Update on India and International Child Abduction

By Jeremy D. Morley

The Indian Supreme Court debated international child abduction last week in the context of a petition filed some years ago by a U.S. NGO demanding guideline to counter cross-border parental child abduction. 

Central to the debate, it appears, was my expert testimony about Indian law in a Canadian case. The petitioners explained to the Indian Supreme Court that, the Superior Court in Ontario, Canada had barred a father from removing a child from Canada to India based upon my testimony. They explained that,

"It was his (the expert's) 'very firm opinion' that notwithstanding any order of a court in Ontario, if the father retained the child, 'it would be exceedingly difficult and perhaps impossible for the mother to secure V's return home from India'. Any court proceeding in India to secure the child's return would be exceedingly slow...The mother would have to spend considerable money on legal fees to try and secure the child's return-or even have access to the child in India. India does not comply with international norms concerning the return of internationally abducted children 'and it is a justifiably well -recognised safe haven for international child abductors.' India has chosen not to accede to the Hague Convention. 'India's failure to sign the treaty constitutes a strong signal that it does not consider the abduction of children from other countries to be a serious matter'..."

Indeed, my testimony on this issue has been accepted by courts in many jurisdictions in the United States, Canada and Australia.

The Supreme Court criticized the failure of the Indian Government and Legislature to address the issue, but indicated that it might propose the adoption of the 2018 report by a committee headed by Justice Rajesh Bindal and appointed by India' s Ministry of Women and Child Development. In its report, the Bindal Committee rejected the fundamental thesis of the Hague Convention that abducted children should normally be promptly returned to their habitual residence. Instead, it insisted that abducted children should not be returned from India unless it is proven to be in their best interest to do so and unless any one of several broadly-described exceptions is shown to exist.

The Bindal Committee’ s report included a proposed statute to establish a quasi-judicial “Inter-Country Parental Child Removal Disputes Resolution Authority” in India to handle international child abduction cases. A careful review of the proposed legislation establishes that it would, in fact, further encourage international child abduction to India.

My article, India's ‘Bindal' Committee promotes international child abduction, was published in the September 2018 edition of the International Family Law Journal.

Registration of Israeli Divorce Outside Israel

Jeremy Morley

jmorley@international-divorce.com

Israel’s Population Registration Law requires Israeli citizens to inform the Population Registry at Israel’s Ministry of the Interior of any change in their personal status. Israeli citizens outside Israel can do so through the Consular Departments of overseas Israeli missions.

This means that if an Israeli citizen who is divorced abroad should notify the Population Registry of the change in status on the required form together with (a) the divorce certificate verified by means of an apostille together with (b) a photocopy of the first page of the spouse’s Israeli and foreign passports (if such exist) and (c) a translation of the divorce certificate if in a language other than English.

Here is the Miami Consulate’s version of the required form:

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Concentration of Hague Abduction Convention Jurisdiction in Florida

Jeremy D. Morley

jmorley@international-divorce.com

The Florida Supreme Court has taken a pioneering step forward by creating a concentration of jurisdiction for the state of Florida trial courts to determine cases filed by left behind parents of children located in Florida who seek relief concerning their children pursuant to the 1980 Child Abduction Convention.

Administrative Order AOSC19-19 requires the chief judge of each of Florida's 20 judicial circuits to designate one judge with primary responsibility for handling all Hague cases filed within that circuit. It further requires that these 20 judges participate in educational opportunities to learn the substantive law and procedural requirements for Hague cases. The Order explains that, “It is the intent of the Florida State Courts System to better protect children from the effects of their wrongful removal through the establishment of a network of Florida judges who develop expertise in this important area of law.”

In Florida's state court system, Hague cases may be filed in any Circuit Court, which is the statewide trial court of general jurisdiction. There are more than 500 judges who sit in Florida's 20 judicial circuits who have the legal authority to determine these cases. Florida is one of the top four U.S. states receiving the greatest number of Hague filings (New York, California and Texas being the other three), and receives approximately 45 incoming cases annually.

Apart from Florida, it appears that there is no other concentration of Hague cases in a limited number of courts in the United States.

Moreover, the Florida rule does not address the fact that there is concurrent state and federal jurisdiction for Hague cases in the U.S. Indeed, most experienced Hague practitioners usually prefer to bring cases in, or remove cases to, the appropriate federal court.

The United States has several thousand separate jurisdictions, any of which may handle Hague cases, comprising approximately 3,140 counties or county equivalents and 94 federal districts. The completely different backgrounds of family court judges and federal judges means that the choice of one system or the other might have a major impact on the outcome of the case.

Most judges in the United States who might be called upon to handle Hague cases have never done so previously. In this author's experience, it is more usual than not for a judge in a Hague case to report that, “This is my first Hague case” and then to ask the lawyers to provide special support for that reason.

Florida's new system for its state courts is a step forward, which should be adopted nationwide. 

Indeed, the entire system as to the courts that handle Hague cases should be reviewed and reformed so that a select group of specially trained and experienced judges handle these cases. This is precisely the system that the State Department has successfully encouraged other countries to adopt. See my article, People in Glass Houses.

Issuance of U.S. Passports for Children

Jeremy D. Morley
jmorley@international-divorce.com

One of the best ways to prevent international child abduction is to maintain careful control over the child’s passports.

On the other hand, it is often essential for left-behind parents to obtain new passports for children who have been abducted, especially if they want to bring them home directly.

Here is an overview of the fundamental rules.

The U.S State Department will normally not issue a new or replacement passport for a child to one parent without a notarized written statement or affidavit from the non-applying parent or legal guardian, if applicable, consenting to the issuance of the passport. However, the governing regulations also authorize the submission of a birth certificate providing the minor's name, date and place of birth, and the name of only the applying parent; a Consular Report of Birth Abroad of a Citizen of the United States of America or a Certification of Report of Birth of a United States Citizen providing the minor's name, date and place of birth, and the name of only the applying parent; a copy of the death certificate for the non-applying parent or legal guardian; or an adoption decree showing the name of only the applying parent.

      

 A further exception is if there is an order of a court of competent jurisdiction granting sole legal custody to the applying parent or legal guardian containing no travel restrictions inconsistent with issuance of the passport; or, specifically authorizing the applying parent or legal guardian to obtain a passport for the minor, regardless of custodial arrangements; or specifically authorizing the travel of the minor with the applying parent or legal guardian; or an order of a court of competent jurisdiction terminating the parental rights of the non-applying parent or declaring the non-applying parent or legal guardian to be incompetent.

The Regulations expressly provide that an order of a court of competent jurisdiction providing for joint legal custody or requiring the permission of both parents or the court for important decisions will be interpreted as requiring the permission of both parents or the court, as appropriate. 22 C.F.R. §51.28.

Another exception is that a passport may be issued when only one parent, legal guardian, or person acting in loco parentis executes the application in cases of exigent or special family circumstances. 22 C.F.R. §51.28(a)(5). “Exigent circumstances” are defined as time-sensitive circumstances in which the inability of the minor to obtain a passport would jeopardize the health and safety or welfare of the minor or would result in the minor being separated from the rest of his or her traveling party. “Time sensitive” generally means that there is not enough time before the minor's emergency travel to obtain either the required consent of both parents/legal guardians or documentation reflecting a sole parent's/legal guardian's custody rights.

“Special family circumstances” are defined as circumstances in which the minor's family situation makes it exceptionally difficult for one or both of the parents to execute the passport application; and/or compelling humanitarian circumstances where the minor's lack of a passport would jeopardize the health, safety, or welfare of the minor; or, pursuant to guidance issued by the Department, circumstances in which return of a minor to the jurisdiction of his or her home state or habitual residence is necessary to permit a court of competent jurisdiction to adjudicate or enforce a custody determination. A limited administrative appeal may be brought against a refusal by the State Department to waive the two-parent requirement.

The U.S. State Department may refuse to issue a passport – except for direct return to the United States – if it “determines or is informed by a competent authority” that the applicant is a minor who has been abducted, wrongfully removed or retained in violation of a court order or decree and return to his or her home state or habitual residence is necessary to permit a court of competent jurisdiction to determine custody matters.” 22 C.F.R. § 51.60 (e).

Successful UCCJEA Return of Child to Germany

by Jeremy D. Morley

jmorley@international-divorce.com

The best way to secure the return of a child who has been abducted to the United States may not be by using the Hague Convention on the Civil Aspects of International Child Abduction. It is often preferable to seek registration and enforcement, in a local Family Court in the county where the child is currently located, of a custody order from a court in the country where the child was living. This was well borne out in a recent case in the Vermont Superior Court, Windsor Unit, Family Division.

The child in question had always lived in Germany, originally with both parents, and then with his father after the mother relocated to Vermont. The parties entered into an agreement stipulating that the mother had access to the child during school vacations. A court in Germany then issued a ruling which approved of the parties' agreement and provided for sanctions for violation of its terms.

This past summer, the child went to Vermont for a scheduled four-week summer vacation with his mother in Vermont. The mother then failed and refused to return the child to Germany, claiming that he was being neglected there.

The father consulted us about initiating a case in the U.S. under the Hague Abduction Convention. We anticipated that in a Convention case the mother would assert the exception contained in Article 13(b) of the treaty of “grave risk of harm” that a return of the child would expose the child to “physical or psychological harm or otherwise place the child in an intolerable situation.”

We were confident that any such claim would ultimately fail, based on the claims already made by the mother in purported justification of her refusal to return the child. But we anticipated that, despite the language in the Convention and in the International Child Abduction Remedies Act requiring the expeditious resolution of any Hague Convention case, a resolution of the grave risk claim would require a battle between opposing medical and psychological experts, testimony by an array of witnesses concerning the child's physical health, emotional and psychological health, social life and educational circumstances, extensive pre-trial discovery, extensive briefing and a lengthy trial, all of which would be extremely expensive and emotionally draining for the client.

Accordingly, we recommended an alternative procedure, that of using the registration of enforcement provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”), which requires a court in the U.S. state in which a child is located to register and enforce a custody order issued by the child's home state, even if the home state is a foreign country. The UCCJEA does not permit the alleged abductor to assert in the U.S. court the exceptions that can be asserted in a Hague case. Once a notice to register a foreign custody order is properly given, the foreign order must be registered unless the respondent establishes that (1) the issuing court had no jurisdiction to enter the child custody determination; or (2) the child custody determination sought to be registered has been vacated, stayed, or modified by a court having proper jurisdiction to modify same; or (3) notice or an opportunity to be heard was not given to the person contesting jurisdiction provided he or she was entitled to receive notice. Once the order is registered, there are no defenses. By contrast, exceptions are invariably claimed in Hague Convention cases and if one exception is upheld, return may be denied.

Since we are not admitted to practice in Vermont, we located local counsel there for the client, the firm of Hershenson, Carter, Scott & McGee, and we then strategized with and collaborated with that firm about the case throughout the proceedings, which they conducted with great care and success. The case was hotly contested by highly experienced counsel, including lead counsel from New York. Nevertheless -- and despite the respondent's cross-petition for temporary emergency jurisdiction, technical objections to registration, requests to delay the hearing, and the introduction of evidence by a clinical and licensed psychologist from New York -- the case was concluded within one month and the child was successfully returned to his home in Germany. We were delighted to help procure such a satisfactory result for a very grateful client.

International Child Abduction Cases in Japan: The Role of Family Court Investigating Officers

by Jeremy D. Morley

jmorley@international-divorce.com

International child abduction cases in Japan, brought pursuant to the Hague Abduction Convention, frequently require the involvement of Family Court Investigating Officers (FCIO). These are court officials who are government employees with training in psychology, sociology and pedagogy, and who are assigned in Family Court matters to investigate allegations of domestic abuse, child access problems and their domestic relation issues. They have broad authority to interview parents and children, to make home visits, to “accurately ascertain the objective facts,” to understand “the emotions that underlie the respective arguments of the parties,” to make predictions as to future outcomes, to encourage the parties to resolve their disputes, and to “make reports to the judge with his /her opinion on the solution.”

In Hague Convention cases, investigations by FCIOs are ordered primarily when a taking parent claims that the child is now “settled in the new environment” and when a taking parent claims that the child objects to being returned. When it is claimed that the child has become “settled in the new environment,”(which can only be relevant if the proceeding is commenced more than one year after the date of the wrongful taking or retention, the FCIO conducts a child interview, does a home study, collects information relating to the child's school and extracurricular activities and then submits a report with his/her opinions. On the other hand, in situations in which the taking parent relies on the purported objections of the child,  the FCIO submits a report by using “age-appropriate interviewing skills on the child to ascertain whether the he/she has attained an age and degree of maturity so that his/her views may or may not be taken into account.” I expect that FCIO's are used also in examining claims that the child will be at grave risk of harm if returned overseas.

I had the pleasure of meeting and interviewing senior Family Court Investigating Officers during a recent visit to Japan as the guest of the Japanese Hague Convention Central Authority. The officers were charming and sincere. However, I question the extent to which they fully understand the custom, laws and child-rearing norms of western countries, and the extent to which, despite their best efforts, they are able to “put themselves in the shoes” of left-behind non-Japanese parents whose children have been taken to and retained in Japan and to understand the circumstances of both Japanese and non-Japanese children who have been raised outside Japan.

Small World, Big Problem: Divorces Involving Dual Citizenship

- Jeff Landers
Contributor, Forbes

The world is getting smaller and smaller. We live in a global society fueled by a global economy. International travel has never been easier. And now, thanks to the internet, we're all connected in new ways and with fewer barriers than ever before. These days, people meet and fall in love across international boundaries every day, and so it's no surprise that marriages involving dual citizenship are increasingly common. Read more...

Child Relocation to Brazil, Mirror Orders and Homologized Orders

 by Jeremy D. Morley

www.international-divorce.com

 A court order rendered outside Brazil, that authorizes the relocation of a child to Brazil from the child's current place of residence subject to certain specified conditions concerning the ongoing custody and access rights of the non-relocating parent, is not normally enforceable in Brazil.  If the court order is not “homologized” in Brazil, the Brazilian courts will at best consider the foreign order as an item to consider in considering the best interests of the child under the principles of Brazilian law. Even if the foreign order is homologized in Brazil there is no guarantee that after the child has moved to Brazil the terms will remain in effect over time or, indeed, that they will actually be enforced.

A “mirror order” is an order that is issued by a court in another jurisdiction which contains the same terms as those that are contained in the order that is being mirrored. Inherent in the mirror order concept is the fact that the foreign court shall have the right -- and more importantly the obligation -- to enforce the terms contained in the order, specifically including the obligation to effectuate the prompt return of the child at the end of a designated period of time. Equally critical is that the foreign court should not be permitted to modify the original order. Mirror orders are unavailable in Brazil.

A “homologized order” is a court order that has been approved or confirmed by another court. In the case of Brazil, such a procedure is available by means of an application to Brazil's Superior Court of Justice (Superior Tribunal de Justiça) through a procedure called “homologação de decisão estrangeira” (known colloquially as “HDE”).

The responsibility to obtain the homologized order should normally be given to the party who seeks to take a child to Brazil and the other party should be required to cooperate fully with the process. The process can take a few months to complete if both parties jointly present it to the Superior Court of Justice, or otherwise it will take far longer.

If the Superior Court court is satisfied that due process was followed in the foreign country and that there was no breach of Brazilian public policy, a Brazilian order will be issued that will recognize the foreign order. However, a foreign order will not be enforced if it is deemed to violate the public policy of Brazil. Article 17 of the Introduction Act to Brazilian Law Rules specifies that:

“Art. 17. The laws, acts and judgments of another country, as well as any declarations of will, will not be effective in Brazil, when they offend national sovereignty, public order and morality.”

The mere fact that a foreign custody order is homologized in Brazil does not guarantee that the order will remain in effect and unchanged over time. Brazilian courts will have jurisdiction to hear an application to modify any such order once the child has relocated to and is resident in Brazil. Under Brazilian law, child custody orders are not final orders and are always subject to modification whenever a court finds that there has been a change in family circumstances.

The normal rule in Brazil is that custody should be joint custody and that there is shared financial responsibility. Such issues can be revisited whenever a parent alleges a change of circumstances. If the Brazilian court determines that such a change has occurred since the date of the foreign court's determination, it is fully authorized to modify the foreign order as it deems appropriate, taking into consideration the child's best interest.

Based on our experience with custody cases in Brazil, and in light of the jurisprudence and practices of the courts in Brazil, it must be anticipated when a parent of Brazilian origin is permitted to relocate a child to Brazil subject to specific rights of continuing access and decision-making for the “left-behind” parent, those rights may well be modified by a Brazilian court  upon the application of the relocating parent. It is obvious that a child's circumstances will be dramatically affected by virtue of the relocation itself and the attendant changes in the child's that will inevitably result.

_____________________________

Jeremy D. Morley, a New York attorney, has provided expert evidence on the child custody laws and procedures of Brazil for courts in Australia, Canada, and the USA (California, Colorado and New Mexico).

He has gained extensive knowledge and experience concerning Brazilian family law matters from handling numerous family law cases concerning Brazil, from numerous consultations with Brazilian family lawyers concerning the laws and practices of Brazil, and from extensive research over many years concerning Brazilian family law. He has consulted with many clients concerning Brazilian family law, most particularly as to international child custody and international child abduction, always acting with and through lawyers in Brazil whenever appropriate. He has represented several clients whose children have been abducted to Brazil. Contact him at info@international-divorce.com

 

Child Visits to China

Change in China's Passport Regulations

By Jeremy D. Morley

We have long raised concerns that China does not recognize foreign child custody orders, is not a party to the Hague Convention on the Civil Aspects of International Child Abduction (except for Hong Kong and Macau), is not a party to any bilateral treaties concerning international parental child abduction, and bars children with Chinese passports, including dual national children, from leaving China without the consent of both parents. https://www.international-divorce.com/d-china.htm

A parent's concerns about potential international child abduction to China must always be taken extremely seriously.

Such concerns are now magnified by reason of a recent and most significant change in the policy of Chinese consulates concerning the issuance of Chinese passports to the children of Chinese nationals.

Previously, both parents of a child were required to be present at a Chinese consulate in order for the consulate to issue a passport for their child. This served to ensure that one parent of a child could not unilaterally and covertly obtain a Chinese passport for the child without the knowledge or consent of the other parent.

However, the Chinese Consulate in Chicago has now stated that, for the purpose of convenience, it will now issue a child's passport to only one parent if that one parent brings the child to the Consulate.

In addition, the Consulate has liberalized the requirements for the renewal of a child's Chinese passport. Previously, both parents had to appear at the Consulate to obtain a renewal of a child's passport and they had to bring the same papers as were required for the initial passport application. Now, a renewal requires only one parent and significantly less paperwork.

It is important for family lawyers to recognize that United States courts have no power to control the issuance of passports and travel documents by other sovereign countries.

The easier that it is for a parent to obtain a foreign passport for a child, the greater the level of concern of possible international child abduction, especially because the United States has no exit controls.