Wednesday, July 01, 2015

Split Circuits: The Grave Risk Exception to the Hague Abduction Convention

Jeremy D. Morley

There is considerable uncertainty in the United States as to whether a respondent in a Hague Abduction Convention case, who asserts the “grave risk” exception as a shield against an order that a wrongfully removed or retained child must be returned to the country of habitual residence, must prove that the courts and other authorities of the nation of habitual residence are unable or unwilling to protect the child.

The “grave risk” exception in Article 13(b) of the Hague Convention authorizes a court to deny a petition to return the child to his or her habitual residence if the respondent establishes “there is a grave risk that [the child's] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

In conceded dicta, the Sixth Circuit in the Friedrich case[1] in 1996 presented an opinion of the scope of the grave risk exception that has dominated the discussion on the topic ever since. The court stated that:

“Although it is not necessary to resolve the present appeal, we believe that a grave risk of harm for the purposes of the Convention can exist in only two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute— e.g., returning the child to a zone of war, famine, or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.” (emphasis added).

The Friedrich court further stated that, “In thinking about these problems, we acknowledge that courts in the abducted-from country are as ready and able as we are to protect children. If return to a country, or to the custody of a parent in that country, is dangerous, we can expect that country's courts to respond accordingly… When we trust the court system in the abducted-from country, the vast majority of claims of harm - those that do not rise to the level of gravity required by the Convention - evaporate.”[2] 

Some courts have adopted and applied the second leg of the Friedrich language strictly, insisting that there is a strong burden of proof on a respondent to prove that inadequate protection is unavailable in the habitual residence. Others have repudiated it. And others have handled grave risk cases without focusing on it.

The Second and Third Circuits have expressly adopted a requirement that a respondent alleging grave risk by virtue of abuse by the petitioner must establish both that there is a grave risk of abuse and also that the authorities in the habitual residence will not provide the necessary protection.

The Second Circuit upheld the Friedrich language in Blondin,[3] although it quibbled with the district court in that case as to whether it was applying the Friedrich language as narrowly as the district court claimed. It stated that, “In cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country.” It stated that, “Although the wording in Friedrich might seem somewhat narrow, we believe the facts in the case at bar fall within the second standard set forth in that opinion. See id. (noting that grave risk of harm exists “in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection”) (emphasis added).” The ultimate holding in Blondin was that expert evidence established that the French authorities could not provide the necessary protection and that a return would indeed rise to the level of a grave risk so that the Article 13(b) exception to a return should apply.

In Ermini,[4]  the Second Circuit found that the father’s physical abuse conduct was sufficient  to establish that the children faced a “grave risk” of harm and explained that,
normally, this
finding alone would not end the analysis. “We would next consider, or remand for the district court to consider, the range of remedies that might allow for return of the children to their home country together with protection from the domestic abuse.” However, it was also established that one child was severely autistic and had moved from Italy to New York for medical treatment that was most beneficial and that was not available in Italy. Accordingly, since the respondent established that if her son were removed from his current therapy and repatriated to Italy he would suffer substantial harm, she had succeeded in established the existence of harm of a severe magnitude that was manifestly sufficient to satisfy the grave risk exception. 

The Third Circuit applied the Friedrich language in Adan.[5] The district court had ordered the child’s return to Argentina despite the respondent’s allegations of sexual abuse by the left-behind father while the child resided in Argentina. The Third Circuit held that the lower court had incorrectly considered the totality of circumstances concerning those allegations and had failed to consider most of the respondent's evidence concerning the inaction of the Argentine authorities. The Court stated that, “if the alleged grave risk of harm is abuse, the party opposing the application of the Convention bears the burden of proving by clear and convincing evidence that the return of the child to her habitual residence puts her in imminent danger and that the country of habitual residence is incapable or unwilling to give the child adequate protection.” The appeal court found that the lower court had failed to consider the majority of the proffered evidence related to the alleged inaction of Argentine courts and police, and it remanded the case. District courts in the Third Circuit have likewise applied the Friedrich language.[6]

The Seventh and Eleventh Circuits have taken a completely different course.

The Seventh Circuit in Van de Sande[7] refused to be bound by the Friedrich language. It asserted that “to define the issue not as whether there is a grave risk of harm, but as whether the lawful custodian's country has good laws or even as whether it both has and zealously enforces such laws, disregards the language of the Convention and its implementing statute; for they say nothing about the laws in the petitioning parent's country.” It insisted that, “The omission to mention them does not seem to have been an accident - the kind of slip in draftsmanship that courts sometimes correct in the exercise of their interpretive authority. If handing over custody of a child to an abusive parent creates a grave risk of harm to the child, in the sense that the parent may with some nonnegligible probability injure the child, the child should not be handed over, however severely the law of the parent's country might punish such behavior.” Accordingly, on the facts before it, since there was evidence of physical abuse to both the mother and the children, as well as death threats to both by the father, the grave risk exception had been adequately established, even though it must be assumed that Belgium, the country where the children were taken from, had sufficient laws for the protection of children. The Court stated that, “To give a father custody of children who are at great risk of harm from him, on the ground that they will be protected by the police of the father's country, would be to act on an unrealistic premise. The rendering court must satisfy itself that the children will in fact, and not just in legal theory, be protected if returned to their abuser's custody.” Nonetheless, instead of dismissing the petition, the Court remanded the case to the district court for it to determine whether undertakings could be required that would effectively protect the children if they were returned to Belgium.

The Eleventh Circuit in Baran,[8] ruled that, “we decline to impose on a responding parent a duty to prove that her child's country of habitual residence is unable or unwilling to ameliorate the grave risk of harm which would otherwise accompany the child's return.” It reasoned that to require a respondent to adduce evidence regarding the condition of the legal and social service systems in a country she has fled creates difficult problems of proof, and appears not to have been contemplated by the Convention. It explained that, notwithstanding the Convention's goal of quickly returning abducted children to their countries of habitual residence, the text of the Convention and the commentaries on it place a higher premium on children's safety than on their return. It then stated, in a footnote, that courts are not prohibited from considering, as part of the discretionary decision to deny return under Article 13(b), whether the child's country of habitual residence may be able to protect the child from harm. “We simply hold that the responding parent may meet her burden of proving grave risk of harm without adducing evidence regarding the home country's ability or willingness to offer the child protection.” Accordingly, since the evidence presented was sufficient to support the district court's conclusion that the father's violent temper and abuse of alcohol would expose the child to a grave risk of harm were he to be returned to Australia, the Court upheld the district court’s dismissal of the petition.

The Sixth Circuit applied its own Friedrich language in March,[9] but deviated from that track in Simcox.[10] In the latter case, the respondent established that the petitioning father had engaged in repeated physical and psychological abuse of the mother in the children's presence, and that most of the children were also abused and suffered from post-traumatic stress disorder, but there appears to have been little evidence as to any lack of protection available in Mexico. The appeal court ruled that the “grave risk threshold” had been met by the evidence of past abuse and threats of future abuse. It expressed noted that there is a danger of making the threshold so insurmountable that district courts will be unable to exercise any discretion in all but the most egregious cases of abuse. It found that the district court should have exercised its discretion to refuse to order a return of the children provided it could be satisfied by any undertakings proposed by the petitioner to protect the children. It stated that the burden for establishing the appropriateness and efficacy of any proposed undertakings rested firmly with the petitioner. In a footnote it went even further, stating that if the extent of the abuse had been at the level of Van der Sande, it would have denied the petition outright.[11]

The Eighth Circuit in Acosta[12] upheld a ruling by the district court that denied a Hague petition on the basis of grave risk despite the fact that there was no specific evidence that the authorities in Peru could not protect the children. The district court did not deem that evidence of lack of protection in Peru was required to be shown. The circuit court stated that even if Peru had services designed to address domestic violence, that would not, by itself, establish that the children would receive sufficient protection if returned.

Other circuits have not taken a definitive stand. The Ninth Circuit expressed some doubts about the Friedrich language in Cuellar.[13] It stated that that language “is in some tension” with the fact that the grave risk inquiry should focus only on the period necessary to obtain a custody determination. The Tenth Circuit has acknowledged the Circuit split, but has not indicated which camp, if either, it would join.[14] Lower courts in other circuits have generally applied the Friedrich language.[15]

In summary, the extent to which a respondent cannot establish the grave risk exception without first proving a future lack of protection in the country from which the child was removed is totally uncertain in several circuits, while in other circuits it is subject to diametrically opposed rules. It is to be hoped that the Supreme Court will provide clarity at some point in the future.

[1] Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir. 1996).
[2]  Id. at 1068.
[3]  Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001).
[4] Ermini v. Vittori, 758 F.3d 153 (2d Cir. 2014).
[5] In re Application of Adan, 437 F.3d 381 (3d Cir.2006).
[6] E.g. Bowen v. Bowen, 2014 WL 2154905 (W.D.Pa.,2014).
[7] Van de Sande v. Van de Sande 431 F.3d 567 (7th Cir.2005).
[8] Baran v. Beaty, 526 F.3d 1340 (11th Cir. 2008).
[9] March v. Levine, 249 F.3d 462 (6th Cir. 2001).
[10] Simcox v. Simcox, 511 F.3d 594 (6th Cir. 2007).
[11] Simcox v. Simcox, 511 F.3d 594 (6th Cir. 2007).
[12] Acosta v. Acosta, 725 F.3d 868 (8th Cir. 2013).
[13] Cuellar v. Joyce, 596 F.3d 505, 510 (9th Cir. 2010).
[14] West v. Dobrev, 735 F.3d 921, 931 n.8 (10th Cir. 2013).
[15] Garcia v. Angarita, 440 F.Supp.2d 1364, 1381-82 (S.D.Fla.2006); In re D.D., 440 F.Supp.2d 1283, 1299 (M.D.Fla.2006);  Haruno v. Haruno, 2013 WL 5663070 (D.Nev.,2013); Patrick v. Rivera-Lopez, 2013 WL 708947 (D.Puerto Rico,2013); Munoz v. Ramirez, 923 F.Supp.2d 931 (W.D.Tex.,2013).

Friday, June 19, 2015

Ineffective Access Rights in Japan under Hague Abduction Convention

Jeremy D. Morley

There is great misunderstanding about the ability of a parent outside Japan to obtain access to a child in Japan through the Hague Abduction Convention.
The Hague Convention contains only one provision (Article 21) concerning visitation. That Article states little more than that an application to make arrangements for organizing or securing rights of access may be presented to the Central Authorities of Contracting States.
Japan’s statute implementing the Convention into Japanese law states that an application may be filed under the Convention for visitation only (a) with respect to a child who is located in Japan, (b) who was, immediately before the visitation became unable to be made, a habitual resident of another Hague country, (c) by a person who is entitled to such visitation under the laws of said state other than Japan.
Essentially what all of this means is that no Hague Convention access application can be made in Japan if the child is habitually resident in Japan at the time the alleged right of access has been violated.
This is confirmed by the Japanese Ministry of Foreign Affairs’ own explanation of the visitation provisions of the Convention. This states that an access claim in Japan should be dismissed unless the applicant is entitled to visitation or contact with the child under the laws of the state where the child held his or her habitual residence immediately before the visitation could not be made. 
This means that whenever a child is taken to Japan and becomes habitually resident there within the meaning of Japanese law, no access claim can be made under the Hague Convention.
The parent outside Japan will then have no right to see the child except by bringing a regular custody case in a Family Court in Japan and must expect that,  even if such a claim is ultimately successful , it will (a) almost certainly be limited to visitation in Japan itself (visitation outside Japan has never been ordered by a Japanese court, to my knowledge), (b) will probably be limited to a few hours a month, (c)  will be probably be strictly supervised in a courthouse or other specific location,  and (d) will most likely be unenforceable in Japan.
If a child living outside Japan is lawfully relocated to Japan (whether by court order or parental agreement) the habitual residence of the child will shift to Japan relative quickly after the relocation.
At that point it will be unclear whether the parent outside Japan “is entitled” to visitation under the law of Japan. If there is not even a foreign court order requiring such access there will be no such right in existence. If there was a prior foreign order that purported to make provision for such access, the parent living outside Japan will be entitled to commence a court proceeding in the Family Court in Japan to ask the court to recognize and enforce the foreign custody order.  However, the other parent in Japan will be entitled to ask the Japanese court to assume full custody jurisdiction, since the child will be habitually resident there, and to issue a new custody order that would exclude any provision for contact by the other parent. Alternatively, the parent in Japan will be able to start a new custody case in Japan at any time after the child is settled in Japan and to ask the court there to give unlimited sole custody to such parent.
Accordingly, any expectation that Japan’s accession to the Hague Convention allows parents outside Japan to secure access to their children lawfully living in Japan is quite mistaken.

Wednesday, June 17, 2015

New “Grave Risk” Hague Abduction Case

Jeremy D. Morley
In a just-issued opinion on the “grave risk” exception to the Hague Abduction Convention, the Seventh Circuit has affirmed the denial of a Hague return petition based on the district court’s finding of sexual abuse by the petitioner.  Ortiz v. Martinez, --- F.3d ----, 2015 WL 3650649 (7th Cir. 2015).
The appellate ruling was based entirely on its application of the clear error standard, under which “we will not overturn the district court's factual findings unless, after reviewing all the evidence, we are ‘left with [a] definite and firm conviction that a mistake has been [made].’”
The Court explained that the clear error standard demands even greater deference to a district court's factual findings when those findings are based on determinations regarding the credibility of witnesses.
It held that, as a practical matter, this means that such findings “can virtually never be clear error,” unless premised on testimony that is internally inconsistent, facially implausible, or contradicted by extrinsic evidence. In other words, a district court's credibility findings are “binding on appeal unless the [court] has chosen to credit exceedingly improbable testimony.”
It ruled that discrepancies arising from impeachment, inconsistent prior statements, or the existence of a motive do not render witness testimony legally incredible.

Monday, June 15, 2015

International Child Travel: USA has No Exit Controls

Jeremy D. Morley
When seeking or opposing an order to prevent or limit a child’s international travel outside the United States it is important to understand that the United States has no exit controls (except to the very limited extent of the Prevent Departure Program).

The Secretary of State’s office now expressly and helpfully advises judges that “the United States does not have exit controls.  This means that U.S. citizens may leave the country without interference from or detection by the U.S. government.  Additionally, the Department of State cannot track a child’s ultimate destination through his or her use of a U.S. Passport if the child transits a third country after departing from the United States.  Further, U.S. citizen children may also have another nationality and travel on that country’s passport making it more difficult to determine the child’s whereabouts.”

Other countries, such as most South American countries, do not allow a child to exit the country when accompanied by only one parent without producing evidence of the other parent's consent or a court order authorizing the exit. These rules are significantly effective. Unfortunately, there are no such requirements in the United States. A child may leave the U.S. without anyone checking the child's papers and with no check on the connection between the child and whoever is accompanying the child, except that the airlines will make sure that the child has the papers that are required to enter the foreign country.

Proposals that the United States should impose similar rules are met with the claim that it would be prohibitively expensive to employ the officials that are needed to monitor the system and that it would interfere with freedom of travel. Suggestions that the responsibility should be placed on the airlines to require that anyone traveling alone with a child should produce appropriate documentation are met with the airlines' claims that it would be too heavy a burden on them.

The Department of Homeland Security operates a Prevent Departure Program that was created in the aftermath of 9/11 to stop non-U.S. citizens from leaving the United States. It may be useful to prevent an abduction if the correct court order is in place and if the person to be placed on the list is an alien. Either children or parents can be placed on the list if the necessary conditions are fulfilled.

Although the program was created in order to intercept known or suspected terrorists, criminals and other wanted individuals, the Office of Children's Issues at the U.S. State Department has been successful in extending it to include specific cases of prevention of international child kidnappings.

The program operates through the transportation industry and it provides a single, comprehensive prevent departure lookout database of subjects whose imminent departure can be flagged.

If a named abductor and/or child seek to leave the country by means of a public carrier, the transportation company is required to prevent the departure. Whether law enforcement will arrest the parent will depend on the terms of any arrest warrant or court order.

The requirements of the program are as follows:

   1. The parent whose name is being added to the program must not be a U.S. citizen (this will include a dual national);

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

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

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

   5. Some likelihood that the non-citizen will attempt to depart in the immediate future must exist.

The Government Accountability Office has asked the Department of Homeland Security to consider creating a program similar to the child abduction component of the Prevent Departure Program that would apply to U.S. citizens. Unfortunately that suggestion has not been acted upon.

Thursday, June 11, 2015

Washington State Ruling: Egyptian Child Custody Law Violates Human Rights

Jeremy D. Morley

There is “clear and convincing evidence that Egyptian child custody laws violate fundamental principles of human rights.” Therefore, Washington State should not treat Egypt as a “state” for purposes of the Uniform Child Custody & Jurisdiction Act.

So ruled the Superior Court of Washington for King County yesterday based on the expert evidence of international family lawyer Jeremy D. Morley and another expert.
The Washington court found, inter alia, that Egyptian family courts apply specific Sharia law rules to child custody cases, under which a Muslim mother is disqualified from custody if she does not raise the child as a Muslim and / or if she does not comply with Muslim religious requirements or if she remarries or moves away from the father’s domicile. It also found that Sharia child custody law in Egypt does not adequately take into account acts of domestic violence perpetrated by the husband against his wife and that a husband is entitled there to use physical force against a “disobedient” wife.

For this reason the Washington court found that the Egyptian courts had no child custody jurisdiction, even though the parties and their son had lived in Egypt at all relevant times until the mother, without the husband’s consent, left for the United States with the child, and even though the husband filed a case for custody in Egypt within six months thereafter.
The so-called “escape clause” in the UCCJEA has not been much used thus far.  A key reason for this is that there has often been a failure to offer effective expert evidence concerning the laws and procedures of the foreign country. The new Washington case demonstrates the value that such evidence may provide.

Wednesday, June 10, 2015

Limiting Foreign Visitation: A Case Study: Moore v. Moore

          The Supreme Court of the State of Alaska has just upheld an order authorizing a father to take the parties 10 year old child to Micronesia even though that country that is not a signatory to the Hague Convention on International Child Abduction (Moore v. Moore 2015 WL 3452474 Alaska). 

          The lower court acknowledged the mother’s desire to avoid “placing the child in any situation where [the father] might take her and keep her and not return her,” but concluded that it had “seen no evidence” and “heard no testimony that [the father] has that intention or desire.”  Although the lower court specifically discussed each of the statutory best interests factors as they relate to custody and visitation, the judge seemed dismissive of the Hague Convention when stating on the record “I don’t care if it’s a Hague Convention country or not. [Travel] is a good thing, in my mind. There are exceptions to that, of course. But in general terms, that’s what I’m finding.” 

          The law in Alaska does not explicitly prohibit child custody visitation to non-Hague Convention countries or otherwise restrict international travel as part of custody visitation.  There are no specific statutorily mandated factors for a trial court to consider with regard to foreign visitation.  Alaska Statute 25.24.150(c) sets out nine enumerated factors for trial courts to consider when making a discretionary best interest determination toward apportioning custody;  (1) the physical, emotional, mental, religious, and social needs of the child;  (2) the capability and desire of each parent to meet these needs; (3) the child’s preference if the child is of sufficient age and capacity to form a preference; (4) the love and affection existing between the child and each parent; (5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; (6) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child, . . . (9) other factors that the court considers pertinent (7 & 8 are irrelevant in this setting as they pertain to domestic violence and substance abuse, both non-factors at trial here). 

          The crux of the mother’s argument to the Supreme Court was that the trial court had abused its discretion by allowing this travel to non-Hague countries.  But there is no bright-line rule concerning travel to a country that is not a party to the Convention.  Accordingly a court must consider of a litany of factors, all taken together with the fact that the proposed country is not a signatory, as in Abouzahr v. Matera-Abouzahr (361 N.J. Super. 135, 824 A.2d 268 (N.J. Super. App. Div. 2003)), in which the court stated:

          “The danger of retention of a child in a country where prospects of retrieving the child and       extraditing the wrongful parent are difficult, if not impossible, is a major factor for a court to weigh in ruling upon an application to permit or to restrain out-of-country visitation. But it is not the only factor. In addition to the laws, practices and policies of the foreign nation, a court may consider, among other things, the domicile and roots of the parent seeking such visitation, the reason for the visit, the safety and security of the child, the age and attitude of the child to the visit, the relationship between the parents, the propriety and practicality of a bond or other security and the character and integrity of the parent seeking out-of-country visitation as gleaned from past comments and conduct.”

          Applying this test the Alaska Supreme Court easily upheld the lower court’s decision. Since there was no evidence of a motivation on the father’s part to abduct the child, no evidence that he was a flight risk, and the mother’s “subjective fear that (the father) might abscond with the child is not, standing alone, enough to suggest that the superior court’s order not limiting foreign visitation was unreasonable or otherwise an abuse of discretion.”  Such a fear by one parent must be “well founded” with a “justifiable basis for a genuine fear."

          As in most of these cases, the moving party failed to adduce significant evidence to meet her burden of proof.  Indeed, it appears that she did not produce an expert international family lawyer to testify as to the risks.  See: Jeremy D. Morley, Preventing International Child Abduction in Divorce:

Thursday, May 21, 2015

Forced Prenuptial Agreements: Australian Cases

Jeremy D. Morley

Courts around the world generally reserve the right to invalidate prenuptial agreements that were entered into under duress.

The meaning of “duress” can be extremely hard to determine in specific cases.

Can there be duress when a young impecunious foreign woman moves to another country to marry a rich man who then demands that she sign a “take it or leave it” prenuptial agreement?

Yes, says an Australian court in a very recent decision in Brisbane, Australia.

Can there be duress when the man gives a prenuptial agreement to his wife-to-be just three days before the wedding, after all the wedding arrangement are made, that their relationship will end if she does not sign the one-sided agreement forthwith?

"Yes" said another Australian court last year.

The specific facts of the case of the most recent included the following:

The woman knew that there would be no wedding if she didn’t sign the agreement. The husband’s position about that was plain.  

The husband did not negotiate on the terms of the agreement as to matters relating to property adjustment or spousal maintenance. He did not offer to negotiate. He did not create any opportunities to negotiate. The agreement, as it was, was to be signed or there would be no wedding and no further relationship. Indeed, the judge stated that, “I am satisfied that when [the man] said there would be no wedding, that meant that the relationship would be at an end.”

The applicant wanted a wedding. She loved the man, and wanted a child with him. She had changed her life to be with him.  

She was in Australia only in furtherance of their relationship. She had left behind her life and minimal possessions in her own country. She brought no assets of substance to the relationship. If the relationship ended, she would have nothing. No job, no visa, no home, no place, no community. The consequences of the relationship being at an end would have significant and serious consequences to her. She would not be entitled to remain in Australia and she had nothing to return to anywhere else in the world.

Every bargaining chip and every power was in the man’s hands. Either the document, as it was, was signed, or the relationship was at an end.

The woman consulted a lawyer but he told her, before signing the prenup: “It is the worst contract I have ever seen. Don’t sign.’’

The man knew that the woman wanted to marry him. For her to do that, she needed to sign the document. He knew that she would do that. He didn’t need to open up negotiations. He didn’t need to consider offering something different, or more favorable to her. If she wanted to marry him, which he knew her to want, she must sign. That situation was something much more than inequality of financial position. The woman’s powerlessness arose not only from her lack of financial equality, but also from her lack of permanent status in Australia at the time, her reliance on the man for all things, her emotional connectedness to their relationship and the prospect of motherhood, her emotional preparation for marriage, and the publicness of her upcoming marriage.

In those circumstances, the wife signed the first agreement under duress. It was “duress borne of inequality of bargaining power where there was no outcome available to her that was fair or reasonable.”

In another case, an Australian court ruled in 2014 that there had been duress when a man asked his bride-to-be to sign an “unfair” pre-nuptial agreement just three days before their wedding. The groom told the bride that the wedding would be off if she did not sign, although they had been together for six years and engaged for 11 months.

All the arrangements were made, all the guests had been invited, and the wedding reception had been paid for by the wife’s parents. The wife was in a position of “special disadvantage”. If she did not sign the prenup not only would the wedding be cancelled but the judge found that “the likely result of such a traumatic event would be that the wife’s relationship with the husband would be over. This after six years and an 11 month engagement.

The judge ruled that:

“The wife says she considered that she had no choice. She was clearly in a position of special disadvantage and the husband knew so. The prenuptial  agreement was not to the wife’s advantage. It gave her no rights at all in the future to any of the husband’s property. She knew that it was to her disadvantage because her lawyer told her so. Nevertheless, she signed it because she considered she had no choice.

The husband knew that the wife was in a position of special disadvantage. The only inference from his late production of a completed and signed agreement is that he wanted to give the wife no choice and he knew that if it was presented to her days away from the wedding she would have no choice. I infer that the husband considered there was no risk that the wife would refuse to sign the binding financial agreement and cancel the wedding.
The wife’s consent to the agreement was not independent and voluntary because it was overborne thus she was subject to duress and undue influence by the husband.”

Wednesday, May 20, 2015

Latest U.S. Hague Abduction Convention Compliance Report

The U.S. Department of State Office of Children’s Issues has issued its annual report on International Parental Child Abduction which covers compliance with the Hague Convention on the Civil Aspects of International Child Abduction (the reporting cycle for statistics is January 1, 2014 through December 31, 2014). 

             Some notable points are as follows:

            -In 2014, 781 abduction and access cases were resolved, 273 involving Mexico, 33 cases involving Canada, 25 cases involving the United Kingdom, 25 cases involving Germany, and the remaining 425 cases involving various countries.  The term “Resolved Cases” generally refers to matters where a child is returned to his or her place of habitual residence via the Hague Abduction Convention, the left-behind parent reaches an voluntary agreement with the taking parent, the left-behind parent submits a written request to withdraw their application, or when the left-behind parent cannot be located/contacted for a period of one year.

            -A total of 66 countries had 5 or more pending abduction cases involving the United States in some capacity during 2014.  The report notes a number of recommendations that the U.S. Central Authority (USCA) suggests to improve resolutions to cases.  The USCA most often recommended the promotion of public diplomacy and outreach activities through local embassies, consulate public affairs units, and consular sections to assist with resolution. 

            -In 2014, a total of 374 abducted children were returned to the United States from around the world.  571 International Parental Child Abduction cases were resolved in all countries and areas without the child’s return to the United States during the same reporting year (this total includes countries who are treaty partners with the United States under the Convention, bilateral procedures countries, countries that have other procedures for resolving International Parental Child Abductions, and countries that have no protocol for resolving International Parental Child Abductions). 

            -On April 1, 2014, the Convention entered into force between the United States and Japan.  However, there are still more than 50 non-Convention cases of abduction to Japan, all of which predate Japan’s ratification of the Convention.  As of December 31, 2014, U.S. left-behind parents have filed 31 Convention access applications.  None have resulted in meaningful parental access or the return of a child to date. 

            -A “pattern of non-compliance” is defined as the persistent failure of a country to implement and abide by provisions of the Convention, the failure of a non-Convention country to abide by bilateral procedures between such a country and the U.S., or of a non-Convention country to work with the USCA to resolve abduction cases. Countries demonstrating patterns of non-compliance in 2014 include: Argentina, Brazil, Colombia, Costa Rica, Dominican Republic, Ecuador, Egypt, Guatemala, Honduras, India, Jordan, Lebanon, Nicaragua, Oman, Pakistan, Peru, Poland, Romania, Saudi Arabia, Slovakia, The Bahamas, and Tunisia

                 -The USCA reported on 18 countries where applications for return or access had remained open for more than one year after the date of filing. They are: Argentina (four cases), Brazil (fourteen cases), Canada (one case), Colombia (one case), Costa Rica (two cases), Dominican Republic (two cases), Ecuador (one case), France (one case) Honduras (one case), Israel (one case), Italy (two cases), Mexico (fifty eight cases), Peru (nine cases), Poland (one case), The Bahamas (two cases), Turkey (three cases), Ukraine (one case), and The United Kingdom (one case).
       The full report can be found here:

Monday, May 18, 2015

Hague Abduction Case Dismissed: Child Taken from Greece to New York

Jeremy D. Morley

The United States District Court for the Eastern District of New York (Judge Pamela Chen) in Adamis v. Lampropoulou (decision dated May 14, 2015) dismissed the petition brought under the Hague Abduction Convention by the Greek father of a 12 year old boy who was habitually resident in Greece and was taken to and retained in New York by the respondent mother. My office represented the respondent mother.
This case raised difficult issues of consent and of the age and maturity exception, which ultimately the judge sensibly determined on the basis of the credibility of the parties and on a lengthy interview with the child.
The Court found the child to be an exceptionally bright, thoughtful, sociable and well-adjusted adolescent; that his reasons for wanting to remain in the United States were rational and well-considered: (1) superior educational opportunities, especially in his areas of interest, i.e., science and computer science; (2) the chance to participate in a wide range of extracurricular activities; (3) an abundance of relatives with whom he was very close; and (4) more and better friendships; and that the sincerity and rationality of his motivations and desires was corroborated by testimony of his family members.
The Court also found that the credible evidence established, by a preponderance, that, the petitioner had consented to the child moving with his mother and sister from Greece to the United States. The evidence included the testimony of the mother, the child and the child’s adult half-sister “as corroborated by” an audio recording of the petitioner stating that he had given permission for them to move.
One legal issue that arose was that of the burden of proof of consent. The International Child Abduction Remedies Act (“ICARA”) provides, 42 U.S.C. 11603(e)(1), that the petitioner “shall establish by a preponderance of the evidence … that the child has been wrongfully removed or retained within the meaning of the Convention.” This appears to place the burden of proof of the lack of consent to a removal on the petitioner.
On the other hand, Article 13 of the Convention provides that a child need not be returned if the petitioner “had consented to or subsequently acquiesced in the removal or retention” and ICARA provides (42 U.S.C. 11603(e)(2)), that “a respondent who opposes the return of the child has the burden of establishing … (B) by a preponderance of the evidence that any other exception set forth in article 12 or 13 of the Convention applies.
Judge Chen ruled on this issue that that the burden of proof of consent lays upon a respondent. She explained that, “As other courts have recognized, there is an inherent tension between deeming, for purposes of Petitioner's prima facie case, that D.A.'s removal from Greece was "wrongful," and then determining that Petitioner ultimately consented to D.A.'s move. See, e.g., In re Kim, 404 F.Supp.2d 495, 515 n.38 (S.D.N.Y. 2005) (citing Paul R. Beaumont & Peter E. McEleavy, The Hague Convention on International Child Abduction 131 (P.B. Cartered 1999) ("`[I]f a custodian consents to a removal or retention, can those acts be described as wrongful?'")). The Court agrees with the In re Kim court in viewing this issue as "one of burden" and consent as a defense once a prima facie case of wrongful removal is established. Id.