Thursday, July 30, 2015

Testimonials

“Our cup runneth over” with amazing testimonials from our clients. Here is just one:

“I returned to New York with my 3 year old son from England following a Hague Convention trial. … My initial telephone consultation with Jeremy Morley gave me the confidence that not only was he an expert, but that his advice was totally honest, realistic and clear. I knew what my options were and what to expect. For my personal situation he recommended his associate Anne Glatz to take on my case…. I now have full custody and permanent relocation to the UK. Throughout what has been the most difficult and lonely time in my life, having someone I could trust has been invaluable not only for me, but my family waiting in England. I have not once doubted her dedication, professionalism and expertise in all aspects of child law and International custody and relocation.”

Wednesday, July 29, 2015

Preventing Child Visits to India





Jeremy D. Morley
Having represented numerous clients in international child custody matters concerning India, this author has been accepted on several occasions as an expert on international family law matters concerning India.

The author is aware of seven cases in which courts in the United States, Canada and England have refused to allow visits to India because India has no system for returning internationally abducted children.

In the first five of these cases this author testified as an expert witness that India was a safe haven for international child abduction and the courts in question relied to a significant extent on my testimony.

The cases are as follows:

a.                   Mahadevan v. Shankar, 2010 ONSC 5608, 2010 CarswellOnt 8537. The Superior Court in Ontario, Canada ruled that the father of a four-year-old child living in Ontario should not be permitted to take the child on a family visit to India.

b.                  Balakrishna v. Murali, FA104042105. July 18, 2012, The Superior Court in New Haven, Connecticut ruled that the mother of a young child living in Connecticut should not be permitted to take the child on a family visit to India.

c.                   Brahmbhatt v. Brahmbhatt, Case No. CL 2012-0000736. September 25, 2012. The Circuit Court of Fairfax County, Virginia, USA in ruled that the mother of a young child living in Virginia should not be permitted to take the child on a family visit to India. 

d.                  Shroff v. Shroff, Court File No. E111400. May 8, 2013. The Supreme Court of British Columbia, Canada determined that a child’s mother should not be permitted to take the parties’ child to India.

e.                   Paruchuri v. Vadlamudi, Case No. HF12651692 (February 27, 2014). The Superior Court of California, County of Alameda barred relocation or travel to India.

f.                   Katare v. Katare, 175 Wash.2d 23, 283 P.3d 546 (Wash. en banc, 2012). The Supreme Court of Washington, en banc, upheld a determination that the husband presented a serious risk of absconding to India with his children.

g.                  Re AB (A Child: temporary leave to remove from jurisdiction: expert evidence; [2014] EWHC 2758 (Fam). An English court ruled that while a child of Indian heritage should normally have the opportunity to spend time in India, the consequences of a refusal by the mother to return the child were such that the balance came down against granting the mother’s application

Tuesday, July 28, 2015

Plight of the Expatriate Spouse



By

Jeremy D. Morley

International child relocation applications raise substantially different issues from those raised in domestic relocation cases, whether intrastate or interstate. Unfortunately, the fundamental differences are not often adequately appreciated by lawyers and judges. This is partly because both domestic and international applications are governed by the same legal principles. It is also because, even in today's globalized world, international relocation applications are relatively unusual.

A key difference between international and domestic cases concerns the nature of the applicant. Parents who apply for international relocation have fundamentally different circumstances, concerns and needs than do parents who want to relocate domestically.

A second critical difference is that while sister states have similar laws and legal systems, the legal systems in foreign countries vary dramatically in their recognition and effective enforcement of U.S. custody and access orders. This factor will be the subject of a subsequent article.

SPECIAL CIRCUMSTANCES OF THE APPLICANT

Expatriate parents who seek to relocate internationally with their children typically share similar experiences and challenges, which need to be better understood by lawyers who act as their advocates and by judges who decide the fate of their children. (This article does not cover applications by American parents who wish to move overseas for love or work). In my experience, based on counseling very many expats in family crises, applications by expats for international relocation are usually made by mothers who want to return to their country of origin. They seem to fall into three distinct categories. (In an article such as this, there is no way to avoid making generalized observations. The purpose is not to stereotype people, but to promote better understanding of their circumstances.)

The Trailing Spouse

A "trailing spouse" is one who accompanies her husband on an assignment to a foreign country, usually for a limited number of years. The husband has usually achieved significant success in his career and is pleased to improve his situation by making an international move. It is a situation that is often fraught with danger for the trailing spouse.

A typical scenario might be as follows: H and W are Germans and have lived in Germany for all of their lives. H works for a technology company and W is a teacher. They have a two-year-old child (C). H is offered a promotion conditional on his moving to New York for a four-year assignment. W is excited about the prospects of living in the Big Apple but is sad that she will have to leave her teaching job.

Three years later their entire world has changed. H is thrilled with his assignment, loves his job, thrives on being independent of head office and has adapted well to life in New York. His "only" problem is that W is having an entirely different experience.

W is lonely, isolated and miserable. She does not work and is upset that her German teaching qualifications are not transferable to the U.S. She misses her family and her friends in Germany. She has experienced far more culture shock than she expected. While her language skills are reasonably good, she is finding that English is far more difficult than she realized. She has no one to complain to -- except H, and when she does, H becomes increasingly impatient.

The relationship between H and W has spiraled downward. H comes home later and later. He ultimately has an affair and a divorce and custody case ensues. H announces that he wants to stay in New York, while W wants to go back home to Germany with C, who is now a happy and healthy five-year-old. W is shocked that H refuses to allow her to take C back to Germany. She feels that he cheated her by dragging her to a foreign country and then refusing to allow her to return home with her child. She is furious that he does not appreciate the sacrifices that she has made for his career, that he has broken his vows of fidelity, and that he is shockingly compounding his betrayal by forcing her to live in an alien country without support, family, friends or career.

In court, H opposes relocation on the grounds that C has lived most of his life in New York; all of C's friends are in New York; and C is thriving there, except for the fact that W is moody and silent. H contends that W is being selfish in wanting to take C away from his father to Germany, a place that C does not remember, and away from everything that C knows in his home in New York. H's argument is compelling and often is the winning one, especially if the focus is on C to the exclusion of W. While the court may acknowledge that a happy mother is a better mother, the court often gives more weight to the fact that the couple and their five-year-old child have spent three years in New York.

The Romantic Expat

A "romantic expat" is someone who moves from his or her home country for romance. Perhaps H from Chicago meets W in Japan and convinces her to marry him and move to Illinois. They have a baby, C. Life in Illinois is not what W expected. Americans are "rude, pushy and inconsiderate." Public transportation in Chicago is inconvenient and unpleasant, and she is scared to drive on the busy roads. She has made no friends except for a couple of Japanese women who were on temporary assignment with their spouses and who have been fortunate enough to have gone back home to Japan. She misses her family and friends and finds it hard and stressful to speak in English. She worries that C is being raised as an American and not as a Japanese.

Inevitably the marriage breaks down, and W wants to go back home to Japan with C, who is now aged three. She is shocked when H insists that she cannot do so; after all, she came to this country only because of H and now that he has "let her down," she cannot understand why he wants to keep her a prisoner here.

In court, H presents all of the arguments that the husband in the previous "trailing spouse" scenario presented, with the additional factors that: 1) C has lived his entire life in the U.S.; 2) relocation will remove C not only from H but also from H's family, with whom C has become attached; and 3) Japan has only recently become a party to the Hague Abduction Convention, does not enforce foreign custody or access orders, does not endorse shared parenting and does not effectively acknowledge a foreign father's right to play a significant role in the life of his children.

Holdover Expats

A "holdover expat" is one who left his or her home country for a temporary period of time, perhaps coming to the U.S. to study or on a work assignment. After some years here he or she has a love affair in the U.S. and decides to stay here.

Perhaps W is from Colombia, came to study in Florida intending to return home when she had a degree. After a couple of years here, she met and married H who asked her to stay in Florida. Their child, C, is two years old when they decide to divorce. Again, W wants to go back home with C, but H is opposed to relocation. H uses the same arguments as the husbands used in the two prior scenarios, but with the added factor that W was already living in the U.S. when H met her and has lived in the U.S. for a longer period of time than the other wives.

TYPICAL JUDICIAL RESPONSE

In all three scenarios, H's arguments are compelling and they often succeed, especially if the focus is on C, to the exclusion of W. As mentioned above, while the courts may acknowledge that a happy mother is a better mother, that consideration is typically trumped by the fact that C lived or remained in the U.S. The courts will focus on the "best interests" of the child without fully appreciating the drastic impact that the mother's unhappiness and often justifiable bitterness will have on the child's well-being. Not only are the mother's concerns insufficiently understood, they are often labeled unfairly by lawyers and judges as selfish, irrational, crazy and obsessive. In each scenario the mother is the primary caregiver. She is the one who is typically required to choose between abandoning her child and abandoning her family, friends, career and culture in her home country. It is difficult not to feel great sympathy for her predicament, especially if she is the one who has been abandoned.

RESULTS OF DENIAL OF RELOCATION APPLICATION

Denial of an application for relocation can have severe and devastating consequences. A typical downward spiral is as follows: 
- The mother feels that she is imprisoned in this country. 
- The mother considers abducting the child.
- The father increasingly fears that the mother will abduct the child. 
- Each parent tries to increase his or her control over the child. 
- The mother takes steps to take the child to her home country. 
- The father makes an emer-gency application to court to prevent abduction. 
- The court issues an order pre-venting the mother from leaving the jurisdiction. 
- The relationship between the parents is completely destroyed, to the substantial detriment of the child. 
The consequences may then include: parental alienation; criminal child abduction; Hague Convention litigation; enormous expenditures on legal fees; parental inability to agree on anything; and increasing police and judicial intervention, all of which cause awful consequential damage to innocent children.

A PLEA FOR UNDERSTANDING

There is no quick and easy solution to these problems. However, a starting point is to understand better the plight of the expatriate spouse. In my experience, clients who wish to return to their country of origin in situations such as these often find that their lawyers and, therefore, the courts, do not adequately appreciate the extent of their plight and the merit of their cases. Many such spouses complain with justification that they are treated as difficult, uncaring or crazy, even by those who are supposed to be helping them. It is essential to understand what it is that these people are going through and to appreciate -- and communicate effectively to the court -- that their responses are the natural and typical consequences of the situations in which they have been placed.

Such understanding exists in the business world, where it is commonly accepted that spouse/partner dissatisfaction and other family concerns are the most significant cause of "expatriate assignment failure" -- defined as "the inability of an expatriate to perform effectively in a foreign country and, hence, the need for the employee to be fired or recalled home. See, e.g., Relocation Trends Surveys, a wide-scale, yearly report issued since 1993. International companies now devote substantial resources to what I have termed the "plight of the expatriate spouse." The legal system should encourage similar understanding.

A POSSIBLE SOLUTION

In many of the cases with which I have dealt -- representing mothers and fathers, both expats and local natives -- it would have been far better if the parties had agreed -- or if the judges had ordered -- a fair, appropriate and enforceable compromise solution.

If the other country has a developed and effective legal system, child custody laws that reflect a similar philosophy to ours, and strong laws to prevent international child abduction, an appropriate solution might include the following terms: 
- Authorizing W to relocate with C once specific conditions have been fulfilled; 
- Requiring extremely generous visitation of C with H; 
- Requiring daily Internet contact, with webcams, between H and C; 
- Providing for joint decision-making between H and W as to all important matters affecting C; 
- Requiring W to obtain an order from the court in her home country that mirrors the terms of the order in H's jurisdiction, that acknowledges that the court in H's jurisdiction has continuing exclusive jurisdiction concerning all matters as to C's custody and visitation, and requiring the appropriate authorities in W's home country to enforce such orders; and 
- Imposing a significant penalty on W if she fails to comply with the order, including a severe financial penalty. This might take the form of a substantial bond or a reduction or suspension of financial support. Or a substantial portion of the assets being divided upon divorce might be held in escrow. 
Such a solution is far from perfect, but it would often be far better than the present policy in many courts of routinely denying most international relocation applications even in compelling cases.

EXPERT TESTIMONY ESSENTIAL

Expert testimony as to the laws and practices of the foreign country concerning international child custody is generally absolutely essential in such cases.

Jeremy D. Morley handles international child custody cases globally, always acting with local counsel as appropriate. He also frequently appears as an expert witness in courts in the United States, Canada and Australia on international child custody matters. He has provided expert evidence as to the international child custody law and practice of many countries, including Brazil, Bulgaria, China, Colombia, Czech Republic, Egypt, England, France, Germany, India, Indonesia, Italy, Japan, Jordan, Kuwait, Lebanon, Malaysia, Mexico, Morocco,  Pakistan, Poland, Qatar, Russia, Saudi Arabia, Syria, Singapore, Taiwan, Turkey, Venezuela & UAE.

Monday, July 27, 2015

GPSOLO Magazine Article: Parental-Tug-Of-War





By
Jeremy D. Morley

International family law is expanding as people travel more and spend time with people from different countries. International personal relationships produce an abundance of conflict and litigation. It is hard enough for people to live together when they share a similar background, but it is far harder when they are from different countries, cultures, religions, ethnicities, educational experiences, languages, traditions, and family structures. The resulting pressures may become especially acute when international couples have children and disagree about such matters as child-rearing methods, the role of in-laws, proper education, religious issues, and ultimately the desire of one of them to take the children “back home” to his or her country of origin.

When international personal relationships dissolve, the legal work is often extremely challenging. I have focused on such work for many years and have found it a great way to leverage my international know-how and experience gained as an Anglo-American national with a Japanese wife and children of various citizenships, who has lived, worked, studied, and run businesses around the world and who has taught law on three continents.

The financial aspects of international family law disputes are often complex and difficult to resolve. But when children are the subject of such disputes, the challenges are often greater and the emotions generally run far higher. Simply put, money can be divided but children cannot. Divorcing parents who stay in the same town can often make sensible arrangements to share the parenting of their children, and if they cannot, a local court can issue appropriate orders and also enforce them as needed. But when the parents cannot even agree on which country to live in, all bets are off.

I represent many parents who live in desperate fear that the other parent will abduct their child to another country and that they will never see the child again. I also represent many parents who desperately want to “go home” with their child to their country of origin.

What Law Governs?
When an international client asks as basic a question as, “What law governs our case?” the answer may well be far from clear. We must often advise that it will depend overwhelmingly on which court--or courts--will have jurisdiction over the case. Although the courts in the state in which the child is currently located have exclusive custody jurisdiction from their own perspective, if the child is taken to visit another country, the courts there will often have jurisdiction under the local law of that country to determine what is best for the child. In addition, these cases often have a strong international law component: More than 80 countries, including the United States and most developed countries, have adopted the Hague Convention on the Civil Aspects of International Child Abduction, which requires that children who have been “wrongfully taken” or “wrongfully retained” overseas should normally be returned promptly to their country of habitual residence.

In practice, international child custody cases often yield complex and messy conflicts between the laws and courts of different countries, demonstrating serious clashes of societal views about culture, religion, gender roles, parental rights, and children's rights, as well as of the role of the legal system in intervening in disputes about children.

Prevention of Abduction
An increasing number of cases involve the prevention of international child abduction. Let's assume that you receive a frantic call from a client somewhere in the United States, who tells you, “I'm sure my spouse is about to take our child to [India/Japan/China/Colombia/England/Germany] and they will never come back. Please help!” What do you do?

Your initial advice may well be purely practical. It will be designed to prevent the immediate threat. Some issues to cover are:

• You must discuss the passport issue. Most likely you should talk about how to secure the child's passport. You might discuss the location of the other parent's passports (recognizing that it is that person's property). You will need to alert the client to the fact that control over passports does not create complete security because many foreign consulates issue renewal passports or other travel documents to their own nationals, without requiring the consent of the other parent and frequently even in the face of a U.S. court order. You should discuss how the U.S. State Department's Office of Children's Issues might help ensure that no new U.S. passports are issued.

• You should talk about how to track the child's whereabouts. Who can watch the child? Should you alert school authorities? What about placing a GPS tracking device in the child's clothing or cell phone? What about alerting the police or hiring a private investigator?

• Perhaps your client should contact the airlines to discover if the other parent has bought airline tickets for the child. Perhaps you should write to the airlines to demand that they prevent the child from boarding.

• You should discuss whether your client should contact other family members about the issue and what to say to them.

• You should advise your client how to instruct the child as to what to do in case of an emergency.

• You should advise your client about collecting and securing evidence for a potential court hearing.

You may well want to secure an emergency restraining order very promptly from the family court. An initial temporary order should be easy to secure, but it will be far more difficult to keep such an order in place over the long term or to ensure that it has sufficient teeth to be effective. The United States has no exit controls, with certain exceptions, and a mere court order will not trigger the kind of effective checks that other countries have in place to prevent children from being taken out of the country by one parent or family member. Ideally the short-term solution should be to give sole custody to your client and to require that any access by the other parent be strictly supervised.

Burden of Proof
The long-term burden will be strongly on your client to present compelling evidence sufficient to justify what the court will likely see as extraordinary relief. That evidence must be of two distinct types. First, you must establish that the other parent represents a serious risk of being an international child abductor. Second, you must show, if appropriate, that the foreign country's legal system will not return an abducted child at all or will do so only after great delay and expense. There will be a significant interplay between these two factors. The more that you establish a strong likelihood that the other parent will abduct the child, the less evidence you should need that the country in question presents a high degree of risk. So if the potential country is one such as England or New Zealand, which have strong and effective laws and systems in place to return abducted children, you will likely need very strong evidence of an anticipated abduction. Conversely, if the country presents an obviously greater risk of not returning an abducted child (think Japan or Venezuela), much less evidence of the likelihood that the particular parent will be an abductor should be required.

Your evidence concerning the specific parent should focus on establishing as many of the so-called risk factors as possible. These factors are well established and have been codified in the Uniform Child Abduction Prevention Act (UCAPA). The most compelling evidence would be clear proof of a threat to abduct. Surprisingly, some parents make explicit threats in emails. More typically you will need to build a circumstantial case based on such factors as the parent having moved money overseas, vacated a residence, made international job inquiries, retained few ties to the United States, or kept strong connections to the foreign country and community, or being disdainful of the United States.

In order to show that the foreign country's legal system will not return an abducted child at all or will do so only after great delay and expense, you will start with the Hague Convention. It will be highly significant if the country has not signed the Convention or if the United States has not accepted its accession. However, just because a country has signed the Convention does not mean that it will enforce it. As a signatory, Mexico is obliged to return abducted children promptly; in reality, it does not do so, as the U.S. State Department has repeatedly reported.

Likewise, just because a country has not signed the Convention does not necessarily mean that it will not return abducted children. For example, Singapore has not yet acceded, but its courts follow the spirit of the Convention.

Frequently you will need to ask the court to consider and evaluate the real facts as to a country's legal system. Generally speaking, U.S. judges are extremely uncomfortable evaluating another country's legal system and predicting the results that may be expected of a case overseas. Although such reluctance is perfectly understandable, it must be overcome. It is absolutely essential in this area that judges should not shirk from their responsibility to judge whether or not a child is likely to be returned from abroad if a parent or others in his or her family decides to keep the child in that country.

How do you prove that a foreign country's legal system in international child custody cases is ineffective, corrupt, or slow? How do you establish the extent to which the courts in another country will recognize and enforce foreign--and especially U.S.--judgments, particularly in the family law area? Or the extent to which discrimination--sexual, religious, ethnic, or national-- might impact the issue in the courts of that country?

And how do you convince a court that it is both appropriate and necessary for it to act as a judge of the legal systems in place in other countries?

Expert testimony is the key. For example, in a recent case in Ontario, Canada, a mother sought to prevent the child's father from taking the child to visit his family in India. Counsel for the mother presented my expert affidavit as to India's law and practice concerning international child abduction to that country. Based on my experience with similar cases and my research on India, I opined that if the child were kept in India, the authorities there would be most unlikely to secure his return. The court ultimately decided to prevent the proposed visit, relying primarily on my expert opinion, which, it said, “unequivocally outlined the many challenges, frustrations--and indeed roadblocks--which the Applicant would face in attempting to secure [the child's] return if the Respondent elected not to return the child from India.”

The Court of Public Opinion
Publicity may sometimes be helpful. In 2009 my client's children were abducted from Tennessee to Japan. The Tennessee court then gave sole custody to my client, who went to Japan and tried to bring the children home to America. Instead, he was jailed in Japan. We quickly launched a high-profile campaign to secure his release and to highlight the fact that Japan is a haven for international child abduction. The client was then freed. While he has not seen his children again, at least the world now knows of the problem. The U.S. House of Representatives has now condemned Japan in extremely strong terms, and the Office of the Secretary of State has now joined with a host of other countries in demanding that Japan change its laws and sign the Hague Convention. One extremely constructive result of the campaign is that judges are now far more aware of the dangers of allowing children to be taken to particular countries if there is a real reason to suspect that the child may not be returned--and are aware of the firestorm of publicity that such cases can elicit. In subsequent cases concerning Japan, this has enabled me to be far more successful than before in persuading courts to prevent children's visits to that country.

Representing the Other Parent
What if you are representing the other side in these cases? Perhaps your client genuinely wants to take the child for a limited family visit to his or her country of origin. Or perhaps your client came recently to the United States from another country with an American spouse, and now that the relationship is over wants to “return home” with the child.

In any such case you will need to explain how the U.S. legal system works in the area of child custody. Often you will need to encourage the client to use the system and to explain the grave dangers of disrespecting that system. The client will often say, “It's my child. I'm the one who looks after him. The other parent is never around. Why on earth should I have to go to court to ask for permission?”

You may well need to discuss with the client that acting unilaterally might lead to a criminal as well as civil difficulty. For example, the International Parental Kidnapping Crime Act of 1993 makes it a federal felony to remove a child from the United States with intent to obstruct the lawful exercise of parental rights. Once a federal warrant is issued, Interpol may issue a “red notice” seeking the person's arrest wherever found.

If a client tells you that he or she intends to covertly take and retain a child overseas, you need to exercise great care--you may have a duty to report the planned felony to the police, notwithstanding the attorney-client privilege.

In presenting an application to a court for a temporary visit with a child overseas, you will present those facts and those arguments that show that the client is unlikely to abduct and that the country in question is one that respects U.S. custody orders and returns abducted children. In a case for an Italian client living in New York, I offered testimony that Italy was in full compliance with the Hague Convention and that its performance was significantly better than that of the United States. The court accepted my expert testimony and authorized the visit.

If the request is for relocation, the burden of proof on the applicant is far higher. Domestic child relocation cases are generally difficult to win, and international relocation cases are much more so. They often require lawyers to present evidence as to the legal, social, cultural, political, economic, religious, and educational environment of a foreign country and, in particular, as to whether a U.S. custody order will be recognized and enforced in that country. It is generally a major mistake for a lawyer to present any such case without having worked intensely with the client to prepare an attractive relocation package. The plan should demonstrate the serious steps that the parent has taken to secure optimal conditions for the child and the client in the proposed new location. Equally important, it should establish that the taking parent will not merely permit the left-behind parent to participate in the child's life but will actively encourage and genuinely promote such ongoing contact.

Conclusion
In this article I have been able to provide no more than a brief introduction to a fascinating area of the law. International child custody cases are always stimulating and sometimes extremely frustrating. But when a client e-mails to say, “Thanks to you, my children are safe” or “Blessings, thanks to you, I got the kids back,” they can be the most rewarding cases of all.

 Jeremy D. Morley is a New York lawyer and the author of International Family Law Practice. His firm handles family law cases in New York and New Jersey. He consults with clients and lawyers globally on International family law matters, working with local counsel as appropriate. He frequently acts as an expert witness on International family law. He may be reached atwww.international-divorce.com.