Tag: International Divorce

Divorce and Infidelity in Congress

Posted by Ron Kauffman on

Rep. Ilhan Omar is divorcing her husband. The Minnesota Democrat filed for divorce from Ahmed Hirsi last week. This news follows earlier reports that the Representative’s political consultant is facing his own divorce because of his infidelity with Rep. Omar.

Sex and No Fault Divorce

The Candidate

Omar and Hirsi became engaged in 2002 but never legally married. The pair had two children together before separating in 2008. Omar married Ahmed Nur Said Elmi in 2009 and later said the two obtained a divorce in their Muslim faith tradition — albeit not a legal one — in 2011.

Beth Mynett, wife of Omar’s political consultant, alleged in court documents that her husband, Tim Mynett, confessed his “devastating and shocking declaration of love” for Omar this past April, which led to the divorce.

Tim Mynett’s company, the political consulting firm E Street Group, has worked with Omar’s campaign. Federal campaign finance records show that Omar’s campaign paid Tim Mynett $7,000 in July 2018 and E Street Group roughly $222,000 from 2018 to 2019.

The E Street Group and lawyers issue a statement saying “E Street Group does not comment on the personal life of either our staff or clients. As with all marriages, this is intensely personal and a difficult time for their family.

Florida Divorce and Infidelity

I’ve written about the impact of cheating and divorce before. In practical terms, adultery as a crime poses very little threat of prosecution, but it could have other consequences.

Cheating on your spouse can even be grounds for losing your job. This is particularly true in the military, where adultery has a maximum punishment of a dishonorable discharge.

Chapter 61 discusses the “the moral fitness of the parents” as one of the factors the court considers in determining the best interests of a child. Adultery may impact the division of property. Proof that one spouse intentionally wasted marital assets could be seen as dissipation of assets. Adultery of either spouse could be a factor in determining the amount of alimony, if any, to be awarded.

There are times when evidence of adultery comes into evidence. Most often it doesn’t. In 2003, the U.S. Supreme Court ruled in Lawrence v. Texas that sexual activity between consenting adults is legal.

Ms. Omar Goes to Washington

Omar and Hirsi reconciled after that and had a third child together in 2012. The lawmaker officially filed to divorce Elmi in 2017, and legally married Hirsi in 2018.

Earlier this year, a Minnesota campaign finance board’s investigation found that the 38-year-old freshman congresswoman and Hirsi filed joint tax returns in 2014 and 2015, while she was still legally married to Elmi.

“For years, Ilhan and Ahmed have been the object of speculation and innuendo from political opponents and the media. This has taken a significant toll on Ilhan, Ahmed, and their three children.”

The divorce documents allege there has been an irretrievable breakdown of the marriage relationship. Omar said neither partner is seeking an order of protection and she asks the court to grant them “joint legal and physical custody” of their three minor children. She also asked the court to determine child support to “serve the minor children’s best interest” and award the “marital property” as the court “may deem just and equitable.”

The Hill article is here.

 

The Great Chinese Divorce Fraud

Posted by Ron Kauffman on

Divorce rates are rising in China for many reasons, but one recently uncovered reason is found in a family which divorced 23-times in one month! The new Chinese divorce fraud is the hot ploy to avoid Chinese property laws and make money.

Chinese Divorce Fraud

23rd Time is a Charm

Unlike older generations who may have settled for an unhappy marriage, divorce is no longer socially taboo in China. That may have led to one family in the city of Lishui to take the new divorce fraud to extreme lengths, churning through 23 divorces and weddings in a month.

Divorce is becoming simpler in China. Couples can either register a divorce with the civil affairs authority, indicating they have agreed to go their separate ways, or they can sue for divorce through the courts, which can rule on custody of children and how to dispose of any assets.

In the first six months of this year, 1.85 million couples registered for divorce with the civil affairs authority alone, an increase of more than 10 per cent compared with the same period last year. Three decades ago, in 1986, 460,000 couples registered their divorces with the civil affairs authority. By 2016, that annual number had risen to 4.15 million.

However, the Lishui family was not divorcing for typical reasons. The Chinese government has limited each household to a maximum of two apartments. Other notable policies allow potential home buyers who don’t already own property to make much lower down payments as well as enjoy lower tax and mortgage rates.

The new divorce fraud was aimed at getting more money from the government and developers when the Lishui family house was demolished for a new development. Under the system, each member of the household would be entitled to 40 square meters of space in the new development.

In China though, the preponderance of fake divorces in any given city may indicate the failure of real estate policy at the local level.

Florida Divorce

I’ve written about no fault divorce before. No-fault laws are the result of trying to change the way divorces played out in court. In Florida 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.

Florida abolished fault as grounds for filing a divorce. Gone are the days when you had to prove adultery, desertion or unreasonable behavior as in England.

The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.” Additionally, the mental incapacity of one of the parties, where the party was adjudged incapacitated for the prior three year, is another avenue.

The Great Fraud of China

It all started with Mr. Pan, who lived in the house, remarrying his ex-wife, and allowing her to qualify for the compensation plan. Two weeks later, he divorced her and married his sister-in-law, adding her to the plan. On it went, with each new family member enlarging the amount of space to be awarded as compensation, until government authorities discovered the house suddenly was home to 13 people, and promptly arrested 11 of them.

While it’s an extreme case in property-obsessed China – where would-be home buyers have to navigate a shifting array of property curbs – it’s probably more understandable given home prices in Lishui have surged as much as 31% in the past two years.

According to the compensation policy, people living in the village slated for renovation — even those who were not property owners — would be given minimum compensation of one 40-square-meter apartment as long as their household registration, or hukou, had been filed within the village by April 10.

When interrogated by police, Pan’s father — who had been party to the sham marriages and divorces himself — said he had assumed the family’s actions were legitimate since they had not violated China’s marriage law. “In doing this, we were just trying to get more compensation.”

According to the chief marriage lawyer at Beijing Yingke Law Firm:

Just because a person is following one law doesn’t mean they’re not breaking another. The family used a legal avenue to achieve an illegal end. The marriage law doesn’t forbid marriages and divorces — but in this case, the family used marriages and divorces as a means of committing fraud. While they didn’t violate the marriage law, they acted against the criminal law.

In April of this year, home buying policies in select urban areas were further tightened. Now, regardless of whether a divorced person is buying their first or second property, banks will evaluate them based on both their property ownership status and mortgage records — meaning even if they have no property registered in their name, an apartment they’re hoping to purchase can still be considered a second home, subject to a higher down payment and mortgage rate, if they have made previous mortgage payments.

The Bloomberg article is here.

 

An American learns about Divorce and Housing in Saudi Arabia

Posted by Ron Kauffman on

An American nurse involved in a long divorce battle in Saudi Arabia, and claims authorities have consistently discriminated against her because she is a foreign woman, is getting a quick lesson on who pays for temporary housing costs in the desert kingdom.

Divorce Housing Costs

Shifting Sands

Teresa Malof, 51, says she has been mistreated in her attempts to divorce her ex-husband Mazen al-Mubarak, the father to her three children. Malof, who is originally from Cincinnati, Ohio, married al-Mubarak in 2000 and filed for divorce in 2015. While the divorce was approved, the settlement is now bogged down in the courts and entering its fifth year.

al-Mubarak, the son of Saudi Arabia’s former ambassador to Qatar, has used his wife’s unfamiliarity with the Saudi legal system and inability to speak Arabic to turn the tables against her, she told Insider.

The most obvious injustice, in Malof’s view, is that al-Mubarak lived alone in a house in Riyadh for many years, for which she paid the mortgage of $2,831 a month for years while he lived in it alone.

According to Insider, which has reviewed official Saudi court documents, the court documents confirm that she launched legal proceedings to evict her ex-husband, made payments for the house while he lived there, and that she submitted formal complaints about the judge’s conduct.

It came to a head in August 2018 when she broke into her house and changed the locks while al-Mubarak was abroad, she said. Malof claimed that recently the judge in her case abruptly annulled her divorce, making her technically married again. Malof contends that the judge did not have the power to do this.

“I just want it to be finished,” Malof told Insider. “Foreign women are discriminated against here in the courts.”

The US Embassy in Riyadh confirmed to Insider that it was assisting Malof. US Embassy press attaché Peter Brown said: “We are aware of the case and providing appropriate consular services. Due to pending legal proceedings, we have nothing further to share.”

Florida Divorce Housing Costs

I’ve written about the marital house during a divorce before. In a dissolution of marriage, temporary alimony can be awarded so that the home mortgage is paid for. Each party’s sources of income and ability to pay are factors to be considered in determining whether alimony is appropriate, and if so, in what amounts.

There are a few other issues when it comes to housing in divorce:

Children’s Issues

Until a divorce parenting plan in place, if you are interested in maintaining a meaningful relationship in your child’s life, leaving the home before a timesharing agreement is entered may show a lack of real interest in the child’s daily life.

Moving out can create the appearance of a new ‘primary residential parent’ by default. Worse, if the process takes a long time, it creates a new status quo.

Cost

The person leaving during a divorce may still have to contribute for the expenses of the home while also paying for a new home. It can be costly, and prohibitive expensive when you know that the process will take a long time.

Settlement

Staying in the same home could create an incentive to negotiate a final settlement because living with your soon to be ex-spouse is very uncomfortable. However, if someone moves out, the person remaining in the home is sitting pretty and may be less inclined to settle.

Fold Up the Tent?

Malof told Insider that her house, in the al-Khozama district of Riyadh, was part of the agreement when the two split. She said al-Mubarak agreed to pay for $183,000 for it, but has yet to produce the money. Malof has been prevented from selling the house by the judge’s decision to freeze the deed at the request of al-Mubarak. Malof has compiled a wide-ranging list of grievances against the court.

She claims that the judge has held court hearings without her knowledge, has omitted evidence from court minutes, has refused to give her an interpreter, credited her with making statements that she never uttered, and has met with al-Mubarak separately behind closed doors.

Malof says she was not informed of hearings on April 11, June 25, and September 5 last year. The last of these, she says, was the one where the judge froze the deed on her house, blocking her from selling it. Malof told Insider that the judge “has put several times in the minutes that there is an ‘agreement’ between me and al-Mubarak and the house is shared, which is not true.” Minutes are the formal legal record of how a case is progressing.

The case follows that of Bethany Vierra, a US citizen who became trapped in Saudi Arabia by the Kingdom’s guardianship laws in March, and later lost custody of her child when her ex-husband used images of her in a bikini to show she was unfit to parent.

Malof’s and Vierra’s stories highlight the reality for non-Saudis under their legal system, which is based on the Qur’an, which contains God’s revelations to the Prophet Muhammad, and the Sunnah, the traditions of the Prophet Muhammad.

In some cases, evidence submitted to court is invalid unless witnessed by two Muslim men.

Malof was given an attorney by the Saudi government’s Human Rights Commission at first, but has now hired her own, Hazim al-Madani. “I have lived in this country for more than twenty years” she told Insider. “Going public and talking badly about Saudi Arabia has never been my goal. However, what choice do I have?”

The Insider article is here.

 

Western Women in Arabia and Child Custody

Posted by Ron Kauffman on

An American mother just lost custody of her daughter because a Saudi judge ruled she was too Western to raise the child. Her own parents now worry they will lose both grand-daughter and daughter. An interesting case about Western Women in Arabia dealing with child custody is bubbling up in Arabia.

western woman arabia custody

Thicker than Oil

Bethany, a 32-year-old student and yoga teacher, moved to Saudi Arabia to teach at a university in 2011. She recently divorced her Saudi husband, and sought custody of their four-year-old daughter. Recently, the Saudi court concluded that she would not be a good parent.

The judge ruled in his denial of the mother’s custody of her daughter:

“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.”

In statements submitted to the court, counsel for the ex-husband used her social media postings as evidence of an allegedly un-Islamic lifestyle.

In translated court documents, a summary of accusations against her includes the fact that she had gone to US festival Burning Man, which is characterized as “the world’s strangest festival” where attendees “appear in crazy clothes and stay awake all night dancing and surrounded by people wearing only shoes made of fur, or drinking drugs (sic) or cold drinks.”

According to the judge’s notes, counsel for her ex-husband also accused her of maintaining social media channels “full of nudity, intermingling of the two sexes and a lot of things and actions contrary to our religion and customs and traditions.”

In court, Bethany countered that her ex-husband was actually the unfit parent, alleging that he was verbally abusive and used drugs. “There was drug use and that became an issue,” her mother told CNN. Her ex-husband has denied the accusations, and did not respond to requests for comment from CNN.

Florida Child Custody

I’ve written about child custody issues before. In Florida, the prevailing standard for determining “custody” is a concept call shared parental responsibility, or sole parental responsibility.

Generally, shared parental responsibility is a relationship ordered by a court in which both parents retain their full parental rights and responsibilities. Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their child.

In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

At the trial, the test applied is the best interests of the child. Determining the best interests of a child is no longer entirely subjective. Instead, the decision is based on an evaluation of certain factors affecting the welfare and interests of the child and the circumstances of the child’s family.

While social media evidence can be useful in determining some of the factors in the statute, being “new to Islam” and “embracing the customs and traditions” of a parent’s upbringing are not factors a court in Florida would consider unless harm to the child can be shown.

Oil Well that Ends Well?

The judge ultimately granted custody of Zaina to her Saudi grandmother, who lives with Zaina’s father.

“The fact that the father is residing with his mother is likely a temporary situation. Knowing that it is in men’s nature not to stay at home and not to honor/fulfill parental role themselves.”

Bethany was given until this Sunday to appeal the judge’s custody ruling, and for now, the child remains with her. But her parents tell CNN that there is a warrant out for her arrest after she missed a child visitation from her ex-husband– a visitation her parents say she didn’t know about.

They also say that Bethany has been banned from leaving Saudi Arabia for the next 10 years, though they were not able to provide further detail on the reason.

She wants to have the rights to go and come. She used to have that right says Bethany’s father. He says a judge also warned his daughter not to talk to the media.

Shifting Sands

Saudi Arabia has taken tentative steps towards the emancipation of women in recent years.

In 2012 Saudi women were allowed to compete at the Olympic Games for the first time. In 2015, women were allowed to vote in local elections for the first time. And recently, after a sustained campaign, women were allowed to drive.

At the end of this month, women will be allowed to hold a passport without needing permission of a male “guardian.” Nevertheless, the controversial guardianship system remains largely intact.

“A woman, from birth to death, must have a male guardian. The idea is that they are not capable and that men know better.”

Women still need a male guardian’s permission before having elective surgery, for example. And critically for Bethany, by Saudi law, a woman’s testimony is worth only half that of a man’s.

“Speaking generally, the U.S. Department of State and our embassies and consulates abroad have no greater responsibility than the protection of U.S. citizens overseas. US citizens abroad are subject to local laws,” the official added.

Bethany is now racing to collect all the necessary documents to appeal the custody ruling before the window closes this Sunday.

The CNN article is here.

 

Mixing Religion and Divorce

Posted by Ron Kauffman on

Afreen Rehman, a woman living in India, was recovering from an accident when her husband sent her family a letter with the word “talaq” written three times. Their marriage was over under an Islamic practice which India just banned. Rehman’s case proves mixing religion and divorce has its detractors . . . and its fans.

religion and divorce

Your Fast, Low-Cost Divorce

Rehman’s husband relied on an Islamic law that allows a husband to annul a marriage by uttering the word talaq—Arabic for “divorce”—three times. The practice is commonly known as “triple talaq,” or instant divorce.

India’s Parliament passed a bill to criminalize the triple talaq. A man who imposes an instant divorce on his wife faces up to three years in prison. Not surprisingly, women’s-rights activists, Islamic groups, and different political parties are divided on the issue.

Many Muslim women’s groups have demanded the change, saying that the tradition of instant divorce is detrimental to them. But conservative Islamic organizations say the government has no business getting involved in a religious practice. Others acknowledge the change is needed, but say that it comes at a time when Hindu nationalism is the dominant political movement in India.

Instant divorce is not mentioned in the Koran, which says that a couple chooses separation once they have made all possible efforts to resolve their differences. The custom is attributed to the hadith – the record of the traditions and sayings of Prophet Muhammad – which is held in high regard by Muslims.

After the bill’s passage, Indian Prime Minister Narendra Modi tweeted: “Parliament abolishes Triple Talaq and corrects a historic wrong done to Muslim women.”

Florida Mixing Religion and Divorce

I’ve written about the intersection of religion and divorce before. Religion, religious beliefs, and religious practices are not specific statutory factors in determining parental responsibility.

Nor are religion and religious practices areas in which a parent may be granted ultimate responsibility. Instead, the weight religion plays in custody disputes incubated over time in various cases.

For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, the best interest of the child shall be the primary consideration.

In Florida, a determination of the best interests of the child is made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family.

Clear as Tikka Masala

Rehmen’s case is not unique. There have been reported cases of Muslim men, such as Rehman’s husband, carrying out instant divorce through letters, text messages, emails, and WhatsApp messages — without providing alimony or financial support.

The government maintains that Muslim women are vulnerable both socially and financially because of an absence of reforms in the Muslim community. There is no official data on the prevalence of instant divorce in India.

But the passage of the Indian law also raises questions about whether the government should involve itself in what is essentially Muslim personal law. At issue is mixing religion and divorce. To account for a diverse population of different faiths, India’s constitution allows every religious group to formulate personal laws.

A Hindu would be allowed to follow Hindu rules for marriage; same for Christians, and a Muslim’s divorce comes under the purview of Muslim personal law.

The number of separated and abandoned women in India, at 2.3mm, is twice the number of divorced women. If the government were serious about women’s rights, some argue, it would introduce reforms across communities, rather than focusing on one religious practice pertaining to Muslims.

Opposition parties, as well as human-rights advocates, have condemned the practice of instant divorce, but say the ban feeds into the perceived marginalization of Muslims who feel threatened by recent attacks by Hindu vigilantes.

Some believe the legislation is a step toward replacing personal laws with a uniform civil code that would encompass all Indian citizens, irrespective of faith and also claim:

The bill takes away a chance at any reconciliation. Any man jailed because of the wife’s complaint will never opt for reconciliation. The bill leaves women penniless, children practically orphaned. If the man [is] imprisoned, how will he provide maintenance to his wife? The bill amounts to a state coercion.

The Atlantic article is here.

 

Is Divorce Rotten in the State of Denmark?

Posted by Ron Kauffman on

Bucking the trend, Denmark is turning back the clock on divorce by making it less-easy. That may be because Denmark currently has the highest divorce rate in Europe. In our country’s attempts to make divorce less acrimonious and easier on children, have we created new problems by making it so easy? The trend in international divorces may have made something rotten in the state of Denmark.

International Divorce Laws

Dansk Divorce Laws

According to the Guardian, until recently Danes could divorce by filling out a simple online form. But under a package of legislation that came into force in April, couples determined to split must wait three months and undergo counselling before their marriage can be dissolved.

Meanwhile, a survey found that 68 of Denmark’s 98 local authorities were offering relationship therapy to couples in difficulty, on the grounds that keeping families together saves municipalities money on housing and services.

The initiatives, which in some countries might be seen as unwelcome state intrusion in citizens’ private lives, have been broadly welcomed by both the public and politicians in Denmark, with only the small Liberal Alliance party criticizing them as over-reach.

The country has long championed family rights, offering year-long parental leave and universal public daycare, but it recorded 15,000 divorces in 2018, equivalent to nearly half the marriages that year.

The government’s three-month waiting period and “cooperation after divorce” course, taken online or via an app, aims to smooth the process for divorcing couples and children by helping them improve communication and avoid pitfalls.

Parents can tailor their course individually from 17 half-hour modules offering concrete solutions to potential areas of conflict during the divorce process, including how to handle birthday parties or how to talk to an ex-partner when angry.

Florida Divorce

I have written about divorce planning and recent trends in divorce around the world before, such as the new Norse Divorce Course.

Although Florida has a lower divorce rate than Denmark, it is not only because a divorce course is required in Florida. Divorce rates have been falling in the United States, but that is not good news, as many people are having children outside of marriage, and the statistics for relationship breakups is staggering.

Like Denmark, in Florida, the legislature has found that a large number of children experience the separation or divorce of their parents. Parental conflict related to divorce is a major concern because children suffer potential short-term and long-term detrimental economic, emotional, and educational effects during this difficult period of family transition.

This harm can be particularly true when parents engage in lengthy legal conflict. So, like Denmark, Florida requires a divorce course called the “Parent Education and Family Stabilization Course” and may include several topics relating to custody, care, time-sharing, and support of children.

Back in København

In a trial with 2,500 volunteers before launching, the Denmark course has been praised by specialists and those who have completed it. “The data is clear: the program works,” he said. “In 13 out of 15 cases it had a moderate to strong positive effect on mental and physical health and led to fewer absences from work. After 12 months, couples were communicating with each other as if they had not divorced.”

Hjalmar, a marketing executive in his 40’s who preferred not to give his full name, said he took the course in its trial phase nearly four years ago and found it very useful. “Obviously it’s not going to repair a broken marriage,” he said. “But it helps you sort out some pretty important stuff when you may not be thinking very clearly.”

Relationship experts said the course was a step in the right direction but would not work for all couples. “It’s a fine tool and you can’t argue with its results,” said Trine Schaldemose, the deputy head of Mødrehjælpen, a family help association. “But it won’t help couples who are in very high conflict or violent relationships, or with a very low level of resources. They are going to need more than an online course. They will need personal, individual counselling. This won’t be a quick fix for them.”

Many consider Denmark’s new divorce rules were a big improvement. Before, the system was focused more on parents’ rights than children’s. And divorce involved a lot of different institutions, none of which were aligned. That’s changed.

Some experts are unsure about the boom in local authority-provided counselling. Five years ago only 20% offered any couples therapy at all. Any counselling was a positive development but the quality of programs varied and some couples may not be as open when counselling was provided by a local authority rather than independently.

Municipalities insist their programs work. In Ringkøbing-Skjern, which began offering free relationship therapy in 2011, the council says the divorce rate has fallen by 17% and last year 92 local couples sought counselling – the highest annual number so far.

All couples with children under 18 are entitled to five free sessions. Politicians, too, have been broadly welcoming. “Municipalities deserve praise for taking the initiative to help more families prosper and stay together”.

Divorce rates are 25% to 50% across western countries and it costs a huge amount of money and causes a lot of individual pain. Individual treatment would be too expensive. If we really want to take this seriously, we need to work together to develop something scaleable.

The Guardian article is here.

 

New International Child Custody Laws

Posted by Ron Kauffman on

Trying to combat a growing problem of parental child abduction, EU lawmakers adopted new rules to better protect children and bring quicker resolutions to child custody fights. What are in Europe’s new international child custody laws?

Brussels

The EU’s recent actions are a retooling of the Brussels IIa regulation, a cornerstone of EU judicial cooperation in cross-border matters involving marriage, divorce, separation, annulment and child custody.

A rise in international families – currently estimated at 16 million – and subsequent cross-border family disputes – 140,000 divorces and 1,800 children abducted by a parent annually – led the European Commission to propose amending the Brussels IIa regulation to make it more efficient.

“When parents decide to separate, children can be caught in the middle, and it gets even more complicated when the parents come from different EU countries. In these difficult situations everybody should focus on what is best for the child,” justice commissioner Vera Jourova said in a statement. “With the new rules, judicial cooperation will be faster and more efficient to make sure the children’s well-being comes first.”

The new rules aim to further enhance cross-border judicial proceedings on the basis of mutual trust between EU countries. By removing the remaining obstacles to the free movement of decisions, simplifying the procedures and enhancing their efficiency, the best interests of the child will be better protected.

It is hoped the new rules will bring legal certainty, reduce costs and, most importantly, limit the length of proceedings in international child abduction cases, for the benefit of both children and their parents

Florida Child Custody

Rules about children can differ around the world. I’ve discussed international child custody laws, especially as they relate to child abduction and The Hague Convention on child abduction. Child custody and timesharing is a matter I have written about specifically.

The Hague Abduction Convention is a multilateral treaty developed by The Hague Conference on Private International Law to provide for the prompt return of a child internationally abducted by a parent from one-member country to another.

There are three essential elements to every Hague Convention case:

  1. The child must be under the age of 16 years of age;
  2. The wrongful removal must be a violation of the left behind parent’s “rights of custody;”
  3. The left behind parent’s rights of custody “were actually being exercised or would have been exercised but for the removal.”

So, if a child under the age of sixteen has been wrongfully removed, the child must be promptly returned to the child’s country of habitual residence, unless certain exceptions apply.

The catch, of course, is that a child must be taken from a signatory country to another signatory country, and that is where understanding The Hague Convention comes in.

Even signatory countries may be bad at abiding by the convention, especially when it means enforcing the return of children to a parent alleged to have been abusive.

The annual State Department report to Congress on observance of The Hague Convention lists Honduras as “non-compliant” and nine other countries (Brazil, Bulgaria, Chile, Ecuador, Germany, Greece, Mexico, Poland and Venezuela) as showing “patterns of non-compliance”.

EU New Rules

The changes concern mainly proceedings related to parental responsibility matters and international child abduction and will have a positive impact on all procedures involving children by:

Settling cross-border child abduction cases faster

The deadlines applying to different stages of the child return procedure will be limited to a maximum period of 6 weeks for the first instance court and 6 weeks for each court of appeal. Also, Central Authorities will process applications for return faster.

Ensuring the child is heard

Children who are capable of forming their own views, will be given the opportunity to express these views in all proceedings concerning them. This will apply to matters of parental responsibility and international child abduction cases. Determining how and by whom the child is heard is a matter left to national law.

Ensuring effective enforcement of decisions in other Member States

With the new rules, the exequatur, an intermediate procedure required to obtain cross-border enforcement, will be abolished for all decisions. Under the new rules, enforcement can be rejected or suspended largely under the same conditions in all Member States, increasing legal certainty for all citizens and in particular the children concerned.

Improving cooperation between Member States’ authorities

Good cooperation between the Central Authorities of different Member States in handling child cases is an indispensable prerequisite for mutual trust. The new rules promote better cooperation between Central Authorities, which are the direct point of contact for parents. Also, child welfare authorities will be better integrated into this cross-border cooperation.

The new rules also clarify the sensitive issue of the placement of a child in another Member State, and set up a clear procedure to obtain consent from the Member State where the child is to be placed.

Setting out clearer rules on the circulation of authentic instruments and agreements

Considering the growing number of Member States which allow out-of-court agreements on legal separation and divorce or on matters of parental responsibility, the new rules will facilitate the circulation of the instruments and agreements.

“I am very glad that following our proposal the Council adopted new rules to ensure that any disputes between parents who disagree after separation can be quickly solved. This is about putting children first.”

The Europa article is here.

 

 

Child Abduction and an Old Fish

Posted by Ron Kauffman on

The U.S. Supreme Court does not typically hear child custody cases, but just agreed to hear an international child abduction case. A baby brought here from Italy by her Mother after her marriage collapsed has to return the baby to Italy. Incredibly, the decision may rest on how smelly a five-week-old, unrefrigerated dead fish is.

Child Custody

That’s Amore

The father, Taglieri is an Italian, and the Mother, Monasky, is an American. They met in Illinois. Taglieri, who was already an M.D., was studying for his Ph.D. and worked with Monasky, who already had a Ph.D.

They married in Illinois in 2011 and two years later, moved to Italy to pursue their careers in Milan, where they each found work. Their marriage had problems, including physical abuse.

In June 2014, Taglieri took a job at a hospital three hours from Milan. Monasky stayed in Milan, where she worked at a different hospital. Monasky had a difficult pregnancy, which, when combined with the long-distance separation, strained the relationship further. To make matters worse, she didn’t speak Italian or have a valid driver’s license, increasing her dependence.

During this time, the two argued but also jointly applied for Italian and American passports for their daughter. Two weeks later, Monasky left for the United States, taking their eight-week-old with her.

Taglieri filed an action in Italian court to terminate Monasky’s parental rights, which was granted. Then he filed a petition in Ohio seeking A.M.T.’s return under the Hague Convention.

International Child Abduction

I have written – and spoke earlier this year – on international custody and child abduction cases under The Hague Convention.

The Convention’s mission is basic: to return children “to the State of their habitual residence” to require any custody disputes to be resolved in that country, and to discourage parents from taking matters into their own hands by abducting a child.

The key inquiry in many Hague Convention cases, and the dispositive inquiry in the Taglieri case, goes to the country of the child’s habitual residence. Habitual residence marks the place where a person customarily lives.

Many people don’t realize it, but the Hague Convention does not actually define the key term ‘habitual residence.’ There are a couple of ways to determine it. The primary way looks to the place where the child has become “acclimatized.” The back-up inquiry for young children too young to become acclimatized looks to where the parents intend their child to live.

When the order hits your eye like a dead fish…

The issue for the appellate court was how they should review the trial judge’s ruling that Italy is the habitual residence of the baby girl.

The trial judge in this case gave a lot of weight to the fact that the parents agreed to move to Italy for their careers and lived as a family before A.M.T.’s birth; they both secured full-time jobs in Italy, and the Mother pursued recognition of her academic credentials by Italian officials.

On the other hand, the mother argued she expressed a desire to divorce and return to the United States; she contacted divorce lawyers and international moving companies and they jointly applied for the baby’s passport, so she could travel to the United States.

Faced with these facts the trial judge can rule in either direction, and after fairly considering all of the evidence, the trial judge found that Italy was A.M.T.’s habitual residence. The Sixth Circuit Court of Appeals decided:

We leave this work to the district court unless the fact findings “strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.”

The U.S. Supreme Court will consider how appellate courts review a trial judge’s ruling on habitual residence. Is it reviewed under de novo standard, under a deferential version of de novo review, or under clear-error review?

Another question being considered is whether a subjective agreement between an infant ‘s parents is necessary to establish habitual residence when the infant is too young to acclimate.

The opinion is here.

 

International Child Custody just got Bigger in Japan

Posted by Ron Kauffman on

Japan’s legislature, the National Diet, just enacted a law to force parents to comply with child custody orders. Seems simple enough, but this is a game changer in Japan, as enforcement in Japan has been, and can be in other countries, one of the biggest obstacles to resolving international child custody cases.

International Child Custody

Lost in Translation

I’ve written about international child custody cases in Japan before, specifically Japan’s compliance with abducted children under the Hague Convention.

Many have found that international child custody cases in Japan was a Battle Royale. People have long suspected that Japan is not really compliant with The Hague. Although Japan signed the Convention in 2013, a lot of people thought Japan did so only because of international pressure.

For example, people have pointed out that Japan has expanded Hague Convention exceptions making some of them mandatory and requiring Japanese courts to consider more things when defenses are asserted.

There were many Tokyo Stories about Japanese courts considering if it was “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.

Enforcement was always a huge problem in international child custody cases 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 foreign fathers fighting international child custody cases, “this poses major problems, because they have a different mentality and they can’t comprehend losing custody or the right to visit their child. So, even when foreign parents win their case in a Japanese court, enforcement is patchy.

The State Department’s 2018 report described “limitations” in Japanese law including requirements that “direct enforcement take place in the home and presence of the taking parent, that the child willingly leave with the taking parent, and that the child face no risk of psychological harm.”

Spirited Away

Before the revision, the civil implementation law had no clear stipulation regarding international child custody cases. Court officials had to rely on a clause related to asset seizures to enforce court orders, a tactic that was criticized for treating children as property.

The legislation originally required a parent living with a child to be present when the child was handed over to the other parent. With the revision, however, the law allows custody transfers to take place in the presence of just one parent, rather than both.

The revision removes this requirement to prevent parents without custody rights from thwarting child handovers by pretending they are not at home. In consideration of the children’s feelings, the revision requires in principle that parents with custody rights be present during handovers.

The amended law urges courts and enforcement officials to make sure handovers do not adversely affect children’s mental or physical well-being. The new rules will take effect within one year of promulgation.

Last Samurai

The National Diet also enacted an amendment specifically to its legislation implementing the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

The new amendment was drafted in response to criticism about Japan’s international child custody cases, mentioned above: that handovers of children from Japan could not be carried out, even though Japan singed the Hague Convention designed to prevent parental abductions of children.

Historically, Japan maintained a system of sole custody. In a large majority of cases, when a dispute reaches court, mothers are typically awarded custody after divorce. It is not unusual for children to stop seeing their fathers when their parents break up.

The civil implementation law was also amended to allow Japanese courts to obtain information on debtors’ finances and property. The change is aimed at helping authorities seize money and property from parents who fail to meet their court-ordered child support obligations and from people who do not compensate victims of crime.

Ran

The U.S. Department of State ran to remove Japan from its list of countries said to be showing a pattern of noncompliance with the Hague Convention as a result of the Diet’s new laws. In its annual report, the department noted Japan’s legislative efforts to better enforce the Hague Convention on the Civil Aspects of International Child Abduction, which Japan joined in 2014.

But the department “remains highly concerned about both the lack of effective mechanisms for the enforcement of Convention orders and the sizable number of pre-Convention abduction cases”.

U.S. Rep. Chris Smith, a New Jersey Republican, criticized the department’s removal of Japan from the list:

“It cannot be denied that the Japanese government has done little to help reunite those American children who have been separated from their left-behind parents.”

The Japan Times article is available here.

 

Why is this Divorce Different?: Passover Divorces

Posted by Ron Kauffman on

It’s common knowledge that divorce filings increase after the holiday period from November through New Year’s. We are not alone. In Israel, the rate of people filing for divorce before Passover is three times as high as during the rest of the year.

The Bitter Herbs of Passover Divorces

According to the Jerusalem Post, the reason for this increase in Passover divorces is the number of stresses that surface around the holidays. For example, there could be a question of where a family will hold its Seder.

The stress of the Passover season will sound familiar to anyone who deals with the stress during the Thanksgiving and Christmas holidays.

There is a lot of sensitivity around relationships with extended family. Additionally, there is too much to do and greater financial demands during the holidays.

To help alleviate these stressors, it is important to plan in advance.

Having a Sweet Florida Divorce

I’ve written about divorces and their causes before. Passover divorces are similar to any other religious holiday in which you are cooped up in a house with your in-laws during the holidays, when your marriage is having problems. The holidays can take a toll on the best couples.

During the holidays, people try to put on a happy face for the kids and visiting relatives. And after seeing other families on Facebook and Instagram – the idea of perfect looking families haunts many couples who wonder why their lives don’t look as happy.

“Beware that the holiday period invites many hours that couples are together, which can lead to conflicts arising. Don’t make impulsive decisions on ending a connection during the holidays. Persevere until afterwards and then look at the situation with a new perspective.

Is there a way to make Passover divorces sweet like charoset? Whatever the reason for your problems, there are a few things that anyone looking into divorce for the first time needs to know to help them through the process.

Prioritize

Line up your priorities for life after the divorce. Is it finding a home? Is it retiring? Getting a job? Managing your special-needs child? Consider writing down your most important goals.

Consult

Even if you aren’t certain you need to hire an attorney, or filing for divorce at all, it is a good idea to meet with an expert in Florida’s divorce and family laws. Who better than someone certified by Florida as an expert in marital and family law?

Alternatives

Litigation is something to avoid. It’s time-consuming, contentious and expensive. The majority of divorces end up settling.

There are many forms of alternative dispute resolution out there, including collaborative divorce, mediation, and informal settlement conferences.

Is there a shank bone in a Vegan Passover?

Back in Israel, in addition to the increase in new applications for Passover divorces, there is often an increase in the number of religious Jewish divorces – called “Gets” – that are finalized.

This is because of “the feeling that the holiday time’s a time to finish things and start fresh. It affects the state of mind.

A wife and a husband hold different religious standards and deciding where the kids should be can push them over the edge. The Jerusalem Post reported how last year a woman insisted on having a vegan Seder and her husband would not agree. This led to divorce.

The Jerusalem Post article is here.