Child Custody Jurisdiction in India

Jeremy D Morley

Jurisdiction in India concerning child custody matters is primarily based on the concept of “ordinary residence.” Section 9 (1) of the Guardian and Wards Act 1890 provides that, “If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.” Ordinary residence is not necessarily the same as habitual residence, but it is based on the original meaning of the term in English law. Nonetheless, the courts in India have developed their own jurisprudence concerning its interpretation.

The leading case is the Supreme Court of India’s ruling in Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479, which outlines with the simple proposition that “ordinary residence” means “where the minor ordinarily resides,” but then provides helpful amplification of that concept.  The key provision in the ruling, explaining the fundamental distinction between sufficient and insufficient residence, comes in the Court’s analysis of a prior case, Jagir Kaur and Anr. v. Jaswant Singh, AIR 1963 SC 1521. The Court in Majoo explained as follows:

The Court [in Kaur] noticed a near unanimity of opinion as to what is meant by the use of the word "resides" appearing in the provision and held that "resides" implied something more than a flying visit to, or casual stay at a particular place. The legal position was summed up in the following words:

‘.......Having regard to the object sought to be achieved, the meaning implicit in the words used, and the construction placed by decided cases there on, we would define the word "resides" thus: a person resides in a place if he through choice makes it his abode permanently or even temporarily; whether a person has chosen to make a particular place his abode depends upon the facts of each case.....’ "

Thus, the fundamental distinction is between a mere “flying visit to, or casual stay at a particular place,” which is insufficient to create ordinary residence and residence “through choice” to make a place “his abode permanently or even temporarily,” which may be sufficient. The Court also cited the case of Kuldip Nayar v. Union of India, AIR 2006 SC 3127, in support of the proposition that, “residence is a concept that may also be transitory.”

The Indian courts have further held that an ordinary residence cannot be created by child snatching. A very recent example is the case of Akhilesh Anjana vs Kavita Anjana (14 March, 2022, Madhya Pradesh High Court), holding that a child who was living with his father after the father had unilaterally removed him from the matrimonial home continued to be ordinarily resident in the district in which he had been living before his father had wrongfully removed him. 

In addition to jurisdiction based on ordinary residence, Indian courts also may assert child custody jurisdiction on the basis of parens patriae, based on the traditional duty of the sovereign to protect all who are present in the country, and on the basis of habeas corpus. Such cases are exceptional and are primarily founded on the need to provide urgent protection for a child who is physically present in the district in which the court is located, even if the child is not ordinarily resident there. These issues arise frequently in the case of international child abduction to India. In some cases, courts in India have held that foreign children should be returned to their home country based on the limited and exceptional jurisdiction founded on parens patriae and habeas corpus. Merely by way of example, the Supreme Court of India has most recently ordered the return of an American child to the United States because of the exceptional circumstances of his abduction. Rohith Thammana Gowda vs The State Of Karnataka, 29 July, 2022. However, as I have often reported, it is critical to note that such returns are rare and very much the exception rather than the rule.

 

 

Honduras: 2022 State Department's Annual Report on International Child Abduction

Country Summary: The Convention has been in force between the United States and Honduras

since 1994. In 2021, Honduras demonstrated a pattern of noncompliance. Specifically, the

Honduran Central Authority regularly failed to fulfill its responsibilities pursuant to the

Convention. Additionally, Honduran law enforcement regularly failed to enforce a return order

rendered by the judicial authority in an abduction case. As a result of this failure, 20 percent of

requests for the return of abducted children under the Convention remained unresolved for more

than 12 months. The sole case affected was unresolved for over one year. Honduras was

previously citied for demonstrating a pattern of non-compliance in the 2015 and 2016 Annual

Reports.

Initial Inquiries: In 2021, the Department received three initial inquiries from parents regarding

possible abductions to Honduras for which no completed applications were submitted to the

Department.

Central Authority: There have been delays in the processing of cases by the Honduran Central

Authority, which contributed to a pattern of non-compliance. In the majority of cases pending in

2021, the Honduran Central Authority failed to take all appropriate steps to facilitate the

institution of judicial proceedings in a timely manner, which resulted in significant delays.

Location: The competent authorities regularly took appropriate steps to locate children after a

Convention application was filed. The average time to locate a child was 42 days.

Judicial Authorities: Delays by the Honduran judicial authorities impacted cases during 2021.

Enforcement: Judicial decisions in Convention cases in Honduras were generally not enforced,

which contributed to a pattern of noncompliance. One case (accounting for 100 percent of the

unresolved cases) has been pending for more than 12 months in which law enforcement failed to

enforce a return order.

Access: In 2021, the U.S. Central Authority had one open access case involving one child under

the Convention in Honduras. This case was opened in 2019 and has been filed with the

Honduran Central Authority. No new cases were filed in 2021. By December 31, 2021, this

case had been resolved.

Department Recommendations: The Department will continue intense engagement with

the Honduran authorities to address issues of concern.

Egypt: 2022 State Department's Annual Report on International Child Abduction

Country Summary: Egypt does not adhere to any protocols with respect to international

parental child abduction. In 2003, the United States and Egypt signed a Memorandum of

Understanding to encourage voluntary resolution of abduction cases and facilitate consular

access to abducted children. In 2021, Egypt continued to demonstrate a pattern of

noncompliance. Specifically, the competent authorities in Egypt persistently failed to work with

the Department of State to resolve abduction cases. As a result of this failure, 85 percent of

requests for the return of abducted children remained unresolved for more than 12 months. On

average, these cases were unresolved for two years. Egypt was previously cited for

demonstrating a pattern of noncompliance in the 2015, 2016, 2019, 2020 and 2021 Annual

Reports.

Initial Inquiries: In 2021, the Department received two initial inquiries from parents regarding

a possible abduction to Egypt for which no additional assistance was requested or necessary

documentation was not received as of December 31, 2021.

Central Authority: In 2021, the competent authorities in Egypt worked closely with the United

States to discuss ways to improve the resolution of pending abduction cases. However, the

competent authorities have failed to resolve cases due to a lack of viable legal options, which

contributed to a pattern of noncompliance.

Location: The Department of State did not request assistance with location from the Egyptian

authorities.

Judicial Authorities: There is no clear legal procedure for addressing international parental

child abduction cases from the United States under Egyptian law and parents face difficulties

attempting to resolve custody disputes in the local courts.

Enforcement: The United States is not aware of any abduction cases in which a judicial order

relating to international parental child abduction needed to be enforced by the Egyptian

authorities.

Department Recommendations: The Department will encourage Egypt to ratify the

Convention and create the legal infrastructure needed for effective implementation of the

Convention.

Ecuador: 2022 State Department's Annual Report on International Child Abduction

Country Summary: The Convention has been in force between the United States and Ecuador

since 1992. In 2021, Ecuador continued to demonstrate a pattern of noncompliance.

Specifically, the Ecuadorian authorities persistently failed to take all appropriate measures to

locate children in a timely manner. As a result of this failure, 14 percent of requests for the

return of abducted children under the Convention remained unresolved for more than 12 months.

On average, these cases were unresolved for two years and three months. Ecuador was

previously cited for demonstrating a pattern of noncompliance in the 2015-2021 Annual Reports.

Significant Developments: On July 28, 2021, the National Court of Justice passed a resolution

requiring Ecuador’s courts to use a summary process for Convention cases. This is Ecuador’s

first concrete action to improve Convention compliance since 2015. Shortly after the passage of

the resolution, the Department received the first court-ordered return from Ecuador since 2018.

Additionally, throughout 2021, the National Assembly Special Commission on Children’s Issues

led a review of Ecuador’s Children’s Code. These Children’s Code reforms presented an

opportunity for Ecuador to legislatively implement its obligations under the Convention;

however, the legislation remains stalled in the National Assembly.

Central Authority: The U.S. and the Ecuadorian Central Authorities have a productive

relationship that facilitates the resolution of abduction cases under the Convention.

Location: The competent authorities of Ecuador failed to take appropriate steps to locate

children after a Convention application was filed, which contributed to a pattern of 

noncompliance. The average time to locate a child was 9 months and 3 days. As of December

31, 2021, there is one case in which the Ecuadorian authorities remain unable to initially locate

a child (accounting for 100% of the unresolved cases).

Judicial Authorities: Delays by the Ecuadorian judicial authorities impacted cases during

2021.

Enforcement: The United States is not aware of any abduction cases in which a judicial order

relating to international parental child abduction needed to be enforced by the Ecuadorian

authorities.

Department Recommendations: The Department will continue intense engagement with the

Ecuadorian authorities to address issues of concern.

Costa Rica: 2022 State Department's Annual Report on International Child Abduction

Country Summary: The Convention has been in force between the United States and Costa

Rica since 2008. In 2021, Costa Rica continued to demonstrate a pattern of noncompliance.

Specifically, the judicial authorities failed to regularly implement and comply with the

provisions of the Convention. As a result of this failure, 67 percent of requests for the return of

abducted children under the Convention remained unresolved for more than 12 months. Costa

Rica was previously cited for demonstrating a pattern of noncompliance in the 2011-2016, 2020,

and 2021 Annual Reports.

Initial Inquiries: In 2021, the Department received two initial inquiries from parents regarding

a possible abduction to Costa Rica for which no completed applications were submitted to the

Department.

Significant developments: Costa Rica’s Supreme Court, with the support of the Department

and U.S. Embassy San Jose, successfully hosted a series of virtual seminars on Convention best

practices. The seminars brought together Costa Rican Supreme Court judges, Department

representatives, as well as legal experts and judges from Costa Rica, Uruguay, Argentina,

Mexico, Spain, Canada, and the United States. Presenters offered legal analyses to raise

awareness of the Convention and its core governing principles, and shared best practices for

implementing Convention protocols. In September 2021, the Department organized an

International Visitor Leadership Program (IVLP) for members of Costa Rica’s judicial and legal

community. The IVLP focused on how Convention issues are approached in the U.S. legal

system.

Central Authority: The U.S. and the Costa Rican Central Authorities have a productive

relationship that facilitates the resolution of abduction cases under the Convention.

Location: The competent authorities regularly took appropriate steps to locate children after a

Convention application was filed. On average, it took less than one month to locate a child. As

of December 31, 2021, there was one case in which the Costa Rican authorities remained unable

to locate one child, representing 50 percent of unresolved cases for 2021.

Judicial Authorities: There were serious delays by the Costa Rican judicial authorities in

deciding Convention cases. As a result of these delays, cases have been pending with the

judiciary for over one year, contributing to a pattern of noncompliance.

Enforcement: The United States is not aware of any abduction cases in which a judicial order

relating to international parental child abduction needed to be enforced by the Costa Rican

authorities.

Department Recommendations: The Department will continue intense engagement with Costa

Rican authorities to address issues of concern.

Brazil: 2022 State Department's Annual Report on International Child Abduction

 Country Summary: The Convention has been in force between the United States and Brazil since 2003. In 2021, Brazil continued to demonstrate a pattern of noncompliance. Specifically, judicial authorities continued to fail to regularly implement and comply with the provisions of the Convention. Additionally, the competent authorities continued to fail to take appropriate steps to locate children in an abduction case, contributing to Brazil’s persistent failure to implement and abide by the provisions of the Convention. Brazil was previously cited for demonstrating a pattern of noncompliance in the 2006-2021 Annual Reports.

Initial Inquiries: In 2021, the Department received four initial inquiries from parents regarding possible abductions to Brazil for which no completed applications were submitted to the Department.

Significant Developments: In 2021, Brazil named six new members to the International Hague Network of Judges, expanding from a previous single active Network judge. Additionally, Brazil’s Federal Justice Council published a manual to guide federal judges when hearing Convention cases.

The Department has cited Brazil for demonstrating a pattern of noncompliance with the Convention for 17 consecutive years. However, by the end of 2021, a significant number of abduction cases were resolved, and less than 30 percent of cases remained unresolved for more than 12 months. While these resolutions are encouraging, other cases continue to experience lengthy judicial delays, contributing to Brazil’s persistent failure to implement and abide by the provisions of the Convention. The Department continues to call on Brazil to expedite the resolution of Convention cases.

Central Authority: The U.S. and Brazilian Central Authorities have a strong and productive relationship that facilitates the resolution of abduction cases under the Convention.

Voluntary Resolution: The Convention states that central authorities “shall take all appropriate measures to secure the voluntary return of the child or to bring about an amicable resolution of

the issues.” In 2021, two abduction cases were resolved through voluntary means.

Location: Brazil demonstrated a pattern of noncompliance with the Convention as a result of

failure by the competent authorities to take appropriate steps to locate children in one case after

a Convention application was filed. During the reporting period the competent authorities

continued to fail to take appropriate steps to locate two children in an abduction case (accounting

for 25 percent of the unresolved cases). During this delay, the Convention ceased to apply to one

of the children because of the child’s age. The average time to locate a child was 11 months and

13 days.

Judicial Authorities: There were serious delays by the Brazilian judicial authorities in

deciding Convention cases. As a result of these delays, cases may be pending with the judiciary

for over one year, contributing to a pattern of noncompliance. Delays at the first instance, the

appellate, and the enforcement stages persisted during the reporting year. As a result, the

Department remains concerned with the Brazilian judiciary’s repeated failure to regularly

implement and comply with the provisions of the Convention. Moreover, the U.S. Central

Authority is concerned by some language that was non-compliant with the Convention in one

judicial decision.

Enforcement: While courts in Brazil ordered returns under the Convention, in some cases the

Brazilian authorities faced challenges with enforcement.

Department Recommendations: The Department will continue intense engagement with

Brazilian authorities to address issues of concern and will consider actions to encourage better

Brazilian compliance with the Convention.

Belize: 2022 State Department's Annual Report on International Child Abduction

Country Summary: The Convention has been in force between the United States and Belize

since 1989. In 2021, Belize demonstrated a pattern of noncompliance. Specifically, the judicial

authorities failed to regularly implement and comply with the provisions of the Convention. As

a result of this, 50 percent of requests for the return of abducted children under the Convention

remained unresolved for more than 12 months.

Central Authority: The United States and the Belizean Central Authorities have a strong and

productive relationship that facilitates the resolution of abduction cases under the Convention.

Location: The competent authorities took appropriate steps to locate children after a

Convention application was filed. The average time to locate a child was 31 days. As of

December 31, 2021, there were no cases where the Belizean authorities remained unable to

initially locate a child.

Judicial Authorities: Delays by the Belizean judicial authorities impacted cases during 2021.

As a result of these delays, one case has been pending with the judiciary for over two years,

contributing to a pattern of noncompliance.

Enforcement: The United States is not aware of any abduction cases in which a judicial order

relating to international parental child abduction needed to be enforced by the Belizean

authorities.

Department Recommendations: The Department will continue intense engagement with the

Belizean authorities to address issues of concern.

Austria: 2022 State Department's Annual Report on International Child Abduction

Country Summary: The Convention has been in force between the United States and Austria

since 1988. In 2021, Austria demonstrated a pattern of noncompliance. Specifically, the judicial

authorities failed to regularly implement and comply with the provisions of the Convention, and

law enforcement regularly failed to enforce return orders rendered by the judicial authority in

abduction cases. As a result of this failure, 33 percent of requests for the return of abducted

children under the Convention remained unresolved for more than 12 months. On average, these

cases were unresolved for two years and three months.

Central Authority: While the U.S. and the Austrian Central Authorities have a cooperative

relationship, delays in communication about actions to resolve Convention cases are an area of

continuing concern.

Voluntary Resolution: The Convention states that central authorities “shall take all appropriate

measures to secure the voluntary return of the child or to bring about an amicable resolution of

the issues.” In 2021, one abduction case was resolved through voluntary means.

Location: The competent authorities took appropriate steps to locate a child after a Convention

application was filed in 2021. It took eight days to locate this child. The competent authorities of 

Austria failed to take appropriate and expeditious steps to locate another child after an

enforcement order was issued for the return of the child. It took 53 days to locate this child,

which led to delays in the enforcement and return of the child.

Judicial Authorities: Judicial authorities rendered decisions that were not consistently in

accordance with the Convention and there were delays in judicial authorities deciding on a case.

In one case, after multiple appeals, the Austrian Supreme Court ordered a lower court to enforce

a return order; however, the lower court instead dismissed the Convention case and made a

custody decision. While the lower court’s order was eventually overturned, these problems in

the performance of judicial authorities contributed to a pattern of noncompliance.

Enforcement: While the Supreme Court of Austria ordered the enforcement of a Convention

return order in 2021, the lower court and Austrian authorities charged with the enforcement

responsibility declined to enforce the order, which contributed to a pattern of noncompliance.

After the Supreme Court overruled the lower court’s dismissal of its return order, enforcement

actions were initiated in December 2021; the child was returned to the United States in January

2022. There was one case (one hundred percent of the unresolved cases) that was pending for

more than 12 months in which the competent authorities and law enforcement failed to enforce

a return order.

Department Recommendations: The Department will continue engagement with the Austrian

authorities to address issues of concern.

Argentina: 2022 State Department's Annual Report on International Child Abduction

Country Summary: The Convention has been in force between the United States and

Argentina since 1991. In 2021, Argentina continued to demonstrate a pattern of noncompliance.

Specifically, the Argentine judicial authorities failed to regularly implement and comply with the

provisions of the Convention. As a result of this failure, 50 percent of requests for the return of

abducted children under the Convention remained unresolved for more than 12 months. The sole

abduction case still open at the end of 2021 has been unresolved for 11 years and six months.

Argentina was previously cited for demonstrating a pattern of noncompliance in the 2015-2021

Annual Reports.

Significant Developments: Delays persisted within the Argentine judiciary in 2021,

contributing to a pattern of noncompliance. The sole abduction case still open at the end of 2021

has been unresolved in the Argentine judiciary for 11 years and six months, the Department’s

longest-running open unresolved abduction case in the world. The other abduction case open

during 2021 resolved this year, after being unresolved for just under two years, mostly due to

delays in the judiciary. Argentina’s legislature failed to enact national procedural legislation

designed to address Argentina’s judicial delays in early 2021 after interlocutors reported it lost

“parliamentary status,” and officials did not reintroduce a draft bill for the remainder of the year.

Central Authority: The U.S. and Argentine Central Authorities have a productive relationship.

Location: The Department of State did not request assistance with location from the Argentine

authorities.

Judicial Authorities: There were serious delays by the Argentine judicial authorities in

deciding Convention cases. As a result of these delays, cases may be pending with the judiciary

for over one year, contributing to a pattern of noncompliance.

Enforcement: In one case unresolved for almost 12 years, Argentine courts have suspended a

return order. Additionally, Argentina’s legal system allows multiple appeals both on the merits

of the decision and on the manner in which the decisions are enforced, thereby creating

excessive delays which contribute to a pattern of noncompliance.

Access: In 2021, the U.S. Central Authority had one open access case involving one child under

the Convention in Argentina. This was opened in 2018. This case has been filed with the

Argentine Central Authority. No new cases were filed in 2021. By December 31, 2021, this case

remained open. This case has been pending with the Argentine authorities for more than 12

months.

Department Recommendations: The Department will continue intense engagement with

Argentine authorities to address issues of concern.

PREVENTING CHILD ABDUCTION TO LEBANON

 by Jeremy D. Morley

Lebanon is, in my opinion, a proven safe haven for international parental child abduction. I testified to this effect last month in great detail in a case in Texas.

My credentials include extensive research concerning Lebanese family law, consultations with numerous clients, and often with Lebanese counsel, concerning abductions and potential abductions to Lebanon, and my hosting of a meeting about Lebanese family law. in New York with three Lebanese judges (one from a Christian court, one from a Sharia court and one from a civil court) as well as a top Lebanese family lawyer.

Lebanon has failed and refused to adopt the Hague Abduction Convention. It has a religious-based judicial system in the sphere of family law matters. It does not have one civil code regulating personal status matters. There are 15 separate personal status laws for the country’s different recognized religious communities, twelve of which are Christian and four are Muslim, with the remaining courts and laws being for Druze and Jews. Each of these laws are administered by separate religious courts. It is often extremely difficult to enforce custody orders in Lebanon and it is relatively simple for parents to frustrate the process for extended periods of time by moving to other locations in Lebanon or by initiating new civil or criminal proceedings within Lebanon.

Given the current overwhelming challenges that Lebanon faces with terrorism, corruption and a collapsed economy, it is most unlikely that the extreme difficulties faced by left-behind parents in trying to secure the return of children who have been abducted to Lebanon will be ameliorated in the foreseeable future.

INTERIM MAINTENANCE IN HIGH-NET-WORTH CASE IN ENGLAND, DESPITE NEW YORK PRENUPTIAL AGREEMENT

                                                                                                                        By Jeremy D. Morley*

High-net-worth divorce cases in England can be both unpredictable and extremely expensive, even when the parties have signed a well-drafted, thoroughly reviewed and subsequently modified New York prenuptial agreement containing substantial provisions for the lesser wealthy spouse. A case on point is Collardeau-Fuchs v. Fuchs, [2022] EWFC 6 (21 February 2022).

The parties had signed a New York prenuptial agreement, in which the husband had disclosed a net worth of more than £1 billion, and the wife a net worth of about £4 million. They had then signed a modification of the prenuptial agreement during the marriage. Fortunately for the wife, she was able to bring her divorce case in London, where the family owned an extremely valuable home. The family also owned extremely valuable residential properties in New York, France and other locations.

An interim decision in the case was rendered a few days ago, solely on the question of the amount of interim maintenance to be paid by the husband, pending the final resolution of the case. It was only an 8-year marriage, although in England it would be deemed a 12-year relationship since the parties had cohabited for 4 years prior to the marriage (or only for 2 years according to the husband).  The length of the relationship is a factor of far greater significance in England than in New York.

The prenuptial agreement, as modified, provided that the wife would receive a lump-sum payment upon a divorce of £23.5 million plus 18 years of rent-free accommodation at the family home in West London, valued at £30 million.

Under English law, the prenuptial agreement could not modify or limit the duty of the English court to provide for interim maintenance to parties in “need.” New York does not necessarily so provide. The decision of the English court by the Hon. Mr. Justice Mostyn -- an English High Court judge who had himself once achieved fame as a barrister with the nickname of “Mr Payout” because of the enormous sums he had won for divorcees – concerned nothing more than the extremely preliminary issue of interim maintenance.

The English court determined that, during the pendency of the divorce case, the husband must pay to the wife sufficient sums as would meet her “reasonable needs.” It held that English law required that the term “reasonable needs” must be interpreted in light of the standards enjoyed by the parties during the marriage. Since the reality was that “the husband and wife in this case belong to a tiny percentage of the world population who have control and management and entitlement to huge sums of money,” the wife’s “reasonable needs” must be considered “according to the standards of the ultra rich.” The court insisted that it had a duty to “avoid the risk of confining [the needs of the wife] by the application of scales that would seem generous to ordinary people.”

The court found that the portion of the parties’ annual living costs that was attributable to the wife, for the last full year before the parties separated, was approximately £855,000.00 ($1,368,000.00), of which about 55% (£475,000.00) was for (obviously lavish) vacations. This sum did not include the cost of staff for the West London house (two chefs, a house manager, 2 or 3 housekeepers, a launderer, and numerous contractors such as gardeners, pool maintenance builders, plumbers, electricians, and handymen) solely, as well as other “Overheads.”

Accordingly, the court ordered the husband to pay the sum of £855,000.00 a year to the wife on an interim basis until the conclusion of the case, plus £2.78 million a year for staff and overhead, for a grand total of £3.635 million (almost $5 million) per annum.

The court also ordered the husband to pay all of the wife’s legal fees, both past due and those yet to be incurred. Judge Mostyn explained that, although the litigation was only “at a relatively early stage,” the parties had nonetheless already incurred considerable legal costs which amounted to about £917,000.00, with another £288,700.00 anticipated through the end of the next month, for an interim total of £1,205,000.00 ($1.64 million).

Meanwhile, the very much larger issue of the full effect of the prenuptial agreement in England remains to be determined. In this regard, the contrast between New York and English law remains extreme. It is clear the public policy of the New York courts to encourage marrying couples to create certainty about their financial arrangements by entering into prenuptial agreements. The New York courts will enforce the terms of a well-drafted prenuptial agreement upon a divorce absent proof of unconscionability or extreme unfairness or duress, or other unusual circumstances. But courts in England are far more circumspect in their enforcement of such agreements, even when there has been full financial disclosure and independent legal representation. English judges remain particularly protective of the rights of less wealthy spouses and the need to consider “fairness” in determining whether to apply or modify the terms of a prenuptial agreement. The wife in the just-reported case seems to have been extremely fortunate, or extremely wise or strategic, to have been able to bring her case in London, and not in New York.

_____________________

* Jeremy D. Morley is a New York lawyer who collaborates with counsel in England and other jurisdictions in handling international prenuptial agreements. He may be reached at www.international-divorce.com and www.internationalprenuptials.com

 

FINANCIAL RESTITUTION AGAINST INTERNATIONAL PARENTAL CHILD KIDNAPPERS

U.S. law allows a left-behind parent whose child has been abducted to the United States to compel the abducting parent to repay all of the fees and expenses incurred in seeking the child's return. 22 U.S.C. §9007(b)(3). But there is no similar provision that clearly entitles a left-behind parent whose child has been abducted out of the United States to seek reimbursement from the abductor of the fees and expenses incurred in seeking the child's return to the United States.

There is appears to be a split between the Ninth and Tenth Circuits as to whether federal legislation that authorizes an award of restitution to a victim of criminal offense can be used to recoup a left-behind’s parent’s legal expenses in cases of international parental child abduction once the abductor has been found guilty of international parental child kidnapping pursuant to the International Parental Kidnapping Crime Act (the “IPKCA”) 18 U.S.C. §1204.

The Victim and Witness Protection Act of 1982 authorizes a federal district court to sentence a criminal defendant to pay restitution to a victim of the offense to the extent of “expenses related to participation in the investigation or prosecution of the offense.” 18 U.S.C. §3663(b)(4).

In U.S. v. Cummings, 281 F.3d 1046 (9^th Cir. 2002), the defendant father was successfully prosecuted under the IPKCA for having abducted his children from their home in the State of Washington to Germany. The left behind mother brought a return action against the father in Germany under the Hague Abduction Convention and an action in the State of Washington for contempt of court for his violation of a custody order. The father was sentenced to a term in jail and was required to pay the mother’s legal fees and expenses in the two civil actions. The Ninth Circuit upheld the restitution award, holding that the mother’s civil cases were not “wholly separate” from the government’s prosecution of the father. This was supported by the fact that, by initiating a case under the Hague Convention, the mother had followed the procedure specifically described in the IPKCA as the preferred “option of first choice” for a left-behind parent.

More recently, however, the Tenth Circuit held in U.S. v. Mobley, 971 F.3d 1187 (10th Cir. 2020) that it would not follow Cummings. In Mobley, the government prosecuted a mother under the IPKCA for her abduction of her children from their home in Kansas to Russia. Once she was in Russia, she had filed there for divorce and custody in Russia. The left-behind father had then sued for divorce and custody in Kansas. The Russia court had given custody to the mother, and the Kansas Court given custody to the father. The district court found the mother guilty under the IPKCA and ordered restitution to the father of the legal fees and expenses that he had incurred in connection with the two civil cases.

On appeal, the Tenth Circuit overturned the restitution award. It held that §3663 is not satisfied by evidence that the expenses were incurred in proceedings that were merely “related to” the criminal offence. Instead, the expenses must be “related to participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” It held that the terms “investigation”, “prosecution” and “proceedings” are limited to the government's investigation, the government's criminal prosecution, and the criminal proceedings, in accordance with the ruling of the U.S. Supreme Court in Lagos vs. U.S., 138 S. Ct. 1684 (2018). There was no evidence that the government had directed or sanctioned the father’s civil proceedings, and the mother's attempts to secure children’s return “did not assist the government in its investigation or of prosecution of the mother.”

It remains to be seen whether Mobley will, in future cases, be successfully distinguished on its facts. Specifically, it is possible that proof could be elicited that the litigation efforts of a left-behind parent assisted the governor's prosecution of an international parental kidnapping case. In such a case, a restitution award might still be deemed appropriate. Even then, restitution would be restricted to those few cases in which an abductor is prosecuted under the IPKCA. Of course, recovery in any such case would be extremely remote. 

Hague Abduction Cases: Left-behind Parents, Lawyers & Judges Must Understand How Central Authorities’ Roles Vary Dramatically between Countries

 The Hague Abduction Convention requires each treaty party to establish a Central Authority to provide assistance in both “outgoing” cases in which a child is taken away from a country and “incoming” cases in which a child has been brought into the country. The Convention leaves it up to each country to decide how the Central Authority will operate.

In some countries the Central Authority exercises a leading role in handling cases under the Convention. In other countries, such as the United States, the Central Authority’s role is extremely limited. This discrepancy is often unrecognised, and it may lead to confusion and even serious error.

In Australia, the Central Authority is a department within the Attorney-General's Department of the Australian Government. There are also separate Central Authorities for each Australian state or territory. In most Hague Convention cases in Australia, the appropriate Central Authority itself initiates judicial proceedings in the Australian courts for the return of children allegedly abducted to Australia. Indeed, the Central Authority is the plaintiff in any such case and the Central Authority lawyers do not take instructions concerning the conduct of such cases directly from the left-behind parent, who is not even a party to the legal proceedings. Left-behind parents may, in the alternative, start a case in their own name but this is unusual and perhaps ill-advised.

Similarly, the Central Authorities in Germany and New Zealand take on a substantial role in initiating judicial proceedings under the Convention.

However, cases in the United States are handled in a completely different way. The Central Authority in the United States is the State Department's Office of Children's Issues in the Bureau of Consular Affairs. It does not initiate litigation in any Hague Convention case and it has no power to do so. It has no responsibility or function to bring any cases under the Convention or to be involved in any significant way in any Hague Convention judicial proceeding. The Office of Children’s Issues has no judicial function whatsoever. It has no authority to secure a child’s return pursuant to the Convention. It is exclusively the responsibility of the left-behind parent to retain counsel and to commence a court case in the United States to seek an order that an abducted child must be returned.

Upon receipt of an application that is made by a left-behind parent under the Convention, whether the application is submitted by a foreign Central Authority or even if it is submitted directly by the left-behind parent, the United States Central Authority may assist with locating the child, and it will send a simple letter to the other parent suggesting mediation or a voluntary return, but it will certainly not file a case in court for the return of the child. 

Unfortunately, foreign Central Authorities may not fully understand that the U.S. State Department does not have any proactive role in litigating Hague Convention cases and they may not inform left-behind parents that they must start their own cases in the United States.

The fact that this critical distinction between Central Authorities that handle the Hague Convention case and those that do not is often misunderstood is even reflected in the current website of the Australian Central Authority, which includes advice on “International parental child abduction” that includes a flowchart of the “Application process for return of an abducted child to Australia.” The flowchart states that the steps to recover a child who has been abducted from Australia are as follows:

·       The first step is “Application received by Australian Central Authority (ACA).

·       The second step is “ACA assesses application against the Hague Convention.”

·       The third step, if there is a positive assessment, is “Application accepted by ACA, transferred to relevant CA in other country.”

·       The fourth and critical step, according to the flowchart, is:

“Overseas central authority takes appropriate action which may include mediation, seeking a voluntary return, or filing in court for the return of the child.”

Unfortunately, that advice is completely incorrect and misleading with respect to abductions to countries such as the United States. In particular, the U.S. Central Authority does not file a court case for the return of the child. To make matters worse, the Australian website does not warn left-behind parents that it is their sole responsibility to start the Hague case in the United States, and that the U.S. Central Authority will not handle it.

Similar confusion is shown in a case that is currently before the courts in New York. The Central Authority in Luxembourg is the State Prosecutor’s Office (the Parquet Generale Cite Judiciare). As is the case with Australia, that office is responsible for prosecuting incoming abduction cases in Luxembourg and its role is expansive and proactive. In the pending matter in New York, the Luxembourg Central Authority submitted to the U.S. Central Authority a formal referral of an application for a child’s return to Luxembourg, in which it requests the U.S. State Department to “take all the measures contained in article 12 of the above-mentioned Convention for the immediate return of the child to Luxembourg.” As stated above, the State Department does not take any such action and cannot do so. Is it any wonder that a left-behind parent would expect that the U.S. State Department is handling the matter?

In my extensive experience, left-behind parents often think that, merely because they have submitted an application for their child’s return from the United States under the Convention, they have “started a Hague case.” Nothing could be further from the truth. Central Authorities must ensure at a minimum that they do not provide incorrect information to their citizens. Nor should they suggest that left-behind parents should seek legal advice from the U.S. Central Authority, which cannot provide any such advice. In addition, I must reluctantly state that many of my clients have informed me that they have received incorrect or incomplete advice from the U.S. Central Authority.  

Left-behind parents must be warned that, if they do not commence a case in a U.S. court within one year of the date of the wrongful removal or retention, the abductor will be able to take advantage of the provision in Article 12 of the Convention that the court need not order the return of a child who has become settled in the new environment. The International Child Abduction Remedies Act provides that “the term ‘commencement of proceedings’, as used in Article 12 of the Convention, means, with respect to the return of a child located in the United States, the filing of a petition in accordance with subsection (b) of this section.” 42 U.S.C. § 11603(f)(3). Accordingly, the one-year period is not tolled by reason of the mere filing of a Hague application even if the left-behind parent believed that filing the application was sufficient or believed that the U.S. State Department was handling the case.  Monzon v. De La Roca, 910 F.3d 92 (3d Cir. 2018).

The submission of an application to the Office of Children’s Issues does not constitute the initiation of judicial proceedings, does not stop the clock for purposes of the “one year and settled” exception to the Convention, and does not require the alleged abductor to take or not to take any action. The Office does not appoint attorneys for left-behind parents, and it does not file return petitions with the courts. Unlike several other countries, and notwithstanding the advice that may be provided by some Central Authorities, the responsibility for starting a Hague case in an appropriate court in the United States rests exclusively with the left-behind parent.

SUPERVISED VISITATION TO PREVENT INTERNATIONAL CHILD ABDUCTION TO INDIA OR UAE: CANADIAN COURT RULING

 by Jeremy D. Morley

 

Supervised visitation is sometimes the only effective way to prevent international child abduction, especially when a country does not have effective exit controls.

For this reason, in a decision dated January 7, 2022, the Superior Court in Ontario, Canada (Pinto J.) has required that a father’s access to his child should be supervised in order to prevent him from abducting the child to India or the UAE. The ruling was based in significant part on my expert evidence concerning the child custody laws of both India and the UAE and my opinions concerning the risk of potential international child abduction. Lakhtakia v. Mehra, 2022 ONSC 201.

The parents are of Indian origin and the father is an Indian citizen with significant connections also to the UAE. Their child was born in Canada and then lived with both parents for a time in India. When the parents separated in India, the mother unilaterally returned the child to Canada and alleged domestic violence. At trial, I was accepted as an expert qualified to provide expert opinion evidence before the Ontario Superior Court of Justice as to the matters before the court concerning international child abduction and the laws and procedures of India and the UAE.

I testified that India has purposefully refused to accede to the Hague Abduction Convention, that it is usually fruitless to initiate litigation there seeking the return of an internationally-abducted child and that I counsel against it unless the left-behind parent has great fortitude and very substantial funds.

There was a sharp disagreement between me and another expert on Indian law concerning whether or not measures could be required by the Canadian court, or provided by the father, that would reliably ensure that the child would be returned to Canada if abducted to India by his father. I did not agree that the current state of the law in India relating to the enforcement of foreign custody orders allows for the expeditious return of the child to the custodial parent through a writ of habeas corpus. I also disagreed with the suggestion that Indian jurisprudence since 2018 has evolved and allows for the issuance of a “mirror order” whereby an Indian court would issue an order that contains all the terms of an order of a foreign court. I clarified that there have been a couple of Indian cases where the Indian courts have asked courts in foreign jurisdictions to issue a mirror order, but that does not constitute the Indian court issuing a mirror order. The court adopted my evidence that there were no such measures and that the risk of abduction was too high, given the specific facts of the case. Judge Pinto determined that the father was a flight risk and was untrustworthy. Accordingly, and also because the father had spent little time with the child, he determined that unsupervised visitation presented too great a risk.

On cross-examination, and as summarized by the court, I explained that, in cases arising from the abduction of a child to India, the Indian trial courts normally make a de novo custody review of the best interests of the child; that they  have tremendous discretion as to how to apply that test; that the first court’s decision is generally reviewed by a first appeal court, and then often by a second appeal court; that it is “utterly unpredictable” as to whether the process would be expedited; that there are many ways in which the parent who wants the child to remain in India can use the procedures of the Indian legal system to lengthen the time over which the court considers the issue; and that, given that a long time has passed, the Indian courts regularly determine that the child has become well settled in India so that it would be unfair to return the child to the foreign jurisdiction.

With respect to the UAE, I testified that that country has chosen not to accede to the Hague Convention, and that the U.S. government has reported to Congress that “The UAE does not adhere to any protocols with respect to international parental child abduction,” that the UAE authorities persistently failed to work with the American Department of State to resolve child abduction cases, and that 50% of requests for the return of abducted children remained unresolved for more than 12 months. I further testified that the concepts of child custody and guardianship in the UAE are completely different than a Canadian or American context and encompass age-specific and gender-specific criteria, and I explained the UAE rules concerning travel bans.

I further opined as to the risk factors concerning international child abduction, the applicability of those factors to the facts with which I had been provided and the need to balance the laws and procedures concerning the return of abducted children of a foreign country with the level of risk presented by the application of the risk factors to the facts of the case.

The court ultimately adopted and applied my conclusions that:

(i) If the father were able to remove the child from Canada in defiance of Canadian court orders, there was an extremely significant risk that the mother would be unable to secure the child’s return or even to obtain access to the child,

(ii) The facts with which I had been presented, if true, showed that there was a significant risk that the father would not comply with the terms of a Canadian court order, and

(iii) The only way to effectively prevent the father from taking the child overseas was to require that the father’s access to the child be strictly supervised.

Danger of Self-Help After An International Child Abduction

 This story shows inherent risks of “self-help” in “re-kidnapping” internationally-abducted children. See my articles on preventing child visits to Lebanon, Jordan, Egypt, other countries if parent anticipates non-return. 

INTERNATIONAL CHILD RELOCATION FROM CANADA

 by Jeremy D. Morley

With effect from March 1, 2021, the Divorce Act of Canada has made significant changes to the Canadian law concerning child relocation, including international relocation. However, while the legislation contains a helpful clarification concerning the applicable burden of proof, it includes a list of factors that should be considered in relocation cases that are plainly deficient in respect of international child relocation cases.

Burden of Proof  

The new law provides that the burden of proof in a relocation application will shift depending on whether or not the parties are to share custodial time equally.

If the parties substantially comply with an order that provides that the child spends “substantially equal time” with each parent, the party intending to relocate has the burden of proving that the relocation would be in the best interests of the child.

But if the parties substantially comply with an order that provides that their child “spends the vast majority of their time” with the party who intends to relocate, the other party has the burden of proving that the relocation would not be in the best interest of the child. (Sections 16.93(1) and (2) of the Divorce Act).

For “in-between” situations, where the child is spending unequal time with the parents but less than the vast majority of time with one, “each parent must demonstrate why the proposed relocation is or is not in the best interest of the child.” (Section 16.93(3) of the Divorce Act).

Statutory Factors to Consider

In deciding whether a relocation is in the best interest of a child, the new law requires that, in addition to considering the usual factors to be considered in any custody case, the court should also consider certain specific additional factors relating to relocation. These factors are:

1. The reason for the relocation;
2. The impact of the relocation on the child;
3. The parenting time and involvement that each person has with the child;
4. Whether the person planning the relocation has given the proper notice;
5. Whether there is a court order and agreement that says a child is supposed to live in a certain place;
6. Whether the proposal to change the parenting arrangement is reasonable; and
7. Whether the people involved have been following their courts under an agreement.

A Serious Omission

The list of factors set forth in the Divorce Act to be considered does not include a group of special factors that are of the most extreme significance in any international relocation application. These factors are:

1. a) Whether the courts and legal system in the foreign country will recognize and effectively enforce the relocation provisions of the Canadian court;
2. b) Whether the foreign court will have the power to modify the Canadian order;
3. c) The criteria that the foreign court will adopt when considering a modification application; and
4. d) Whether even the domestic custody orders issued in the foreign country will be effectively enforced

Consider the case of an application to relocate a child from Canada to Japan. If the Canadian court is not provided with admissible and reliable evidence as to the laws and procedures of Japan -- concerning such matters as the recognition in Japan of foreign custody orders, the jurisdiction of a Japanese court to issue custody orders once a child has been relocated to Japan, the substantive laws of Japan concerning child custody and child visitation, and the extent to which Japanese custody orders are actually enforced in Japan -- the Canadian court may well act under the assumption that Japanese law and procedure are similar to the Canadian law and procedure. But that assumption would be totally mistaken and could prove extremely damaging to a relocated child and to a left-behind parent.

In fact, (a) the courts in Japan will not recognize the Canadian custody order, (b) the courts in Japan will have unfettered child custody jurisdiction once a child is living there, (c) the Civil Code of Japan precludes any sharing of custody, (d) there is no reported case of international child visitation ever having been awarded by a Japanese court, and (e) visitation orders are unlikely to be enforced in Japan.

Thus, expert evidence concerning Japanese family law would be an essential element of any considered evaluation of an application in Canada for relocation of a child to Japan. The same applies to relocation to any other foreign destination.

It is essential in any contested case in which a request is made to move a child overseas that the court is provided with reliable advice concerning the effect of domestic courts order in the foreign country. It is surprising and unfortunate that the new Canadian law does not contain an explicit requirement that such information must be s

Jeremy D. Morley, a New York lawyer who concentrates exclusively in international family law, and formerly an Asst. Professor of Law at the Faculty of Law, University of New Brunswick, has written, lectured and testified extensively in Canada and many other jurisdictions as an expert on Japanese family law and the family laws of numerous other countries. His website in www.international-divorce.com