Tag: International Child Custody

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.

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.

 

Divorce and Alimony Laws Changed in China

Posted by Ron Kauffman on

Divorce and alimony laws changed in China this year. Under the new Civil Code, a judge just ordered a man to pay thousands of dollars to his former wife for housework she did during their five-year marriage. In China, they call it a landmark ruling.

Divorce Alimony China

New Chinese Divorce Laws

The new Civil Code of China became effective on January 1, 2021. Both spouses are treated equally under the law and are equally entitled and obligated to take care of the children and support each other.

So, if parents do not sufficiently perform their duties caring for their children, the child may demand reasonable maintenance costs from the parents.

Children do not get off easy either. The new code makes children obligated to support their parents. Adult children are generally obligated to support their parents if they can no longer work or otherwise provide for their livelihood.

In the landmark ruling, the wife demanded $24,700 from her husband after he filed for divorce. The wife said she was left to take care of the couple’s child and do the housework alone, and her husband barely cared about or participated in any kind of domestic chores.

The family court ordered the husband to pay her $7,700 as “housework compensation,” after splitting their joint property equally. Wife was also awarded custody of their son and $300 per month in alimony.

The ruling is the first of its kind under China’s new civil code.

Florida Divorce and Alimony

Divorce and alimony are nothing new in Florida. I’ve written about subject of alimony in Florida. In every Florida dissolution of marriage case, the court can grant alimony to either party – husband or wife.

Not many people realize there are several types of alimony in Florida: bridge-the-gap, rehabilitative, durational, or permanent alimony.

Florida courts can also award a combination of alimony types in a divorce. Alimony awards are normally paid in periodic payments, but sometimes the payments can be in a lump sum or both lump sum and periodic payments.

In determining whether to award alimony or not, the court has to first make a determination as to whether a wife or a husband, has an actual need for alimony, and whether the other party has the ability to pay alimony.

Typically, courts consider any type of earned income or compensation — that is, income resulting from employment or other efforts — along with recurring passive income, such as dividends on your investments, in establishing the amount of support you will be responsible to pay.

In Florida, once a court determines there is a need and the income available to pay alimony – sometimes referred to as the ability to pay alimony – it has to decide the proper type and amount of alimony. In doing so, the court considers several factors, some of which may include:

  • The standard of living established during the marriage.
  • The duration of the marriage.
  • The age and the physical and emotional condition of each party.
  • The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.
  • The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate.

But, after establishing Hightower’s need for alimony, how much dinero is there to determine De Niro’s ability to pay?

Chinese Divorce Express

China’s new Civil Code provides two ways to divorce, either the simple official registration of the divorce with a joint application or divorce proceedings in court.

If everyone signs a marital settlement agreement, a divorce can be registered with the authorities if both spouses file a corresponding divorce application. A short cooling off period of 30 days applies.

In contested cases, the court initially acts as a family mediation court, tries to prevent the divorce or reach a settlement of the conflict. If unsuccessful, and the court considers the marriage to be irretrievably broken, the court orders the divorce.

Interestingly, a husband may not apply for divorce if his wife is pregnant or within one year of the birth, or within six months of the end of the pregnancy. The only exceptions are if the wife herself applies for divorce or if the court considers it necessary to grant the husband’s divorce application.

If the divorced spouses have a child under 2 years of age, the mother generally receives custody. In the case of a child between 2 and 8 years of age, if the parents cannot reach an agreement, the court can decide which parent will be given custody. If the child is older than 8 years, his or her preference must be taken into account.

The recent landmark ruling became a trending topic on Weibo, China’s Twitter-like service, viewed more than 500 million times. While some comments applauded the ruling as a recognition of the hard, unpaid labor at home, others said the amount awarded was too little to cover five years of housework and childcare.

Unequal gender roles in domestic life have been a topic of public debate in China in recent years amid a rising feminist movement. Despite increasing education levels and women’s growing economic status, gender norms and patriarchal traditions have not caught up with these changes, and women are still expected to carry out most of the childcare and housework after marriage.

Housework compensation is designed to offer additional protection to spouses who have undertaken more domestic chores — and sacrificed opportunities to advance their career or education, according to legal experts.

For the spouse who has been working quietly at home, they will have to face the problem of returning to work, which means that the homemaker has to pay a hidden cost in addition to the efforts they paid during the marriage.

The right to seek housework compensation in divorce proceedings is not a new concept in Chinese law. In 2001, housework compensation was added to a revision of China’s marriage law with the precondition that it only applied to couples who agreed to separation of property, in which each spouse retains exclusive ownership of property acquired during the marriage.

Divorce rates in China have climbed nearly five times in the past three decades. According to government statistics, there were 0.69 divorces per thousand people in 1990. By 2019, the latest figures available, that number stood at 3.36.

Now that the new civil code is in force, the judge said she expected more cases involving demands for housework compensation to be filed. But in practice, we still need to accumulate experience in how to meter out the amount of compensation.

The CNN article is here.

Cooling Off Divorce in China

Posted by Ron Kauffman on

A new law in China, which makes it harder for couples to divorce because of the cooling off period, has sent husbands and wives rushing to file applications to dissolve their marriages.

China Divorce

Divorce Express

Under the new Chinese law, which was implemented on January 1st, couples who agree to dissolve their marriage must complete a month-long “cooling-off” period to reconsider their positions. After the 30 days have passed, couples can go to their local civil affairs bureau to apply a second time for their official divorce documents.

Divorce lawyers have been inundated with requests from couples to file for divorce once their 30 days are up.

In some cities, the demand for consultations with divorce lawyers is so high that scalpers are charging premium prices online to help couples secure appointments.

A lawyer based in Sichuan province who specializes in divorce, says he has already received numerous phone calls from anxious clients concerned that the new law complicates their divorce and compromises their freedom to split.

If one party withdraws from the agreement to divorce before the 30 days are up, the application is cancelled, leaving the other party to apply again and restart the 30-day clock, or to sue for a divorce – a costly and lengthy process.

One client was a rubber stamp away from having her divorce finalized when her husband changed his mind. Even before the cooling-off period was introduced, it was easy for one party to a mutually agreed divorce to change their mind. Now, with the 30-day period, the divorce process is too unpredictable.

Florida Divorce

I’ve written on divorce issues and divorce planning. In Florida, a divorce is called a “dissolution of marriage.” Florida is one of the many states that have abolished fault as a ground for dissolution of marriage.

The only requirement to dissolve a marriage is for one of the parties to prove that the marriage is “irretrievably broken.” Either spouse can file for the dissolution of marriage.

You must prove that a marriage exists, one party has been a Florida resident for six months immediately preceding the filing of the petition, and the marriage is irretrievably broken.

The reason for the irretrievable breakdown, however, may be considered under certain limited circumstances in the determination of alimony, equitable distribution of marital assets and debts, and the development of the parenting plan.

While the coronavirus pandemic has caused a spike in divorce filings in Florida, there have not been reports of scalpers yet. The divorce process can be very emotional and traumatic for couples as well as their kids. Spouses often do not know their legal rights and obligations. Court clerks and judges can answer some basic questions but cannot give legal advice.

The Mediation Exception

When the Chinese law was passed last year, Chinese citizens criticized the central government for interfering in private matters. More than 600 million comments were posted online using the hashtag “oppose divorce cooling-off period”. It became the top trending topic online, with internet users demanding to know if Chinese people no longer had the freedom to divorce as they chose.

Officials believed the legislation would lower the divorce rate in China, which has risen rapidly, and prevent “impulsive divorces” among young people. Lockdowns to stop the spread of coronavirus have coincided with a spike in the divorce rate.

Couples may be able to avoid delays in settling their affairs by applying for mediation instead of filing for divorce.

Mediation is a process that helps separating and divorcing couples find amicable solutions to their disputes. The process uses an impartial third party, a family mediator, who is trained in mediation. In mediation, if both parties reach an agreement, the court issues a document that carries the same weight as a divorce decree.

The new law also does not apply if a spouse files for divorce on the grounds that they are a victim of domestic violence. However, the law would still disadvantage women, particularly those without an independent source of income.

That’s because men can decide whether they want to divorce or retract their application. If a woman wants to and the man doesn’t, the woman will then have to sue, hiring a lawyer at great personal and financial cost. Many women – particularly full-time housewives – aren’t in a position to do this.

Another way around the new law is for couples to sign a prenuptial contract on childcare arrangements and the division of property in the event of a split. That way if, during the month-long cooling-off period, one party changed their mind, the contract already in place would streamline the process.

The rights of Chinese citizens to marry and divorce has long been a matter for public debate. In December, weeks before the law brought in the cooling-off period for divorcing couples, a woman in Shaanxi province, northwest China, filed for divorce after “being beaten by my husband for 40 years”, according to public court documents on the website Chinese Judgements Online.

The judge refused to grant a divorce, saying the couple had been together for 40 years and would need each other in their later years. “She should cherish her hard-earned happiness in her later years,” the judge wrote on the case file.

The South China Morning Post article is here.

 

Divorce Rates in Italy

Posted by Ron Kauffman on

Divorce rates in Italy appear to be skyrocketing, along with the divorce rates in the rest of the world, fueled by the coronavirus, the quarantine, financial stress and many other factors. The news out of Italy is consistent with what is happening in Florida too, as more people begin filing for divorce.

Divorce Rates Italy

Arrivederci

According to Italy’s National Divorce Association (l’Associazione nazionale divorzisti italiani) the divorce rate increased by 60% in 2020. The requests for separation have increased a lot, mainly due to forced coexistence,” the association’s president, family lawyer Matteo Santini, told Sky TG24.

In 40 percent of cases, the divorces were due to the fact that lockdown made it more difficult to hide infidelity and “double lives”.

Another 30 percent of separations were due to domestic violence, and the remaining 30 percent were listed as being down to other causes.

“It’s one thing to share weekends and evenings but another to share the whole day, with all the problems related to the health emergency: health stress due to illness, lack of work, living with children with difficulties related to distance learning. This causes an emotional explosion that leads to the desire for separation and the request for separation.

Florida Divorce

I’ve written about no-fault divorces before. Historically in Florida, in order to obtain a divorce one had to prove the existence of legal grounds such as adultery.

This 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.

Divorce Law Change

As with many sets of statistics in Italy, there was a marked difference between the north and south of the country. There were more than twice as many separations recorded in the north in 2020, with 450 per thousand couples in the north, and 200 in southern Italy.

Italy, where more than 80 percent of people describe themselves as Catholic, has long had one of Europe’s lowest divorce rates, with only Ireland, Slovenia, and Malta reporting lower figures.

Divorce numbers in the country however surged in 2015 after the enactment of legislation making it easier and quicker to end failed marriages.

The 2015, “fast divorce law”, which the lower house approved with an overwhelming vote of 398 for and 28 against, cuts the time Italians have to wait for a divorce to six months in uncontested cases and a year in contested ones.

Several Italian studies have confirmed that the pandemic and subsequent economic crisis is having a major impact on families, with national statistics agency Istat finding that Italy’s already record-low birth rate was plunging even further due to “the climate of fear and uncertainty and the growing difficulties linked to employment and income generated by recent events.”

The Local Italian article is here.

90-Day Fiancé and International Child Custody

Posted by Ron Kauffman on

A 90 Day Fiancé star, Jihoon Lee, may soon become involved in an international child custody case after his estranged wife moved from South Korea to Utah with their son and a child from another relationship.

International Child Custody

Seoul to Soul

According to reports, Jihoon hasn’t reached out to estranged wife, Deavan Clegg in months amid their divorce, an insider exclusively reveals to In Touch.

“Things are very messy with the divorce right now. The papers have been filed, but Jihoon is currently on the run from trying to be served them,” the source continues. “Deavan’s lawyer is taking every step possible to make sure he is served and the divorce can be finalized soon so she can officially move on from their relationship.”

Jihoon is not taking his son’s removal to the United States well:

Being alone is so painful. I miss [my son] so much and I want to hug him. I felt broken without [my son] after not being together for a year. But now another man is pretending to be [my son’s] father and my wife’s husband. On paper, Deavan and I are still married.

While there has not been a report of a court action to return any child to South Korea, what are the remedies available if he wanted to do something about returning his child to South Korea?

Florida and International Child Abduction

I’ve written about international child custody cases under the Hague Convention and the UCCJEA before. The UCCJEA and the Hague Convention are similar. The Hague Convention seeks to deter abducting parents by depriving the abducting 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.

However, many countries, unlike South Korea and the United States, are either not signatories or treaty partners with us in the Hague Convention. Fortunately, when a country is not a signatory country, the UCCJEA may provide relief.

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 Utah. The ultimate determining factor in a Utah case then, is what is the “home state” of the child.

90-Day Divorce?

Jihoon, 31, confirmed the separation from Deavan, 24, in August while their story line on season 2 of 90 Day Fiancé: The Other Way was still playing out on TV. Deavan then confirmed she moved back to America from the former couple’s marital home in South Korea with their son and her daughter from a previous relationship.

Since Deavan left Jihoon in South Korea, the couple have not been in communication. He reportedly blocked Deavan for five months now so it’s been hard to get a hold of him or even reached out to their son since he’s been back in America, so it’s nice to see Topher step in as a father figure.

Jihoon previously spoke out against Deavan’s claims, defending himself and explaining the reason why he blocked the mother of his son on all platforms.

“The reality is terrible. I know all this s–t. Like he’s going to have a new father. Do you know how it feels? My heart is always breaking. It happened without my knowledge,” Jihoon wrote in a statement via Instagram on September 3, revealing Deavan had not yet filed for divorce at the time. “And I don’t want to get involved in their lives. So I blocked them all. So extreme. But that’s how I organize my mind-set. I will never forget my son and love him forever.”

The In Touch article is here.

 

Canada, COVID, Custody, and Class

Posted by Ron Kauffman on

The COVID pandemic resulted in a recent child custody case from Canada, which decided between in-person class or remote, online education. The family judge in Ontario found the father in contempt for registering their daughter for in-person class, but then the order took a surprising turn.

Covid Education

Learning the Hard Way

In the Canadian custody case over COVID and classroom learning, the parties lived together from 2009 to 2014, and had a nine-year-old daughter. After their separation, the child timeshared between parents on a week on/week off basis. The parents shared joint custody and equal parenting time.

Importantly, their custody decree also stated that both parties had to agree to a decision concerning the child’s education, and if they disagreed, they would go through mediation before initiating litigation.

Last March, the COVID-19 pandemic impacted in-person education at schools. From July to August, the parties exchanged emails discussing what they should do about the child’s education when the elementary school reopened in September.

The father wanted the child to attend school in person and to take the school bus, while the mother objected. Despite the mother’s opposition, the father registered the child for in-person education and arranged for the child to be transported by bus during his weeks.

The mother asked the court to order their child attend school remotely from home through online learning and that the father be found liable for contempt of court due to his act of unilaterally registering the child for in-person education in violation of the order. The father in turn asked the court to order that the child attend school in person and use the school bus for transportation.

Florida COVID Custody and Class

I’ve written about the custody and education before. In Florida, shared parental responsibility is the preferred relationship between parents. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

Issues relating to a child’s education are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court. At the trial, the test applied is the best interests of the child.

Determining the best interests of a child is based on an evaluation of statutory factors, and one equitable catch-all factor, affecting the welfare and interests of the child and the circumstances of the child’s family.

The statute authorizes one parent to have ultimate responsibility for certain decisions. For example, education is an area of ultimate responsibility a court can award. When a decision on education goes to trial, the court grants one parent ultimate responsibility to make that decision.

Oh Canada!

The Ontario Superior Court of Justice ruled that it was in the child’s best interests to attend the elementary school’s French Immersion Program in person and to be permitted to take the bus for transportation between her father’s house and the school.

“In my view, if schools are open, children should attend unless there is an unacceptable risk to either the child or a member of their household that is created by the fact the child attends the school and may contract the virus,” wrote Justice Mark Shelston for the Superior Court.

Justice Shelston considered a number of factors presented by the parties in determining the child’s best interests. For instance, a doctor’s report indicated that the child was at risk for psychosocial and school difficulties. The doctor recommended that the child have an individual educational plan that would support her needs.

Justice Shelston noted that this plan required the child’s in-person attendance so that she could work closely with the teachers. The child would also benefit from the French social and linguistic milieu provided by in-person attendance.

Though the mother alleged that members of the immediate and extended family, including the child’s grandparents, suffered from underlying chronic medical conditions – which placed them at a heightened risk for severe illness from COVID-19 – Shelston said that there was no medical evidence to support this allegation. Neither was there evidence that the grandparents lived with the child.

As regards the child riding the school bus, Shelston stated that there was no basis to conclude that the child would be at higher risk of contracting COVID-19 when taking the bus.

Though the father was successful with regard to the school issue, the court ordered him to pay the mother’s costs associated with the motion for contempt. The father was held liable for contempt of court because he had registered the child for in-person education and had made school bus arrangements without the mother’s approval, in breach of the 2017 court order to which both parties had consented.

The Law Times News article is here.

Interstate Divorces and Foreign Judgments

Posted by Ron Kauffman on

Interstate divorces can become a serious constitutional problem when you are enforcing foreign judgments. We recently won an important constitutional victory on appeal after a Florida divorce court refused to enforce a Missouri foreign judgment.

Interstate Divorce

Gateway to a United Country

A couple married in Missouri. Then they asked to borrow money from the Husband’s mother to buy a marital home in Missouri. The mother-in-law agreed to lend them the money for the down payment after the couple agreed to repay her in full.

The couple then asked that the Mother-in-law pay their mortgage payments and lend them even more money to renovate their new home they bought, with the same arrangement that they would repay her from the sale of their previous home.

They didn’t pay back the mother-in-law. Instead, they moved to Florida and defaulted.

The Mother-in-law sued them, and won a final judgment awarding her money from on the unpaid loan in a Missouri Circuit Court.

The parties then filed for divorce in Florida. The mother-in law was concerned her judgment would never be repaid, so she intervened in their divorce as a foreign judgment creditor to enforce her Missouri final judgment.

The Florida divorce court allowed her to intervene and enforce the Missouri judgment, but entered a new divorce final judgment slashing the mother-in-law’s Missouri judgment in half so the couple didn’t have to pay her back what they owed.

The trial court’s actions violated the Full Faith and Credit Clause of the United States Constitution, a constitutional clause which helps make us one country, not 50 independent countries.

Florida Interstate Divorce Issues

I’ve written and spoken about interstate divorce issues before. The typical interstate problems occur in cases in which two parents reside in one state, like Missouri for instance, then one or more of the parents and the children move across state lines to Florida, for instance.

Interstate problems can include enforcing foreign custody orders, enforcing or modifying family support orders (like alimony and child support), or enforcing foreign money judgments.

To help with confusion between different laws in different American states, the Uniform Law Commission is tasked with drafting laws on various subjects that attempt to bring uniformity across American state lines.

With respect to family law, different American states had adopted different approaches to issues related to interstate custody, interstate alimony, and child support. The results were that different states had conflicting resolutions to the same problems.

To seek harmony in this area, the Uniform Law Commission promulgated the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA) and Uniform Interstate Family Support Act (the UIFSA), which Florida and almost all U.S. states passed into law.

A major problem arises when one state’s judgment conflicts with Florida’s public policy. For example, grandparent visitation is an area of law in which Florida does not really recognize a grandparent’s rights, but many other states do.

A few years ago, the Florida Supreme Court the Florida Supreme Court held that Florida is not allowed to elevate its own public policy over the policy behind a sister state’s judgment.

Accordingly, a Florida divorce court cannot refuse to enforce a Missouri judgment for money damages if one happened to be at issue in a Florida divorce. But that’s exactly what happened recently in a divorce court here.

Sunshine State Meets the Show Me State

After the Florida divorce court’s ruling, we asked an appellate court in Florida to reverse what the divorce court had done. On appeal, a panel of judges reviewed the case.

We explained that the Full Faith and Credit Clause of the United States Constitution creates a constitutional duty that U.S. states must honor the laws and judgments of the other sister states.

That is an important aspect of American federalism because it changes the various U.S. states from being independent foreign countries, and making them integral parts of a single nation.

This form of federalism has traditionally meant that one state in the United States may not modify or alter the judgment of a sister state (excluding child support and custody cases which can be modified under very limited circumstances).

In our case, no one disputed the validity of the Missouri judgment. Everyone participated in a full trial on the merits in Missouri. In reversing, the appellate court held that a Florida divorce court was prevented from inquiring into the merits of the cause of action or the logic or consistency of the Missouri court’s decision.

Because the mother-in-law appropriately intervened in the divorce action and asserted her right to enforce the Missouri judgment, the divorce court did not have discretion to alter or reduce the Missouri judgment or it constituted a violation of the Full Faith and Credit Clause of the U.S. Constitution.

The appellate opinion is here.

 

Coffee Grounds for Divorce

Posted by Ron Kauffman on

Coffee used to be grounds for divorce in Turkey after the end of the rule of Sultan Murad IV, who had banned coffee and threw coffee drinkers into the Bosporus. Although Florida is a no-fault state, many people wonder if you still need grounds for divorce.

Coffee Grounds for Divorce

Coffee Talk

Coffee is widely regarded as the second most legally traded commodity after oil in the world today, even though coffee is not technically a commodity since it is fresh produce and its value is directly affected by the length of time it is held.

Coffee, owes its origins as a social beverage to Sufis from Yemen in the 15th century, and then it quickly spread from there throughout the Ottoman Empire. Holding a place of uncertain legality under Islam since its inception, coffee has been alternately banned and blessed depending on the tastes of the ruling government.

During the Ottoman Empire, not even the threat of penalty of death could stop the coffee drinkers of Istanbul. Sultan Murad IV launched his own attack against coffee drinkers as well as tobacco smokers. He brought back the edict about throwing coffee drinkers into the Bosporus and even took it a step further; if he found any soldiers smoking or drinking coffee on the eve of battle, he would execute them or have their limbs.

Coffee was instantly reinstated, along with tobacco use, as soon as this man met his demise. Turkish coffee has been a mainstay of Istanbul ever since to the point where, up until the collapse of the Ottoman Empire, being unable to provide coffee for the household was considered sufficient grounds for a woman to divorce her husband.

Florida No Fault Divorce

The official term for divorce in Florida is “dissolution of marriage”, and you don’t need fault as a ground for divorce. Florida abolished fault as a ground for divorce.

I’ve written about divorce and infidelity issues before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your husband’s allegedly failure to bring home Starbucks, or preferably, Lavazza. 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 hot coffee at each other and prove wrongdoing like adultery or abuse.

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

Another Cup of Joe

A cup of coffee can be more than a beverage–it’s a lifeline. Many people claim that they can’t wake up without their morning cup of coffee, others say that they can’t stop drinking it because caffeine is what keeps them creative.

It is not really known where the history of the coffee begins but there is the world-famous legend about Kaldi, a herdsman from Ethiopia who was the first to discover the effects of the coffee beans. According to the legend, around the year 850 AD Kaldi noticed that whenever his sheep ate the red berries that grew on a particular bush, they became excited and more energetic, to the point that they didn’t sleep at night.

Soon word of the energizing berries spread and caught the interest of the Galla tribe in Ethiopia. They invented a kind of a power bar that was prepared with clarified butter and the berry. It was the food of the warriors and it apparently made them invincible. Energizing bars based on coffee berries are still a common snack in Sidamo and Kaffa.

By the late 15th century coffee had become a common beverage in the Near East, but the Ottoman Turks had mastered the art of it. They prepared the coffee with cinnamon, anise, cardamon, and cloves. And this spicy version is still available in some places in Turkey. It is no wonder that they drink coffee after coffee when they prepare each cup with so much love and attention.

Information about coffee in the Ottoman Empire can be found here.

 

International Child Custody and a Washington Woman in Saudi Arabia

Posted by Ron Kauffman on

In an interesting case involving international child custody and a Washington woman in Saudi Arabia, the woman who previously lost custody of her daughter in Saudi Arabia for being “too western”, is back! She traveled home for Christmas and is trying to stay in Washington state with the child.

International Child Custody

Shifting Sands

I’ve written about the case of Bethany Vierra Alhaidari before. Bethany, a 32-year-old student and yoga teacher, moved to Saudi Arabia to teach at a university in 2011. She divorced her Saudi husband, and sought custody of their four-year-old daughter. But the Saudi court concluded that she would not be a good parent.

“The mother is new to Islam, is a foreigner in this country, and continues to definitively embrace the customs and traditions of her upbringing. We must avoid exposing (the child) to these customs and traditions, especially at this early age.”

She started sleeping with her ex-husband, Ghassan al-Haidari, in a bid to get him to allow her and their daughter to spend Christmas with her family, in Washington state. It worked, but she did not return from the Christmas vacation.

Bethany is now asking a family court in Washington to give her custody of her five-year-old daughter Zaina. She said the custody agreement with her Saudi ex-husband was signed under duress and that she was not given a fair hearing by Saudi courts.

In recent years Saudi Arabia has attempted to shake off its image as one of the most repressive countries in the world for women.

In 2018, the government lifted a long-standing ban on women driving and made changes to the male guardianship system last year, allowing women to apply for passports and travel independently without permission from a man.

However, women continue to face numerous restrictions on their lives, and several women’s rights activists who campaigned for the changes have been detained and put on trial. Some of them are alleged to have been tortured in prison.

Florida and the UCCJEA

I’ve spoken about international child custody cases under the Hague Convention and the UCCJEA before. The UCCJEA and the Hague Convention are similar. The Hague Convention seeks to deter abducting parents by depriving the abducting 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.

However, many countries, like Saudi Arabia, are not signatories or treaty partners with us in the Hague Convention. Fortunately, when a country is not a signatory country, the UCCJEA may provide relief.

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 Washington. The ultimate determining factor in a Washington case then, is what is the “home state” of the child.

Alternatively, Washington could possibly hear the case if Washington was the Home State of the child within 6-months before filing or the children are in Washington and the court has emergency jurisdiction. In Bethany’s case, she is using a rarely used section of the UCCJEA.

A Washington Yogi in King Salman’s Court

Bethany appealed the Saudi ruling last August. But she said that it was ignored and that a Saudi judge forced her to reach a custody agreement. She went back to living with her ex-husband and at Christmas he allowed her to take Zaina to see her grandparents in Washington. They did not return.

She next filed a case with a court in Washington in January that cited a rarely-used clause in the Uniform Child Custody Jurisdiction and Enforcement Act.

Even though Saudi Arabia is not a signatory to the Hague Convention, the UCCJEA requires State courts to recognize and enforce custody determinations made by foreign courts as if they were State courts.

However, a court need not enforce a foreign court order or defer to a foreign court’s jurisdiction if the child-custody law of the foreign country violates fundamental principles of human rights.

The UCCJEA language comes from article 20 of the Hague Convention. The “human rights, or fundamental freedoms defense, is invoked on the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process.

Washington has some experience with this clause. In 2015, a court in Washington ruled that the state should not enforce custody decrees from Egypt because there was “clear and convincing evidence” that Egyptian child custody laws violated fundamental principles of human rights.

Bethany’s husband has asked a Washington family court to enforce the custody agreement registered in Saudi Arabia, saying that his ex-wife was seeking more favorable terms.

Parents don’t get to just move the child to a foreign state and then start a custody case if they don’t like the parenting plan they had in the child’s home state.

The Wall Street Journal article is here.