Friday, February 02, 2018
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.”
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.
Tuesday, January 23, 2018
Jeremy D. Morley
In the case of Oller Kamińska v. Poland, determined on January 18, 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
Monday, January 22, 2018
This 2016 article, based in part on my input, remains fully applicable today. I consult on such matters with clients around the world, always working with local counsel as appropriate.
Jeremy Morley, www.international-divorce.com
The Terrifying Reality of International Custody Disputes
By Chen Ximeng 3/27/16
It's been 15 years, but Susan Blumberg-Kason still remembers vividly the sleepless nights after her now-ex-husband, Cai Jun, first threatened to take their infant son Jack back to China.Blumberg-Kason, an American, first met Cai in Hong Kong while both were attending graduate school. After a whirlwind courtship, the two married in Cai's hometown in Hubei Province, and several years later moved to California to settle down. By that time, though, the cracks in their marriage had already started to show; in addition to cultural clashes, Cai revealed himself to be abusive.
When, after giving birth to their first and only child, he began making noises about sending him to live with his parents, Blumberg-Kason became terrified that she might lose Jack forever. And so she began divorce proceedings, ultimately escaping the marriage and winning full custody of Jack.
Now a writer, Blumberg-Kason chronicles the ordeal in her 2014 memoir Good Chinese Wife: A Love Affair with China Gone Wrong, and says that, since then, among the most passionate responses she's received are from other people dealing with international custody disputes.
While custody disputes are never pretty, international couples in which one member is Chinese present an especially tricky case - because China hasn't signed the Hague Convention on the Civil Aspects of International Child Abduction, a multilateral treaty that allows for the expeditious recovery of abducted children, there remains little legal recourse when a child is carried off.
It's not as rare a situation as you might think. According to 2014 statistics reported by iRead Weekly in August 2015, China is now home to 47,000 cross-national marriages, which in turn are showing an increasing rate of divorce.
"Since China hasn't signed the Hague Convention, which protects parents from losing their children to international abduction, foreign parents have no rights to ask for the return of their children if their spouse takes the child to China," Blumberg-Kason said.
No protection under the Hague Convention
Before the Hague Convention, which was signed in 1980 and put into force in 1983, parental kidnapping was a poorly defined concept, with authorities referring to it variously as "legal kidnapping" and "custodial interference." In addition to providing a name for this phenomenon - international child abduction - the treaty drew up guidelines for what constituted violations of custodial rights and provided mechanisms by which children could be returned home, which is defined as the country of "habitual residence." Abduction, meanwhile, is defined as a parent without sole custody taking their child to another country and refusing to return the child or let the other parent visit. To date, 94 countries and regions have joined the convention.
The rub, of course, is that both countries involved must be signatories of the convention in order for it to work. The convention depends on the establishment of central authorities in each signatory country that communicate with one another and with domestic courts to facilitate the return of abducted children to their home countries. Without that, victims of abductions can find themselves dead in the water.
According to Jeremy D. Morley, a New York-based family lawyer and author of The Hague Abduction Convention: Practical Issues and Procedures for the Family Lawyer, this is one reason which makes China an inviting destination for international childhood abduction.
"There is often a legal vacuum that encourages one parent to take children away from the other, and to deprive the children of access to the other parent," Morley says. "It not only hurts foreign parents [if the Chinese partner takes the child to China], it also hurts Chinese parents living in China because if the other parent takes their child to a foreign country from China, the courts in that foreign country are unable to order the child's return to China under the terms of the convention."
Parents' only recourse in situations like this is domestic courts. Beijing-based family lawyer Li Peixuan, who's been dealing with international divorce cases, many involving custody, for 15 years, recalls one case involving a Chinese woman, Zhang Ya, her British ex-husband Matthew and their son, Rick (all pseudonyms).
After divorcing in 2009, Zhang moved to Malaysia for two years to work while Matthew remained in Beijing, but the two established an agreement by which Rick would stay with his mother for the first year and then return to Beijing to live with Matthew for the second. When the time came, however, Zhang refused to let Rick return, and Matthew decided to file a lawsuit against her for international child abduction.
"As China is not a signatory of the Hague Convention, Matthew would have faced a lot of challenges in terms of procedures and execution," said Li, who represented Zhang. "This is the kind of case that could have dragged on for years, even until Rick was grown up."
In the end, Matthew and Zhang were able to avoid litigation by making a new compromise, under which Rick would remain in Malaysia, but Matthew could visit and bring him back for holidays.
According to Li, the other major complication is the fact that custody rights are defined differently in China than they are in other countries.
In China, joint custody effectively doesn't exist; instead one parent is awarded sole custody, which not only means that the child lives with them, but that they have the right to make all important decisions related to the child's well-being. By contrast, in most Western countries, even if one parent is awarded sole custody, he or she must still consult the other parent when it comes to major decisions related to the child.
Different approaches to negotiation
Cultural differences may not only have a bearing on the success or failure of a marriage - they can affect the outcome of custody cases as well.
Li believes that this was key in the escalating tensions between Zhang and Matthew. While Zhang wanted to negotiate the problem, Matthew immediately opted for legal action, hiring three lawyers and informing the British Embassy of the situation.
"This kind of cultural difference between Chinese and Britons was one of the major reasons for their dispute," Li said. "In China, there's much more of a tradition of solving things through negotiation before resorting to legal action, while Britons hold firmly to the importance of contracts."
Blumberg-Kason agrees that many disputes in international divorces arise from cultural differences.
This was a source of conflict in her own marriage - Cai wanted to send their son back to his hometown to live with his parents, an idea that Blumberg-Kason couldn't bear.
"This isn't an American custom," she said. "Americans live with their children and don't send their children away to live with their grandparents. I felt if that happened to me, I would miss my son very much."
Where to go from here?
According to Yang Xiaolin, a lawyer who specializes in family law and a partner at Beijing Yuecheng Law Firm, one of the biggest reasons why China hasn't signed the Hague Convention is that the legal terms required to enforce it are not sufficiently defined in Chinese law.
"In our judicial system, there are no clear laws governing joint custody," Yang says. "We focus more on custody by one parent. So there is a conflict between joint and sole custody. If we sign the convention, it will conflict with the current laws. So first we need to build a system and regulations for joint custody."
He said that he hopes China will eventually sign the convention, but added that officials from the Ministry of Foreign Affairs recently said that such a move is not imminent.
So where does that leave mixed Chinese-foreign ex-couples? Li suggests that both sides should start out by educating themselves on the laws of both their countries. Which laws apply, Li says, depends on the child's nationality.
"If your child has Chinese nationality, you should go to Chinese courts for a lawsuit, but if he or she is of foreign nationality, you should go to the court of that country, the laws of which may be quite different," she said.
Li added that foreigners shouldn't be afraid of any bias against them in Chinese courts; the courts' only "bias" is toward protecting the custodial rights of women. With very young children, for example, mothers almost always get custody.
They should also, she said, be prepared for the difficulties involved with enforcing any judgment.
One example is the widely publicized divorce case of American Kim Lee from her ex-husband Li Yang, the founder of famed English-teaching method "Crazy English." After a very public divorce following allegations of physical abuse, Lee was awarded full custody of the couple's three daughters; Li, meanwhile was ordered to pay 100,000 yuan ($15,350) of alimony for each child every year until they turn 18. But after giving them an initial 150,000 yuan in 2013, Li stopped paying, according to a Beijing News report in 2014.
Likewise, Blumberg-Kason says that a law professor in California once told her that even countries that have signed the Hague Convention often don't comply with it, and cases can take 10-15 years to resolve, by which time the children are already teenagers. "Mutual respect of differences and negotiation are the best way."
She said she knows other divorced international couples in which one spouse lives in China. The kids live overseas with one parent during the school year and go to China to see the other parent in the summers.
"It works because the former spouses respect one another, maintain a good relationship, and put their children first," Blumberg-Kason said. "If people can get to that point, it can work out very well."
Friday, December 29, 2017
by Jeremy D. Morley
By decision dated December 21, 2017 the Supreme Court of Japan has upheld the decision of the Osaka High Court to dismiss the petition under The Hague Abduction Convention to return four children who were abducted to Japan by their Japanese mother from their home in Minnesota in 2014, where they were born and had always lived.
I have previously discussed the case in detail and have explained that it supports the claim that the Hague Abduction Convention is fundamentally unworkable in Japan. See my article at:
Nonetheless there was some hope that the Supreme Court would correct the problem, at least for the four children in question and their left-behind father. However, the Court has now dismissed the appeal and has ordered that the children will not be returned to the United States.
I will provide an analysis of the ruling shortly.
Friday, December 15, 2017
by Jeremy D. MorleyInternational prenuptial agreements – meaning prenuptial agreements between people who are from different countries or who might relocate to another country – are always tricky because they raise issues about two or more different legal systems and two or more different cultures. They generally require expert input from lawyers with substantial experience in international matters, especially international prenuptial agreements.
Such agreements are most especially difficult – and precarious – if between wealthy and older men and younger and impoverished foreign brides.
Two very recent cases – one in Australia and the other in New Hampshire, USA – exemplify the danger.
In the New Hampshire case, my client, from Ivanovo, Russia, the famous “city of brides,” met her husband, a wealthy and substantially older New Hampshire businessman, through a Russian Bride’s website. The Court found that she was living in harsh conditions in Russia, had few assets, and was desperate to leave. She quit her job in Russia soon after they met (due to a request by her future husband). He then paid her modest support until she was able to move to join him in the United States, obtained a fiancée visa for her, and booked her flight to the States. About two weeks before the date of her move to live in New Hampshire he sent an English version of a proposed prenuptial agreement to her (even though her English language skills were rudimentary at that time), which was drafted by his New Hampshire lawyer. She received a version translated into Russian just a few days before the flight and about a week after she arrived in New Hampshire she went with her fiancé to his lawyer’s office, where she signed the one-sided agreement. She did so without any legal advice and with little or no awareness of what she was agreeing to.
The Court found that “the enforcement of the Prenuptial Agreement, under these circumstances, would be so unfair as to shock the conscience of the Court” and it must be invalidated because of its unconscionability.
In the Australian case, Thorne v. Kennedy, the parties (identified by pseudonyms) met online. Ms. Thorne, an Eastern European woman then aged 36, was living overseas and had no substantial assets. Mr. Kennedy, then aged 67, was a wealthy Australian property developer. A few months after they met online, Ms. Thorne moved to Australia to marry Mr. Kennedy. About 11 days before their wedding, Mr. Kennedy told Ms Thorne that they were going to see solicitors about signing an agreement. He told her that if she did not sign it then the wedding would not go ahead. Ms. Thorne was represented by an independent solicitor who advised her that the agreement was drafted solely to protect Mr. Kennedy's interests and that she should not sign it. Ms Thorne understood the advice to be that the agreement was the worst agreement that the solicitor had ever seen. She relied on Mr. Kennedy for all things and believed that she had no choice but to enter the agreement. She signed the agreement four days before their wedding. It contained a provision that, within 30 days of signing, another agreement would be entered into in similar terms, and therefore a post-nuptial agreement substantially identical to the pre-nuptial agreement was signed.
The case ultimately went to the High Court of Australia, the supreme court in that country. It upheld the trial court’s decision that the agreements should not be enforced but with a slightly different rationale. The trial judge had determined that the agreements were invalid for having been signed under duress. The High Court held that the more apparent basis for setting aside the agreements was that the husband had engaged in unconscionable conduct. A majority of the judges also held that the agreements should be set aside on the grounds of “undue influence,” which was preferable to the trial judge’s characterization as “duress.”
The two cases make it abundantly clear that special factors arise in international prenuptial agreement cases where there is a clear difference in the power positions of the respective parties. An appropriate motto might be, “Old Rich Western Guys Beware.” A better motto is “Follow the Advice of an Experienced International Family Lawyer.”
Wednesday, December 13, 2017
SLOVAK VIOLATION OF HAGUE ABDUCTION CONVENTION: Using Court Delays and other Judicial Devices to Block the Return of Abducted Children
by Jeremy MorleyIt is of the essence of the Hague Abduction Convention that cases brought under it should be handled and concluded expeditiously. The target of six weeks set forth in the Convention itself is made even more specific in the Brussels II bis Regulation governing abductions within the European Union. Unfortunately, lengthy judicial delays often occur, sometimes by reason of the abductor’s strategic litigation ploys and in some cases because of courts are overburdened or possibly negligent.
In some such cases the judicial delays then provide the purported basis for courts to overturn prior orders that children should be returned to the countries from which they were abducted.
That occurred in the infamous decision of the Osaka High Court earlier this year in the case of Arimitsu v. Cook. In that four children were abducted to Japan from Texas in 2014. The Osaka Court ruled in 2016 that the children should be returned. The authorities then failed and refused to implement the court order, and the Osaka court ultimately overturned the return order on the ground that circumstances had meanwhile changed sufficiently to require it to do so. See my article, Japanese Violation of the Hague Abduction Convention.
For similar reasons, the European Court of Human Rights has just ruled in the case of Mansour v. Slovakia (judgment dated November 21, 2017) that the Slovak Republic violated a left-behind father’s human rights in failing to return children abducted from Ireland.
The parties, both Slovak nationals, lived throughout their marriage in Ireland, where their two children were born and always lived. The mother took the children to the Slovak Republic in early 2011 and refused to return them. The father promptly brought suit under the Brussels II bis Regulation and the Hague Convention and succeeded in winning a return order from the Bratislava I District Court and after the mother’s appeal from the Bratislava Regional Court. The return order was enforceable in July 2011, but it was never enforced.
The father applied for judicial enforcement of the order in February 2012, but the proceedings were stayed because the mother had lodged a request – ultimately unsuccessful - with the Prosecutor General for an extraordinary appeal against the order.A series of further appeals and litigation claims were then made by the mother. The mother had commenced proceedings for custody of the children in the Slovak Republic and an interim order issued in that case provided the pretext for another District Court to overturn the return order. The father applied to the Constitutional Court to reinstate the return order and that Court ultimately ruled in 2014 that the father’s rights had been arbitrarily and improperly violated by the District Court’s decision.
Thereafter the enforcement proceedings resumed before the Regional Court, which heard the case in August 2015. It acknowledged that it was bound by the Constitutional Court’s judgment. However, regarding the considerable length of time that had elapsed, it deemed it necessary to assess afresh all the circumstances decisive for the enforcement of the return order, such as the children’s whereabouts, their health, and the possibility of their returning to Ireland. It therefore quashed the District Court’s decision under appeal and remitted the matter to it for re-examination.
In April 2016 the District Court again declared that enforcement of the order was impermissible. It relied on medical reports concerning the children’s health, a psychological report referring to negative consequences for them if they were separated from the mother and an opinion from a court-appointed guardian about the stable family environment they had while living with their mother. It also took into account the children’s wish to stay with their mother and her new husband, their social ties in Slovakia (where they had been residing since January 2011), and the applicant’s lack of contact with them while in Slovakia.
The father then brought another case to the Constitutional Court which ultimately ruled that the father’s rights had again been violated. It found that the District Court had proceeded with the matter for more than four years (inefficiently) and that it was precisely the passage of time which had led the District Court to dismiss enforcement of the return order. It reproached the District Court for the inadequate way it had dealt with the mother’s procedural requests. It further stressed the particular nature of the enforcement of such return orders and pointed out that they required prompt and efficient decision-making that was in accordance with international standards.
Further extensive court proceedings then elapsed in the Slovak Republic, but to no avail - the children are apparently still in the Slovak Republic, where they will presumably remain.
For obvious reasons, the European Court has now ruled that the Slovak Republic’s conduct has been deficient and in violation of human rights. It has held that, “The enforcement courts, by a wrongful application of the substantive law and because of the excessive length of the proceedings, which moreover took place in a legal framework allowing for the use in a problematic way of an extraordinary remedy, enabled the issue of the return of the applicant’s children to the country of their habitual residence effectively to be resolved in an unendorsed and unsupervised way by the passage of time, rather than by a judicial decision.”
Unfortunately, the European Court had no power to order a return of the children. All it could do was to issue a judgment that determines that a violation of the European Convention on Human Rights had occurred and to order the Slovak Republic to pay some nominal funds to the father.
Thus, although the legal systems of the Slovak Republic and the European Court devoted a massive amount of resources to the case, a totally unjust result ensued. Indeed, the Slovak legal system was itself a key actor in a successful scheme to retain abducted children in the Slovak Republic in violation of the Hague Convention as well as the E.U. Regulation in violation of the fundamental rights of children to be with their father and of a father to be with his children.
Monday, December 11, 2017
Jeremy D. Morley
Upon re-reading the recent decision of the Supreme Court of India in Gupta v. Gupta -- which endorsed a father’s abduction of a child from the United States to India on the primary basis that the child had been living in India since the abduction for 2½ years while the judicial proceedings were pending in India (see my article at http://www.internationalfamilylawfirm.com/2017/12/supreme-court-of-india-endorses.html) it is most disconcerting to read that the Supreme Court seemingly ruled that Indian family life is inherently superior to family life in the United States.
Upon re-reading the recent decision of the Supreme Court of India in Gupta v. Gupta -- which endorsed a father’s abduction of a child from the United States to India on the primary basis that the child had been living in India since the abduction for 2½ years while the judicial proceedings were pending in India (see my article at http://www.internationalfamilylawfirm.com/2017/12/supreme-court-of-india-endorses.html) it is most disconcerting to read that the Supreme Court seemingly ruled that Indian family life is inherently superior to family life in the United States.
Specifically, Justice Amitava Roy explained the Court’s decision that the child should remain in India with the father’s family by stating, in part, that,
“As has been claimed by the appellant, the child is growing in a congenial environment in the loving company of his grand-parents and other relatives. He has been admitted to a reputed school and contrary to the nuclear family environment in US, he is exposed to a natural process of grooming in the association of his elders, friends, peers and playmates, which is irrefutably indispensable for comprehensive and conducive development of his mental and physical faculties.”
Thus, in a judgment that is presumptively binding in child custody cases on all lower courts in India, the Indian Supreme Court appears to have ruled that it is inherently preferable for a child to live in India with a loving extended family than for that child to live in the United States with his loving mother (upon whom no negative aspersions were cast in the judgment) and his younger brother.
Friday, December 08, 2017
by Jeremy D. MorleyThe Supreme Court of India has just issued a final judgment, dated December 6, 2017, in a case entitled Gupta v. Gupta, in which, in my opinion, the Court expressly endorsed international child abduction. Although the child’s left-behind mother had applied for habeas corpus promptly after her husband abducted the child from Virginia, USA, 2½ years then elapsed before the Supreme Court finally ruled on the case. Relying on that passage of time, during which it presumed that the child had become settled in India, it ruled that it was in the best interests of the child to stay in India in the sole custody of his father.
The facts as stated by the Court are as follows: The parties were of Indian origin and had married in India in 2010 but they had lived throughout their marriage in Virginia, USA. Their two children were both born in Virginia and had always lived in Virginia. They were U.S. citizens. The parents separated in 2014 in Virginia, with the children remaining with the mother in the marital residence. The father then employed what the Supreme Court described as “a nefarious strategy” to abduct the older child to India in early 2015.
The mother promptly filed an emergency motion in a Virginia court and obtained a temporary order giving sole custody of the child to her and ordering that the child be returned forthwith to Virginia.
A few days later, the father started a custody case in the High Court in New Delhi. The mother promptly appeared in that case and applied for a writ of habeas corpus to deliver the child to her so that she could return him to the USA. Almost a full year later, the High Court ruled in favor of the mother on the ground that the judicial comity required it to respect the right of the courts in the USA to make decisions concerning the welfare of the child.
The father appealed to the Supreme Court which permitted the child to remain in India pending the determination of the appeal. After more than 1½ years, the Supreme Court of India finally issued its ruling. It held that the child should stay in India in the sole custody of the father.
The basis of its decision was that the child had been in India for the previous 2½ years with his father and that the High Court ruling was not based on a plenary evaluation of the child’s best interests. The Court ruled that since the father was “the biological father” of the child, “his custody of the child can by no means in law be construed as illegal or unlawful” (even though the father’s conduct as described in the judgment was apparently felonious under U.S. federal law (18 U.S.C. 1204)).
The Court determined that “there is no convincing material on record that the continuation of the child in the company and custody of the [father] in India would be irreparably prejudicial to him.”
The child was apparently in a congenial environment in the loving company of his grand-parents and other relatives in India, was in a reputed school “and contrary to the nuclear family environment in US, he is exposed to a natural process of grooming in the association of his elders, friends, peers and playmates, which is irrefutably indispensable for comprehensive and conducive development of his mental and physical faculties.” While a court has the power to return a child summarily, “immediate restoration of the child is called for only on an unmistakable discernment of the possibility of immediate and irremediable harm to it and not otherwise.” Here, “a child of tender years, with malleable and impressionable mind and delicate and vulnerable physique would suffer serious set-back if subjected to frequent and unnecessary translocation in its formative years.” It was therefore “imperative that unless, the continuance of the child in the country to which it has been removed, is unquestionably harmful, when judged on the touchstone of overall perspectives, perceptions and practicabilities, it ought not to be dislodged and extricated from the environment and setting to which it had got adjusted for its well-being.”
It ultimately ruled that the child ought to continue in the sole custody, charge and care of the father. It made no provision for any sharing of custodial responsibility and no provision for any access by the mother, whether in India or in the USA.
The ruling should serve as an extremely strong warning to potentially left-behind parents around the world that India is a safe haven for international child abduction.
Monday, November 27, 2017
The New Divorce by Mutual Consent in France: Recognition and Risks of Post-Divorce Litigation in Common-Law Countries: The Examples of England and the United States
Delphine Eskenazi, admitted to the Paris and New York bars, LIBRA Avocats, Carmel Brown, Solicitor in England, Irwin Mitchell and Jeremy D. Morley, admitted to the New York bar, Law Firm of Jeremy D. Morley consider the new divorce by Mutual Consent in France and its wider implications for other countries.
Since 1st January 2017, French divorce law has been the subject of an historic reform: in the event of a global settlement between the spouses, their divorce agreement is no longer reviewed and approved in Court by a French judge.
The agreement is merely recorded in a private contract, signed by the spouses and their respective lawyers. Such agreement is subsequently registered by a French notaire, which allows the divorce agreement to be an enforceable document under French law. From a judicial divorce, the French divorce, in the event of an agreement between the spouses, has become a purely administrative divorce.
The implications and consequences of this reform in an international environment were deliberately ignored by the French legislature, with a blatant disregard for the high proportion of divorces with an international component in France.
In particular, the most important risk of this reform is that the French divorce by mutual consent may not be recognized or enforced in many foreign countries, in particular common law countries, thus significantly multiplying the risks of post-divorce litigation. From an amicable divorce to an acrimonious post-divorce, the possibilities to re-litigate have increased significantly with this new French administrative divorce.
Carmel Brown, a solicitor practising in England, and Jeremy Morley, a lawyer practising in the United States, consider these issues of recognition and post-divorce litigation, following a French administrative divorce, in their respective countries of practice. Delphine Eskenazi, a lawyer practising in France (also admitted to practise in New York), presents first the main provisions of this new French administrative divorce by mutual consent.
I. What is the New French Divorce by Mutual Consent?
A. The Lack of Control or Involvement of the French Courts
In accordance with the new article 229 of the French Civil Code, spouses who agree on the principle of the dissolution of their marriage as well as on all the consequences of such dissolution, may record their agreement in a contract, without the need to obtain the review or approval by the French courts.
The process is simple: a draft agreement is written by the parties' counsel and signed by the spouses and their attorneys together. After the expiration of a mandatory 15 days reflection period, the agreement is sent by the most diligent party to a notaire, who will register it and keep an official record. The Court will be seized by the parties to review the agreement only as an exception, in very limited circumstances if a minor child requests to be heard by the judge.
In the absence of a review by the Courts, there is no requirement for the spouses to have any connection with France to be able to use this new method of divorce, the consequence being that certain authors consider, rightfully, that 'France will become the new Las Vegas of the divorce 1'.
The other consequence of this purely French administrative divorce is that no independent third party will ensure that the spouses have freely consented to the agreement or, that this agreement is fair and strikes the right balance between both parties' interests (in particular as regards the provisions relating to the children).
The only requirement intended to ensure the existence of the spouses' free will is the obligation for each party to have his or her own lawyer, which assumes that the lawyer will be committed to the defence of his or her client's best interests.
The lack of control by a neutral and independent third party could nevertheless allow the possibility of agreements where one party will accept a completely unfavorable agreement, even after having received proper advice from his or her lawyer, for the sake of efficiency for instance (given how long divorce litigation can be otherwise in France).
B. The Lack of Financial Disclosure
The issue of spousal support, also called "compensatory maintenance" (prestation compensatoire) is also a symptomatic example of the difficulties raised by this reform.
Before this reform, when the divorce agreement was reviewed and approved by the Courts, and the parties had agreed that one of the parties was awarded an amount for "compensatory maintenance", there was an obligation to provide to the Court a financial disclosure through a statement of net worth (declaration sur l'honneur), prepared and signed by each party.
The new law does not provide for an obligation to exchange or attach such statement to the divorce agreement. The circulaire (which is a document published by the French Ministry of Justice to explain how the new law should be applied in practice) provides that it is recommended for the parties to exchange such statement of net worth. This recommendation does not mean however that there is a strict legal requirement, sanctioned by the Courts. Therefore, the spouses could simply proceed with the divorce agreement, without any form of financial disclosure.
C. The Lack of European Certificates
Finally, the legislator has explicitly recognized that the only certificate which will be issued by the notaire is the one provided by Article 39 of the Regulation Brussels II bis. The certificate of Article 41 of the same Regulation will not be issued. The certificates provided by the new European Regulation on Maintenance obligations will not be issued either, which means that the maintenance creditor will not be able to benefit from the facilitated form recognition provided by this regulation.
One can understand from this summary that the possibility for one of the spouses to attempt to re-open the litigation in other countries such as England or the United States, in the hope of obtaining an additional amount for asset division or spousal support or better arrangements as regards the provisions relating to custody are significant.
Carmel Brown and Jeremy Morley detail and explain below the reasons for which such possibility could indeed exist in their respective countries of practice.
II. Will the French Divorce by Mutual Consent be Recognised in England and Wales?
A divorce granted within the European Union will almost always be automatically recognised in England and Wales, provided that it was granted in accordance with the laws of that particular member state. Accordingly, given that the divorce by mutual consent would be prepared in accordance with the law - by a deed, signed by both parties and countersigned by the independent lawyer and a notary, it should be recognised in England and Wales. However, it would need to be accompanied with a certified translation in the usual way. It is fundamental however that the divorce is not a "transnational divorce", and instead, must have started and finished in France.
It is a worry that, given that a Judge will play no active role in the divorce by mutual consent, that there will be no control over the validity of the divorce agreements and this is likely to increase litigation and post-divorce disputes in France and open up the possibility of secondary litigation in England and Wales, by way of "top-ups".
If the French courts have not triggered their jurisdiction, owing to the fact that the divorce by consent is just a contract, then there is surely still the ability for another country to seize jurisdiction.
A. Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984)
England is often referred to in the media as the divorce capital of the world. It is widely known to be one of the more generous jurisdictions to wives in the world. Not only this, but the English court can, in some circumstances, order a divorce settlement even where a couple have already divorced (and received financial provision) in another country.
Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984) provides the English court with a discretion to step in and make financial orders upon divorce, provided certain jurisdictional requirements are met.
Essentially, once jurisdiction is accepted, the English court is able to make the same orders as if the divorce had been granted in England, which may include orders for maintenance, lump sum orders, property adjustment orders and pension sharing orders. Accordingly, if a party has entered into a divorce by mutual consent in France, and is genuinely dissatisfied with the settlement, possibly in circumstances where they have not had proper independent legal advice with full financial disclosure, they may seek to make an application in the English courts. This is particularly likely given that there will be no judicial control or guidance.
The leading authority is the case of Agbaje v Akinnoye-Agbaje,  UKSC 13 which held that the purpose of a Part III application was "the alleviation of the adverse consequences of no, or no adequate, financial provision being made by a foreign court in a situation where there were substantial connections with England".
The range of outcomes is wide and will depend on the circumstances of the case – but we may see one party after a French divorce by mutual consent seeking to re-open their financial claims in England (provided there is the requisite connection to England), notwithstanding that there has already been financial provision in a foreign jurisdiction.
Until now, it has been significantly harder to run a successful Part III claim in England and Wales after a foreign divorce in a western country, and particularly the EU, given that Part III applications often arise after settlements in more traditional cultures i.e. those that may still treat women differently, therefore making inadequate provision.
However, that may all change given that French settlements will not be subject to judicial scrutiny and many may sign up to imbalanced and unreasonable settlements, failing to meet both the parties' and the children's needs. Practically speaking, this will clog up our court system given that the proceedings are complex, lengthy and expensive.
The English court will however be unwilling to entertain an application if it considers the French applicant is simply trying to get a "second bite of the cherry" after a financial award in France by mutual consent.
There is another unresolved relevant issue, which is whether a matrimonial award with an element of maintenance in another EU state, automatically precludes the courts of England and Wales from making a Part III maintenance order.
Given that the European Union's Maintenance Regulation is designed to enable a maintenance creditor to easily obtain an Order that is automatically enforceable in another member state without further formalities, it seems reasonable for Part III to remain unaffected by the Maintenance Regulation.
However, the question is whether the recognition of the decisions of the other Member States merely means "recognising" that actual decision and the payer's liability or whether it allows a determination of the liability under the laws of England and Wales. The preamble states at s25 "Recognition in a Member State of a decision relating to maintenance obligations has its only object to allow the recovery of the maintenance claim determined in the decision." (Section 25 of Part III of the Matrimonial and Family Proceedings Act 1984). That said, it does appear reasonably clear, that the purpose is not to protect the payer from a Part III claim.
Although a maintenance award made in another EU state will have significant weight on whether leave is granted under Part III and in relation to the substantive application, in practice, it is likely that a prior maintenance award in another EU country would not prevent financial provision outside of the scope of the Regulation. Accordingly if a party has already obtained a maintenance award in France, a Part III application dealing with all financial matters and including maintenance, may still be on the table.
B. Children Matters and Contact
The new French legislation has unfortunately failed to deal with cases with international issues and elements and there is no method for obtaining the Certificates provided in the European Regulations (apart from Article 39 of the Brussels II bis), and a notary may not issue such certificates.
Accordingly, the implications are vast and we lose the ability for French Orders complying with the conditions set out in Articles 20 and 40-42, to be directly recognised and enforceable in England and Wales.
The English Courts would consider it unsatisfactory for there to be conflicting Orders in existence in different states affecting children, yet this is the problem we will be faced with in circumstances where we will lose the benefits of the European Regulations.
III. Will the French divorce by mutual consent be recognized in the United States?
The extent to which courts in the United States will recognize French administrative divorces is uncertain and raises a host of interesting questions. The issues are rendered particularly complex because of the unusual features of the divorce recognition principles that apply in the U.S., including the American concept of "divisible divorce," the imprecise nature of U.S. comity rules, the unique impact of the due process clause in the U.S. Constitution, the different statutory provisions in the 50 U.S. states, variations in judicial interpretations from state to state, and the particular jurisdictional rules as to child custody jurisdiction.
A. Recognition of the "Bare" Divorce
American courts will normally recognize foreign court divorce judgments under the doctrine of comity if one spouse was domiciled in the foreign country when the case was commenced, meaning that it was the place of the spouse's true, fixed, permanent home and principal establishment, and to which, during any absence, the person intends to return. But recognition may nonetheless be refused if the foreign legal system was partial or unfair or if the judgment was procured by duress or fraud.
There are very few reported cases in the U.S. concerning non-judicial divorces. It is likely that U.S. courts will follow the general principle that a divorce regularly obtained according to the laws of the country where at least one spouse is domiciled will usually be recognized as effectively dissolving the marriage. In a case in Hawaii, a decision to recognize a Taiwanese administrative divorce was recently upheld on appeal, and foreign administrative divorces were likewise recognized in some immigration cases.
However, the new French procedures authorize administrative divorces even if neither spouse is domiciled in France or even connected to France. Therefore, it is submitted that there is a great likelihood that a French administrative divorce of spouses who were both not domiciled in France will generally not be recognized in the United States.
An exception to this principle may well apply in New York, whose courts have long recognized foreign "bilateral" consent divorces, such as Dominican judicial divorces where one spouses flies there for a weekend with a power of attorney signed by the other party, even though neither was domiciled there. However, courts elsewhere in the U.S. have refused to follow the New York rule.
Another exception will be likely to apply to prevent a spouse from contesting a divorce if he or she has relied on the divorce in order to obtain any kind of benefit or advantage. However, that would not preclude a third party, such as the U.S. immigration authority, from refusing to recognize the divorce
B. Recognition of the Financial Consequences of the French Divorce
In order for a U.S. court to recognize the financial component of a foreign divorce decree, each party must have had a significant connection to the foreign country, or have been served with process in that country or have submitted to the foreign court's jurisdiction. This element will presumably be satisfied in the case of French administrative divorces since the consent of both parties is required for the divorce.
However, subsequent and serious problems may well arise if a party has second thoughts about the financial terms, and seeks to have them set aside in a court in the United States. Any such effort will benefit from the fact that the French procedures do not require in an compulsory way any prior financial disclosure.
Courts in the U.S. will normally not reopen the financial issues that have been determined in a foreign divorce case unless there is clear proof of fraud or duress, as long as the foreign court had jurisdiction over the marriage and personal jurisdiction over the defendant. A U.S. court will normally not even allow a party to make claims about assets that were not considered by the foreign court unless it is clearly established that the foreign court had no power to consider those assets.
However, administrative divorces may well be treated differently, since they are based on the mere agreement of the parties and they require no judicial oversight. U.S. courts will likely apply to such divorces the more flexible and liberal principles that they have developed concerning the avoidance of spousal settlement agreements leading to a judicial divorce. In general, U.S. courts may set aside a financial settlement agreement at the request of a spouse who establishes that his or her consent was procured by undue influence or in some jurisdictions merely because the result is unfair.
In reviewing the financial provisions of a French administrative divorce the relevant factors will certainly include whether or not, before entering into the French agreement, the complaining spouse had adequate knowledge of the relevant financial facts, received full and frank financial disclosure, adequately understanding what was being agreed to and the consequences of entering into the agreement, and had separate and independent legal representation. The attitudes of courts in different U.S. states to such claims will vary from state to state, based on the specific case law that has been developed in each such state concerning the avoidance of divorce settlement agreements, the specific provisions of any governing local legislation and the attitudes of local judges.
C. Recognition of the Child Custody Elements of the French Divorce
American courts will certainly not recognize any portion of a French administrative divorce that deals with the custody of children except to the extent that the statutory jurisdictional rules of the local U.S. state are satisfied.
Each U.S. state has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (the "UCCJEA"), except Massachusetts which has adopted a prior but similar statute. In very broad terms, it provides that a child's "home state" – meaning the state or foreign country where the child has lived for the past six months - has exclusive jurisdiction to issue an initial child custody order and has continuing exclusive jurisdiction neither the child not either parent lives in that state or country.
This means that if, for example, a French administrative divorce were to purportedly settle custody issues concerning a child who does not live or has not lived in France, the custody terms would almost certainly be unenforceable in the United States.
D. Support Provisions
Significant problems will arise in the U.S. concerning the enforcement of the child support and spousal support provisions of a French administrative divorce. The Uniform Interstate Family Support Act, adopted throughout the U.S., provides measures to enforce "support orders" issued by other U.S. states or by most foreign countries. However, the term "support order" is defined as "a judgment, decree, or order, or directive" that has been "issued by a tribunal," meaning "a court, administrative agency, or quasi-judicial entity." Since the support terms of a French administrative divorce will not be in the form of a judgment, order or the like issued by a "tribunal," it may well be especially difficult to enforce such provisions in the U.S.
The enforceability of French administrative divorces in the United States and in England will raise a host of complex and interesting legal issues. Full disclosure of such issues to parties who have a connection to a common-law country is strongly recommended.
In summary, these changes in France are likely to have various and quite large-scale implications in other countries, in particular in countries such as the United States and England and Wales, which are based on a very different legal culture.
We are hopeful that the comments of practitioners are noted and the necessary and appropriate changes are made.
1. See Alexandre Boiché, in the French family law Journal, AJ Famille, January 2017.