Tag: international jurisdiction

Establishing Foreign Paternity under UIFSA

Posted by Ron Kauffman on

A common family law issue involves UIFSA, in that a U.S. state can establish a child support order after proving the paternity of the father over a foreign born child. However, proof is required beyond mere admissions and agreement. Is being named on the birth certificate enough? One couple recently found out.

UIFSA Parentage

Love in Lansing

The Plaintiff lives in Brazil and is the mother of LCK, who was born in Brazil in late 2020. The purported father, who was the Defendant in the case, lives in Michigan. The case was heard in a town between Detroit and Lansing. Plaintiff contended that defendant is the father of LCK, arising out of a relationship between the parties in Michigan in January 2020.

Defendant did not deny that the parties had a relationship during that time. In August 2021, plaintiff sought child support from defendant under the Uniform Interstate Family Support Act (UIFSA), by filing an Application for Establishment of a Decision with the central authority in Brazil.

The application stated that defendant’s paternity of the child was “established or presumed,” and was supported by a Brazil birth certificate naming defendant as the child’s father.

The Livingston County Prosecutor initiated this action under UIFSA, filing the Application as a complaint.  Defendant responded, denying paternity and requesting that the child’s paternity be established.  Defendant also filed a -separate paternity action in the trial court.

In contrast to his denial of paternity in the child support case, defendant alleged in his paternity action that he is the father of LCK. In fact, the defendant earlier claimed he was the LCK’s father in the paternity action, and even signed an affidavit before the U.S. Consulate stating that he was the father.

However, in the international child support action under the UIFSA, he disputed his paternity of the child had been established under Brazil law. Plaintiff contended that defendant’s name on the child’s birth certificate established his paternity under Brazil law, precluding further inquiry into the child’s parentage under the UIFSA. Defendant disagreed, and asked the trial court to resolve the paternity action before determining the child support action. Plaintiff filed a motion to establish support, arguing without explanation that the birth certificate alone established defendant’s paternity of the child under Brazil law.

Plaintiff also asserted that while briefly visiting Brazil, defendant signed an acknowledgment of paternity at the United States Consulate to obtain a passport for the child, and sued plaintiff under the Hague Convention for abduction of the child.

Defendant did not respond to the motion, but at the hearing requested a determination of paternity under Michigan law. The trial court entered a Uniform Child Support Final Order on the basis that defendant had been established as the child’s father under Brazil law, and ordered defendant to pay plaintiff monthly child support of $1,567. The father appealed.

Florida UIFSA

I have written on international custody and support issues before. The Uniform Interstate Family Support Act is one of the uniform acts drafted by the Uniform Law Commission. First developed in 1992, 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.

One of the more important purposes of UIFSA is to extend enforcement to foreign support orders. A court in Florida, for example, must apply UIFSA to any support proceeding involving a foreign support order from a foreign tribunal. A “foreign tribunal” means a court, administrative agency, or quasi-judicial entity of a foreign country which is authorized to establish, enforce, or modify support orders or to determine parentage of a child.

Spartan Findings

On appeal, the Defendant contended the trial court erred by determining his parentage of the child had been determined under Brazil law without permitting him to challenge the parentage of the child.

A trial court can establish child support under UIFSA only upon finding, after notice and an opportunity to be heard, that defendant had a duty of support based on the putative father’s paternity. In doing so, the trial court was obligated to apply the procedural and substantive law of Michigan.

In determining Defendant was the father based on the Brazilian birth certificate, the trial court accepted plaintiff’s contention under Brazil law, any man designated as the father on a child’s birth certificate is thereby determined by law to be the father of that child, and that defendant therefore was precluded from raising the defense of non-parentage.

However, the trial court accepted the contention that parentage had been established under Brazil law without any proof and without any authority to support plaintiff’s assertion.

Plaintiff also argued that she established paternity because of Defendant’s past claims that he was the child’s father in the paternity action, and that he even signed an affidavit before the U.S. Consulate stating that he was the child’s father.

But on appeal, the question was whether the was precluded from challenging the child’s parentage by virtue of a previous legal determination in Brazil or elsewhere.  Defendant’s past assertions of parentage are not relevant to this narrow inquiry.

Even though defendant consistently sought to establish the parentage of the child, he never conceded the issue had been determined under Brazil law.  The trial court’s reliance on plaintiff’s unsupported assertion that the birth certificate naming defendant as the father constituted a determination of parentage under Brazil law, was insufficient.

The trial court’s order was vacated, and the case was remanded to the trial court for further proceedings in which plaintiff must demonstrate that defendant’s parentage of the child has been determined under Brazilian law.

The Michigan Court of Appeals opinion is here.

International Child Custody and Hague Convention

Posted by Ron Kauffman on

A frequent international child custody issue involves the Hague Child Abduction Convention. Return of abducted children to their habitual residence is required unless defenses are established, in which case ameliorative measures can be considered. Is that also true in a war zone? A court in Montana just decided that question.

Hague Convention2

Home on the Range?

The parents are Ukrainians. They married in the Ukraine and lived in the city of Odessa, Ukraine in an apartment. In February 2022, Russia invaded Ukraine. The parties began to hear explosions and air raid sirens in Odessa based on Russian aerial attacks, and they were forced to sleep in their basement at times.

In August 2023, the father arranged for the mother and their child to stay with family friends in Moldova due to the increased bombing of Odessa. On August 26, 2023, the mother informed the father that she was intending to fly to Montana with the child to be with her mother and sister.

The father began to take steps to secure the return of the child to the Ukraine by filing a Hague application and filing a return petition in Montana.

Florida Hague Convention

I will be speaking about the Hague Convention and international child custody issues at the prestigious Marital & Family Law Review Course in Orlando later this month. The event is co-sponsored by the Florida Bar Family Law Section and the American Academy of Matrimonial Lawyers.

What happens if your children are wrongfully abducted or retained overseas? If that happens, you must 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 children are wrongfully taken out of the country or wrongfully retained after the time for returning them passed, the Hague Convention can help you get them back.

A Mess in Odessa

At the trial in Montana, it was not disputed that the father established a prima facie case under the Convention. However, the mother argued return to Ukraine would expose the child to a “grave risk” of physical or psychological harm.

The district judge noted that the conflict in Ukraine did not, by itself, trigger the grave risk exception because it’s not sufficient to simply find that because the country is at war, children cannot be returned․

Instead, the focus should be on the risk a child would face in the part of the county she will return to and whether that will imperil her unacceptably. For example, some courts have found that return to certain cities or eastern Ukraine poses a grave risk.

Additionally, the fact that a child has grown accustomed to life in the U.S. was not a valid concern under the grave risk exception, as it is the abduction that causes the pangs of subsequent return. Also, the exception does not provide a license for a court in the abducted-to country to speculate on where the child would be happiest or who would be the better parent. And grave risk does not encompass a home where money is in short supply, or where educational or other opportunities are more limited. Even if a “grave risk” is shown, a court has “the discretion to consider ameliorative measures that could ensure the child’s safe return.

Here, the court found that return to a different city in the Ukraine, Chernivtsi, a city and oblast in southwestern Ukraine was at less risk than the eastern portion of the country such as Odessa. It was also noted that many Ukrainians had relocated to the western part of the country since the invasion.

The Mother’s argument that her voluntary parole status in the United States should be considered. However, to the extent the mother faced a Hobson’s choice, it is a dilemma of her own making. The record showed that the father was willing to allow her and the child to reside outside of Ukraine, but close enough for contact, while custody was determined.

Instead the Mother chose to come to the United States, as opposed to Moldova or another neighboring country, for the undisputed reason that her family was here. Neither the Convention nor this Court’s decision are constrained by that choice.

Based on those facts the court ordered the return of the Child to Chernivtsi, Ukraine and awarded fees and costs.

The order is here.

Registration for the certification review course is here (if available)

North Korea Divorce Requirements

Posted by Ron Kauffman on

North Korea, similar to many countries, has requirements to initiate a divorce proceeding. Just as many U.S. states have requirements before filing for divorce, North Korea has its requirements too. Frustrated by the number of divorces, the Supreme Leader of North Korea has just added a new requirement: any couple that divorces will now be sent to labor camps.

North Korea Divorce

Your North Korean Divorce

Kim Jong Un, at 42 years of age, is North Korea’s “Supreme Leader”. He is also the “general secretary of the Worker’s Party”, and the “marshal of the Korean People’s Army”. Kim Jong Un follows in his father’s and grandfather’s footsteps and rules the socialist paradise of North Korea.

As “Comrade General Secretary”, Kim Jong Un recently declared that dissolving your marriage demonstrates anti-socialist sympathies, which therefore warrants punishment. This declaration from the “Marshal of the Democratic People’s Republic of Korea” represents a toughening of existing divorce laws, which previously only punished the party seeking the divorce — even in cases of physical abuse.

The “Sun of Juche’s” new divorce law, in an effort to protect the family structure, requires that spouses be imprisoned once the divorce is finalized. As one resident of the northern Ryanggang province reportedly said:

“I went to the Kimjongsuk County People’s Court … where 12 people received divorce decrees. Immediately after the verdict, they were transferred to the county labor training camp. Until last year, when a couple divorced, only the person who first filed for divorce was sent to a labor training camp. Starting this month, all divorced couples will be sent to labor training camps.”

According to Kim Jon Un, who is sometimes known as the “Only and Unique Successor and Leader of the Juche Revolution”, the act of divorce is not only considered an affront to socialism, but also to the Confucian values that tie into the thinking of those in the north and south.

Florida Divorce Requirements

I have written on divorce jurisdiction issues, such as residency and other requirements to obtain a divorce, many times before. Similar to North Korea, Florida has its own requirements to obtain a divorce. For example, Florida has a six-month residency requirement before filing for divorce.

Durational residency – as a pre-condition to divorce – has been considered by many courts and upheld as a valid requirement. The Supreme Court of the United States has consistently recognized the unique status of marriage and has left the entire field of marriage and divorce laws to the individual states.

Florida has a compelling state interest in requiring a durational residency so that Florida avoids intruding on the rights and interests of other states that might otherwise be paramount. There is another important reason.

Domicile of a divorcing party is essential, not merely because of technical jurisdictional rules, but because a divorce can be obtained ex parte, by constructive service of process which can have permanent future effect on the lives and property of third persons as well as the rights of sister states.

Accordingly, U.S. states must go slow, must be careful, and owe a duty to other states and other affected parties to make a record in support of a divorce final judgment that can withstand collateral attack and which will merit full faith and credit by other states.

Stigmatizing Divorce

The foundation of North Korean-style socialism, with its emphasis on the people and the masses, depends on whether family cells are managed effectively. That’s why – to North Korea’s “Brilliant Comrade” – divorce is considered an abnormal event and the breakup of the family.

Broken families are classified as social problems, and the children of these families often do not get along with other children and suffer various forms of discrimination, such as not being called on in school.

The socialist party’s firmly held position is that revolutionizing the family is equivalent to revolutionizing society and that improving the members of the family is equivalent to improving members of society. As a result, government officials who are divorced are considered to have failed to revolutionize their family, and are often unable to rise in rank or hold important positions.

Notwithstanding the “Beloved Father’s” efforts, reports from North Korea show divorce rates increased on the back of the Covid-19 lockdown. Initially, the “Father Marshal” started an education campaign to prevent, specifically women, from getting divorces.

To prevent divorces, lectures were given to members of the Socialist Women’s Union, the largest women’s organization in the country, under the theme:

“Let’s thoroughly eliminate the phenomenon of divorce and build a harmonious family, the cell of society.”

When that didn’t work, the “Supreme Leader of our Party, State and Armed Forces” tried other deterrents. The most obvious deterrents, publicly shaming the parents of divorcees, and publicly shaming the officials of  state owned companies responsible for high divorce rates among the workforce, were applied.

Surprisingly, given the socialist party’s campaign and other deterrents, divorces did not significantly decrease. So, the “Respected Comrade Supreme Leader” had no real choice but to act even more punitively by sending divorcing couples to forced labor camps. As one resident is reported to have said:

My brother divorced after three years of marriage. His wife first submitted a divorce application to the court and received a divorce ruling. She was sent to a labor camp for six months, while he has to do one month.

The London Evening Standard article is here.

Syrian Dictator and Divorce Jurisdiction

Posted by Ron Kauffman on

When you are the Wife of a Syrian dictator living in Russia, and mass graves are found in your home country, divorce jurisdiction may become a big issue. According to press reports, the former first lady of Syria, Asma al-Assad, the wife of the deposed Syrian dictator, Bashar al-Assad, has filed for divorce in England while living in Russia.*

Divorce Jurisdiction

Syrian Saga

Asma Fawaz al-Assad is the former first lady of Syria. She has been the wife of Bashar al-Assad during his tenure as president-for-life from 2000 until he was overthrown December 2024. She was born to Syrian parents in London, she was also raised in London, and holds dual British and Syrian citizenship.

Bashar al-Assad is a the ousted Syrian dictator who has ruled Syria since 2000 after the death of his father, president-for-life, Hafez, who ruled Syria from 1971 until 2000. In November 2024, a coalition of Syrian rebels mounted a military offensive in Syria. Earlier this month, as rebel troops entered Damascus, the Assads fled Syria to Russia, and were granted asylum.

According to international press reports, Asma al-Assad is seeking to leave Moscow for England. Because she holds both British and Syrian citizenship, she is rumored to have started consulting with a family law firm in England.

There are also reports that Asma al-Assad has already filed for divorce from Bashar al-Assad in a Russian court, and has requested special permission to leave Moscow for London to pursue her divorce there.

Florida Divorce Jurisdiction

I have written about jurisdiction before. Generally, jurisdiction is the power of the court to hear a certain controversy, like a divorce. If the court does not have jurisdiction over the subject matter, or the parties to the divorce, any final judgment entered can be void or voidable and unenforceable.

Florida has jurisdiction to act in a divorce case if one of the parties has been a resident of Florida for six months before the filing of the petition for dissolution of marriage. In addition to jurisdiction over the subject matter, a court will need to have personal jurisdiction over the parties to the divorce.

One cannot simply  stipulate to the court’s jurisdiction of the subject matter, the court must actually have jurisdiction over the subject matter.

When children are involved, jurisdiction requires additional steps under the Uniform Child Custody Jurisdiction and Enforcement Act. The general purposes of the Act are to avoid jurisdictional competition and conflicts with other courts in child custody matters; promote cooperation with other courts; ensure that a custody decree is rendered in the state which enjoys the superior position to decide what is in the best interest of the child; deter controversies and avoid re-litigation of custody issues; facilitate enforcement of custody decrees; and promote uniformity of the laws governing custody issues.

No Depo in Aleppo

Although the Assads sought refuge in Russia after they fled Syria, Bashar Assad’s situation in Russia remains tightly regulated. Russian authorities have imposed strict restrictions on him, such as preventing him from leaving Moscow or engaging in any political activity. His request for a special permit to leave the capital is currently under review.

The Kremlin has also taken significant economic measures by freezing his assets and wealth held in the country, a move that strengthens Russia’s control over the movements of the Assad family while limiting their future influence. Russian authorities have frozen 270 kilograms of gold, $2 billion, and 18 apartments in Moscow.

The situation is particularly complex for Maher al-Assad, Bashar’s brother, whose asylum request is still pending. He and his family are currently under house arrest awaiting a decision. The possible departure of Asma al-Assad, who may be suffering from cancer, could further weaken the already perilous situation of the family in Russia.

The Albawaba article is here.

*  The Kremlin recently denied reports that Asma al-Assad sought a divorce and wanted to leave Russia.

Hague Convention Now Settled Defense

Posted by Ron Kauffman on

An increasingly litigated area of international child custody involves returning a child to their habitual residence under the Hague Convention. However, there are also defenses to a return under the Convention. Recently, a Florida court answered the question whether a wrongfully retained child in Florida was now settled here and need not be returned.

Hague Convention

Return to Machu Picchu?

In the Florida case, a Father and Mother married in Peru in 2012. One child was born during the marriage, and all three are Peruvian citizens. They divorced in 2015, had joint custody, but the child lived primarily with Mother.

In 2021, Mother wanted to visit Florida. The parents signed a travel authorization for the trip from September 2021, through October 2021. However, the Mother and Child never returned. More than a year later, Father filed a state court petition for return of the child to Peru.

The trial court found that Father had rights of custody, had been exercising his rights at the time of the wrongful retention and Peru was the child’s habitual residence.

However, the trial court found that the Father was aware that the Mother was not returning to Peru with the Child before the October return date and that the Mother established, by a preponderance of the evidence, the “well settled” or “now settled” recognized exception under the Hague Convention. The Father appealed.

Florida and the Hague Convention

I have written and spoken on international custody and child abduction 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 or retaining a child.

The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

However, a child need not be returned if it is demonstrated that the child is now settled in the new environment. The U.S. State Department’s interpretation of what “settled” means includes factors such as the child’s age; the stability and duration of the child’s residence in the new environment; whether the child attends school or day care consistently or inconsistently; friends and relatives and participation in school activities, such as team sports, youth groups, or school clubs for example.

Unsettling

The appellate court found that the “well settled in her new environment” exception to the Hague Convention, is not specifically defined in either the Convention itself or in the federal implementing statute ICARA.

But, a child has been considered to be “settled ‘within the meaning of the Convention when a child has significant connections to their new home that indicate that the child has developed a stable, permanent, and non-transitory life in their new country to such a degree that return would be to child’s detriment.

The appellate court reviewed the extensive testimony and the record which adequately shows that the trial court received competent substantial evidence. Accordingly, the appellate court held that Father failed to establish that clear error was committed by the trial court in finding that Mother met her burden of proof on this exception and in thereafter exercising its discretion to not return Child to Peru. Accordingly, the final order denying Father’s petition for return of Child to Peru is affirmed.

The opinion is here.

New Article Hague Abduction Convention Not Your Typical Custody Case

Posted by Ron Kauffman on

My new article “The Hague Abduction Convention: Not Your Typical Custody Case”, discusses a problem frequently encountered by lawyers representing parents in international child custody disputes. The problem is parents treating their Hague Abduction Convention case as if it were any other custody case. The article is now available on the KidSide website.

Hague Court

Hague Abduction Convention

The Hague Abduction Convention is the primary mechanism to ensure the return of children who have been wrongfully removed or retained from their country of habitual residence. The two main purposes behind the Convention are to protect children from the harm of an international abduction and secure the left behind parent’s rights of access to their child.

However, many parents confuse the purposes of the Convention, mistakenly thinking their best defense rests on proving what a better parent they are. It comes as a surprise to many people to learn that the judge in a Convention case does not even have jurisdiction to hear their child custody dispute.

But before any defenses are even asserted, a parent seeking a child’s return must first prove their case. To prove a case under the Convention, a Petitioner must demonstrate where the habitual residence of the child was before the wrongful removal; that the removal breached custody rights; and at the time of the child’s removal those rights were actually exercised.

There are a limited number of available defenses under the Hague Abduction Convention, and those defenses are different from a typical child custody case. They are different because the purposes of the Convention are different. Given that courts in a Convention case cannot decide the merits of the custody dispute, typical arguments about the best interest of the child don’t have much traction, leaving a limited number of defenses.

KidSide

Child abduction cases under the Hague Convention have a negative impact on children. Add to that, the growing number of high-conflict court cases, like divorce and domestic violence. Because of the growing number of high-conflict cases, there is always a lack of support for kids caught in the legal system.

That’s where KidSide comes in.

KidSide is a 501(c)3 which supports the Family Court Services Unit of the Miami-Dade County, Florida courthouse – the largest judicial circuit in Florida. KidSide can use your support as it supports Family Court Services.

Together, they have been providing crucial services to children and families for more than 20 years. The Unit assists all judges and general magistrates with some of the Court’s most difficult family cases by providing solution-focused and brief therapeutic interventions.

KidSide helps the Family Court Services Unit provide services for families at no cost in the areas of alienation, child/family assistance, co-parenting, crisis assistance, marital reconciliation, parenting coordination, reunification, time-sharing, supervised visitation, and monitored exchanges.

They are staffed with dedicated professionals who are committed to helping families reduce their level of conflict and provide supportive services for the entire family system with particular sensitivity to children.

You can support KidSide by clicking here.

The Kidside article is here.

International Child Custody and the Death Penalty

Posted by Ron Kauffman on

Whether a U.S. state court will have subject matter jurisdiction over a foreign order in an international child custody case turns on whether a parent is subject to the death penalty in the country originally granting child custody. That painful issue is addressed in a recent appeal from the state of Washington.

Custody Death Penalty

Desert Heat

The Father, Ghassan, appealed a Washington state court’s jurisdiction and award of custody of his child, ZA, to the Mother Bethany. Ghassan and Bethany married in Saudi Arabia in 2013. Bethany is a U.S. citizen, and Ghassan is a citizen of Saudi Arabia. The couple had one child, ZA, in Saudi Arabia.

In 2017, Bethany filed for divorce in Saudi Arabia. In January 2019, a Saudi judge granted the divorce and custody of ZA to Bethany. But then in April, the father sued for custody of ZA on behalf of the paternal grandmother. The parties had a bitter custody battle in which the father accused Bethany of gender mixing, adultery, and insulting Islam.

The father presented damning evidence in the Saudi family court, including photographs of the mother in a bikini in the U.S., and a video of her doing yoga.

Adultery, insulting Islam, and insulting Saudi Arabia are crimes in Saudi Arabia which carry the death penalty. The Saudi judge derided Bethany as a foreigner, who embraced western cultural traditions, and even worse, lamented the child spoke fluent English!

The Saudi court awarded custody to the paternal grandmother who lived with the father. Bethany wisely reconciled with her ex, and convinced him to give her custody rights in exchange for her forfeiting child support. With the father’s permission to travel to Washington for a visit with her family, the mother and daughter left the sand dunes of Arabia for the Evergreen State.

The Battle Near-ish Seattle

Bethany filed a petition for temporary emergency jurisdiction under the UCCJEA and then a permanent parenting plan and child support. The father moved to dismiss for lack of personal and subject matter jurisdiction. In the alternative, he asked the court to enforce the Saudi Arabia custody order and waiver of all financial rights.

The family court denied enforcement of the Saudi order and the mother’s waiver of child support. The family court ruled that Washington had jurisdiction in a custody case if “the child custody law of a foreign country violates fundamental principles of human rights.” The father appealed.

Then in 2021, Washington amended its UCCJEA to add a provision that Washington need not recognize another country’s custody order if:

the law of a foreign country holds that apostasy, or a sincerely held religious belief or practice, or homosexuality are punishable by death, and a parent or child may be at demonstrable risk of being subject to such laws.

On appeal, the Washington Court of Appeals applied Washington’s new amendment to the UCCJEA. The Court of Appeals ruled that a Washington court need not enforce the Saudi child custody decree, and may exercise jurisdiction over custody, because Saudi Arabia punishes “apostacy” by death.

The Court of Appeals found that ample evidence supported the family judge’s ruling that the mother faced a death sentence if she returned to Saudi Arabia for her religious and political beliefs. Additionally, the father did not dispute that Bethany could receive the death sentence on her return to Saudi Arabia.

The unpublished opinion is here.

Divorce Capital of the World

Posted by Ron Kauffman on

London has become known as the ‘divorce capital of the world’, proving that where you file your divorce can be of extreme importance. File in the wrong jurisdiction, like Afghanistan, and your divorce can be deemed a nullity. But file in the right jurisdiction, and you could get a windfall.

Divorce Capital

London Calling

Russian tycoon Vladimir Potanin, is currently making a legal challenge in the UK Supreme Court next week over a $6b marital settlement sought by his ex-wife, Natalia Potanina, which helped to make London’s reputation as the “divorce capital” of the world.

The couple married in 1983 in Russia. During the 1990s, Potanin had a reputed $20bn fortune, including shares in companies or other business entities that were not registered in his name – though Potanin was their beneficial owner, according to information contained in a 2021 Court of Appeal ruling.

Potanina was initially awarded roughly $41.5mn in 2014 by Russia’s courts but has claimed she is entitled to a far larger share of her husband’s fortune.

Potanina, who is Russian but who also has had a home in England since 2014, is now seeking half of the assets beneficially owned by her former husband. The case has prompted what one recent Court of Appeal ruling described as a “blizzard of litigation”.

In 2019, Potanina turned to the High Court in London, citing Part III of the Matrimonial and Family Proceedings Act 1984, legislation that gives the English courts the power to make financial orders if a marriage has been annulled outside the UK.

Potanina alleged in proceedings at the High Court that she had “made exhaustive efforts to obtain justice in Russia” but that the sum awarded in Moscow “does not even begin to meet my reasonable needs”. Her attempt to bring a claim in England was initially blocked by the High Court in 2019 on the grounds that the couple had little connection with Britain.

In the 2019 ruling, Mr Justice Jonathan Cohen said that if her claim went ahead, “there is effectively no limit to divorce tourism”. However, the Court of Appeal reversed the decision in 2021 paving the way for Potanina to bring the action in England.

Potanin is seeking to overturn that Court of Appeal ruling at the Supreme Court in a two-day hearing this month. If he loses the appeal, the battle is expected to move to the family courts.

Florida Divorce Jurisdiction

International divorces often bring up the issue of jurisdiction. Who sues whom, how do you sue for divorce, and in what country are problems in an international divorce case. The answers are more difficult than people think as I have written before.

A British divorce might give more money because British courts can disregard prenuptial agreements, and the cost of living is high in London. However, in Florida, the outcome could be different still.

Rules about children and hiding assets is a problem in every divorce, especially in international cases. The problem of discovery of hidden wealth is even bigger in an international divorce because multiple countries, and multiple rules on discovery, can be involved. The problems in an international divorce are more complicated because hiding assets from a spouse is much easier in some countries than in others.

Florida, at one extreme, requires complete disclosure of assets and liabilities. In fact, in Florida certain financial disclosure is mandatory. At the other extreme, there are countries which require very little disclosure from people going through divorce.

Choosing possible countries to file your divorce in can be construed as “forum shopping”. The European Union introduced a reform which tried to prevent “forum shopping”, with a rule that the first court to be approached decides the divorce. But the stakes are high: ending up in the wrong legal system, or with the wrong approach, may mean not just poverty but misery.

Residency for divorce is a very important jurisdictional requirement in every case. Generally, the non-filing party need not be a resident in the state in order for the court to divorce the parties under the divisible divorce doctrine. The court’s personal jurisdiction over the non-filing spouse is necessary only if the court enters personal orders regarding the spouse.

The durational domicile or residency requirement goes to the heart of the court’s ability to divorce the parties, because the residency of a party to a divorce creates a relationship with the state to justify its exercise of power over the marriage.

Rudie Can’t Fail

Potanin’s appeal of the order granting permission for Potanina to bring her claim in England, could become one of the biggest settlement cases recorded in the country. Potanin, who was hit with sanctions by the British government in 2022 because of his support for the Kremlin after Russian president Vladimir Putin ordered the full-scale invasion of Ukraine, is due to begin on October 31st.

London’s reputation as the “divorce capital of the world” was earned because of a perception that courts there were awarding large financial settlements to financially weaker spouses.

The ruling on appeal is expected to have significant ramifications for other cases, particularly in relation to whether ex-partners can turn to the English courts to obtain a more favorable payouts.

The Financial Times article is here.

The Importance of Divorce Jurisdiction

Posted by Ron Kauffman on

The jurisdiction where you file your divorce can be of extreme importance. File in the wrong jurisdiction, and your divorce can be deemed a nullity. In Afghanistan, where divorce is taboo, the Taliban have started to void divorce judgments granted under the previous government.

Divorce Jurisdiction

Trouble in Kabul

Reports from Afghanistan are flowing in about women, who were abused for years by their ex-husbands, who have now had to go into hiding with their children after the Taliban tore up their divorce decrees.

A small number of women, under the previous US-backed government, were granted a legal separation in Afghanistan. However, when Taliban forces swept into power in 2021, husbands claimed they had been forced into divorce and the Taliban are ordering women back to their husbands.

“My daughters and I cried a lot that day. I said to myself, ‘Oh God, the devil has returned.”

The Taliban government, which imposes strict Islamic law, has placed severe restrictions on women’s lives that some have called “gender-based apartheid”. Afghan women have been denied education, restrictions on movement, and a lack of participation in the economy.

Importantly, lawyers say that several women have reported being dragged back into abusive marriages after Taliban commanders voided their divorce judgments.

Florida Divorce Jurisdiction

I have written about jurisdiction in Florida divorce cases before. In Florida, there is no common law right to a divorce. Divorce in Florida is formally called a “dissolution of marriage”, and the cause of action for dissolution of marriage is entirely dependent on Florida Statutes.

The only true jurisdictional requirement imposed by statute in Florida is to show that one of the parties to the marriage has resided six months in the state of Florida before the filing of the petition for dissolution of marriage.

The importance of meeting the statutory requirement is important as it allows you to obtain recognition of your divorce judgment in other states under the full faith and credit clause of the United States Constitution.

Although Florida’s residency requirement sounds simple enough, it is a jurisdictional requirement which must be alleged and proved in every case. Failure to do so, renders your divorce null and void.

Bad News in Kunduz

According to the UN’s mission in Afghanistan, nine in ten women will experience physical, sexual or psychological violence from their partner. However, divorce is considered more taboo than domestic violence is in Afghanistan. Worse, the culture remains unforgiving to women who part with their husbands.

Under the previous US-backed government, divorce rates were steadily rising in some cities, where the small gains in women’s rights were largely limited to education and employment.
As awareness grew, women realized that separating from abusive husbands was possible.

Under the US-backed regime, special family courts with women judges and lawyers were established to hear such cases, but the Taliban authorities have made their new justice system an all-male affair.

Divorces under the new Taliban government are limited to when a husband was a classified drug addict or has left the country. In cases of domestic violence, or when a husband does not agree to a divorce, divorce is not permitted.

Child marriages are also an ongoing phenomenon in Afghanistan. In one case, Sana was 15 when she married her cousin who was 10 years older than her. With the help of a free legal service project Sana won a divorce from her husband in court — but her relief was shattered when Taliban commanders came knocking.

Threatened with losing custody of her four daughters, she returned to her ex-husband who by then had also married another woman. She escaped after he announced the engagement of her daughters to Taliban members.

The oppressive measures against women in Afghanistan are aggravating the economic woes of the country. A report by the International Crisis Group states that many western countries, and even private donors, have canceled donations fearing backlash from funding such an oppressive regime.

India’s NDTV article is here.

The Hague Convention Meets the Best Interest Test

Posted by Ron Kauffman on

The United Nations Committee on the Rights of the Child determined that the Supreme Court of Chile violated the rights of a child after ordering the child returned to his habitual residence of Spain without applying the best interest test.

Hague Convention Best Interest Test

Answering An Andes Abduction

The Mother is a national of Chile. In 2015, she married the Father, a national of Spain. In January 2016, her son J.M., a dual Spanish Chilean citizen, was born in Chile. The Mother and her son left Chile to live with the Father in Spain in November 2016.

When J.M. was a little over a year old and living in Spain with both parents, medical professionals suspected he had a language delay and a form of autism.

Shortly after this spectrum diagnosis, the mother wanted to bring J.M. to Chile where she had arranged his treatment and support plan. The mother wanted to stay in Chile for at least two years.

In July 2017, the father signed an authorization for the mother to travel with J.M. to Chile, where the mother scheduled treatments and support for autism. They decided to stay in the country for at least two years. and had the father’s written approval to travel.

In 2018, one year after authorizing the travel, the father filed a complaint with the Central Authority in Spain, the Ministry of Justice, for wrongful abduction and/or retention of J.M. under the Hague Convention on the Civil Aspects of International Child Abduction.

In January 2019, two lower courts in Chile agreed with the Mother and rejected the father’s return petition. The courts rejected the father’s claim on the grounds that he had given the tacit, even explicit, consent to remain in Chile, which has been the child’s place of habitual residence since birth.

In September 2019, the Supreme Court of Chile overturned the lower courts’ decisions and ordered the child returned to Spain. The Supreme Court did not indicate the conditions under which J.M.’s return should take place, in whose company he should travel, or where and with whom he would ultimately reside and in what circumstances.

The Mother filed a complaint before the United Nations Committee on the Rights of the Child  in 2020.

Hague Child Abduction Convention

I have written and spoken on international custody and child abduction 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 or retaining a child.

The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

While there are several defenses to a return of a child, the best interest of the child is not one of those defenses. That’s because the Hague Convention prioritizes expeditious determinations as being in the best interests of the child.

UN-Heard Of

The U.N. Committee held that the Chile Supreme Court’s order for the restitution of J.M. to Spain failed to conduct a best interests assessment required in all actions concerning children, and violated the child’s procedural guarantees under the Convention on the Rights of the Child.

The Committee noted that, under the Hague Convention, decisions on the return of children must be taken promptly to ensure that the child’s normal situation is duly restored. However, the Committee considered that the purpose and objective of the Hague Convention does not entail that a return of the child should be automatically ordered.

The Committee held that in international child abduction cases, states must first assess the factors that may constitute an exception to the duty to immediately return the child under articles 12, 13 and 20 of the Hague Convention, and then secondly, these factors must be evaluated in the light of the best interests of the child.

The Committee did not find that the child should necessarily remain in Chile. Instead, it found that the Supreme Court of Chile failed to apply the necessary procedural safeguards to ensure that return would not expose the child to harm or a situation contrary to his best interests:

A court applying the Hague Convention cannot be required to carry out the same level of examination of the best interests of the child as the courts called upon to decide on custody, visitation arrangements or other related issues . . . the judge ruling on the return must assess . . . the extent to which the return would expose him or her to physical or psychological harm or otherwise be clearly against his or her best interests.

The U.N. Committee ruled that Chile should re-assess the return petition, take into account the length of time elapsed, the extent of J.M.’s integration in Chile, and pay reparations for the violations suffered, including compensation.

The Committee also ruled that Chile should try a little harder to prevent future violations by ensuring the best interests of the child are a primary consideration in decisions concerning international return.

The U.N. Committee on the Rights of the Child press release is here.