Tag: International Child Custody

Interstate Custody

Posted by Ron Kauffman on

According to the U.S. Census Bureau, international marriages are rising. Child custody issues are complex under normal circumstances. If the parents move to different countries, those interstate custody problems can multiply.

The U.S. Census Bureau report on the increase in international marriages is not really a surprise given our increasingly mobile and global society. The uptick in cross-border relationships has also led to an increase in international child custody disputes.

International & Interstate Custody

I’ve written about international and interstate custody cases before. You may find yourself in this situation right now, or you fear that your ex partner or soon to be ex could take your children out of the country against your will.

There are various laws and statues you should know about which can protect you and your children, and possibly help you resolve an international custody battle quickly and safely.

Consult a family law attorney with experience resolving international child custody cases. He or she will be able to represent your interests across international borders and help to ensure fair and timely court proceedings.

In some cases, an experienced attorney can also help determine where your ex currently lives and proactively negotiate to secure the prompt, voluntary, and safe return of your children.

The Hague Convention

Become familiar with the Convention on the Civil Aspects of International Child Abduction, also known as the Hague Convention. This international treaty exists to protect children from international abductions by requiring their prompt return to their habitual residence.

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

If your ex has taken your children out of the country against your will, the Hague Convention can help you get them back as it is best used as a “return mechanism” to take wrongfully abducted or retained children.

Uniform Child Abduction Prevention Act

Most U.S. states, including Florida, have adopted the UCAPA. The UCAPA offers protections to parents who are concerned about the possibility of custody-related parental abduction. If you already have a child custody order in place, or you have a custody hearing coming up, you may be able to file a petition under the UCAPA to address your specific concerns.

There are several risk factors that you should be aware of to determine if there should be put in place prevention measures for abduction. Prevention measures can include things like: orders not to remove a child from the court’s jurisdiction and the ability to require a bond or other security as a deterrent to abduction.

Foreign Courts

In addition to the local and international treaties and laws, it is important to understand the cultural and/or religious beliefs that could impact your case. Countries can have religious courts, and customs, which can drive the outcome of your case.

For example, some international jurisdictions may have a preference for granting sole physical custody mothers. However, judges in other countries are required to always grant custody to fathers. Knowing about these issues up front can help you more effectively prepare for your case.

Florida law currently provides some preventative measures to deter domestic and international child abductions once a custody proceeding has begun, or there is a court order regarding custody or visitation.

The U.S. Census article is here.

 

Scarlett Johansson’s Divorce & Interstate Custody

Posted by Ron Kauffman on

Scarlett Johansson filed for divorce in New York this week, and is asking for custody of their daughter. Her husband, Romain Dauriac, also wants custody, but lives in France. This creates an interstate custody issue.

For many reasons, a new job, a new love interest, family, it is common for parents to move after separating. If they have children, they want to bring them too. If they want to live out of state or the country, that makes it an interstate custody case.

The Interstate Custody Problem

According to US Weekly, Scarlett’s husband Romain plans to fight for custody of their daughter, which could set up an ugly court battle. He’s French and his attorney states his client plans to move back to France:

He would like to move to France with his daughter and Ms. Johansson does a lot of traveling, it will be an interesting process.

I’ve written about interstate custody issues, and recently spoke on the subject. So, what laws govern, and where could Romain file for divorce and custody?

Interstate Custody Laws

Several laws govern where to file your interstate custody case. In a recent New York case, an appellate court had to reconcile two laws governing interstate custody: the UCCJEA and Hague Convention.

In the New York case, a husband, wife and child moved from Canada to New York. After about five months in New York, the mother took the child back to Canada without the father’s consent and she promptly filed for custody there.

The father filed his own custody action in New York, applied for the return of the child under the Hague Convention, and instituted a Hague Convention case in Canada.

The Canadian court ruled that the child had been “habitually resident” in New York on the day that she was taken back to Canada, and ordered that the mother return the child to New York.

The mother brought the child back to New York but asked New York to dismiss the New York case because New York was not the “home state” of the child under the UCCJEA.

The “home state” is generally defined under the UCCJEA as “the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding.

The mother claimed that the child had been in New York for only five months before being taken back to Canada.

The New York court determined that the Mother’s stay in Canada was only a “period of temporary absence”, and added it to the prior five months to constitute the required six-month period.

Additionally, the New York court noted that even if the six-month rule had not been satisfied, New York had initial custody jurisdiction because Canada declined the case.

The US Magazine article on the Scarlett Johansson divorce can be found here.

Madonna and Interstate Custody

Posted by Ron Kauffman on

Madonna is locked in an interstate custody battle over her son, who is refusing to leave his father’s home in London, and return to her home in New York City. Sadly, these disputes happen more frequently as people become increasingly mobile.

Madonna’s interstate custody case is interesting on several levels, because it involves domestic (meaning American) family law and international family law issues.

The complex nature of the issues are why I have previously written about the education problems in Madonna’s interstate custody disputes.

Madonna and Guy Ritchie were divorced in 2008. They have a son together. A New York court judge ordered the son to return to Madonna in New York. The 15-year-old has been living with his father at his London home.

So, what happens if Guy ignores the New York court order? Madonna may be able to rely on various international and American statutes to help resolve their interstate custody dispute.

The Uniform Child Custody Jurisdiction and Enforcement Act

American courts are governed by the UCCJEA, a state law every U.S. State has adopted except for Massachusetts. The UCCJEA generally provides the basis for determining which state’s court should resolve custody disputes, and also governs the enforcement of other states’ custody and parenting time orders.

The UCCJEA sets out the rules for which state can establish a new custody order, enforce your rights under an existing order, or modify the terms of another state’s child custody decree. The UCCJEA also has rules for determining when a state can take Emergency Jurisdiction over an interstate custody case.

The Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty the U.S. turned into a U.S. federal law. The Hague Convention provides remedies for a “left-behind” parent, like Madonna.

By filing a Hague petition for return in another signatory country, a left behind parent may be able to obtain the return of a wrongfully removed child to the country of the child’s habitual residence.

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.”

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

The Huffington Post article is here.

International Child Abduction & The Hague

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in International Child Custody on Friday, October 7, 2016.

A New Yorker is raising awareness to a growing issue of International Child Abduction. It happens when a child is wrongfully taken and held in another country. Unfortunately, it’s not uncommon.

According to Channel 10 news in New York, Corey McKeighan shares custody of his son with his mother who is from Russia. What was supposed to be a mother and son three week trip to her country, has McKeighan worried he will never get his son back.

McKeighan’s ex-wife agreed to return on September 16th. “The day before they were supposed to return, she had called me and said, ‘We’re not coming back and you’ll never see us again.'”

In a panic, McKeighan contacted the U.S. State Department, FBI, and congressional leaders. They are working with the foreign government to resolve this case that they say is international child abduction.

In Russia, it is difficult because Russia and the United States are not in a treaty relationship. However, Russia and the United States are signatories to the Hague Convention.

A U.S. State Department official says:

“We are aware of the reports regarding an international parental child abduction case. Due to privacy considerations, we decline to provide additional details.

I’ve written about the topic of custody before. The Hague Convention on the Civil Aspects of International Child Abduction provides remedies for a “left-behind” parent, like Mr. McKeighan, to obtain the wrongfully removed or retained child to the country of his habitual residence.

The 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.”

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:

a) 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

b) 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 news 10 article can be found here. 

Your Foreign Custody Order is not Enforceable Here

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Tuesday, November 3, 2015.

A Pennsylvania court refused to follow or recognize a foreign country’s custody order, instead allowing one of its courts to change custody. Are international child custody orders valid here?

The case of H.L.K. v. F.A.A. involved dual citizenships: the Mother was a U.S. citizen and the Father Saudi Arabian. They married in Pennsylvania in 1994, and moved to Saudi Arabia.

Three children were born, and all were dual citizens. In 2008, the Mother moved back to Pennsylvania, and filed for divorce. Before a court could enter the divorce, she reconciled, moved back to Saudi Arabia, and in 2012 divorced there.

Immediately following the divorce, the Mother was forced to leave Saudi Arabia without the children because she was no longer sponsored by the Father, and because of Saudi guardianship laws.

In June 2013, the Father let the children visit Pennsylvania for summer timesharing. The Mother kept them, and sued for custody in Pennsylvania. At the same time, the Father sued in a Saudi court, which awarded him sole custody of the children.

The Father then tried to have his Saudi custody order recognized in Pennsylvania to enforce it. The Mother objected. The Pennsylvania court sided with the Mother, and refused to enforce it.

Why? The Saudi Order states, in part:

First, the non-Muslim shall not have right of custody of a Muslim.

Second, custody of each girl who attains the seventh year of age is with her father.

Third, if either parent desires to live in a remote country, priority for child custody shall go to the father whether the traveler is the father or mother.

Fourth, the female after attaining seventh year of age shall have no choice and she should stay with her father till marriage . . . the father is often more careful in protecting his daughter.

The Pennsylvania court found the Saudi judgment (especially the highlighted portions) violated state public policy, and refused to register it under principles of comity.

Foreign laws are increasingly being challenged in the U.S. For example, Islamic and American laws sometimes clash as you could probably guess fromt he bolded language in the Saudi order.

I’ve written about the intersection of Family law and Islamic law before. In 2014, Florida passed a law which prohibits our state courts from basing a decision on a foreign law that does not grant the parties the same rights guaranteed by the Florida or U.S. Constitutions.

The opinion is available here. Thanks to the Volokh Conspiracy for its analysis.

The U.S. Supreme Court Decides The Chafin Custody Case

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Wednesday, February 20, 2013.

Child custody cases are governed by the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The Hague Convention is a treaty signed by 89 members. It protects children from abduction across international lines by providing a procedure to quickly return them. But after the child has been returned, how does a parent appeal if they think the trial court got it wrong?

In Chafin, the question was whether the case is moot after the child has been returned to their country of habitual residence. Ms. Chafin returned to Scotland with the child after a federal trial judge allowed it. Sgt. Chafin appealed the order. The 11th Circuit Court of Appeals in Atlanta dismissed his appeal as moot. The 11th Circuit is also the federal appeals court governing Florida.

Yesterday, the U.S. Supreme Court vacated the 11th Circuit court. In an opinion by Chief Justice John Roberts Jr. the Supreme Court held:

If these cases were to become moot upon return, courts would be more likely to grant stays as a matter of course, to prevent the loss of any right to appeal. In cases in which a stay would not be granted . . . a child would lose precious months when she could have been readjusting to life in her country of habitual residence, even though the appeal had little chance of success. Such routine stays due to mootness would be likely but would conflict with the Convention’s mandate of prompt return to a child’s country of habitual residence. Routine stays could also increase the number of appeals. Currently, only about 15% of Hague Convention cases are appealed.

If losing parents were effectively guaranteed a stay, it seems likely that more would appeal, a scenario that would undermine the goal of prompt return and the best interests of children who should in fact be returned. A mootness holding here might also encourage flight in future Hague Convention cases, as prevailing parents try to flee the jurisdiction to moot the case. In every case under the Hague Convention, the well-being of a child is at stake; application of the traditional stay factors ensures that each case will receive the individualized treatment necessary for appropriate consideration of the child’s best interests.

The whole opinion can be read here.