hague Convention. It was also a year ago that the U.S. Supreme Court decided Monasky v. Taglieri. A lot has happened to the world in one long year.

Texas holdem

Mexican Poker

My client and the Mother are dual citizens of Mexico and Cuba, and met in Cancun, Mexico. They are both professional musicians. Together they have a daughter who was five years old.

During the early years of their relationship, they all lived together in an apartment in Mexico and traveled to the United States and Cuba. When they separated, the Father moved to an apartment nearby, and he and his daughter would timeshare, he paid for her piano lessons, her private school tuition, and even the Mother’s rent.

On July 12, 2019, at approximately 11:30 a.m., the Mother called the Father that she had taken their daughter to an undisclosed location.

He suspected she took her to Florida, and even had a possible address for the Mother here. Unbeknownst to him, the Mother actually took their daughter to a small, west Texas town.

The same day, the Father went to the Cancun Police and filed a missing child report. A few days later, he filed a Hague application for the child’s return. He hired me to file a case in Miami federal court, which was transferred to a federal court in Texas when the child was discovered there.

Habitual Residence and the Hague Convention

While the abduction was going on, and a few days before our Texas trial, the U.S. Supreme Court decided a major Hague Child abduction case involving the habitual residence of a child.

The Florida Bar Journal recently published an article I wrote during the quarantine about the recent U.S. Supreme Court case. In Monasky v. Taglieri, the U.S. Supreme Court held that the determination of a child’s “habitual residence” for purposes of the Hague Convention depends on a totality-of-the-circumstances analysis and that a district court’s habitual-residence determination should be reviewed for clear error.

The Hague Convention on the Civil Aspects of International Child Abduction provides that a child wrongfully removed from his or her country of “habitual residence” must be returned to that country, which then has primary jurisdiction over any resulting custody proceedings.

A removal is “wrongful” if it is done in violation of the custody laws of the country of the child’s habitual residence. The Convention instructs that signatory states should “use the most expeditious proceedings available” to return the child to his or her habitual residence.

In Monasky, an American brought her infant daughter to Ohio from Italy after her Italian husband, Domenico Taglieri, became physically abusive. Taglieri petitioned for his daughter’s return under the Hague Convention, arguing that Italy was the daughter’s “habitual residence.”

The federal court agreed and found the parents had exhibited a “shared intention” to raise their daughter in Italy. The Sixth Circuit Court of Appeals affirmed with dissents. Monasky then petitioned the U.S. Supreme Court, arguing that establishment of a child’s habitual residence requires actual agreement between the parents.

The Supreme Court noted that the Hague Convention does not define “habitual residence.” Relying on the treaty and decisions from the countries who are signatories, the high court concluded habitual residence it is a “fact-driven inquiry into the particular circumstances of the case.”

The Supreme Court also noted that Monasky’s ‘actual agreement’ requirement would leave many children without a habitual residence, and outside the Convention’s domain and the Hague Convention always allows a court concerned about domestic violence to not order a child’s return if “there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

Texas Hold ‘Em?

One of the issues which had to be resolved in our trial was the habitual residence of the child, and whether the parents shared an intent to abandon it. During our trial in Texas, the U.S. District Court found the parents did not share an intent to change the child’s habitual residence, among other defenses, and ordered the child returned to the Father and to her home in Mexico.

Relying on the U.S. Supreme Court’s, brand new decision, the federal court found the daughter’s habitual residence is Mexico, and that she was wrongfully removed to the United States in violation of the Hague Convention.

At the same time the Coronavirus was raging across the world, the U.S. government just ordered the border with Canada closed, courts were closing around the country, and there was a real concern we wouldn’t be able to return to Mexico.

But we faced another, potentially bigger problem. How do you enforce a federal court order to return a child to Mexico when the entire world, including borders and flights home were slamming shut?

The alternative to us moving immediately to secure the child’s return to Mexico would be to ‘hold em’ in Texas. Acting quickly, the father and daughter made it safely home to the habitual residence of Mexico.

The U.S. Supreme Court decision is here.