Tag: International Custody Now Settled

International Divorce and Custody

Posted by Ron Kauffman on

According to the U.S. Census Bureau, international marriages are on the rise. And that means an increase in relationships crossing borders. This has also created a glut of international divorce and custody disputes.

international divorce and custody

If you think that a parent or your partner could take your child out of the state or country, there are a few treaties, laws and statues you should be aware of to help you resolve an international divorce and custody battle in your favor.

International Cases

The Hague Convention on the Civil Aspects of International Child Abduction, also known as the Hague Convention, is an international treaty to help promptly return children wrongfully abducted.

The Hague Convention only applies between countries that have signed the Convention, and its reach is limited to children ages 16 and under.

The Convention’s central operating feature is the return remedy. When a child under the age of 16 has been wrongfully retained, the country to which the child has been brought must order the return of the child unless certain exceptions apply.

The Hague Convention also deters abductions. It does that by eliminating the primary motivation for abducting. Since the goal of the taking parent is to get rights of custody from another country, when a child is wrongfully removed, the other country must order the return of the child forthwith.

Foreign Courts

I’ve written on international divorce and custody before, especially as they relate to child custody issues and The Hague Convention on abduction.

In addition to the Hague Convention, you’ll need to know if there are cultural or religious beliefs that could impact your case. For example, some countries have a preference for granting sole physical custody mothers, and others to fathers.

Interstate Cases

International custody disputes are difficult to navigate, but so are interstate divorce and custody cases: meaning cases between parents living in two different U.S. states.

Generally, when two parents reside in Florida, Florida custody laws will apply. However, when one of the parents and the child move across state lines, you have an interstate custody problem.

To help with conflicts 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, visitation, and time-sharing. 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), which Florida and almost all U.S. states passed into law.

The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child. That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say Florida for this example. The ultimate determining factor in a Florida case then, is what is the “home state” of the child.

The Census fact sheet on international marriage is here.

 

Upcoming Speaking Engagement

Posted by Ron Kauffman on

I will be speaking at the Florida Bar Family Law Section and AAML’s, Marital & Family Law Review Course in Orlando on Friday, January 26th. I will be discussing interstate child custody, interstate family support, and The Hague Convention on international child abductions.

Interstate Custody

Parents move from state to state for various reasons. It is a matter I have often written about . Whether children are moved by parents wrongfully or not, moving creates interstate custody and child support and spousal support problems. The Uniform Child Custody Jurisdiction and Enforcement Act, and The Hague Convention on Child Abduction, can work together in those cases.

International Child Abductions

You should 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 the 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.

Interstate Family Support

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

The UIFSA also controls the issue of enforcement of family support obligations within the United States.

In 1996, Congress passed the Personal Responsibility and Work Opportunity Act, which required all U.S. states adopt UIFSA, or face loss of federal funding for child support enforcement.

Every U.S. state has adopted some version of UIFSA to resolve interstate disputes about support.

Certification Review

It is a privilege to be asked to address interstate custody and international child abductions at the annual Family Law Board Certification Seminar again.

The annual seminar is the largest, and most prestigious advanced family law course in the state. Last year’s audience included over 1,600 attorneys and judges from around the state.

The review course is co-presented by the Family Law Section of The Florida Bar, and the American Academy of Matrimonial Lawyers.

More information is available here.

 

Hague Convention in Japan

Posted by Ron Kauffman on

James Cook wants his 4 kids back. His estranged wife, Hiromi Arimitsu, says they want to stay with her in Japan, and they’ve been fighting in Japanese courts for almost three years. Isn’t The Hague Convention supposed to make international custody cases easier?

Japanese Cooks

If child custody battles are messy and expensive when the parents live in the same city, they’re much worse when they live in different countries, and are fighting over where the children should live.

For three years of their lives, the Cook kids have not had their dad. Kids need their dad, they need both their parents. I can’t describe to you the hell that this has been.

Cook, who studied Japanese in college, and Arimitsu, a Japanese woman who attended a university in Minnesota, lived in the U.S. for almost the whole time they had been together.

Three years ago, Cook agreed that Arimitsu could take their 4 children to Japan for the summer – with a notarized agreement that she would bring them back. When that ended, they agreed that Arimitsu and the kids stay a little longer, while Cook looked for work.

By the end of the year, Cook realized his family wasn’t coming back. The problem: court officers failed to enforce the order, saying the children refused to be returned, and the Osaka High Court nullified the enforcement order under the grave risk of harm defense.

Hague Child Abductions

I have written – and will be speaking later this month – on international custody and child abduction cases under The Hague Convention.

The Hague Convention on the Civil Aspects of International Child Abduction is supposed to provide remedies for a “left-behind” parent, like Mr. Cook, to obtain the wrongfully removed or retained children to the country of their habitual residence.

When a child under 16 who was habitually residing in one signatory country is wrongfully removed to, or retained in, another signatory country, The 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.”

There are defenses though. For example, in the Cook case, the court considered whether there is a grave risk that the children’s return would expose them to physical or psychological harm or otherwise place the child in an intolerable situation.

Outside Japan, the grave risk exception is very narrowly drawn because the exception can swallow the rule, and also, there is a belief that courts in the left behind country can protect children – just as easily as Japan can.

Big in Japan

Many suspect Japan is not really compliant with The Hague. Japan signed the Convention in 2013 – and only because of international pressure.

Under their law, Japan expanded the grave risk exception by making it a mandatory defense. Japan also requires Japanese courts to consider more things when the defense is asserted, such as whether there is “a risk”, as opposed to a grave risk.

Japanese courts also can consider if it’s difficult for parents to care for a child – a factor outside the scope of the Convention – which allows Japanese parents to complain about the challenges of being away from home.

The U.S. has determined that Japan was one of just two “Convention Countries That Have Failed to Comply with One or More of Their Obligations under The Hague Abduction Convention.”

Enforcement is a big problem in Japan. Japan cannot enforce their orders. The law Japan passed to implement The Hague forbids the use of force, and says children must be retrieved from the premises of the parent who has taken them.

According to research, about 3 million children in Japan have lost access to one parent after divorce in the past 20 years – about 150,000 a year.

For now, that leaves James Cook, who has found work with a medical device company, sitting in Minnesota, having no contact with his kids.

The Standard-Examiner article is here.

 

Foreign Custody and Sex Discrimination

Posted by Ron Kauffman on

A recent interstate child custody case from Mali sheds light on sex discrimination in foreign courts. Should an American court honor a foreign court’s custody order if the foreign country favors men over women in custody cases? An Indiana court just answered that question.

A Mother appealed to the Indiana Court of Appeals a trial judge’s refusal to modify a child custody order from the west-African nation of Mali in favor of the Father.

The Mother argued that the trial judge was not required to enforce the Malian court’s order under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) because the order from Mali was the product of laws that violate fundamental human rights.

Indiana, like Florida, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Under the UCCJEA courts must enforce foreign custody decrees if it was issued by the country that was the child’s home state.

Enforcement is especially required if everyone was given notice and opportunity to be heard, and the child custody laws of the foreign country don’t violate fundamental principles of human rights.

The big question was whether Mali child custody laws violate human rights principles as Indiana courts understand them.

Florida and the UCCJEA

I’ve written and spoken many times on international custody involving the UCCJEA and The Hague.

The UCCJEA is a uniform act, and was adopted by all U.S. states except Massachusetts; which still follows the older UCCJA.

The UCCJEA was made to harmonize custody, visitation, timesharing and parental responsibility because different states and countries have different approaches to family law issues.

Florida treats foreign countries as if they were states of the United States for purposes of applying the UCCJEA. So, a child custody order made in a foreign country in substantial conformity with Florida’s UCCJEA must be recognized and enforced here.

However, under the UCCJEA Florida does not need to enforce or recognize the foreign order if the child custody law of a foreign country violates fundamental principles of human rights.

That was the issue the Indiana court had to decide.

The Indiana Case

The Mother and Father are both dual citizens of France and Mali, and divorced in Mali. Both parties asked for custody of the children.

After the trial, but before the Mali court issued an order, the Mother took the children to France, and the Malian court then awarded the Father custody.

The Mother never returned the children, unsuccessfully sought Mali and France then moved to Indiana and filed her case there.

The Indiana court rejected the Mother’s argument under the UCCJEA that the custody laws of Mali violate fundamental human rights because it favors men over women.

The Mother argued that Mali’s divorce law is fault-based, have a preference for men in child custody decisions because under Mali law, the following were tru:

  • The husband owes protection to his wife, the wife obedience to her husband.
  • The husband is deemed the head of the household,
  • The husband has the right to choose the family residence, and the wife must live with him and he must receive her.
  • A woman is prohibited from running a business without her husband’s permission.
  • Mali has failed to outlaw female genital mutilation

However, the Indiana court found that Mali did not actually apply the statutory custody presumption in favor of Father.

Instead the Indiana court found that under Mali law, custody could be awarded to Father or Mother. Additionally, in the Mali case under review, the best interests of the children controlled this decision.

The Female Genital Mutilation Argument

A 1999 United States Agency for International Development funded study in Mali was conducted, and found that 93.7% of women had gone through some form of female genital mutilation, usually when they are young.

The Indiana court rejected the Mother’s argument about Mali’s failure to outlaw female genital mutilation – in part because it noted that the father had condemned the practice.

Under the UCCJEA, while female genital mutilation is itself a human rights violation, Mali’s failure to pass a law specifically prohibiting the practice does not in and of itself constitute a violation of fundamental principles of human rights.

The Indiana Court of Appeals decision is here.

 

International Custody Agreements

Posted by Ron Kauffman on

International custody agreements are made all of the time. Sometimes between parents. Sometimes between countries. And in a few instances, between countries and individual U.S. states. Mexico recently signed an agreement with the state of Utah to update the consulate’s role in assisting parental custody cases for children with Mexican citizenship.

The Utah – Mexico Agreement

As the Deseret News reports, Javier Chagoya, the consul of Mexico in Salt Lake, was joined for a signing ceremony by Ann Williamson, executive director of the Department of Human Services. Williamson lauded the agreement as an important step “to advance our shared commitment to children and families thriving safely in their homes, schools and communities.”

The problem the agreement tries to resolve in the United States is the problem with the separation of family members due to immigration issues. The agreement allows the Mexican consulate to assist Utah’s Division of Child and Family Services to get documentation from Mexico for a child’s application for Special Immigrant Juvenile Status in the United States.

The Special Immigrant Juveniles program is designed to assist foreign children in the U.S. “who have been abused, abandoned, or neglected,” according to information posted online by U.S. Citizenship and Immigration Services.

In that program, undocumented immigrant minors who fall under that category, and who are unable to be assigned to the custody of a parent, relative or qualifying guardian in their home country, can qualify for permanent residency in the United States.

International Custody Agreements

In addition to the Utah-Mexico agreement, there are various laws and statues which can protect you and your children – and possibly help you resolve an international custody battle – quickly and safely.

The Convention on the Civil Aspects of International Child Abduction, also known as The Hague Convention, for instance, is an international treaty to protect children from international abductions by requiring their prompt return to their habitual residence.

Utah, and 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.

In addition to the Utah-Mexico agreement, and international treaties, it is important to understand that various countries can have religious courts which can drive the outcome of your case.

Mexican American Children

The parental custody cases of immigrant children from Mexico are frequently complicated by the fact that their parents have been deported, face deportation or have otherwise relocated back to their home country for a variety of different reasons.

Sometimes it’s best for those children to be placed with other close relatives in Mexico, and other times the most positive outcome for them is to remain in the United States. The agreement helps to avoid the problem of child custody cases languishing in uncertainty.

Under the new agreement, the Department and the Consulate meet once per year to evaluate the cooperation between their staffs, and outlines the duty of case workers to notify the consulate of any child placed in state custody who has at least one parent living in Mexico.

The Deseret News article is here.

 

Big International Custody Case

Posted by admin on

On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, November 2, 2012.

In a big international child child custody case, a court ruled that a child taken by her mother to New York from London may stay in New York, over the objections of the father, and despite the mother and child’s lack of legal immigration status.

In 2009 Ms. Montoya Alvarez and her daughter left London to come to live in New York. On November 10, 2010, the father filed a Petition for Return of Child under Article 2 of the Hague Convention and the International Child Abduction Remedies Act. The father wanted an order that the child be returned to London to have a British court make a custody determination.

The trial court found that the father made a prima facie case of wrongful retention under the Hague Convention. However, the court denied the father’s petition to return the child to London. The mother asserted an affirmative defense under Article 12 of the Hague Convention that the child was “now settled” in New York.

The presumption under the Hague Convention is that a child must be returned to the state from which she originally was wrongfully removed unless: (1) one year has elapsed between the date of wrongful removal and the date proceedings commence; and (2) the child is found to be “now settled in its new environment.”

The father appealed, and argued that the “now settled” defense did not apply because the one-year period in Article 12 should have been tolled until he could have reasonably located his child. He also argued that the child was not settled in New York because the child and mother lacked legal immigration status.

The Second Circuit Court of Appeal held that (1) equitable tolling does not apply to the one-year period in the “now settled” defense and (2) a child’s immigration status should not be given controlling weight in determining whether the child is “now settled.”

The case makes it harder for foreign parents to win an international custody dispute. The Second Circuit’s Lozano v. Alvarez opinion can be read here.