Thursday, August 27, 2015

Expats with Children: Top Tips from an International Family Lawyer


By Jeremy D. Morley*

I have worked for many years counseling international parents around the world about their international child custody issues.
Here are some of my "international family lawyer's best tips" for clients with children who may move overseas. This article does not deal with financial issues except as they may relate to children issues.
1. Before you move overseas, you absolutely must realize, understand and fully evaluate the fact that if you are in a new country with a child you may find yourself trapped there if the other parent refuses to let you take the child home. Under the Hague Convention on the Civil Aspects of International Child Abduction, you will "wrongfully remove" a child if you take the child away from his or her habitual residence in breach of the rights of custody that the other parent has under the law of the country in which the child was habitually resident immediately before the removal. What that means is that once your child is "habitually residing" in the new country, which can occur quite quickly, the other parent will normally be able to block your removal of the child from that country and if you take the child to the United States a U.S. court will normally compel you to return the child forthwith. In fact it will often be a criminal offense for you to take the child away without the other parent's permission. Example: Angie the American and Gus the Greek (from Cyprus) moved to Cyprus with their baby. Life in Cyprus didn't work out for Angie. In fact, she absolutely hates it there. But Gus refuses to leave and he refuses to allow Angie to take the baby back to the States to live. Since both Cyprus and the U.S. are parties to the Hague Convention, Angie will be in big trouble if she takes the child back to the States without Gus' permission. Angie wishes she had consulted an international family lawyer before she moved overseas. Now she's stuck there.
2. Foreign courts, not U.S. courts, probably have jurisdiction. When you go overseas you will probably be subjecting all issues about child custody to the courts of the foreign country. There are complex rules about international custody jurisdiction under the laws of each American state - as to which you will need to consult with knowledgeable counsel - but usually the American courts will defer to the foreign courts if your family has relocated overseas. And in any event none of that usually matters to a foreign court, which is governed by the jurisdictional rules of its own legislature. In most countries, once you're habitually residing there the local courts have jurisdiction to handle the case. It will usually make no difference that you or your children are not citizens of the foreign country.
3. Foreign law usually applies. Some people think that when they go away their American citizenship somehow travels with them and provides a cloak of protection concerning child custody matters. Usually that is absolutely wrong. You need to assume that when you are in Rome you must do as the Romans do. And when you are in Saudi Arabia, Saudi law will govern. Most countries apply their own domestic law to child custody matters, even if all of the family members are foreigners. And in the minority of countries that apply the law of the parents' common nationality to custody issues you need to understand that the foreign court will probably have great difficulty in understanding and applying the law of your local American state and might well have great reluctance to apply it in any similar way.
4. The law in real life is not the law on the books. Most of the laws about child custody and parental rights that are on the books in countries around the world read well. But there can obviously be all the difference in the world between the law as it is written and the law that is actually applied. China has rules about divorce jurisdiction that do not seem to be applied in cases concerning foreigners. The Japanese Civil Code has innocuous provisions about child custody that disclose nothing about how cases there are really conducted. Obtaining strategic and experienced advice about these matters is usually absolutely essential.
5. The Hague Convention won't protect you. Just because the foreign country has signed the Hague Abduction Convention does not mean that the courts there will be ready, or willing or able to help you. As stated above, the Convention may bar you from taking your child back to your home country. But there are no provisions in the Convention that will help you if you are arguing with the other parent about custody matters.
6. An American court order may not count. Just because you have a clear court order from a U.S. court that supposedly gives you protection and provides clear rules about who has the kids and at what periods of time, you're far from guaranteed that the terms of the order will be respected overseas. The rules about recognition and modification of custody orders overseas are usually entirely different from the rules in the United States. The provisions of our Uniform Child Custody Jurisdiction & Enforcement Act are not paralleled in foreign countries. Very many countries have no requirement or practice of applying foreign custody orders. And the courts in almost all foreign countries are empowered under their own laws to modify foreign custody orders once a child is habitually resident in the foreign country, which can occur quite quickly. Sometimes American court orders declare that the American court has “continuing exclusive jurisdiction” over the case, but these provisions will not bind foreign courts.
7. Beware of exit controls. The United States has no exit controls. With minimal exceptions, no one checks whether you have a legal right to remove a child. But the same is not true overseas. For example, you cannot take your child out of most South American countries without a notarized document establishing that the other parent has consented, or a local court order. Courts in Israel are liberal in issuing orders to block a child’s exit. 
8. Beware of visa rules. You can't normally stay overseas or re-enter the foreign country without complying with the correct local residency requirements. This can be a terrible problem if the other parent has control of your status and therefore owns the virtual "key to the door." Example: A Saudi father agreed that his wife could leave Saudi Arabia for a family visit to the States. She left their child temporarily in Riyadh. While she was away he divorced her in Riyadh and canceled her visa. She could never return. He had the child and she was powerless to stop it.
9. Beware of local laws. In many countries a parent's conduct that may be acceptable in the United States may be frowned upon or even criminal elsewhere and engaging in any activities that could be deemed to be inappropriate could adversely affect your rights to custody or even access to your child. Example: A client's husband accused her of adultery - and worse -- in Dubai. Knowing the extreme seriousness of the charges in the UAE, we recommended that she leave Dubai that night without her young child, who was in the husband's possession. (We later used other methods to help retrieve her child).
10. If you make a deal with your husband or wife that you're going overseas just for a trial and that you'll return if it doesn't work out - Get it in writing! Verbal agreements always seem to be forgotten when things blow up. But also know that even a written agreement may not work. A foreign court handling your child custody case may well state that it doesn't care what your deal with was with the other parent; it must only consider what it thinks is best for the child.
11. Before leaving home, you should hope and plan for the very best. But you also need to be prepared for the very worst. So if you are a "trailing spouse," consider the following:
-Don't sell the house. If you maintain an address in the States it will be easier to claim that you maintained your home as your permanent residence. Certainly it will indicate that it continues to be your "domicile" (the place you live in indefinitely, which remains as your domicile even if you move temporarily to another place). Having a place to return to will also make your case a lot stronger if you need to prove that your kids should be allowed to move "back home." 
-Keep your contacts with your job. Prepare for the day when you may want to re-enter the job market back home. Perhaps you can even continue to do some work even while overseas. 
-Keep your network of friends and family at home. Stay in touch with them. Visit them if possible.
12. If you're overseas and are "planning" to get divorced, be as strategic as possible. Plan your moves. Consult with someone who really understands the big picture in these cases. Figure out where it's best for you to be at the time you tell your soon-to-be-ex that it's all over. You may need to move yourself, the kids, the soon-to-be-ex and the marital assets to another place before you break the news that you want out of the marriage. And don't leave without the evidence. It's very frustrating when a client tells me a story of the other spouse's gruesome physical abuse and shameless hiding of marital assets and, when I ask for the evidence, I'm told that it was all left behind in the foreign country before the client came back home. Intelligent planning, with strategic professional advice, is the key.
13. If you're feeling stuck overseas and have children with you, don't just bolt for the (airplane) door with the kids and run "back home" to the States. Plan things out first. If you take the kids you may be guilty of international child kidnapping. You could even be arrested at the airport before you leave. If you make it to the States, you may well be forced by an American court to return your child - and then, to completely add insult to injury, you'll probably have to pay your spouse's legal fees and travel expenses as well as your own. Then, when you return overseas, your case will be heard in the foreign court, where you will be branded as an international child abductor. Consult with knowledgeable international family law counsel sooner, rather than later.
14. On the other hand, if it's your spouse who's feeling unhappy and upset and who may "do a runner" back home, there are lots of things that you should be doing in advance. Some are pretty obvious: Be kind; be understanding; and don't stay out all night with the guys or gals from the office. Other tips are not so clear, and whether you implement them depends very much on the circumstances. Hide the passports. Befriend her travel agent, who may tell you if she's making an airline reservation. Consult her friends. Suggest counseling. Have a plan to call the police and alert the border guards if you discover that she has taken the kids.
15. If you're overseas and pregnant, and not 100% confident that you'll always want to live in the overseas country, consider very seriously getting out of there now. If your baby is born overseas, whether in Sweden or Saudi Arabia, the child's "habitual residence" for purposes of the Hague Convention will likely be Sweden or Saudi Arabia - and that can create terrible problems if you want to take your baby "back home."
16. Don't assume that the local authorities won't help. So many times, expats feel that the local social welfare agencies won't understand and that they will automatically side with the other spouse who is a citizen. In fact, in many countries the support services are excellent and you should try them. Plus, an American court in a Hague Convention case won't accept your defense that returning a child to the foreign country will put the child in grave risk of harm unless you can show that the foreign support services are unable to provide the needed protection
17. Consult with an experienced international family lawyer. You need to plan strategically but you cannot do that without knowing the basic facts. Local family lawyers may not be your best bet. There is just so much wrong information out there about these issues. It is absolutely shocking how many clients have previously been given poor advice that is often not only mistaken but also damaging. An experienced international family lawyer, who consults with local lawyers as appropriate, can give you much more objective "big-picture" advice and, most critically, can assist you in creating the best strategies.
________________________
* Jeremy D. Morley may be reached at 212-372-3425 and through his website, www.international-divorce.com. Jeremy has written the leading treatises on international family law. He consults (by telephone or in person) on international family law matters with clients around the world, always working with local counsel as appropriate.
This copyrighted article may be reproduced, in unabridged form if full credit is given to the author and if the asterisked information about him is fully included, but not otherwise.

Tuesday, August 25, 2015

Preventing International Child Abduction through the Prevent Departure Program


Jeremy D. Morley
The Secretary of State’s office advises judges that “the United States does not have exit controls.  This means that U.S. citizens may leave the country without interference from or detection by the U.S. government.  Additionally, the Department of State cannot track a child’s ultimate destination through his or her use of a U.S. Passport if the child transits a third country after departing from the United States.  Further, U.S. citizen children may also have another nationality and travel on that country’s passport making it more difficult to determine the child’s whereabouts.”
Other countries, such as most South American countries, do not allow a child to exit the country when accompanied by only one parent without producing evidence of the other parent's consent or a court order authorizing the exit. These rules are significantly effective. Unfortunately, there are no such requirements in the United States. A child may leave the U.S. without anyone checking the child's papers and with no check on the connection between the child and whoever is accompanying the child, except that the airlines will make sure that the child has the papers that are required to enter the foreign country.
Proposals that the United States should impose similar rules are met with the claim that it would be prohibitively expensive to employ the officials that are needed to monitor the system and that it would interfere with freedom of travel. Suggestions that the responsibility should be placed on the airlines to require that anyone traveling alone with a child should produce appropriate documentation are met with the airlines' claims that it would be too heavy a burden on them.
However, the Department of Homeland Security operates a Prevent Departure Program that was created in the aftermath of 9/11 to stop non-U.S. citizens from leaving the United States. It may be useful to prevent an abduction if the correct court order is in place and if the person to be placed on the list is an alien. Either children or parents can be placed on the list if the necessary conditions are fulfilled.
Although the program was created in order to intercept known or suspected terrorists, criminals and other wanted individuals, the Office of Children's Issues at the U.S. State Department has been successful in extending it to include specific cases of prevention of international child kidnappings.
The program operates through the transportation industry and it provides a single, comprehensive prevent departure lookout database of subjects whose imminent departure can be flagged.
If a named abductor and/or child seek to leave the country by means of a public carrier, the transportation company is required to prevent the departure. Whether law enforcement will arrest the parent will depend on the terms of any arrest warrant or court order.
The requirements of the program are as follows:
1. The parent whose name is being added to the program must not be a U.S. citizen (this will include a dual national);

2. A law enforcement agency contact with 24/7 coverage must be included in the nomination;

3. A court order showing which parent has been awarded custody or showing that the non-citizen parent is restrained from removing the minor child from certain counties, the state or the U.S. must be in place;

4. The non-citizen parent must be in the U.S.; and

5. Some likelihood that the non-citizen will attempt to depart in the immediate future must exist.
The Government Accountability Office has asked the Department of Homeland Security to consider creating a program similar to the child abduction component of the Prevent Departure Program that would apply to U.S. citizens. Unfortunately that suggestion has not been acted upon.
Moreover, the International Child Abduction Prevention and Remedies Act provides that the Secretary of Homeland Security, through the Commissioner of U.S. Customs and Border Protection in coordination with the Secretary of State, the Attorney General, and the Director of the Federal Bureau of Investigation, “shall establish a program that (1) seeks to prevent a child … from departing from the territory of the United States if a parent or legal guardian of such child presents a court order from a court of competent jurisdiction prohibiting the removal of such child from the United States to a CBP [Customs and Border Protection] Officer in sufficient time to prevent such departure for the duration of such court order; and (2) leverages other existing authorities and processes to address the wrongful removal and return of a child.” However, no such program has yet been announced. 6 U.S.C.A. § 241.

Thursday, August 20, 2015

LEBANON AND INTERNATIONAL CHILD ABDUCTION


Jeremy D. Morley
The U.K. Government has just issued its latest “Lebanon travel advice.”
With respect to international parental child abduction in Lebanon the U.K. Government has issued the following specific warning:
Child Abduction
One of the most common requests for consular assistance in Lebanon is from British mothers seeking help in overturning travel bans placed on their children or themselves by their fathers or husbands. Lebanese family law is very different from UK law and particular care is needed if child custody becomes an issue. If you have concerns about child custody you should seek advice before travelling to Lebanon about ‘travel bans’ that can be imposed by male heads of family. Even you or your child holds a British passport you may be Lebanese automatically by descent and subject to Lebanese laws and regulations. Any child travelling without their father (even if the mother is accompanying them) may need to provide proof that permission to travel has been given by the child’s father.

For further information see NOTES ON LEBANON AND CHILD ABDUCTION by Jeremy D. Morley, http://www.international-divorce.com/ca-lebanon.htm

Tuesday, August 18, 2015

Canadian Border, Passport Controls and International Child Abduction


Jeremy D. Morley

A recently issued (July 2015) Canadian Parliamentary Report, entitled Alert: Challenges and International Mechanisms to Address Cross-Border Child Abduction – contains a helpful analysis of Canada’s exit controls and passport controls. Relevant portions are reprinted below, without footnotes.
Border Controls
In cases where an abducted child is entering Canada, the Canada Border Services Agency (CBSA) is the first point of contact and its officers can refer the child and parent to secondary examination if they have suspicions that the child may have been abducted. In addition, CBSA’s Border Operations Centre is the point of contact for the after-hours operation of the federal government’s Our Missing Children Program. The program is made up of several government departments – DFATD, the Department of Justice, Citizenship and Immigration Canada, CBSA and the RCMP – and its mandate includes intercepting and recovering missing and abducted children across international borders.
The Committee was informed that CBSA monitors only incoming travelers, and does not keep records or have any processes in place for travelers leaving the country. A number of witnesses felt that the introduction of exit controls would be beneficial in preventing abducted children from leaving Canada. However, some witnesses noted that such a system may be costly, and that such a measure would not assist in situations where a child has left the country with the permission of the other parent but then is not returned to Canada. Penelope Lipsack, Legal Services Branch, Ministry of Justice of British Columbia, estimated that cases of “wrongful retention” account for approximately 50% of international child abduction cases.
CBSA officials noted that a form of exit control is currently being introduced as part of the Beyond the Border Action Plan through the Entry/Exit Initiative for “third-country nationals” (i.e., noncitizens of Canada or the United States) going to the United States. Calvin Christiansen, Director General, National Border Operations Centre of the CBSA, described the program as follows:
We have several phases of entry-exit that have been implemented over time. We implemented phase 1 of entry-exit on September 30, 2012, which involves a pilot project where we exchange data on third-country nationals departing from either country ... [As of June 2013], [w]e started that exchange of information at all … the land border crossings across the country.
CBSA officials noted that later phases of Beyond the Border would allow for the same sharing of information with respect to air departures and possibly marine and rail travel as well. Biographical information on travellers would be exchanged between the U.S. and Canada. …  In addition, officials noted that implementation of the next phase would require “legislative and regulatory amendments to go with it.”
Passport Controls
Passport Canada is tasked with ensuring that a child’s passport application is from someone authorized to apply on behalf of the child, and ascertaining whether the consent or acknowledgement of another person is required. The Committee heard that the current passport application process may go some way toward preventing the international abduction of a child, but will not do so in all cases.
Applications for a passport for children under the age of 16 must be made by a parent or legal guardian. Officials from Passport Canada informed the Committee that either parent with joint custody of a child may apply for a passport for that child. However, officials also noted that Passport Canada prefers to have both parents sign the application form where possible, regardless of the custody situation. In rare cases where a parent claims to be unable to get the signature of the other parent, officials may request additional documentation to verify that claim.
The Committee heard that the passport application process is heavily reliant on information provided by the applicant and disclosure with respect to material information (e.g., court orders). The Committee was informed that, to protect against fraudulent applications, a protocol known as “System Lookout” is used as an “internal flagging tool.” Parents can request that their child’s name be included in the system if they are concerned that the other parent may seek to have a passport issued without their knowledge.
Passport Canada is involved in a number of initiatives related to the challenge of identifying when to issue a child with a passport. These include starting a task force on children’s issues in 2010 as an internal initiative, reaching out to other organizations, developing a resource document for passport officers about how to speak with parents and standardizing the form for System Lookout files.
According to government officials, System Lookout flags an application for further examination, but does not necessarily prevent the issuing of a passport, as long as the necessary requirements are satisfied. Similarly, a parent may wish to contact the embassy where the other parent is a national of a country other than Canada to request that no passport be issued in the child’s name. Again, making such a request does not automatically bar the issuance of a passport. In addition, children under age 16 may travel to the United States by land with only a copy of a birth or citizenship certificate, so a passport would not be required.
The Committee heard that listing in System Lookout does not prevent a child from travelling on a passport that has already been issued. Furthermore, the Committee was told that Passport Canada has no authority to cancel a passport due to fear of an abduction, unless the passport is determined to have been lost or stolen.
In addition, the Committee heard that the information in the System Lookout database is not shared with other agencies such as CBSA or input in CPIC unless the passport is determined to have been lost or stolen. Officials told the Committee that these limitations on the cancellation of passports are in place because of concerns about the accuracy of information in a system that is client reliant, and the fact that the veracity of parents’ claims cannot be fully ascertained by passport officials.
Once a passport is issued, a court order is required to restrict the child’s mobility and/or require that the passport be turned over to a third party, such as a lawyer. If a child does travel on a cancelled passport, since Canada does not have exit controls, foreign border officials must be relied upon to verify if the passport is valid and to prevent movement. As one witness noted, “if that information isn’t verified at the border, then it doesn’t matter. We’re very reliant upon the excellent work of border officials around the world to flag those [passports] and identify children when they're moving across borders.”

Monday, August 17, 2015

Put Japan on U.S. sanctions list for parental abductions: Washington Post editorial

 Japan should be included in a U.S. government list of the countries subject to sanctions over parental abductions, The Washington Post said in an editorial in its Wednesday online edition. The U.S. newspaper cited Japan as an example of a country that does not actively address the problem of cross-border child abductions by parents after their failed marriages with U.S. citizens.
 
“Japan was recorded as having no unresolved cases when there are more than 50 outstanding,” the paper pointed out, noting that the Asian nation is absent in the sanctions list that currently has 22 countries.
 
If the U.S. Department of State “fails to call things as they are, it sends a message that nothing really needs to change after all,” the paper said, noting that it lacks “willingness to hold foreign governments to account.”

In April last year, Japan joined the Hague Convention on the Civil Aspects of International Child Abduction, which sets rules for settling child custody disputes in failed international marriages. But cases that happened before then are not covered by the treaty.

Some U.S. lawmakers are calling for sanctions to be imposed on Japan as affected U.S. citizens are frustrated at Japan’s lukewarm response to the matter.

Friday, August 14, 2015

English Case: Zimbabwe Child Has No Habitual Residence

Jeremy D. Morley
                In an interesting case on habitual residence, on July 30th an English court ruled that a 15 year old child passing through England en route “home” from Switzerland to Zimbabwe had no habitual residence and that in the absence thereof England could and should assert custody jurisdiction under the 1996 Hague Child protection Convention. In the Matter of the Children Act 1989 and in the Matter of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement And Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children. [2015] EWHC 2299 (Fam).
The Court applied the test of habitual residence set forth in UK Supreme Court’s cases of A v A and Another (Children: Habitual Residence) (Reunite International Child Abduction Centre and Others Intervening) [2013] UKSC 60 and  Re KL (A Child) (Custody: Habitual Residence)(Reunite: International Child Abduction Centre Intervening) [2013] UKSC 75. That test is "the place which reflects some degree of integration by the child in a social and family environment" in the country concerned. 
Two further relevant points of principle were held to be as follows: i) That parental intent does play a part in establishing or changing the habitual residence of a child: not parental intent in relation to habitual residence as a legal concept, but parental intent in relation to the reasons for a child's leaving one country and going to stay in another. This should be factored in, along with all the other relevant factors, in deciding whether a move from one country to another has a sufficient degree of stability to amount to a change of habitual residence. ii) Where the child is older, in particular one who is an adolescent or who should be treated as an adolescent because he or she has the maturity of an adolescent, the inquiry into his integration in the new environment must encompass more than the surface features of his life there.
Applying this test to the facts of the case, the Court found that the child was not habitually resident in Zimbabwe, contrary to the assertion of his mother and despite his Zimbabwean nationality, because he had never lived there and had spent relatively little time there, and only when in residential school there.
Nor was he habitually resident in Switzerland, even though he had last lived there, considered it to be his home and wanted to remain there, because his Swiss residence permit had expired, he would be unlikely to be able to return there legally and the Swiss authorities insisted that he should not be considered to be habitually resident there.
Finally, he was not habitually resident in Canada even though he had sent several tears there because he had last lived there more than three years previously.
The English Court then determined that under the 1996 Convention, it had the power to assume jurisdiction when there was no habitual residence and a child was merely physically present in the United Kingdom, even through the child was not a U.K. national and had lived there. the Court stated that, “The court is satisfied the court has jurisdiction on the basis that [Name Withheld] had no habitual residence in any country at the time the court was seized and pursuant to Article 6(2) of the Hague Convention 1996 Convention the courts of England and Wales have substantive jurisdiction based on the child’s presence here.”
Accordingly the Court upheld an interim care order that had been issued in respect of the child. The order placed him in the care of the London Borough of Sutton until the finalization of the proceedings and provided that an inquiry would be made through a lawyer qualified in Alberta, Canada to advise the Court on the feasibility and legality of placement options for the child in Canada, where his sister is living.

Thursday, August 13, 2015

Ancient Egyptian Women Had Prenups Taller Than Their Husbands

                               By Jessica Roy
Long before Kanye was around to deem them "Gold Diggers," ancient Egyptian women were planting their feet in the sand and demanding some pretty progressive rights given the time period. According to Atlas Obscura, women in ancient Egypt shared many of the same rights as men, including the right to demand prenuptial agreements that guaranteed financial stability should the marriage come to an end.
Some of these agreements, written in calligraphy, were so exacting that the scrolls they were written on could be up to eight feet long. Many of them determined specific alimony payments in case of divorce (and yes, women in ancient Egypt were allowed to file for divorce), such as "1.2 pieces of silver and 36 bags of grain every year for the rest of her life."
Cleopatra: comin' at ya.
http://nymag.com/thecut/2015/08/ancient-egyptian-women-knew-how-to-get-theirs.html

Wednesday, August 12, 2015

Getting Your Child Back After a Summer Visit Overseas

                    by Jeremy D. Morley*
Many children whose parents are separated are spending this summer away from home on vacation in the country of origin of one of their parents. Usually such visits are great, providing excellent and important benefits to the children and their parents.
But sometimes – and it happens all too often – as the date to return home draws near, problems arise. Children announce that they don’t want to go home and they refuse to do so. Or parents with temporary possession of a child insist that it would be best for the child to stay and not go back to live with the other parent.
Indeed, some parents encourage that process. They make sure that the kids have a fantastic summer, taking them on trips to great resorts, showering them with generous gifts and demanding neither homework nor chores. Some parents feed negative information about the other parent to their children, which might be true or often distorted or entirely false, or they encourage them to focus on the negative qualities of the other parent, or the other parent’s family, friends, community, country, religion or people. Sometimes it becomes all-out psychological warfare using all these tactics while the children are away from their usual environment and particularly susceptible to such manipulation.
Faced with such a circumstance, what can -- and what should -- a potentially left-behind parent do?
The all too obvious initial answer is that the parent should have acted before the child was permitted to leave home. There are many steps that worried parents can take, in advance, to improve the chances that a child who may be leaving on an international visit with the other parent will be returned on schedule. These may include home state court custody orders, foreign country mirror orders, well-drafted affidavits by the taking parent, financial performance bonds and legal fee escrow accounts. (And yet, especially with respect to countries that do not usually return abducted children, it is often essential to prevent the visit from taking place at all, because protective measures will likely be useless. Sometimes it is essential to seek a court order barring any such visit, and for this it is usually essential to retain experienced international family law counsel and provide qualified expert witness evidence concerning the nature of the risk).
Once a parent who has taken a child on an overseas vacation has threatened or intimated that the child will not be returned, it is usually necessary to act very quickly but very appropriately. However, self-help can be –and very often is – totally counter-productive.
Before you make threats you need to know how those threats might be interpreted, not only by the other parent, but also by that parent’s lawyers, by judges (both in your courts at home and in the courts in the foreign country), by police and by prosecutors.
Before you allege the other person’s criminality you need to understand whether threatening prosecution is itself criminal; which criminal laws might apply; what those laws actually provide; and how those laws might apply to the facts of your situation.
Before talking “International Law” you need to be advised about the key international treaty, the Hague Abduction Convention. Before threatening to employ it you need to understand whether it applies in your case, what you might need to prove to win a case, what defenses exist and what other exposure you might have.
Before you run to court you need to know the impact that a case in one country might have on the courts in the other country.
Before you threaten to grab the kids yourself and before you waste money on hiring re-abduction “special forces”, you need to understand fully the potential consequences – some extremely serious -- of doing so.
There are many steps that you can take, but every case is different. One size does not fit all. Usually your local lawyers alone will not have the necessary experience to provide you with the strategic advice and big picture review that you must have. You need to consult with an experienced family lawyer who, after understanding the critical issues by interviewing you, can then suggest the most appropriate strategy or strategies, and can lead the effort to implement them. Such counsel will often not be located in the geographical location of your child and the other parent but will bring in a local family  lawyer or a local criminal lawyer in that area to participate in the strategic planning and then to handle the local court proceedings if needed.
In my experience left-behind parents who do not first secure knowledgeable advice often make mistakes, sometimes fatal to their case, that could have been avoided if they had secured the necessary advice from wise and experienced international counsel.
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* Jeremy D. Morley consults on international family law matters with clients globally, always working with local counsel as appropriate. He may be reached at +1- 212-372-3425 and through his website, www.international-divorce.com. Jeremy has handled hundreds of child abduction cases and has written the leading treatises on international family law.

Wednesday, August 05, 2015

European Court “Grave Risk” Ruling in Hague Abduction Convention Case



                          Jeremy D. Morley
 
In a significant ruling concerning the “grave risk” exception to the Hague Abduction Convention, the European Court of Human Rights, Fourth Section, has ruled that the country of Georgia violated Article 8 of the European Convention on Human Rights by failing to return a child to Ukraine on the grounds of “grave risk.” GS v Georgia (Application No. 2361/13).

The trial court in Georgia had denied the mother’s petition for the child’s return on the ground that the child had suffered a trauma in Ukraine as a result of the death of his sister. Although an appeal court had overturned that ruling, the Supreme Court of Georgia had reinstated the original decision.

The European Court concurred that the child’s psychological trauma was a relevant factor to be considered during the boy’s return proceedings, but it disagreed with the subsequent reasoning of the Supreme Court, which led to the finding of the existence of a “grave risk” for the child in the event he was returned to Ukraine. Although the Supreme Court had used general phrases such as “physical or psychological harm” or “otherwise intolerable situation” it had failed to explain what those risks exactly implied. Significantly, the father had not asserted that the applicant herself posed a threat to the boy. Further, there was no expert evidence in the case file to suggest that the return to Ukraine as such would exacerbate the boy’s psychological trauma. The European Court criticized the fact that the social worker and psychologists’ reports had proposed an analysis of the implications of the child’s possible return to Ukraine; and there had been no exploration of the possible risks in this regard. The psychologist’s report had merely stated that the boy had experienced psychological trauma and was in need of assistance, which the applicant did not contest. On the contrary, as someone with a medical background, she had consistently reiterated before the domestic courts her readiness to provide her son with the required psychological assistance in Ukraine.

The Government of Georgia argued that the boy wanted to stay in Georgia and that his return and consequent separation from his father and the paternal family would have caused him additional psychological trauma. However, the European Court observed  that the aim of the Hague Convention is to prevent the abducting parent from succeeding in obtaining legal recognition, by the passage of time, of a de facto situation that he or she had unilaterally created. Hence, the abducting parent cannot benefit from his or her own wrongdoing. Further, the exceptions to return under the Hague Convention must be interpreted strictly. Thus, “the harm referred to in Article 13 § b of the Convention cannot arise solely from separation from the parent who was responsible for the wrongful removal or retention. This separation, however difficult for the child, would not automatically meet the grave risk test. Indeed, as the Court concluded in the case of X v. Latvia, the notion of “grave risk” cannot be read, in the light of Article 8 of the Convention, as including all the inconveniences linked to the experience of return: the exception provided for in Article 13 (b) concerns only the situations which go beyond what a child might reasonably bear (see X v. Latvia, cited above, § 116; see also Maumousseau, cited above, § 69).”

Accordingly, and also having regard to the facts that no expert examination was conducted concerning the implications of the child’s separation from the paternal family, and that the living conditions awaiting the boy in Ukraine were also left without consideration, the Court found that Georgia’s argument about possible psychological trauma due to the child’s separation from his father and the paternal family, was misconceived.

Since there was no direct and convincing evidence in the case file concerning the allegation of a “grave risk” for the child in the event of his return to Ukraine, the ruling by the Supreme Court of Georgia was erroneous.

The European Court then criticized the Georgian Court for having failed to properly determine the child’s best interests in view of the specific circumstances of the current case and to strike a fair balance between the parties’ conflicting interests. It is noteworthy in this regard that the European Court has continued to insist that “best interests” must be considered in European determinations under the Hague Abduction Convention. Specifically the Court stated that, “The Court reiterates in this connection that it has repeatedly emphasised in its case-law that the best interests of the child are to be the primary consideration in all decisions relating to children (see X v. Latvia, cited above, § 96 …” The European Court then provided an analysis of its opinions as to where the child should best live. Such an analysis, this writer respectfully contends, is itself in plain derogation of the terms of the Hague Abduction Convention. See my article on the European Court’s ruling in the Neulinger case.
 
 
 

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