Tag: International Child Custody

International Custody and Brazil

Posted by Ron Kauffman on

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

Brazil UCCJEA Hague

A Thrill in Brazil

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

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

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

Florida International Custody

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

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

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

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

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

Fulfilled in Brazil

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

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

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

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

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

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

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

The opinion is here.

Comity and International Divorce

Posted by Ron Kauffman on

A foreign couple that married and lived in Indiana received an international divorce from their home country of Bosnia and Herzegovina. After they returned to the U.S., the Wife filed for divorce a second time in Indiana. An appellate court in Indiana now has to determine if the one divorce is enough for a couple.

Comity Property

Comity of Errors

In the Indiana case, the Husband and Wife are citizens of Bosnia and Herzegovina, a country on the Balkan Peninsula in southeastern Europe. The country is home to medieval villages and the Ottoman-era bridge where Archduke Franz Ferdinand was assassinated, igniting World War I.

In 2017, the couple were married in Indianapolis, where they both lived. In 2022, after the couple returned to Bosnia and Herzegovina, they jointly filed a petition to dissolve their marriage in a court in Tuzla, a small town in the north of Bosnia and Herzegovina.

Their divorce petition did not mention they owned marital property in Indiana. The Bosnian court granted them a dissolution of their marriage, returning them to being single.

But then on 2023, the Wife filed a new petition for dissolution of marriage, this time in and Indiana Superior Court requesting the court to divide their real estate in Indiana. The Husband moved the court in Indiana to dismiss the case under principles of comity, citing the Bosnian proceeding which had already dissolved their marriage.

The trial court granted Husband’s motion to dismiss because of the previous divorce in Bosnia and Herzegovina. But then the trial court reversed itself, and granted the Wife’s Motion to Correct Errors, finding that the foreign final judgment did not address the couple’s property in Indiana.

Florida Comity

I have written about comity and international divorce before. As a general rule, the final judgments of courts in foreign countries are subject to recognition and enforcement in this country.

Any foreign divorce decree should be recognized in Florida as a valid judgment, and should be entitled to comity, where the parties have been given notice and the opportunity to be heard, where the foreign court had original jurisdiction and where the foreign decree does not offend the public policy of the State of Florida.

Comity does not require Florida public policy to be supplanted by foreign law. That’s because comity is not technically a law, but a practice for convenience and expediency. If it would be contrary to Florida law or contravene some established and important Florida policy, comity would not be applied. So, before enforcing a foreign judgment, a Florida court has to review the foreign judgment to make sure it complies with the rule of comity.

Additionally, foreign courts generally do not have the jurisdiction to decide issues relating to real property located in Florida. Accordingly, Florida courts have consistently held that foreign judgments affecting Florida real property are not entitled to comity or enforcement.

Comity Genius

Back in Indiana, the Husband argued res judicata prevented the Wife from filing a divorce petition in Indiana after receiving a divorce in Bosnia. The Wife countered that res judicata did not apply because the Bosnian judgment was not rendered on the merits regarding the marital property located in Indiana.

The appellate court agreed. While the Bosnian court dissolved the parties’ marriage, it is undisputed that it did not address the division of marital property in Indiana. As such, res judicata did not apply.

Next, the Husband argued the trial court erred in declining to dismiss the case under principles of comity. Comity was found to be important in avoiding conflicting results and in discouraging repeated litigation of the same question.

Generally, where a divorce action concerns the same parties and the same subject matter, comity should require dismissing a subsequent divorce filed in a different jurisdiction. However, in the Indiana case there was no danger the parties would be subject to multiple or inconsistent judgments, since the real estate disposition was not at issue in the Bosnian proceeding.

The Indiana Appellate Court opinion is here.

Fighting Paternity and UCCJEA Jurisdiction

Posted by Ron Kauffman on

A husband and wife, who marry in Brazil, agree the husband does not have paternity and is not the legal father of their daughter. But that does not stop them from fighting UCCJEA jurisdiction in Florida. What happens when the court disagrees with them that he’s not the Father? A married couple just found out the results in an interesting international child custody case.

UCCJEA Paternity

The Girl from Ipanema

The Wife is a Brazilian citizen living in Rio de Janeiro not far from the famous beach. The Husband is a U.S. citizen, a commercial airline pilot, and resides in Florida. The parties met online in 2014. They later were married in Rio de Janeiro, Brazil in 2016.

The wife had a daughter born in Brazil in 2015, the year before they got married. Interestingly, while the wife acknowledged she was the biological mother, the parties stipulated that the husband was not the biological father.

However, the Husband added his last name to the child’s name on the child’s birth certificate in Brazil. Later, they went to the U.S. Consulate in Brazil, and had a Consular Report of Birth Abroad Certificate issued for the child using his citizenship and his last name for the child.

Next, they had issued a U.S. passport and a Brazilian passport for the child using his last name as the father as well. It was later found that the husband held himself out as the father of his daughter during the marriage. The parties owned one marital asset, a home in Naples, Florida.

In 2021, the Husband filed a petition for divorce in Florida seeking only the following relief: (1) a dissolution of marriage and (2) and equitable distribution of the home in Naples. The Wife filed an answer denying allegations but did not raise the issue of the child, custody, or child support.

During the case, the parties entered a partial marital settlement agreement resolving all of the financial issues, including equitable distribution of the home. However, nothing was agreed, or mentioned, about their daughter.

Instead, the parties filed a stipulation that the husband was not the father of the child. Additionally, the husband filed an objection before trial that the court lacked jurisdiction to hear child support and custody under the UCCJEA because Florida was not the home state of the child.

The family judge entered a amended final judgment finding that the husband was the legal father of the child, and reserved jurisdiction on child support.

The Husband filed a motion for reconsideration arguing that under the UCCJEA, a court in Florida has jurisdiction to make an initial child custody determination only if Florida is the home state of the child or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent continues to live in Florida. The court denied the motion for reconsideration and the husband appealed.

Florida UCCJEA

I have written about international child custody issues before. The UCCJEA is a uniform act drafted to avoid jurisdictional competition and conflict with other state courts in child custody matters; promote cooperation with other courts; ensure that a custody decree is rendered in the state which enjoys the superior position to decide what is in the best interest of the child; deter controversies and avoid re-litigation of custody issues; facilitate enforcement of custody decrees; and promote uniformity of the laws governing custody issues.

An important aspect of the UCCJEA is that it only covers child custody determinations. Under the UCCJEA, a “child custody determination” means a judgment, decree, or other order of a court providing for the legal custody, physical custody, residential care, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The definition does not include an order relating to child support or other monetary obligation of an individual.

The UCCJEA deals with “child custody proceedings,” which are defined as proceedings in which legal custody, physical custody, residential care, or visitation with respect to a child is an issue. Child Custody proceedings do not include proceedings involving juvenile delinquency, contractual emancipation, or enforcement.

Although not part of the UCCJEA, under Florida law, the husband could have also faced additional challenges. For instance, if a mother of any child born out of wedlock and the reputed father intermarry, the child is deemed and held to be the child of the husband and wife, as though born within wedlock.

Boa Sorte

On appeal, the third district affirmed that the husband was the legal father of their daughter. The court noted that the UCCJEA was a jurisdictional act which controls custody disputes and only applies where custody is at issue.

The term custody includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.

But, a child custody determination does not include an order relating to child support or other monetary obligation of an individual. In this case, the appellate court found that the parties did not dispute custody of the minor child. As a result, the trial court had subject matter jurisdiction over the action.

The opinion is here.

Hague Abduction Convention and Force Majeure Clause

Posted by Ron Kauffman on

Under the Hague Child Convention does a force majeure clause in a marital settlement agreement hold any weight? The question is a frequent international custody issue which arises after parents enter into an agreement allowing their children to travel internationally. In one recent case, two Israeli parents agreed to their children visiting the United States for 60-days with some exceptions.

Force Majeure

Parents at War

The parties in the Hague case are the parents of two children who were both born and raised in Israel. The family members are all Israeli citizens too, but the Mother was also a U.S. citizen. The parties divorced in 2019 in Israel. After the divorce, the Israeli family court awarded the Father with visitation rights, and ordered him to pay child support.

The Mother argued the Father never exercised his rights of custody. However, the Mother would also travel internationally alone, and leave the children with their Father and his new wife. The Father was found to have exercised his visitation rights with the children.

In January 2023, the Mother filed an action in Israel to collect back child-support from the Father. The parents reached an agreement in the Israeli family court in which they stopped collection proceedings, and in return, the Father agreed to let the Mother travel abroad with their two children under certain conditions.

The Mother was allowed to travel internationally with the Children for 60 days. She could extend the 60-day period either by agreement with the Father, and/or limitations unrelated to the Mother’s own actions, such as strikes, COVID-related restrictions, etc.

Then Israel was brutally attacked on October 7, 2023. A month later, the Mother flew with the Children, and her two twins from another relationship, to Florida. The Father agreed to the trip, but then objected after the Mother told him that she planned to keep the Children in Florida until at least January 23, 2024 – 76 days after leaving Israel – and possibly longer if the war persisted.

By April 2024, the Mother had still not returned the Children. Then she dropped the bomb on the Father: she had “discovered that we have peace of mind and a calm life here” and told him that the children didn’t want to return to Israel.

The Father was trapped. He was not allowed to travel to the U.S., and was restricted from holding a passport, due to his owing child-support. The Father then filed a petition for return of the children to Israel under the Hague Convention in a Florida federal court.

At the time of trial from January to February 2025, the parties disagreed as to whether the conditions in Israel, and in particular, whether the cities where each of them lived were safe to return to and an exception to return under their agreement.

Florida Hague Convention

I often speak and write about the Hague Abduction Convention and international child custody issues. In fact, I successfully represented the Father in this Israeli case. What do you do if your children are wrongfully abducted or retained internationally?

The Hague Abduction Convention establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained.

The International Child Abduction Remedies Act is the statute in the United States that implements the Hague Abduction Convention. Under the Act, a person may petition a court authorized to exercise jurisdiction in the country where a child is located for the return of the child to his or her habitual residence in another signatory country, so the underlying child custody dispute can be determined in the proper jurisdiction.

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

The Hague Convention exists to protect children from international abductions by requiring the prompt return to their habitual residence. But there are defenses too. In the Israeli case, one defense asserted  involved an agreement containing a force majeure clause. Essentially, the court was not bound to order the return of the children if the Mother demonstrated by a preponderance of the evidence that the Father gave prior consent to the retention or subsequently acquiesced in their retention.

The argument was central to the case because the Mother relied on language in the agreed child support order that allowed her to travel abroad with the children for up to 60 days unless there was some limitation unrelated to the Mother’s own actions, “e.g., strikes, COVID-related restrictions, etc.”

Force Majeure?

At trial, the Mother argued that, even if the Father had a right of custody under Israeli law, the conditions in Israel following the October 7, 2023 attack qualify as a limitation unrelated to Respondent under the language of the Agreement, which would permit her to keep the Children in Florida beyond 60 days.

The district court disagreed. “The term ‘limitation’ in the Agreement does not encompass the Mother’s personal judgment or view that returning the Children to Israel is unsafe.” In looking at the parties’ agreement, the district court concluded that, based on its customary and normal meaning, “[t]he agreement itself illustrates this definition [of limitation], citing examples such as ‘strikes’ and ‘COVID-19-related restrictions’ – situations that physically restrict Respondent’s ability to return the Children.”

The district court found that a qualifying limitation under the Agreement is one that impedes or prevents the Mother from returning the Children, not one that merely makes return undesirable according to the Mother.

The case is analyzed at MKFL International Family Law here.

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.

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.

Comity and an International Divorce in Texas

Posted by Ron Kauffman on

International divorce cases may require recognition here, or comity, as one couple from Pakistan discovered. After a woman received nothing from her husband’s talaq divorce in Pakistan, she then sought a property division in a Texas divorce from her real estate developer husband. Is the Texas family court required to recognize the Pakistan divorce decree as valid?

Comity International Divorce

A Scam in Pakistan?

The former wife, Azhar, and her former husband, Choudhri, were married in Pakistan. At that time, Azhar lived in Pakistan and her husband lived in Texas. After obtaining her visa, she traveled to Houston where they lived together as husband and wife.

The Wife returned to Pakistan to renew her visa. Reports claim she was tricked into going back to Pakistan so her husband could take advantage of Sharia Law to divorce her. While she was in Pakistan, he initiated a talaq divorce, the results of which meant she got nothing from the marriage.

Texas Hold‘em

The Wife filed for divorce in Texas, and the Husband tried to dismiss the case. Following the hearing, the trial court denied the Husband’s motion to dismiss based on comity, finding:

“enforcement of the certificate of divorce issued in Pakistan would be contrary to Texas public policy and would, if enforced, violate the Wife’s basic right to due process.”

Around the same time, the former wife was also challenging the Pakistan divorce in the Pakistan courts. At first, the Pakistan trial court ruled in the former wife’s favor, declaring their divorce void. But the former husband appealed, and the Pakistani appellate court reversed and dismissed the wife’s case. On appeal to the Supreme Court of Pakistan, the high court affirmed.

Back in Texas, the trial court entered a new order recognizing the Pakistan Supreme Court’s judgment that the divorce was valid. The Texas court dismissed the wife’s divorce action, and dismissed her property division claim with prejudice.

The wife appealed, arguing the trial court should not have granted comity to the Pakistani divorce because she was not personally served, and was only provided notice five days prior to the divorce by publication in a local circular.

In some cases, American courts may defer to the sovereignty of foreign nations according to principles of international comity. But U.S. states are not always required to give full faith and credit to foreign country judgments. For instance, a U.S. court will often decline to recognize a foreign divorce judgment if it was obtained without due process.

On appeal the Texas court found the original order dismissing the Texas divorce was made prior to the Pakistan Supreme Court’s involvement. The second Texas trial order recognizing the Pakistan Supreme Court was deserving of comity, and the Texas appellate court affirmed.

The opinion is available from MK Family Law 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.