Risk of Child Abduction to Jordan Requires Continuing Supervised Visitation

Jeremy D. Morley

Relying on my expert testimony as to the great difficulty of returning abducted children from the country of Jordan, and in light of other serious risk factors of potential international child abduction, the Chancery Court of Harrison County, Mississippi has refused to permit unsupervised visitation by a Jordanian father employed in the Jordanian diplomatic corps with his son living in Mississippi.

The child’s mother states that, “To say I am grateful to you both [myself and Todd Crawford, Mississippi counsel] would be a gross understatement!  Last night I slept through until 5:15 am, the first night I have not woken up in the middle of the night in YEARS...You guys made clear, concise and unbiased arguments to make my reality clear to the judge.  How can I ever thank you!”

Divorce in Bulgaria

Jeremy D. Morley

www.international-divorce.com

Statutory Regimes and Prenuptial Agreements

Prenuptial and postnuptial agreements may be entered into under Bulgarian law. In the absence of such an agreement, the statutory matrimonial property regime applies, meaning joint ownership of all assets acquired during the marriage, regardless of the name under which they are held, but only if they were acquired by means of a joint contribution by both spouses. The spouses’ joint contribution may result from the investment of money, labor, childcare or housework, and it is presumed subject to proof to the contrary. Items that are not joint property under the statutory regime comprise premarital assets, inheritances and gifts acquired during the marriage, and chattels acquired by a spouse during the marriage for normal personal use or for the exercise of a profession.

As an alternative to the default statutory regime the spouses may select the regime of separate property, whereby assets are held separately by whichever spouse owns them before or during the marriage. However, upon termination of the marriage a spouse who contributed - by labor, financial means, taking care of the children, housework or otherwise – to the other spouse’s acquisition of assets during the marriage may claim a portion of their value to the extent of the value of such contribution.

Alternatively, the parties may enter into written and notarized pre- and post-nuptial agreements, concerning pre- and post-marital assets, spousal support, child support. However, the Family Code prohibits provisions transforming a parties’ premarital property into matrimonial community property, and provisions concerning arrangements upon death except as to the spouses’ shares in agreed matrimonial community property.

Regardless of whether a specified regime has been chosen, or a nuptial agreement with different terms has been adopted, special rules apply in respect of the family home. In particular, the home cannot be sold or otherwise disposed of without the consent of both spouses, unless they co-own another home, without court approval. Such authorization requires a finding that the sale of the home is not detrimental to the children and the family. Upon a divorce, if the home cannot be used separately by the spouses, the court will award its occupancy to one of them if needed, usually to the parent with primary custodial rights

Upon marriage and upon any subsequent modification, the property regime or nuptial agreement is recorded in a publicly accessible Spousal Property Relations Register.

Divorce

          1.      Mutual Consent

A divorce by mutual consent can be obtained pursuant to Articles 50 and 51 of the Bulgarian Family Code by means of the parties’ joint petition to the district court. It requires that the parties have settled all issues concerning the residence of the children, the exercise of parental rights, access to and maintenance of the children, the division of property, the use of the family home, maintenance between the spouses and the family name.

          2.      Divorce by Petition

One spouse may petition for a divorce by alleging a serious and irretrievable breakdown in the marriage. i.e. that the marriage bond exists is totally devoid of the substance dictated by public morality and the law, and may result from adultery, prolonged de facto separation, alcohol, physical or mental cruelty , or persistent neglect of the family. If the issue of fault is not asserted the divorce may be based on the basis of serious and irretrievable marital breakdown. A finding of fault may be significant as to matters concerning child custody and use of the family home.

          3.      Child Custody and Support

Upon granting a divorce, a court in Bulgaria must rule on issues concerning child custody, child support and occupancy of the family home. The Code permits children to be heard on matters concerning the exercise of parental rights if they are over ten years of age, access to and maintenance of the children born of the marriage, and the use of the family home.

          4.      Spousal Support

Spousal maintenance is granted only to a spouse who is not determined to be at fault for the divorce. It is payable for no more than three years after the end of the marriage, unless the parties have agreed otherwise, or unless the court extends the period in cases of special hardship if the payor can pay the maintenance without special difficulty. Spousal maintenance almost always ends if the recipient remarries.

          5.     International Jurisdiction

A case for divorce may be brought in Bulgaria if the provisions of the European Union’s Brussels II Regulation (EC) No 2201/2003 are satisfied. Bulgarian legislation incorporates the Regulation and provides that in matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State in whose territory:

- the spouses are habitually resident, or
- the spouses were last habitually resident, insofar as one of them still resides there, or
- the respondent is habitually resident, or
- in the event of a joint application, either of the spouses is habitually resident, or
- the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
- the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her "domicile" there;
-or with the courts of the nationality of both spouses.

Section 498A Divides the Supreme Court of India

Jeremy D. Morley

A vigorous dispute that affects non-resident Indians throughout the world is playing out within the Supreme Court of India itself about a notorious provision in India’s Penal Law. 
 
Section 498A of the Indian Penal Code was enacted in 1983 to protect abused wives. It makes it criminal for a husband and his relatives to subject a married woman to cruelty is which is likely to drive a woman to commit suicide or cause grave physical or mental injury to her, and harassment with a view to coercing her or any of her relatives to meet any unlawful demands of property. 

While the purpose of the law was entirely noble, its enactment provides a perfect example of the “law of unintended consequences.”

The law has allowed disgruntled wives (but not husbands) to use the powers of the Indian police, the Indian courts and other branches of government in India as a powerful and abusive weapon with which to intimidate, attack and blackmail their husbands and his parents and other family members even if they do not live in India.

The misapplication of the statute results from a “perfect storm” of circumstances. They included the use of extremely vague statutory language to define “cruelty;” a separate law that prohibits the provision or acceptance of a dowry; a custom that has been difficult to eradicate of a bride giving a dowry upon marriage; a provision that the law that may only be used by married women against her husband and any of his allegedly-participating male or female relatives; a police force that is notoriously corrupt; a provision that the offense is “cognizable,” meaning that the police may make an immediate arrest of the husband and members of his family merely on the basis of a woman's unreviewed allegations in a complaint; a provision that the offense is “non-bailable” (meaning that once the police arrest a person they cannot release anyone on bail, so that the arrested person has to make an application for bail before a magistrate or court); a domestic relations procedure that is extremely cumbersome and in many ways unworkable; and a criminal system in India which is subject to extreme delays and corruption.

The result has been that when a marriage breaks up the wife is often able to get her husband and many of his family members arrested or subject to arrest by simply filing a claim of cruelty and then persuading the local police to arrest the so-called wrongdoers. This is much more effective than initiating an ordinary case for divorce. 

In the case of non-resident Indians, the process has often proved calamitous for the husband. A typical scenario is that the spouses have an argument and the wife runs off to India, often with the children and as many of the assets as she can take. She then immediately starts a Section 498A case in India and she then sues for divorce and custody in India. The husband cannot step foot in India because he will be arrested. Meanwhile his relatives in India clamor for him to settle up with his wife because they have been in jail or are fearful that that will happen. Indeed, the Supreme Court of India has described such conduct as “legal terrorism.” 

In Sharma v. State of Uttar Pradesh, AIR 2017 SC 3869, the Supreme Court of India stated that, “It is a matter of serious concern that large number of cases continue to be filed under Section 498A alleging harassment of married women. We have already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement. This Court had earlier observed that a serious review of the provision was warranted.” The Court cited criticism of the misuse of the law by the Law Commission of India and other entities. 

It ruled that it was necessary for the Supreme Court to take remedial steps because:

          “There is a growing tendency to abuse the said provision to rope in all the relatives including parents of advanced age, minor children, siblings, grand-parents and uncles on the strength of vague and exaggerated allegations without there being any verifiable evidence of physical or mental harm or injury. At times, this results in harassment and even arrest of innocent family members, including women and senior citizens.”

          “[M]ost of such complaints are filed in the heat of the moment over trivial issues.”

          “Many of such complaints are not bona fide.”

          “At the time of filing of the complaint, implications and consequences are not visualized.”

          “At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant.”

          “Uncalled for arrest may ruin the chances of settlement.”

           "Misuse of the law causes 'uncalled for hardship.'”

          “[V]iolation of human rights of innocent cannot be brushed aside”

The Court also cited figures which showed that in 2012 197,762 people were arrested under Section 498A; one-quarter were woman, meaning that they primarily were mothers or sisters of the husband; that 93.6% of arrests resulted in charge-sheet filings; and that “the conviction rate was at a staggering low at 14.4% only.” In 2013 the conviction rate of such cases “was also a staggering low at 15.6%,” and that while 466,079 such cases were pending at the start of 2013, only 53,641 cases were concluded during the year.

For these reasons, the Supreme Court issued a series of significant remedial steps that were intended to limit the abusive use of Section 498A. In particular, the guidelines precluded any arrest of a husband or his family members unless and until the charges have been independently reviewed and approved.

However, less than three months later, in the case of Nyayadhar v. Union of India, another bench of the Supreme Court, headed by the Chief Justice, stated that, “we are not in agreement with the decision rendered in Rajesh Sharma (supra) because we are disposed to think that it really curtails the rights of the women who are harassed under Section 498A of the Indian Penal Code. That apart, prima facie, we perceive that the guidelines may be in the legislative sphere.” The Court named certain senior counsel to serve as amici curiae to assist the Court in the resolution of the case, and further rulings in the case are expected.

Unfortunately, the debate in India – which has now clearly divided the Supreme Court itself – has too often been formulated in black-and-white terms as a dispute between men and women. The issue should not be presented in all-or-nothing terms. Domestic violence is abusive and should be criminalized, but the crime should not protect only one gender, and the use of a criminal statute to abuse, harass and blackmail should not be permitted.

The status quo is simply absurd. As an international family lawyer who represents both men and women of Indian origin, I have handled several matters in which wives of Indian origin living outside India have used the “498A” law to effectively bar their estranged husbands, also living outside India, from traveling to India to attempt to secure the return of their abducted children or to defend themselves against financial claims and custodial claims asserted in Indian matrimonial proceedings. In most such occasions, the wives had ample ability in the courts in the place of the matrimonial residence to obtain protection against domestic violence, to seek an order of custody over children, and to seek financial relief against the other spouses. However, the “498A” procedure is far more attractive because it is so easily available and can be so devastating in its impact.

It is encouraging that the issue is being actively considered in India and it is to be hoped that a better balance can be reached. As it is, the abuse of the 498A process is justifiably a matter of grave concern for Indian husbands and husbands of Indian origin wherever they might be living, and for their families living in India. 

Notes on International Child Abduction and Kyrgyzstan (Kyrgyz Republic)

Jeremy D. Morley

1.                  Kyrgyzstan does not comply with international norms concerning the return of internationally abducted children. The primary method of obtaining the return of an internationally-abducted child is by means of an application under the Hague Abduction Convention. It is the public policy of the United States that all countries should adhere to the Hague Convention or enter into bilateral arrangements to return abducted children. Kyrgyzstan has failed to sign the Convention or enter into any bilateral agreement concerning the return of internationally abducted children.

2.                  The refusal to accede to the Hague Convention or enter into any bilateral arrangements concerning the return of abducted children constitutes an extremely strong red flag that a country does not consider the abduction of children from other countries to be a serious matter, that it does not comply with international norms concerning international child abduction, and that it is most unlikely to follow a foreign court’s orders concerning either custody or visitation.

3.                  It is exceedingly difficult to return children from non-Hague countries. If a child is abducted to a non-Hague country the United States Embassy in that country and the U.S. State Department have no power to secure the child’s return.

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

5.                  A left-behind parent’s only potential remedy in Kyrgyzstan would be to initiate a plenary custody case in Kyrgyzstan. It would be necessary to stay in Kyrgyzstan in order to do so. There is no precedent for the return of an abducted child from Kyrgyzstan and no basis to expect that the courts in Kyrgyzstan would enforce a foreign custody order.

6.                  Many authoritative agencies reliably report that the level of judicial and other corruption in Kyrgyzstan is among the highest in the world. One such agency ranks Kyrgyzstan as one of the most uncompetitive countries in the world due in large part to its “off the charts” level of corruption.

7.                   The U.S. Court of Appeals for the Second Circuit has held that a petitioning Kyrgyz asylum application should have been granted because the petitioner’s testimony as to extensive police corruption in Kyrgyzstan was credible and corroborated, and was supported by findings of the U.S. State Department.

8.                  The Law of the Kyrgyz Republic on External Migration provides that a person under the age of eighteen may exit the country only upon the written and notarized request of his/her legal representatives, or by a Kyrgyz court order. Article 46 of the Law further provides that anyone may be prevented from leaving the Kyrgyz Republic if there is a pending civil suit against him.

Supreme Court of Japan and the Hague Abduction Convention

Jeremy D. Morley

The recent decision of the Supreme Court of Japan, in the Hague Abduction Convention case between James Cook and Hitomi Arimitsu – which upheld the Osaka High Court’s revocation of its prior order that four children wrongfully retained in Japan should be returned to their habitual residence in the United States – vividly highlights the loopholes and fundamental weaknesses in the Implementing Act under which the Convention was brought into Japanese law and the resistance within Japan to acceptance of the principles underlying the Convention.

Three years of intense litigation in Japan, with additional litigation in the United States, accomplished nothing except to freeze the father completely out of the lives of his children, to devastate his finances, to have a judicial endorsement in Japan of an act of international child abduction, and to deprive four children of their right to have a father in their lives.

Such a result was completely predictable. It resulted from several fundamental defects in the Japanese law.

The first is that the Implementing Act significantly expanded the scope of the “grave risk” exception in Article 13(b) of the Convention. It authorizes Japanese courts to consider economic and psychological factors about the abducting parent and the abducted child in determining whether the exception should apply. It elevates what is required to be an extremely narrow exception into a broad defense. And it enables a decision to be rendered without considering whether the authorities in the habitual residence could provide any needed support and protection. The Japanese expansion of the grave risk exception is Convention not authorized by the Convention and violates the provisions of the Convention.

The second issue is that the purported enforcement provisions in the Implementing Act are entirely ineffective. The problem here is that Family Court orders have never been enforceable in Japan except by occasional imposition of a modest fine. Family Courts operate on the basis of conciliation and mediation, rather than by issuing orders that are unlikely to be enforced or respected. By failing to enforce return orders, Japan is violating Articles 1 and 2 of the Convention, which require Contracting States to take all appropriate measures, and the most expeditious procedures available, to secure the prompt return of children wrongfully removed to or retained in any Contracting State.

The third factor is that the Implementing Act expressly authorizes the trial or appeal court, even after they have ordered a child’s return to the habitual residence, to overturn any such return order by considering whether “it is no longer appropriate to maintain said order due to change in circumstances” and, after a further hearing, to order that the child shall not be returned. This provision is entirely unprecedented. It violates Article 16 of the Convention, which bars a court from treating a Hague case as a custody case, and the fundamental obligation to resolve abduction cases as expeditiously as possible. It also encourages abductors and sympathetic judges to thwart the prompt resolution of cases so as enable facts to be created that may constitute a change in circumstances. 

The fourth problem is that Japanese law does not provide for legal aid or pro bono counsel for left-behind parents. 

All of these factors were responsible for the ultimate result in the Arimatsu case.

The parties (an American father and a Japanese mother) had lived together as a married couple in Minnesota, USA for at least 16 years and had raised their four American-born children there. In 2014, the mother took the children to Japan for a visit and retained them there without the father’s consent. He commenced a Hague case. The Osaka Family Court ordered that two children should be returned while the two older children, who objected to being returned, should stay in Japan. He appealed. The Osaka High Court then ruled in his favor that all four children must be returned. It was a hollow victory. The return order was unenforceable.

The father was required to use “indirect” enforcement first, meaning the threat of a fine. The mother refused to comply with the return order or pay the fine, and ultimately the father was permitted to request “direct” enforcement. He had to return to Japan to participate in the process. But the Implementing Act bars the use of force against a child or against a taking parent if that could adversely affect the child. Direct enforcement efforts failed. The court bailiffs merely reported that the children refused to leave the mother’s apartment, and that there was nothing else that they could do.

The mother then petitioned the Osaka High Court to nullify its return order. She claimed that there had been a change of circumstances since the prior return order, since the father’s house in Minnesota had been foreclosed and he allegedly did not have the financial resources or family support to provide a stable environment for the children in Minnesota. The father asserted that his financial challenges had primarily resulted from the huge legal fees and travel and related expenses that he had incurred in seeking the return of his children. The Osaka court accepted the mother’s argument. It vacated its prior return order on the ground that returning the children to the United States would put them in a situation of grave risk of harm.

The Supreme Court of Japan upheld the ultimate dismissal of the father’s petition. Unfortunately, the ruling merely sets forth, in purely conclusory form, its decision that there had been a sufficient change of circumstances to justify the vacatur of the original return order. The decision was rendered three years after the abduction and 2½ years after the initiation of the Hague case.

In a supplementary opinion, Judge Koike upheld the decision not to return the children on grounds that appear to make it clear that in his opinion the courts should consider matters concerning the best interests of the children in a Hague case. That view would appear to be in direct contravention of the purpose and the terms of the Convention.

The father testified before Congress in April 2017 that he had had no access whatsoever to his children since a visit in August 2015. Indeed, I understand that he has had no contact thereafter.

It is essential to the Hague process that decisions are made and enforced expeditiously. Unfortunately, the Arimitsu case demonstrates that it is far too easy for abducting parents to delay the process, and then to profit it by asserting that there has been a significant and subsequent change of circumstances. Unfortunately, the Supreme Court of Japan has now endorsed that conduct. The consequences of such a decision are exacerbated with respect to Japan because there is no meaningful impediment against a Japanese parent in then barring the left-behind parent from all access to the children. Indeed, since Family Court orders are practically unenforceable in Japan, and since “possession is 99% of the law” in this regard, a Japanese parent in such circumstances will typically feel compelled to cut the children off from any and all contact with the other parent.  

International Child Relocation

                                 by Jeremy D. Morley

             International child relocation applications are governed by the same legal principles that apply in domestic relocation applications. However, while international applications cover the same ground as applications to move with a child to another location in the same state or to another U.S. state, they also typically raise significant additional issues that are not present in domestic relocation cases. Unfortunately, the fundamental differences are often insufficiently appreciated by lawyers and judges. That is partly because, even in today's globalized world, international relocation applications are still relatively unusual.

            A key difference between international and domestic cases concerns the nature of the applicants. Parents who apply for international relocation generally have fundamentally different circumstances, concerns, and needs than parents who want to relocate domestically. Such differences are often not fully appreciated by lawyers or courts.

            Another critical difference is that while sister states have similar laws and legal systems, the legal systems in foreign countries vary dramatically in the extent to which they recognize and enforce U.S. custody and access orders, the rules concerning the modification of foreign custody orders, and the substantive laws concerning child custody and access.

            The law in the United States concerning international child relocation consists of a muddled accumulation of presumptions and burdens of proof, as well as “laundry lists” of factors to consider that vary from state to state. Unfortunately, they do not add up to much in the way of providing predictable, workable, fair or appropriate solutions to extremely difficult issues.

            Any child relocation dispute is fundamentally an argument about predicting the future, which is a self-evidently impossible task. Courts must issue prophesies, in the form of legal judgments, as to the future happiness and well-being of a child if the child remains in location A or moves to location B and as to which parent is more likely to share access to the child and in which location. Typically, one parent claims that if she cannot “go home” with her child to her country of origin, she will suffer terrible consequences and, much more significantly, so will her child. Just as typically, the other parent will claim that the relocation will damage or destroy his relationship with his child, to the child's substantial detriment.

            As difficult as such cases are when the requested relocation is in state or intrastate, they are far more difficult when they are international. International relocation applications require that courts make critical predictions about additional important factors, particularly concerning the enforceability of their orders in other jurisdictions. One parent will typically claim that the legal system in the other country is sufficiently robust that it will compel her to comply with the terms to be imposed by the forum court if she were ever to violate those terms. She may also argue that her past practices show that she will comply in any event and that the specific conditions to be imposed by the forum court will be effective to cause her to comply with the order. The other parent claims that exactly the opposite is true.

It is impossible to evaluate the true risks that arise from authorizing an international child relocation without considering the foreign law that will apply once the child is overseas and without evaluating the effectiveness of the foreign legal system that will subsequently be called upon to implement the provisions for parental access or shared decision-making on the part of a left-behind parent. Accordingly, any evaluation of potential international relocation (or international travel) in a contested case should include a consideration of the potential impact that the laws and procedures of the foreign country may have on the child's future well-being. Counsel should secure and present such material to the court.

            Unfortunately, all too often, courts and evaluators blithely--and wrongly--assume that the terms of domestic custody orders will be recognized and effectively enforced in foreign countries. In such cases, the source of the problem may be:

            a. The failure of counsel for the potentially left-behind parent to provide the custody evaluator and the court in the United States with effective, reliable, admissible, and persuasive expert evidence concerning the foreign laws and procedures that would apply if things went wrong; or

            b. The decision of the court in the United States to the effect that such evidence concerning foreign laws and procedures should not be considered or is inapplicable, uncertain, speculative, or otherwise unpersuasive.

In either event, the result is that the interests of the child and at least one parent are compromised and that the expectations of the U.S. court are not met.

Unconscionability and Prenuptial Agreements in New York

Jeremy D. Morley

In New York there is a strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements, including by prenuptial agreements. Accordingly, duly executed prenuptial agreements are accorded the same presumption of legality as any other contract. Thus, under New York law, a prenuptial agreement is presumed to be valid unless the party challenging the agreement meets a very high burden of showing that it was the product of fraud, duress, overreaching by one spouse resulting in manifest unfairness to the other spouse, or unconscionability.

An agreement is “unconscionable” if it is one “which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense.” Sanfilippo v. Sanfilippo, 137 A.D.3d 773, 774, 31 N.Y.S.3d 78. Although courts carefully scrutinize marital agreements based on the fiduciary relationship of the parties, “an agreement is not unconscionable merely because some terms may seem improvident; it must shock the conscience to be set aside” (Tremont v. Tremont, 35 AD3d 1046, 1048 [3d Dept 2006].

Nonetheless, it is critical to note that an agreement that might not have been unconscionable when entered into may become unconscionable at the time a final judgment would be entered. Maddaloni v. Maddaloni, 142 A.D.3d 646, 649, 36 N.Y.S.3d 695

The burden of proof as to unconscionability is on the party seeking to set aside the agreement.

That burden was satisfied in the recent case of Taha v. Elzemity, 157 A.D.3d 744, 68 N.Y.S.3d 493 (2d Dept. 2018).

The parties had married in 2007 and had three children. Shortly before their marriage, they entered into a prenuptial agreement. It provided, inter alia, that, in the event of separation or divorce, each party waived the right to the other's separate property, including property acquired from the proceeds of separate property acquired during the marriage; that each party would keep separate bank accounts; and that the husband's maintenance obligation would be limited to a lump sum payment of $20,000.

The husband had practiced medicine since 1987 and earned approximately $300,000 annually. The wife had been employed part-time as a sales person when the parties met, but did not work outside the home during the marriage and dedicated herself to the care of the household and the parties' children, one with special needs.

The Court determined, on appeal that the terms of the agreement were unconscionable since its enforcement would result in the risk of the wife becoming a public charge, and since she was unemployed, largely without assets, and was the primary caregiver for the parties' young children. For these reasons the Court overturned the lower court’s order that had granted summary judgment in favor of the husband and it granted the wife’s cross motion for summary judgment ordering that the prenuptial agreement was unenforceable.

The moral: Prenuptial agreements must be drafted with great care and must foresee the possibility that they will be judged in the light of unforeseen future circumstances.

Lebanon: A Safe Haven for International Child Abduction

Jeremy D. Morley, www.international-divorce.com

It is generally impossible to secure the return of internationally abducted children from Lebanon through normal means, particularly when retained by a Lebanese parent. Lebanon is not a party to the Hague Abduction Convention. There are no bilateral treaties with Lebanon on international child abduction. There is no extradition treaty between Lebanon and the United States. Lebanon has no law concerning the recognition and enforcement of foreign custody orders. Lebanon’s numerous religious courts have jurisdiction over child custody matters but require the civil courts to enforce orders and enforcement is slow and difficult. The various religious law systems apply arbitrary principles of age, gender and religion. Lebanon does not recognize international parental kidnapping as a crime. And under Lebanese law, Lebanese nationals may prevent their wives and children (even if they are foreign citizens) from leaving Lebanon.

Consequently, many parents have taken desperate measures.  Numerous such cases which exemplify the problems have been well reported within just the last few years. The reports allege that:

·         Sally Faulkner lived in Brisbane, Australia with her two children. Her husband, a Lebanese national, resided in Lebanon. In 2015, he took the children on vacation to Lebanon and then refused to return them. The mother’s attempts to secure their return were unsuccessful, and she was unable to make contact with her children. She obtained a custody order in Australia, but it was ignored in Lebanon. In desperation, and using funds that she obtained from a publicity campaign in Australia, she hired a “child recovery team.” They went to Lebanon accompanied by an ABC Television crew. They snatched the children from a street in Beirut but were then were arrested on charges of kidnapping and were jailed in Beirut. They were eventually released from jail but only in exchange for the payment of a large sum of money to the father and the mother’s signature on a document whereby she renounced all claims of custody over the children and consented to a divorce. She left Lebanon in October 2016 and has not seen or spoke to her children since that time. She still faces criminal charges on Lebanon.

·         Jolly Bimbachi’s two children went from their home in Ontario, Canada for a short visit to Lebanon with their Lebanese father in May, 2015. He kept the children in Lebanon. The mother tried and failed to secure a return order from the Lebanese courts. In desperation, in late 2017 she flew with a friend to Lebanon, found the children and tried to take them out of Lebanon to Turkey via Syria. They were captured by Hay’at Tahrir al-Sham, an al-Qaeda affiliate, who retained them in Syria for a month. A Syrian judge ordered their return to Lebanon and they were smuggled back into Lebanon. The children were returned to their father in Lebanon. Last month, the mother returned to Canada alone.

·         Michelle Matar lived in California with her three children. In December 2016 a court in Orange County, California allowed their Lebanese father to take them to visit Lebanon. He did so but then refused to return them. According to the FBI, he told the mother that she would never see her children again unless she flew to Lebanon to re-marry him and did not go to the authorities. The California court then ordered the father to return with the children, but he refused to do so. The mother brought suit in Lebanon and proceedings there are ongoing. A warrant for the arrest of the father for international child kidnapping was issued based upon an FBI complaint. The children remain in Lebanon.

·         Layale Khalifeh lived in Calgary, Alberta with her seven-year old son. Her Lebanese ex-husband lived nearby. In 2014 he persuaded her to allow him to take their son to Lebanon for a family wedding. She retained counsel in Canada and Lebanon, obtained an order in Canada giving her sole custody of the child, obtained an arrest warrant in Canada against the father, and sued in Lebanon for custody, but all such efforts were unsuccessful. She eventually flew to Lebanon and sought access to her child in a Lebanese court. However, in order to be permitted to see her son she was compelled to agree to quash the Canadian custody order and to agree that while the father had guardianship and she would have purely residential custody rights in Lebanon she was not permitted to take the child outside Lebanon. In desperation, she violated the Lebanese order and removed her son from Lebanon and took him back to Canada.

There are very many more such cases. I believe that the reported cases are the tip of the iceberg. In my opinion, Lebanon is a safe haven for international child abduction.

Important Case on UCCJEA Enforcement of Foreign Custody Orders

Jeremy D. Morley

The Indiana Court of Appeals has rendered a detailed analysis of the “escape clause” in the UCCJEA concerning the enforceability of foreign countries’ custody orders. Coulibaly v. Stevance, 85 N.E. 3d 911 (Ind. Ct. App. 2017).

After a hearing, a court in Mali, West Africa, had awarded custody of the parties’ children to the father.  Prior to the issuance of the order the mother had unilaterally removed the children from their home in Mali, where the French-Malian family had long resided.  The mother subsequently moved with the children from France to Indiana, and initiated a custody proceeding in Indiana to modify the Malian custody order in her favor.  She conceded that the UCCJEA normally required an Indiana court to recognize and enforce a foreign custody order issued by a court that had jurisdiction under UCCJEA principles. But she asserted that the statutory exception to that rule—when the child custody laws of the foreign country violate “fundamental principles of human rights”—should apply in the case of Mali. 

At first instance, the Indiana court rejected the mother’s claims. On appeal, her fundamental argument was that Mali’s child custody law violates fundamental human rights because it favors men over women. The Malian statute provides that, “[t]he children will be in custody of the spouse who obtained the divorce unless the court . . . orders for the best interests of the children, that all or some of them will be cared for by the other spouse or a third person.” The mother argued that, although this provision is not gender-based on its face, Mali’s marital laws evince a preference for men such that women will more often be found at fault for a divorce, resulting in a de facto paternal preference in child custody decisions. Thus, she asserted that statutory law in Mali expressly provides that “[t]he husband owes protection to his wife, the wife obedience to her husband,” that the husband is the head of the household, that the household expenses “fall principally on him,” that he has the right to choose the family residence, that the wife must live with him and he must receive her, and that a woman is prohibited from running a business without her husband’s permission.

The court in Mali had granted the divorce to the husband on the basis that the mother was the party at fault in ending the marriage. Since under Malian law the husband is entitled to choose the family residence, the fact that the mother had disputed the father’s decision to remain living in Mali was a ground for divorce. The Malian court further found that the mother had admitted that she had “a habit of uttering insulting and offensive remarks toward” the father, which constituted “serious abuse,” and that her persistence in her plan to emigrate with the children without her husband’s knowledge or consent was a violation of her duty of loyalty, a mutual duty imposed by Malian marital law upon both spouses irrespective of gender.

However, when considering the issue of child custody, the Malian court did not actually apply the statutory presumption in favor of the father as the party who had obtained the divorce. Instead, it expressly stated that custody could be awarded to either parent, and that only the best interests of the children controlled its decision. It based its decision awarding custody to the father primarily on the fact that the mother planned to emigrate overseas with the children which would deprive the children of the affection of their father, whereas the father wished the mother to have extensive visitation with the children. The Indiana trial court had then found that Mali’s child custody law as applied in this case did not violate fundamental principles of human rights and was in fact in substantial conformity with Indiana’s child custody law.

The mother argued that the UCCJEA did not allow an Indiana court to consider the basis of the actual ruling of the Malian court, that it was limited to considering the foreign law as written, and that it therefore erred in considering whether a custody presumption was in fact applied in this case. That position was supported by the official comment to the relevant section of the UCCJEA, which states that “the court’s scrutiny should be on the child custody law of the foreign country and not on other aspects of the other legal system.” Indeed, in Matter of Yaman, 105 A.3d 600, 611 (N.H. 2014), the Supreme Court of New Hampshire held that “[t]he comments to the UCCJEA . . . clarify that the analysis is meant to focus on the foreign jurisdiction’s substantive law, and not its legal system or how the law is implemented.” 105 A.3d at 611.

The Indiana Court of Appeals distinguished Yaman, stating that, “We believe that the import of the court’s statement in this regard is that claims of mere legal error are insufficient to establish a violation of fundamental human rights, a proposition with which we readily agree. The UCCJEA does not require Indiana courts to reevaluate the merits of every foreign custody decree that comes before it, and we will not presume to understand the law of a foreign nation better than that nation’s own judicial officers.”

The Court of Appeals then insisted that, “Nevertheless, we do not believe that the UCCJEA limits the courts of this state to considering the foreign jurisdiction’s law only on its face, without regard to whether that law was applied in a manner violative of fundamental human rights. One can imagine multiple circumstances in which a foreign jurisdiction’s custody law is unobjectionable as written, but applied in a manner that clearly violates a parent’s or child’s fundamental human rights. For example, the relevant law might provide that the custody decision is to be based upon the best interests of the child, but what if a foreign court nevertheless places a child with one parent or another based solely on that parent’s race, ethnicity, nationality, religion, or gender? We see nothing in the comments to the UCCJEA that would require a court to turn a blind eye to the realities of the custody order before it in such a situation, and we are unwilling to take an approach that would require the courts of this state to become a party to a violation of human rights by enforcing such an order.”

However, in the pending case, the Court of Appeals determined that, although the mother was determined to be at fault for the divorce based in part on the Malian court’s finding that she had violated the gender-based statutory duty of obedience to her husband, the Malian court’s order made it clear that the child custody decision was based solely on the best interests of the children, not on the relative fault of the parties. Accordingly, the Court of Appeals held that, “when considering Mali’s child custody law as applied in this case, we cannot conclude that Mother has established a violation of fundamental human rights.”

The Court of Appeals then considered whether, even if it were confined to a consideration of Mali’s child custody law as written, rather than as applied, there was a violation of fundamental human rights. The mother’s primary claim in this regard was that any presumption of custody is a violation of the fundamental right for a parent to the care, custody, and control of the child.

The Court of Appeals refused to apply that logic. It explained that custodial preferences are not foreign to American jurisprudence. Indeed, gender-based custody preferences were the norm in the United States in the not-so-distant past. It cited a Maryland case, Hosain v. Malik, 671 A.2d 988 (Md. Ct. Spec. App. 1996), which affirmed a decision to enforce a Pakistani custody decree despite evidence that the order was based in part on the Islamic doctrine of Hazanit, which the court described as “embod[ying] complex Islamic rules of maternal and paternal preference, depending on the age and sex of the child.” This was “similar to the traditional maternal preference in that they both are based on very old notions and assumptions (which are widely considered outdated, discriminatory, and outright false in today’s modern society) concerning which parent is best able to care for a young child and with which parent that child best belongs. Viewed in this regard, standing as a factor to be weighed in the best interest of the child examination, Hazanit is no more objectionable than any other type of preference.” The Hosain court also concluded that the Pakistani court’s consideration of the mother’s adultery as a factor in the custody decision was not repugnant to Maryland public policy, noting that Maryland courts are permitted to consider parental adultery in determining custody, at least to the extent that it affects the child’s welfare.

The Court of Appeals stated that the simple fact that a doctrine or policy was once prevalent in the United States does not conclusively demonstrate its compatibility with principles of fundamental human rights. Nevertheless, as in Hosain, the parental preference at issue in the pending case was not conclusive. Rather, Malian law provides that “children will be in custody of the spouse who obtained the divorce unless the court . . . orders for the best interests of the children, that all or some of them will be cared for by the other spouse or a third person.” Thus, the law does not permit Malian courts to blindly apply a parental presumption or ignore the best interests of the children. Rather, the law appears to do nothing more than allocate the initial burden of rebutting the custodial presumption in favor of the innocent spouse to the at-fault spouse. Further, although Mali’s marriage laws impose different duties on husbands and wives based on gender, either spouse may be granted a divorce based on the other spouse’s failure to fulfill his or her respective duties. It concluded by finding that, “Whatever we might think about the wisdom of Mali’s marital and custody laws in this regard, we simply cannot say that they are so utterly shocking to the conscience or egregious as to rise to the level of a violation of fundamental principles of human rights.”

Finally, the Court of Appeals considered the mother’s claim that Mali’s legal system and culture are so oppressive to women that no custody order issued in that country could be enforceable in the United States. She presented evidence concerning alleged widespread judicial corruption in Mali, difficulties that noncustodial mothers in Mali reportedly faced in securing visitation with their children, and a number of cultural practices oppressive to women and children, with special reference to the prevalence of female genital mutilation in Mali and the absence of a law specifically prohibiting the procedure. The Indiana trial court had rejected the evidence, which was apparently not supported by expert evidence.

The Court of Appeals held that the comments to the UCCJEA make it clear that its scrutiny was limited to Mali’s child custody law and not on other aspects of its legal system, including the law (or absence of law) concerning female genital mutilation. “[c]onsideration of every law likely to affect children would throw the doors wide open—laws regarding civil rights, education, health care, housing, and inheritance, to name just a few, would all be fair game in evaluating a foreign custody decree. Such an approach would put the courts of this state in the untenable position of passing judgment on the entire legal system of a foreign country, a result plainly at odds with the clearly stated intent of the drafters of UCCJEA.”

                                                                  Conclusion

Coulibaly v. Stevance sheds light on an important and relatively undeveloped area of UCCJEA jurisprudence. The opinion opens the door, in cases concerning the enforcement of foreign country custody orders, to a consideration of the basis upon which the foreign court based its custody determination, but disapproves of a more general consideration of the state of human rights in the country. Left fairly uncertain is the critical issue of the enormous disparity in many countries between custody theory and custody practice. In many cases, the foreign law itself is quite harmless on its face, but it is the application of the law that creates discrimination. It may well be naive and unfair to limit the human rights clause to a review of the literal meaning of a foreign custody law and to preclude inquiry - by means of reliable expert evidence - as to the operation of the foreign law in the foreign country in practice. Whether such issues should be considered under the rubric of public policy or otherwise, they often do need to be heard.  

Poland’s Further Violation of Obligation to Return Abducted Child

Jeremy D. Morley

In the case of Oller Kamińska v. Poland, determined on January 18, 2018, [2018] ECHR 70, the European Court of Human Rights (First Section), sitting as a Chamber, has ruled that the Polish authorities violated their obligations to return an abducted child under the Hague Convention and the Brussels II bis Regulation.

The Court held that the Polish authorities had failed to act swiftly to enforce an Irish judgment, which had determined, on consent of both parents, that a child was habitually resident in Ireland and was to travel to Poland in 2009 for a mere visit with her father, and a subsequent Irish order requiring the child’s return to Ireland after the father wrongfully retained her in Poland.

After three years of intense litigation in Poland that was ultimately unsuccessful, and litigation in Ireland, the mother traveled to Poland and unilaterally removed the child from that country and returned her to her habitual residence in Ireland.  Further litigation then ensued in both jurisdictions.

The mother then brought suit before the European Court alleging that the Polish courts had violated the European Convention for the Protection of Human Rights and Fundamental Freedoms. The European Court and the Government of Poland defended the conduct of its courts by arguing that the mother had kidnapped her daughter in 2012 and removed her to Ireland, and that her actions had been contrary to the principle of the best interests of the child. The European Court rejected all of the Polish Government’s arguments and held that, “The Court reiterates that in cases of this kind the adequacy of measures taken by the authorities is also to be judged by the swiftness of their implementation; they require urgent handling as the passage of time and change of circumstances can have irreparable consequences for relations between the children and the parent who does not live with them.” It held further that held that specific, streamlined proceedings may be required for the enforcement of return orders - be it under the Hague Convention or the Brussels II bis Regulation - for a number of reasons. Without overlooking the fact that enforcement proceedings have to protect the rights of all those involved, with the interests of the child being of paramount importance, the Court noted that it is in the nature of such proceedings that a lapse of time risks compromising the position of the non-resident parent irretrievably. Moreover, as long as the return decision remains in force, the presumption stands that return to the habitual residence is also in the interests of the child.

As a result, the Court ruled that the mother’s right to respect for her family life did not receive effective protection.

The case is unfortunately in line with the determination of a Canadian court in Nowacki v. Nowacki in 2015 that the Polish courts had seriously misapplied the grave risk exception to the obligation to return abducted children to their habitual residence. See my article on that case, Poland's Violation of the Hague Abduction Convention, at: www.internationalfamilylawfirm.com/2015/02/polands-violation-of-hague-abduction.html