Friday, February 17, 2017

No Exit Controls in the United States!

Jeremy D. Morley
It seems appropriate at this time to reiterate the fact that this country has no exit controls, with minimal exceptions.
We try to control who comes in to this country, but we should also control who goes out. Especially if the people who are being taken out are U.S. citizen children who are being abducted overseas.
Below is an article I wrote a few years ago about our successful and lucky work in preventing an international abduction already in progress.
Are the powers-that-be in our country finally ready to secure our borders in ways that will be meaningful to U.S. citizens checking people as they exit the United States?
Wednesday, November 16, 2011
To the overwhelming elation and relief of our client, a terrified and panic-stricken Chinese mother, we succeeded recently in having a baby intercepted at an airport exit gate as his father was about to abduct him from the United States to India.
Mother’s joy at being reunited with her lost child capped our office’s relentless two-week search.
The family – a Chinese mother, her American husband and their dual national child – were living in China. After an argument between the spouses, the father grabbed the child and threatened to take him to the States. The Chinese police and then the Hong Kong police were completely unhelpful. The father then took the baby to an undisclosed location in the United States. That is when the mother called us from China, desperately scared and frantic.
We got word that the father was in California and with the help of local counsel and others there we secured an ex parte temporary custody order and restraining order in favor of our client.
We assisted the mother to obtain an emergency visa allowing her to fly to the States.
We then learned that the father was in Arizona near the Mexican border and we sought emergency police assistance there.
We then received some information that the father was ticketed for a flight to India. We suspected that India had been chosen because, as we have long warned, India is a well-recognized haven for international child abduction.
Just minutes before the plane left we succeeded in having the police at LAX pick up the child at the departure gate for the flight to India.
And just a few minutes later the child was safely in our ecstatic client’s arms.
The successful outcome resulted from enormous emergency effort in working with courts, police forces across the country, the State Department and other agencies.
It was frustrating, expensive and extremely nail-biting, most especially for the distraught mother.
And we were very lucky.
But the entire process was completely unnecessary.
If the United States would check who leaves this country we could prevent international child abductions.
Unlike most other countries the United States has no exit controls (with minimal exceptions). Laws that require the United States to impose such controls have never been effectuated.
The measures that exist in the United States to prevent and deter international child abduction are minimal to nonexistent. Those laws that do exist are extremely hard to implement. Court orders barring cross-border travel are routinely violated. Laws that require dual nationals, including children, to possess a U.S. passport when leaving the U.S. are ignored. Amber alert programs are reserved for the most outrageous death-threat type of cases. Police forces don’t want to handle matters that concern child custody issues.
Even when an abduction is clearly in progress the resources that are available to assist parents are negligible.
We control who enters this country but we leave the doors wide open for any to leave – and to take whoever they wish with them, whether that is a child or anyone else.

Thursday, February 16, 2017

New Economist Article on International Family Law

I was recently interviewed in connection with the below article, set to be published in the latest edition of the Economist:
Kate Baggott and her two children live in a tiny converted attic in a village near Frankfurt. Ms Baggott, who is Canadian, has a temporary residence permit and cannot work or receive benefits. The trio arrived in Germany in October, after a Canadian court order gave them a day’s notice to get on the plane. Ms Baggott’s ex-husband, a Canadian living in Germany, had revoked his permission for the children’s move to Canada after they had been there nearly a year, alleging “parental child abduction”. A German court has given Ms Baggott full custody, but she must stay until an appeal is over.
Such ordeals are becoming more common as the number of multi-national and footloose families grows. Across the European Union, for example, one in seven births is to a woman who is a foreign citizen. In London, a whopping two-thirds of newborns in 2015 had at least one parent who was born abroad. In Denmark, Spain and Sweden more than a tenth of divorces end marriages in which at least one partner is a non-citizen.
The first question in a cross-border break-up is which country’s laws apply. When lots of money is at stake there is an incentive to “forum-shop”. Some jurisdictions are friendlier to the richer partner. Germany and Sweden exclude assets owned before the marriage from any settlement. Ongoing financial support of one partner by the other is rare in France and Texas—and ruled out in another American state, Georgia, if the spouse seeking support was adulterous.
Under English law, by contrast, family fortunes are generally split evenly, including anything owned before the marriage. Prenuptial agreements, especially if drawn up by a lawyer representing both spouses, are often ignored. The wife of a Russian oligarch or a Malaysian tycoon can file for divorce in London if she can persuade a judge that she has sufficient links to England. A judge, says David Hodson, a family lawyer in London, might be presented with a list of supporting items, which may be as trivial as which sports team the husband roots for, or where the family poodle gets a trim.
Across the European Union, until recently the rule has been that the courts of the country in which divorce papers are filed first gets to hear the case. Couples often rushed to file rather than attempting to fix marital problems. But in some countries that is changing: last year Estonia became the 17th EU country since 2010 to sign an agreement known as Rome III that specifies how to decide which country’s law applies (usually the couple’s most recent country of residence, unless they agree otherwise). Though the deal brings welcome clarity, one downside is that courts in one country may have to apply another country’s unfamiliar laws. And one spouse may be tricked or bullied into agreeing to a divorce in the country that best suits the other.
The bitterest battles, though, are about children, not money. Approaches to custody vary wildly from place to place. Getting children back if an ex-partner has taken them abroad can be impossible. And when a cross-border marriage ends one partner’s right to stay in the country where the couple lived may end too, if it depended on the other’s nationality or visa.
Treasures of the heart
Under the Hague Abduction Convention, a treaty signed by 95 countries, decisions about custody and relocation fall to courts in the child’s country of “habitual residence”. If one parent takes a child abroad without the other’s consent or a court order, that counts as child abduction. The destination country must arrange the child’s return. 
But plenty of countries have not signed, including Egypt, India and Nigeria. They can be havens for abducting parents. Around 1,800 children are abducted from EU countries each year. More than 600 were taken from America in 2015; about 500 abductions are reported to American authorities each year the other way round.
Some countries, including Australia and New Zealand, often regard themselves as a child’s “habitual residence” from the moment the child arrives. The EU sets the threshold at three months. America differs from state to state: six months’ residence is usually what counts. GlobalARRK, a British charity that helps parents like Ms Baggott, is campaigning for information on such rules to be included among the documents issued to families for their move abroad. It also lobbies for a standard threshold of one year for habitual residence and advises parents to sign a pre-move contract stating that the child can go home at any time. Though such contracts are not watertight, they would at least alert parents to the issue.
Britain is comparatively helpful to foreign parents who seek a child’s return: it provides help with legal advice and translation. But plenty of countries do little or nothing. Family judges in many places favour their compatriots, though they may dress up their decisions as being in the child’s interests. Parents who can no longer pay their way through foreign courts may never see their children again.
Some parents do not realise they are committing a crime when they abscond with the children, says Alison Shalaby of Reunite, a British charity that supports families involved in cross-border custody disputes. Even the authorities may not know the law. Michael, whose former partner took their children from Britain to France in 2015, was told by police that no crime had been committed. After he arranged for Reunite to brief them, it took more than five months to get a French court order for the children’s return.
Other countries are slower still, often because there are no designated judges familiar with international laws. Over a third of abductions from America to Brazil, for example, drag on for at least 18 months. When a case is eventually heard the children may be well settled, and the judge reluctant to order their return.
A renewed push is under way to cut the number of child abductions, and to resolve cases quickly. The EU is considering setting an 18-week deadline for the completion of all return proceedings and making the process cheaper by abolishing various court fees. And more countries are signing up to the Hague Convention: Pakistan, where about 40 to 50 British children are taken each year, will sign next month. India, one of the main destinations for abducting parents, recently launched a public consultation on whether to sign up too.
But the convention has a big flaw: it makes no mention of domestic violence. Many of the parents it classifies as abductors are women fleeing abusive partners. One eastern European woman who moved to Britain shortly before giving birth and fled her violent fiancĂ© four months later, says she was turned away by women’s shelters and denied benefits because she had lived in Britain for such a short time. For the past year she has lived off friends’ charity. The police have taken her passport to stop her leaving Britain with the baby. Another European woman, living in New Zealand, says she fears being deported without her toddlers when her visa expires in a few months. She fled domestic abuse with the children and a bag of clothes in December, and has been moving from one friend’s house to another ever since.
Child abduction is often a desperate parent’s move of last resort, says GlobalARRK’s founder, Roz Osborne. One parent, who has residence rights, may have been granted sole or joint custody, meaning the children cannot be taken abroad without permission. But the other parent may have entered on a spousal visa which lapses when the marriage ends. Even if permission to remain is granted, it may be without the right to work or receive state benefits. In such cases, the decision of a family court guaranteeing visiting rights or joint custody can be close to meaningless.
Britain’s departure from the EU could mean many more divorcing parents find themselves in this desperate state. Around 3.3m citizens of other EU countries live in Britain, and 1.2m Britons have moved in the opposite direction; so far it is unclear whether they will continue to have the right to stay put and work. And in America, says Jeremy Morley, a lawyer in New York who specialises in international family law, immigration issues are increasingly used as weapons in child-custody cases. Judges in family courts, he says, often pay little attention to immigration issues when ruling on custody, because they know few people are deported solely because their visas have expired. But under Donald Trump, that may change.
Many parents have no idea what they sign up for when they agree to follow a spouse abroad, says Ms Osborne. They may mistakenly believe that if things do not work out, they can simply bring the children back home. Ms Baggott’s move to Germany was supposed to be a five-year adventure, the duration of her husband’s work visa. Instead, she says, she endured “a decade of hell”.

Thursday, February 09, 2017

California - Israel – New York Child Custody Jurisdiction Case

Jeremy D. Morley
I am pleased that the Appellate Division of the State of New York, Second Department, today affirmed, in my client’s favor, an order of the Family Court, Westchester County dismissing a child custody petition for lack of subject matter jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act. The case was handled by my colleague, Anne Glatz. Matter of Hollander v Weissberg, Feb. 8, 2017.
The ruling explains that the parties lived in California, where they were married in 2005. The parties' son, who has special needs and various significant physical and cognitive disabilities, was born in 2006. A divorce judgment was entered in California in 2011, which incorporated the parties' marital settlement agreement providing for joint custody of the child, with primary physical custody to the mother. An application by the mother to relocate with the child to Israel was granted by a California court order in 2013 (the California order), which also provided the father with a new visitation schedule with the child in the United States. Shortly thereafter, the mother moved to Israel with the child and the father relocated to New York.
The mother then filed a petition in the Israel Family Court seeking to modify the father's visitation with the child, wherein she alleged an inability to obtain travel medical insurance for the child. The Israel Family Court issued a temporary stay with respect to visitation.
The father then commenced a proceeding in the Family Court, Westchester County, to enforce the visitation rights awarded to him in the California order, as well as two related proceedings alleging that the mother had violated that order. By this time, California had relinquished its continuing jurisdiction pertaining to issues of custody and visitation regarding the child.
The mother moved to dismiss the father's petitions pursuant to Domestic Relations Law § 77-f on the ground that a simultaneous proceeding was pending in the child's "home state" of Israel. In the order appealed from, the Family Court granted the mother's motion to dismiss the father's petitions based on lack of subject matter jurisdiction. The Second Department affirmed.
The Appellate Division stated that a New York court may not exercise its jurisdiction if, at the time of the commencement of the proceeding, a proceeding concerning the custody or visitation of the child has been commenced in a court of another state having jurisdiction substantially in conformity with the UCCJEA, which is embodied in New York Domestic Relations Law article 5-A and codified at Domestic Relations Law § 75 et seq., unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum (see Domestic Relations Law § 76-e[1]; Matter of Frankel v Frankel, 127 AD3d 1186). If the court of this state determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with Domestic Relations Law article 5-A, the court of this state shall stay its proceedings and communicate with the court of the other state (see Domestic Relations Law §§ 75-i[1]; 76-e[2]). If the court of the state having jurisdiction substantially in accordance with Domestic Relations Law article 5-A does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding (see Domestic Relations Law § 76-e[2]).
With limited exceptions, a record must be made of the communication between the two courts and the parties must be informed promptly of the communication and granted access to the record (see Domestic Relations Law § 75-i[4]). Furthermore, if the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made (see Domestic Relations Law § 75-i[2]).
Domestic Relations Law § 75-d provides that "[a] court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying this title and title two of this article."
Here, the Family Court properly determined that New York was not the child's "home state" since he lived in Israel for more than six months before the commencement of these proceedings (see Matter of Malik v Fhara, 97 AD3d 583, 584).
The Family Court also properly ascertained that compliance with Domestic Relations Law § 75-i was not feasible, as the laws and procedures to which the Israel Family Court must adhere prevent communication between the two courts.
Further, the Family Court properly determined that Israel is the appropriate forum to rule on whether the child's best interests necessitate modification of the California order because "the child, who is sick and has certain special needs, resides in Israel, as do any necessary contacts, witnesses and service providers, and . . . there are no such contacts in New York," making New York a forum non conveniens.
Accordingly, the Appellate Division held that, under these circumstances, the father's petitions were properly dismissed for lack of jurisdiction (see Matter of Malik v Fhara, 97 AD3d at 584; Matter of Mzimaz v Barik, 89 AD3d 948; Matter of Navarrete v Wyatt, 52 AD3d 836; Matter of Randall v Randall, 305 AD2d 512).

Tuesday, February 07, 2017

The Hague Abduction Convention, Second Edition, by Jeremy D. Morley

The Hague Abduction Convention, Second Edition, provides a clear explanation of how the Hague Convention on the Civil Aspects of International Child Abduction works in the United States.
Hague cases require an intimate knowledge of the Convention and of the voluminous case law that has developed around it.  Hague cases also require a complete understanding of international child custody law in general and in particular, for U.S. practitioners, of the relationship between The Hague Convention and the Uniform Child Custody Jurisdiction & Enforcement Act.

The Convention operates in the U.S. in ways that differ from those in other Hague countries.  This is because of the federal legislation that implements the treaty, the concurrence of federal and state jurisdiction, the lack of a specialized group of judges who handle cases under the Convention, the uniform state legislation on child custody jurisdiction, and a host of other factors.

Purpose of the Book
The purpose of the book is to explain as clearly as possible to family lawyers how the Hague Convention on the Civil Aspects of International Child Abduction works in the United States. The Convention operates in this country in ways that are different than in other Hague countries. This is because of the federal legislation that implements the treaty, the concurrence of federal and state jurisdiction, the lack of a specialized group of judges who handle cases under the Convention, the uniform state legislation on child custody jurisdiction and a host of other factors.
Voluminous Litigation
The treaty itself is short and to the point. Indeed, there are only three articles that legal practitioners really use to any significant degree in the vast majority of Hague cases, these being Articles 3, 12 and 13. Yet the Convention has spawned voluminous litigation, most especially in the United States. There are several reasons for that.

·                    The key terms in the Convention are ambiguous and either completely or mostly undefined. One might at first glance expect that straightforward terms such as “habitual residence,” “rights of custody,” and even “grave risk” might be easy to apply in a consistent manner. That has proven not to be the case. The key terms have been subjected to a cascade of judicial interpretation in the United States, which has sometimes been contradictory and often confusing.

·                    The United States allows Hague cases to be brought before unspecialized judges with no experience in handling them. Somewhat hypocritically the U.S. State Department asks other countries to limit the courts or judges that can handle Hague cases in their countries and to train those judges in how to handle these cases, but there is no such limitation or specialization in the United States. Federal and state courts have concurrent jurisdiction and Hague cases can go to whichever court in a local county handles family law matters. Since there are several thousand such counties as well as many federal districts, a Hague case can be brought before any one of thousands of courts in the United States.

·                    The Supreme Court has never ruled on the key issue in most Hague Convention cases, which is that of determining the “habitual residence” of the child. The treaty is supposed to have one autonomous meaning on a global level, but the common law system, which allows interpretation to develop on a case-by-case basis, seems not to work so well when decisions are supposed to yield a consensus in an international environment. The situation is rendered far worse than one might have expected because the U.S. Supreme Court has declined to handle all but one case. This has allowed the federal circuits to go off in various directions, with no guidance from the only court that could “lay down the law.”

·                    Even though the treaty is intended to be merely procedural in nature, parents who have brought their children to another country in search of a “better” forum than the ones available in the former residence may be desperate to prevent the children – and the cases concerning the custody of their children – from being sent back to that foreign forum. Likewise the parents of children who have been snatched by the other parent may be just as desperate to have the “home court advantage” of having their child custody case being heard “at home” instead of “away.” The differences between the custody decisions that are rendered in the courts of different countries are theoretically minimal, yet parents suspect – sometimes misguidedly, but often with extremely good reason – that in the real world the outcomes will be completely different depending on which country’s courts decide the case.

·                    When children are the subject of international family law disputes, the challenges are often great and the emotions generally run high. Simply put, money can be divided but children cannot. Divorcing parents who stay in the same town can often make sensible arrangements to share the parenting of their children, and if they cannot, a local court can issue appropriate orders and also enforce them as needed. But when the parents cannot even agree on which country to live in, all bets are off. Consequently Hague cases are often litigated.

·                    Neither the Convention nor the International Child Abduction Remedies Act which brought the Convention into U.S. law, contains any provision for mediation. Currently attempts are under way to implement programs for mediation of Hague cases but they are not yet much utilized. There are special challenges to the use of mediation in Hague cases because the cases are required to be concluded with great speed and a petitioner generally does not want to yield on that and the opportunities for compromise are limited in this area because a child can realistically live in only one country at a time.
Handling Hague Cases
Handling Hague abduction cases is challenging and fulfilling. Hague cases are usually tried very quickly. Indeed, they are supposed to be entirely concluded within just six weeks. They require an intimate knowledge of the Convention and of the voluminous case law that has developed around it. They also require a complete understanding of international child custody law in general and in particular, for U.S. practitioners, of the relationship between the Hague Convention and the Uniform Child Custody Jurisdiction & Enforcement Act.

The Convention is misunderstood by very many family lawyers and, dare I say it, by family judges. A lawyer in a Hague case sometimes needs to provide a quick but respectful education to judges who have not handled any or many such cases before.

I have had the good fortune to have handled Hague cases in many jurisdictions throughout the United States and sometimes in foreign countries also, usually working collaboratively with local lawyers in each jurisdiction. I have also submitted expert evidence in many cases around the world where compliance with the Convention, either past or contemplated, has been an issue. Additionally, I have lectured on the Convention before federal and state judges in New York State, at international conferences of family law practitioners and at venues such as the Foreign Ministry of Japan. It is fulfilling and exciting work.

Tuesday, January 31, 2017

Russia parliament votes 380-3 to decriminalize domestic violence

Russia's parliament voted 380-3 on Friday to decriminalize domestic violence in cases where it does not cause "substantial bodily harm" and does not occur more than once a year.

The move, which eliminates criminal liability in such cases, makes a violation punishable by a fine of roughly $500, or a 15-day arrest, provided there is no repeat within 12 months. The bill now goes to the rubber-stamp upper chamber, where no opposition is expected. It then must be signed by President Vladimir Putin, who has signaled his support.

Kremlin spokesperson Dmitry Peskov told journalists that family conflicts do "not necessarily constitute domestic violence." The passage by the parliament, or Duma, reverses a ruling by the Supreme Court last year, subsequently backed by parliament, that decriminalized battery that does not inflict bodily harm, but retained criminal charges involving battery against family members. That reform is effectively reversed by Friday's vote.

Andrei Isayev of the main Kremlin faction, the United Russia, said lawmakers are “heeding the public call” by correcting a mistake they made last year. Russia is one of three countries in Europe and Central Asia that do not have laws specifically targeting domestic violence, according to The Economist.

Critics of the new measure warned it would encourage domestic violence and fuel crime.
“This bill would establish violence as a norm of conduct,” Communist lawmaker Yuri Sinelshchikov said during the debate. Women's rights lawyer Mari Davtyan told The Moscow Times that the legislative moves are dangerous and "send a message that the state doesn’t consider familial battery fundamentally wrong anymore.”

A survey this month by state-run pollster VTsIOM found 19% of Russians said “it can be acceptable” to hit one’s wife, husband or child “in certain circumstances,” the Associated Press reported. The nationwide poll by phone of 1,800 people was held Jan. 13-15. The survey had a margin of error of 2.5 percentage points.

In many ways, this reflects the thrust of an old Russian proverb: “If he beats you it means he loves you.” According to Russian government statistics from the Interior Ministry, 40% of all violent crimes are committed within the family. The figures correlate to 36,000 women being beaten by their partners every day and 26,000 children being assaulted by their parents every year.

Last year's revised law, when it took in effect in July, quickly drew opponents, notably ultra-conservative Russian lawmaker Yelena Mizulina, who called it "anti-family" and said it undermined parents' "right" to beat their children. That view was echoed at the time by The All-Russian Parents’ Resistance movement that warned on its website that "(p)arents no longer have the right to choose methods of upbringing.” Alyona Popova, activist and women’s rights advocate, lamented that this attitude is widespread in Russia, The Moscow Times reported. “Traditional, or rather archaic values have become popular again,” she said.

Even Russian police are often reluctant to get involved in domestic violence cases, which many regard as meddling in family affairs.

In November, prosecutors began investigating a police officer who took a call from a woman complaining about her boyfriend’s aggressive behavior. Instead of offering help, the officer reportedly told the woman that the police would only come if she got killed. Shortly afterward, the man beat the woman to death, the AP reported.

Monday, January 30, 2017

India Debates the Hague Abduction Convention

Jeremy D. Morley
The debate swirls in India as to whether or not that country should accede to the Hague Abduction Convention.  When I was in India in September it appeared that the consensus of leading members of the legal community there was that India should, and would, sign the treaty, and would thereby join most of the world’s leading countries in that regard. However, since that time there has been a strong backlash which has delayed -- and perhaps entirely derailed -- that process.
The stated concern of those who wish to block India’s accession is that Indian women who are in bad and perhaps abusive foreign marriages should “naturally” be allowed to take their children “to safety” back home to India. See for example the article in today’s Hindustan Times entitled, It would be disastrous for India to sign the Hague convention on child abduction.”
Such arguments overlook the fact that protection for parents and children against abuse is generally available in the countries in which they actually reside; that allegations of abuse may be exaggerated or invented; that the courts in the countries of the children’s residency have the jurisdiction to permit the relocation of the children to India if that is in the best interests of the children; that fathers as well as mothers have a fundamental right to parent their children; and that it is a fundamental human right of children to have both parents in their lives.
The concerns that are now being expressed in India parallel those that were raised in Japan before that country ultimately signed the treaty, effective April 2014. However, it is to be hoped that if India chooses to sign the Convention it will do so without unnecessarily diluting its provisions as Japan did.
A compromise was ultimately reached in Japan whereby the Enabling Act pursuant to which the Convention was brought into Japanese domestic law provided for a significant expansion of one of the exceptions to the treaty. Specifically, Article 28 of Japan’s Enabling Act converts the so-called “grave risk” discretionary exception into a full and complete defense and it substantially expands the grounds of the defense. For example, Japanese courts may consider such factors as whether there are “circumstances that make it difficult for the petitioner or the respondent to provide care for the child in the state of habitual residence.” In my opinion, the expansion of what was intended to be an extremely limited and narrow discretionary exception into a broad defense that in many ways requires a determination of the child “best interests,” violates the provisions of the treaty.
An extremely beneficial consequence of Japan’s accession to the treaty is that the number of reported abductions of children to Japan has significantly declined. On the other hand, one of the adverse and unintended consequences of the expanded exception into an extremely broad defense is that it necessarily discourages courts in the United States (or other country of habitual residence) from authorizing a Japanese parent to take children to Japan for a visit children’s visits to Japan, in the face of objections by a potentially left-behind parent, because of concern that it will be all too easy for the taking parent to retain the children in Japan. The same consequence will surely result if India follows a similar path.
Meanwhile the debate in India continues. It is well-recognized that India is a safe haven for international child abduction. Unfortunately it appears that that will continue to be the case for the foreseeable future.

Tuesday, January 24, 2017

Notes on International Child Abduction to Nicaragua

Jeremy D. Morley

1.      Nicaragua is a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. However, the United States is not partnered with Nicaragua under the Convention. There are no bilateral agreements in force between Nicaragua and the United States concerning international parental child abduction.
2.      The State Department has determined that Nicaragua is a “Non-Convention Country” that has “Demonstrated a Pattern of Noncompliance” within the meaning of the International Child Abduction Prevention & Return Act, because with respect to calendar year 2015, because “Fifty percent or more of the total abduction cases are unresolved abduction cases as defined by the Act” and “Nicaragua persistently failed to work with the United States to resolve abduction cases in 2015.”
3.      While the Nicaraguan Central Authority previously cooperated with the Department in efforts to resolve cases of children abducted to Nicaragua from the United States, that cooperation stopped in early 2016 when the Nicaraguan government asked the Department to communicate with the Ministry of Foreign Affairs instead. In the spring 2016, U.S. Embassy Managua delivered a diplomatic note to the Nicaraguan Ministry of Foreign Affairs requesting Nicaragua’s assistance with two international parental child abduction cases.
4.      Upon release of the 2016 Annual Report, U.S. Embassy Managua delivered a demarche to the Government of Nicaragua noting that the Department had cited Nicaragua in the report as demonstrating patterns of noncompliance
5.      The U.S. State Department reports that:
·         The Government of Nicaragua is authoritarian, limits freedom of expression and peaceful assembly, represses internal dissent, and monitors and responds to perceived threats to authority.
·         In 2015 there was also widespread corruption, including in the police, Supreme Court of Justice and other government organs.
·         Nicaraguan authorities may physically or electronically monitor, detain, and question private U.S. citizens concerning their activities, including contact with Nicaraguan citizens, especially related to topics as varied as the proposed interoceanic canal, elections, and criticism of the Government of Nicaragua. 
·         There are severe penalties in Nicaragua for domestic violence, psychological abuse, and non-payment of child support.
·         The government-controlled legal system can result in prolonged detentions of U.S. citizens without charges or due process. 
·         In 2015, although the law provides for an independent judiciary, the judicial system did not function independently. The law requires vetting of new judicial appointments by the Supreme Court of Justice, a process unduly affected by nepotism, personal influence, or political affiliation. Once appointed, many judges submitted to political and economic pressures that compromised their independence. NGOs complained of a delay of justice caused by judicial inaction and widespread impunity, especially regarding family and domestic violence and sexual abuse. Authorities occasionally failed to respect court orders.
·         In 2015, while the government resolved some property claims during the year, it regularly failed to enforce court orders with respect to seizure, restitution, or compensation of private property. Enforcement of court orders was frequently subject to nonjudicial considerations. Members of the judiciary, including those at senior levels, were widely believed to be corrupt or subject to political pressure.
·         Demonstrations occur frequently throughout the country; in the past, these have turned violent.  Avoid demonstrations and exercise caution around large gatherings.
·         Violent crime occurs throughout Nicaragua. Vehicle burglaries, pick-pocketing, and occasional armed robberies occur in store parking lots, on public transportation, and in open markets like the Oriental and Huembes Markets in Managua. Street crime is also common in Puerto Cabezas, Bluefields, and the Corn Islands.  Police presence is extremely limited outside of major urban areas, including on the Pacific Coast and Nicaragua’s Caribbean Coast. Due to the Caribbean Coast’s geographical isolation, we have limited ability to provide emergency services to U.S. citizens there.   
·         All travel by U.S. government personnel to the Northern and Southern Caribbean Coast Autonomous Regions must be pre-approved due to crime and transportation safety concerns.
·         The legal system operates arbitrarily, which can result in prolonged detentions of U.S. citizens without charges or due process. 
·         In many instances, police and prison authorities have ignored or significantly delayed implementing judicial orders. 

Tuesday, January 17, 2017

Notes on Kuwait, Child Custody and Child Abduction

By Jeremy D. Morley
1.            Family and personal status law in Kuwait is governed by religious courts. In Kuwait the Sunni and Shi’a have their own court chambers to handle such matters in accordance with their own jurisprudence. In the case of Sunni Muslims, the Sunni chamber of the Family Court in Kuwait will apply the Maliki or the Hanbali interpretation of Islamic law. The Kuwaiti legal system is based on Islam and is codified into an “Islamicized” code as to marriage, divorce and child custody. 

2.                  The governing laws that apply in child custody cases in Kuwait are the Kuwaiti Constitution and the Kuwaiti Personal Status Law. Article 2 of the Constitution is entitled “State Religion” and it provides that “The religion of the State is Islam, and the Islamic Sharia shall be a main source of legislation.” Such laws are all based on concepts of gender appropriateness, age appropriateness and personal “morality.”

3.                  Pursuant to the Personal Status Law of Kuwait, the Father is generally the legal guardian of the child, while the mother usually has physical custody of children up to a certain age. Article 209 of the statute states that the person with the most right to guardianship of a minor is the father, followed if he is unfit by the father’s father and the male relations in the other of inheritance.  

4.                  Article 192 of the Personal Status Law provides that, “The non-Muslim hadina [person who has residential custody] of a Muslim child shall be entitled to its custody until it starts to understand about religion, or until it is feared that it may become familiar with a faith other than Islam, even if it does not understand about religion. In all cases, such a child shall not remain with such a hadina after it has reached five [now 7] years of age.”

5.                  Pursuant to Article 190 of the Personal Status Law a mother’s claims of custody over her children will be barred if she is shown to lack the necessary fitness and moral character, considered in accordance with Islamic principles of submission to her husband and her personal sexual and other conduct, such as whether she lives with a non-Muslim or has or has had a relationship outside marriage with a man.

6.                  The U.S. State Department Human Rights Country Report on Kuwait states that, “In the event of a divorce, the law grants the father custody of children of non-Muslim women who fail to convert.” 

7.                  In Kuwait, foreign custody orders are merely items to consider as part of an overall de novo custody review. Custody orders and judgments of foreign courts are not enforceable in Kuwait if they potentially contradict or violate local laws and practices

8.                 If a woman obtains custody in Kuwait it will merely be what is often described as “captive custody,” meaning that she will be prohibited from traveling with the child out of Kuwait without her ex-husband’s or the court’s permission. An integral component of guardianship in Sharia law is that the child must reside in the same location as the guardian even if another person has residential custody. Article 195 of the Personal Status Law specifically provides that the hadina (custodian as to residency) may not remove the child from the area of the guardian’s residency without his express permission.

9.                  Travel bans may be imposed by the Kuwaiti government or by private citizens against Kuwaitis and non-Kuwaitis, including U.S. citizens, if there are claims concerning matters such as unresolved financial disputes. Such bans prevent the individual from leaving Kuwait for any reason pending resolution of the dispute.

10.              Kuwait has not acceded to the Hague Convention on the Civil Aspects of International Child Abduction. The Convention is the fundamental international treaty that protects the rights of abducted children and serves to have them returned promptly to the country of their habitual residence. Kuwait has chosen not to adopt the treaty, even though it has been adopted by 95 other countries, including Islamic countries such as Morocco, Turkey and Turkmenistan.

11.              There can be no extradition from Kuwait for international child abduction, since there is no extradition treaty between the U.S. and Kuwait.

Friday, January 13, 2017

Notes on International Child Abduction and the Philippines

Jeremy D. Morley
1.      Although the Philippines has acceded to the Hague Abduction Convention, the Convention is not in force between the United States and the Philippines because the United States has not accepted the Philippines’ accession. Articles 38 and 39 of the Convention provide that the treaty will not enter into force between an existing Contracting State and a newly acceding State unless and until the existing state expressly accepts the accession of the new state.

2.      When a country accedes to the Convention, the U.S. State Department reviews the new signatory’s domestic legal and administrative systems to determine whether the necessary legal and institutional mechanisms are in place for it to implement the Convention and to provide effective legal relief under it. If it determines that a country has the capability and capacity to be an effective treaty partner, the State Department declares its acceptance of the accession by depositing a written instrument with the Hague Permanent Bureau. Only then does the Convention enter into force between the United States and the acceding country. The State Department posts these details on its website and the Permanent Bureau maintains a current status list on its website.

3.      Currently, the United States has not accepted the Philippines as a treaty partner. As a result, the Convention cannot be invoked in the case of abductions of children from the United States to the Philippines, or from the Philippines to the United States.

4.      There are no bilateral arrangements between the United States and the Philippines concerning the return of abducted children.

5.      In July 2016 the State Department issued its Annual Report on International Parental Child Abduction for the year 2015. The State Department reported that, “During 2015, the Philippines did not adhere to protocols with respect to international parental child abduction.” It also reported that, “During 2015, the Department had 23 reported abductions to the Philippines relating to children whose habitual residence is the United States. Of those, seven were newly reported during the calendar year. By December 31, 2015, no cases had been resolved, as defined by the Act, and five reported abductions had been closed. By December 31, 2015, 18 reported abductions remained open.”

6.      There can be no extradition from the Philippines for international child abduction from the United States, since there is no extradition treaty between the U.S. and the Philippines.

7.      Courts in the Philippines are not required to enforce foreign custody orders. There is no system in the Philippines of registration of foreign custody orders or enforcement of foreign custody orders. The Philippine courts will also take into consideration child custody decrees issued by foreign courts but there is no obligation that requires them to do anything more than “consider” such decrees.

8.      The courts in the Philippines have jurisdiction under the law of the Philippines to deal with all matters concerning the custody of children who are in the territory of the Philippines, regardless of the continuing jurisdiction of a foreign court.

9.      Article 213 of the Family Code of the Philippines provides that, “In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.” Article 213 takes its bearing from Article 363 of the Civil Code, which reads:

Art. 363. In all questions on the care, custody, education and property of children, the latters welfare shall be paramount. No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure.

While the rule mandating sole custody of a child to a mother (except in exceptional cases) ends when the child is seven, the strong bias in favor of the mother continues after that age.

10.  The courts in the Philippines are extremely backlogged and are subject to extreme delays.

11.  Once a custody case is commenced in the Philippines, a travel hold concerning the Child will normally be in place in that country. The Philippines Government advises that, “A minor who is the subject of ongoing custody battle between parents will not be issued a travel clearance unless a Court Order is issued to allow the child to travel abroad with either one of his/her parents or authorized guardian. The family shall be responsible to notify the Bureau of Immigration to include the name of the child/ren in the watchlist of minors travelling abroad. It is therefore the Bureau of Immigration’s responsibility to ensure that no child under the watchlist order leaves the country.”