Tag: International Child Custody

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.