Lecturing in Japan about International Child Abduction, Custody and Parenting

Jeremy Morley

I will be lecturing and consulting extensively in Japan, throughout the last week of this month, on “The Hague Abduction Convention in the U.S. and Japan,” at the invitation of the Ministry of Foreign Affairs of Japan.

I will address the issue of Japan’s failure to enforce return orders and the differences between the interpretations and applications of the treaty in the two countries.

However, I will also explain that that the differences between the United States and Japan concerning the Convention run far deeper than these relatively superficial matters, and that they stem from widely divergent views and practices about the appropriate parenting of children and the role of law in private family life.

I will argue that the pending debate about the Hague Convention is a mere sideshow to, and a diversion from, the more fundamental issue of the best interests of children and the fundamental human rights of parents and children after parental separation or divorce.

I will assert that, in the current environment, the Convention cannot adequately protect the competing rights of parents and children in the case of abductions of children from the United States or other countries to Japan. I will further explain that the U.S. State Department’s designation of Japan as “noncompliant” with the Convention, while technically accurate, addresses only the most superficial of issues that are relevant to these matters.

I will also explain how Japan’s adoption of the Hague Convention without addressing the basic issue of the right of both of a child’s parents to have their children in their lives has often proven counter-productive not only to non-Japanese parents who wish to see their own children but also to expat Japanese parents who wish to bring their children to visit Japan or to live in Japan if that is in the children’s best interests.

International Child Relocation to Austria: Some Notes

 by Jeremy D. Morley*

• If a court in a U.S. state authorizes the relocation of children to Austria, the courts in Austria will not recognize that the U.S. court has continuing and exclusive jurisdiction on any or all matters concerning the custody of the children, and they will have the right to issue such orders concerning the custody of the children and the left-behind parent's access to the children as they might deem appropriate once the children are “habitually resident” in Austria and once there has been a significant change in the circumstances of the children.

• Under the law that applies in Austria and throughout the European Union, the courts in Austria will have jurisdiction over all matters concerning the custody of the children as soon as they are “habitually resident” in Austria. The preeminence of habitual residence as the basis for jurisdiction in such matters is reflected in the fact that Austria is bound by the Brussels II Regulation. Article 8 of the Regulation provides that custody jurisdiction (referred to as “parental responsibility”) is based on the habitual residence of the child.

• Austria has also adopted the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. The United States has signed but not ratified the Convention, and it is therefore not in effect with respect to the two countries.

• Austria has unlimited jurisdiction concerning the custody of children who are habitually resident in Austria. Sections 104 and 109 of the Jurisdiction Act of Austria (the Jurisdiktionsnorm) provide that the district court in the place of the child's normal habitual residence has jurisdiction as to all matters concerning the custody of the child.

• The definition of habitual residence in Austria is fundamentally different from the definition adopted by many courts in the United States. Under Austrian law a child is habitually resident in that country if it is there with “some degree of integration by the child in a social and family environment.” The meaning of the term “habitual residence” in Austria and throughout the European Union has been established by the Court of Justice of the European Union. For example, in one case, the Court ruled that the term “must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment.” Under that test, a change of habitual residence is likely to occur promptly after a child is relocated lawfully to another country, particularly when the child is in school there.

• As soon as relocated children are in school in Austria, or are in any event there for more than a few months, they will be habitually resident in Austria and the Austrian courts will then have full power and authority under to modify any custody order issued by the U.S. court.

• The Supreme Court of Austria has ruled that, once a child has been living in a new country for at least six months, the child is presumed to be habitually resident in Austria even if the custodial parent opposed the relocation, since the new place of residency has objectively become the center of the child's life. 8Ob121/03g, Oberster Gerichtshof.

• Once children are habitually resident in Austria and there has been a significant change in their circumstances, the Austrian courts will then have a duty to reconsider the best interests of the children.

• International child relocation invariably creates a significant change in the circumstances of a child.

• If the parties stipulate in advance that the Austrian courts will not have modification jurisdiction, that will not prevent an Austrian court from assuming modification jurisdiction.

• The courts in the European Union, particularly including Austria, will generally consider the views of all children, including young children, in custody cases.

• If the terms of an order concerning custody issued by a court in the U.S. are violated by the relocating parent, the left-behind parent will have no significant remedy under the Hague Convention on the Civil Aspects of International Child Abduction or any other international treaty. Once a relocation is authorized it is not “wrongful” within the meaning of the Convention.

*Jeremy D. Morley is admitted to practice only in New York, USA. He works closely with colleagues in Austria and throughout the world. See www.international-divorce.com

How to Win a Hague Convention Child Abduction Case

Jeremy D. Morley

www.international-divorce.com

Here are some tips from attorney Jeremy D. Morley  --  who has worked on hundreds of Hague cases and is the author of the American Bar Association treatise on The Hague Abduction Convention -- for attorneys and clients faced with instituting or defending child abduction proceedings under the Hague Convention on the Civil Aspects of International Child Abduction in the United States.

In a nutshell, a Hague Convention application may be made when a child is taken or retained across an international border, away from his or her habitual residence, without the consent of a parent who has rights of custody under the law of the habitual residence, if the two countries are parties to the Convention. The child must be promptly returned to the habitual residence unless the return will create a grave risk of harm to the child or another limited exception is established.

1. ACT FAST

An attorney must be ready to file a Hague Convention application and institute or defend a Hague Convention lawsuit on extremely short notice.

Prompt action may be critical. The Convention specifically requires that hearings be conducted expeditiously. Indeed, it is recommended that Hague cases should be completely concluded within six weeks. A Hague case can theoretically be instituted more than a year after the abduction but a defense (or, more precisely, an exception) will then arise if the child has become settled in the new environment. In practice, the longer a child is in a new place the more likely it is that a court will be reluctant to send the child away.

Fast action by the left-behind parent is also necessary to help prevent a claim that the parent has acquiesced in the child's relocation, and to help to bolster a claim that the left-behind parent consented to the taking or retention in the first place.

Clients must move quickly to obtain the documents needed to file the initial application and then to collect the documents needed for the hearing. They should normally be asked to prepare a detailed family history and to assist the attorney to develop evidence as rapidly as possible.

Counsel should consider putting the abducting parent on immediate written and formal notice of the dire consequences, civil, criminal and financial, that the abduction will cause to that parent personally, and, possibly to others conspiring with the parent. It may be appropriate to provide an extremely short time for the abducting parent to cure the problem by returning the child. On the other hand, such notice might be counter-productive if there is a suspicion that the taking parent might hide the child.

Counsel must decide quickly whether to bring suit in state or federal court. The International Child Abduction Remedies Act provides for concurrent jurisdiction. If a state court is chosen, the respondent has the absolute right to remove the case to the federal court. Choosing the right court can make all the difference in a Hague case.

Counsel might enlist the support of the U.S. State Department's Office of Children's Issues. Such support may be particularly helpful to locate the child. It might also be useful if the left-behind parent seeks a U.S. visa to enter the United States in order to attend the trial.

Counsel might also suggest that, if there is no custody order in place from a court in the jurisdiction of the habitual residence, the left-behind parent should perhaps institute civil proceedings in those courts for such an order (or perhaps for a modification of the original order). However, this should not be undertaken without U.S. counsel conferring with counsel in the other country.    

2. CHOOSE THE RIGHT REMEDY

If a child has been abducted to the United States, proceeding under the Hague Convention might not be the best course of action. All U.S. states have adopted the Uniform Child Custody Jurisdiction & Enforcement Act (except Massachusetts which has adopted a prior uniform law). That Act provides remedies that may be far more useful – and far cheaper -- than those provided under the Hague Convention. You need a lawyer who understands the issues and who can put you on the right track.

3. CHOOSE THE RIGHT COURT

Hague cases in the United States can be brought in federal or state court. The completely different backgrounds of state family court judges and federal judges means that the choice of either the state system or the federal system might have a major impact on the outcome of the case. If a case is brought in a state court it may be removed to the federal court but only if that is accomplished quickly.

4. CONSIDER INTERIM RELIEF

The International Child Abduction Remedies Act expressly authorizes the state or federal court handling a Hague case to order “provisional remedies” to protect the well-being of the child involved or to prevent the child's further removal or concealment before the final disposition of the petition. 

Such an order should invariably be sought to keep the child in the jurisdiction pending the hearing of the Hague petition but a left-behind parent will also want to secure interim access to the child.

5. PREPARE THE FACTUAL PRESENTATION INTENSELY

Hague Convention cases are often extremely fact-intensive. They frequently hinge on the ability of one party to convince the court of matters such as the habitual residence of a child (which hinges in large part in most but not all circuits on the last shared intention of the parents); the nature of the left-behind parent's custody rights under the foreign law (which may require expert evidence as to the terms of the foreign law); the extent to which a parent actually exercised custody rights; whether or not a parent consented to or acquiesced in a new residency; whether such consent or acquiescence was conditional; whether the child has become well settled in the new environment; whether the child was physically or psychologically abused; whether the taking parent was abused in such a way that there was an impact on the child; whether the authorities in the foreign country provided adequate protection to the children and the taking parent in the past or could do so in the future; the age and maturity level of the child, whether and why the child objects to being returned. For a court to resolve these matters it must analyze the relevant facts.

A successful Hague proceeding requires the attorney, working closely with the client, to marshal as much evidence as possible, in as many forms as possible, to support the client's position. Clients are frequently shocked that matters that to them are obvious and indisputable turn out to be disputed and to require them to produce clear and convincing proof. They may well be insulted that their word alone is insufficient to convince the court that they are truthful and that the other parent is lying.

In one case, the parents had moved permanently with their young child from the mother's native country to the U.S. Two years later, the mother took the child back to her country for a vacation and then refused to return to the States. In supporting her claim that the child was never habitually resident in the States she claimed that the original move to America had been only temporary and that she and the father had agreed that they would return to the mother's native country after a year or two. The mother had planned the move well in advance and had amassed -- and even created -- evidence that tended to support her claims. Additionally, she had removed evidence from the parties' home that would have disproved her claims.

To win the case, we interviewed neighbors, friends, family members, schoolteachers, real estate salespeople, fellow office workers and an array of other people who had had some connection with the family. We checked into any and all areas of the mother's life for anything that might indicate her intention to stay in the States. We obtained emails, notes, invoices, and other documents. We searched old household bills for evidence of the purchase of items that inferred a degree of permanency. At the hearing, the mother was shocked that her husband had collected so much written evidence to disprove her claims and undercut her credibility. The courts ultimately -- and with great reluctance, since they were going against a local national -- found in favor of our client.

Since Hague cases are tried quickly, there is usually only one chance to present the case and it needs to be done well at the very outset. An attorney must embark on a quick campaign of collecting mounds of relevant evidence to support the client's positions, and must expect the other parent to lie, cheat, and distort the facts in a desperate attempt to avoid losing the case.

Just as a current military strategy is to employ overwhelming force to create shock and awe, so too in a Hague Convention case it is often advisable to use overwhelming amounts of evidence to win the case. Such a campaign in a Hague proceeding may yield a capitulation by the other parent even before the hearing actually commences.

Hague Convention hearings sometimes take the form of "he said, she said" disputes in which each side makes verbal accusations against the other. Documentary evidence is usually far better than the mere word of one parent. Thus, if you want to claim that a parent applied for an immigration visa, you must be prepared to do more than simply have the parent tell the court that this was done. You should do whatever you can to get hold of the actual application papers that the parent signed in applying for the visa, which may mean contacting the lawyer who handled the immigration matter originally.

Emails and text messages can be invaluable sources of critical evidence, especially concerning the parents' intentions and agreements.

While it is helpful if documents are supported by sworn statements, it is not essential. Both the Convention and the International Child Abduction Remedies Act provide that authentication of documents is not required in a Convention proceeding.

6. DISCOVERY

Discovery is generally permitted in Hague cases but it must be balanced against the requirement that Hague cases should be concluded quickly. It is essential to decide at the outset of a case whether discovery is really needed because it should be requested at the time of the initial meeting with the court or otherwise it might be waived.

7. PREPARE THE LEGAL ARGUMENT INTENSELY

Hague Convention cases raise unusual international law, foreign law and treaty law questions. They involve the courts in matters of a kind that they are usually not used to handling. In many jurisdictions the court may be entirely unfamiliar with Hague cases. Accordingly, it is usually essential for the lawyers to help the court to an unusual extent. Certainly, a well-reasoned memorandum of law is essential.

The matters in dispute in most Hague cases raise difficult legal issues that must be thoroughly briefed. Thus, the Convention requires the left-behind parent to establish that the child was taken from the "habitual residence" and that the parent had "rights of custody" under the law of that jurisdiction. However, neither of those fundamental terms is defined in the Convention and substantial jurisprudence has grown domestically and internationally setting forth often-contradictory determinations concerning their scope and meaning.

Courts have held that, while they must determine under international law whether the left-behind parent possesses Hague Convention "custody rights," they must first examine the law of the child's habitual residence in order to ascertain the extent of the rights that such parent possesses under that law. In this regard, it is often essential to use foreign law experts to establish the existence and scope of such rights.

A Hague Convention attorney may, and often should, cite cases not only from the domestic jurisdiction but also from other jurisdictions if they support the client's position. It has become more usual to cite cases from other jurisdictions in this area of the law than perhaps in any other. Courts around the world recognize that it is best to coordinate their decisions with those of other courts internationally and, for that very reason, the Hague Conference on Private International Law has established a database of significant Hague cases from courts around the world.

8. AVOID BEST INTERESTS ANALYSIS

In representing the left-behind parent in a Hague proceeding, it is necessary to keep the court focused on the narrow issues that the Convention requires an applicant to establish and the narrow defenses that a respondent can assert. Whenever the hearing strays into any areas that might be considered as constituting an analysis of the child's best interests, the other party (usually the petitioner) should vehemently object.

However, a party opposing a return should do his or her utmost to assert any and all relevant issues under the rubric of one of the defenses specified in the Convention and should be armed with case law to establish that similar claims were permitted in other cases.

9. BE FLEXIBLE CONCERNING EVIDENCE

In Hague cases evidence rules are usually relaxed, so evidence should be submitted in any possible format. Live testimony is invariably the best and normally everything should be done to get the left-behind parent into the courtroom. (An exception is if that parent would be a poor witness and his or her presence would create an opportunity for embarrassing cross-examination).

If a witness cannot be brought to the courthouse, consider testimony by video conferencing or otherwise by telephone conference. As a last resort, submit affidavits. Be aware, also, that there is a trend among some judges to require that the direct evidence of witnesses be provided in affidavit form and that only cross-examination and redirect testimony is allowed in live form.   

10. USE AN EXPERIENCED ATTORNEY: IF THAT'S NOT YOU, FIND SOMEONE WHO IS

Hague Convention cases happen too fast, and too much is at stake for the client, for an attorney to learn about this area of law at the last minute. It is extremely important to locate counsel with knowledge and experience in Hague proceedings. It is also frequently valuable for a client whose child has been abducted to retain a lawyer in his or her home country who can coordinate with the Hague counsel in the country to which the child has been taken.  

Many experienced Hague lawyers will assist local lawyers in handling Hague cases, and very often such teamwork is the best way forward.

U.S. Complaints Against Japan: International Child Abduction

By Jeremy D. Morley

www.international-divorce.com

U.S. Senators Feinstein and Tillis have written to Secretary of State Mike Pompeo urging him to increase efforts to bring abducted American children back home to the United States by using all of the tools and resources at the State Department’s disposal.

They have specifically criticized the State Department for issuing mere diplomatic protests known as “demarches” against countries who have been identified by the State Department as noncompliant. They directed their comments, in particular, at the failure to take more serious action against Japan.

They stated:

“ 

”

I have appeared as an expert witness on many occasions concerning Japan’s laws and practices concerning child custody and child abduction, and will discuss these matters in detail during my forthcoming visit to Japan.

Expert Testimony: USA child custody

Jeremy D. Morley

www.international-divorce.com

I am pleased to have been accepted as an expert on international child custody laws and the procedures of Minnesota by an Ontario, Canada court in a Hague Convention abduction case.

Lecturing in Japan on Hague Abduction Convention

Jeremy D. Morley

www.international-divorce.com

I am pleased to announce that, at the invitation of the Ministry of Foreign Affairs of Japan, I will be lecturing on the Hague Abduction Convention in Japan in the last week of February to the Ministry of Foreign Affairs and to invited lawyers’ groups in both Tokyo and Osaka.

The lectures will focus on comparisons of the U.S. and Japanese approaches to the Hague Abduction Convention and of the U.S. and Japanese approaches to child custody.

Demand for Action: Child Abduction to India

Jeremy D. Morley

www.international-divorce.com

At a hearing held on December 10, 2018 by a subcommittee of the U.S. House of Representatives Foreign Affairs Committee, Congressman Chris Smith alleged that nearly 100 American children have been abducted to India. He sought “real action” from the Trump administration to bring them back to the country. He said that, “We have 100 American children abducted to India, with almost no hope of return home without the United States choosing to take real action, such as lowering the number of visas available to Indian citizens until abducted American children are returned.”

I have provided extensive evidence on such issues to courts in the U.S., Canada and Australia.

Marrying a Swede? Or Swedish and Getting Married? Don’t You Need a Prenuptial Agreement?

Jeremy D. Morley

www.international-divorce.com

Why do we recommend that a party with assets who is entering into an international marriage with a Swedish citizen or resident should always consider entering into an international prenuptial agreement? Because the law of Sweden concerning the division of assets upon a divorce is unusual and can be devastatingly unfair to unprotected spouses who have significant premarital assets.

Fundamentally, without a prenuptial agreement, everything that each spouse owns, in whatever form and wherever it is located, is normally treated as marital property, at least as of the time a divorce case is commenced.  There is normally no limit on the length of time the assets were owned before the marriage; no consideration to whether the assets were inherited from family members; and no consideration to the steps taken by the owning spouse to acquire the assets.

Technically, the Swedish system is that of a deferred community property regime. This means that, upon marriage, each spouse continues to own and administer all of his or her property throughout the marriage, but that each of the spouse has a special claim, called a “right in deferred community property,” to the assets of the other spouse. It is an implied right to one-half of the value of both spouses’ marital property (including premarital assets), after deduction for debts. This means that when the regime is dissolved upon a divorce, the value of the marital property is to be shared equally between the spouses.

Accordingly, upon a divorce the assets will normally be divided equally between the spouses, without regard to the length of the marriage, the nature of the relationship, the contribution of either party to the source or the growth of the assets, or any other factors of fairness. If the parties are unable to agree on the details of the asset division, the determination is made by a Property Division Executor, who is usually a lawyer.

The spouse with the most marital property may choose whether the difference shall be equalized by a lump sum payment or by means of a transfer of assets of equivalent value.

The economically disadvantaged spouse may normally take over the joint home and the household goods, provided the other party is provided with compensation.

A spouse who is dissatisfied with the Executor’s decisions may appeal to the District Court, and that court has certain powers to take considerations of fairness into account.

As I have so frequently recommended, it is always prudent for international couples who plan to marry to consider making an international prenuptial agreement. And the benefits of prenuptial agreements are generally multiplied when the parties are from different countries or have assets overseas or are living overseas.

But all of that applies very much more so whenever there is a possibility that the future spouses might end up divorcing under Swedish law.

In order to avoid the harsh results of Swedish family law, many Swedish couples choose to remain unmarried. For those who do marry, prenuptial agreements are extremely common.

Prenuptial agreements are generally enforced in Sweden. There is no requirement as to form or legal representation except that they must be in writing. They must be registered at a district court which then procures registration in a national register. Swedish courts have the power to make an award in derogation of the prenuptial agreement in order to avoid unreasonableness but if the spouses entered into the contract with full knowledge of what they were doing that power is quite limited.

Spouses may include a provision choosing the law of the country that is to govern their property relations, provided they choose the law of a country in which at least one of them was domiciled or a citizen at the time of the contract. Act of 1990 on International Questions concerning Property Relations between Spouses, sec. 272, para. 3 (1990) (Swed.).

Absent such a choice of law, the prenuptial agreement is governed by the law of the state in which the spouses established their domicile at the time of their marriage. Act of 1990 on International Questions concerning Property Relations between Spouses, sec. 272, para. 4(1) (1990) (Swed.).

Foreign prenuptial agreements will be enforced in Sweden if entered into in compliance with the law that governed the spouses' property relations at the time of the agreement. Act of 1990 on International Questions concerning Property Relations between Spouses, sec. 272, para. 5 (1990) (Swed.).

The Law Office of Jeremy D. Morley handles international prenuptial agreements globally, always working with local counsel as appropriate. We work closely with counsel in Sweden on prenuptial agreements for couples who are concerned that their divorce case might possible end up in Sweden. We commence all such matters with a consultation, usually by telephone. We consult on these matters with clients throughout the world. Contact us at info@international-divorce.com.

Jamaica – U.S. Child Abduction Update

Jeremy D. Morley

Although Jamaica has adopted the Hague Abduction Convention, its accession has not yet been accepted by the United States, United Kingdom or Canada. Accordingly, the Convention is not in force between Jamaica and these countries. 

The Child Protection and Family Services Agency has complained that the failure of these key countries to accept Jamaica’s accession limits how much the agency can do to rectify cases where children have been abducted and taken to foreign countries by a parent.

Speaking to Jamaica’s Gleaner newspaper, the agency’s legal office, Nicole Chambers, said the agency has at least 15 child abduction cases so far, but pointed out that this represents only a small fraction of them. She said that it was frustrating to "to explain to persons that we have domestic legislation in place, we have the court in place, we have a designated Hague-approved judge, but you cannot make your application under the convention because the country where your child is, that country has not accepted Jamaica yet for us to make that application."

I have previously explained some of the specific issues that result from Jamaica’s state bringing the Convention into domestic law. These are:

·         The legislation empowers Jamaica’s Central Authority to refuse an application whenever it decides that the application is not well founded. 

·         The legislation does not state how cases are to be brought to court and does not explain the jurisdiction of the Court if the Central Authority has determined that an application is not well founded.

·         The legislation subordinates the Convention to broad provisions in Jamaica’s Constitution, thereby authorizing or requiring a refusal to return abducted children for far more extensive reasons than are permitted by the Convention.

UCCJEA: FAILURE TO TIMELY OPPOSE REGISTRATION OF FOREIGN CUSTODY ORDER PRECLUDES SUBSEQUENT JURISDICTIONAL CLAIMS

Jeremy D. Morley

A New York appellate court has ruled that a father could not register a California custody order in New York when he had previously failed to oppose the mother’s effective registration of an Israeli custody order which had modified the California order. Matter of Worsoff v. Worsoff, 161 A.D. 3d 879, 75 N.Y.S.2d 525 (N.Y. App. Div. 2018).

The parties lived in California with their children. In 2014 a California court awarded custody to the mother with visitation to the father. The mother then moved to Israel with the children, after which the California court modified its prior order and granted sole custody to the father.

The mother opened a custody case in Israel and the Israeli court, on father’s default, issued an order granting sole custody to the mother, who then relocated with the children to New York. The mother then filed an application to register the Israeli order in the Family Court of Nassau County, whose Clerk served the requisite 20-day notice on the father.

The father did not take advantage of his statutory UCCJEA right to contest the validity of the registration by requesting a hearing within twenty days after service of the notice, and the Clerk of the Family Court certified the registration of the Israeli order. A few weeks later, the father petitioned the same court to register and enforce the California order, claiming that the Israeli court had had no modification jurisdiction under the UCCJEA. “Too late,” said the Family Court. On appeal, the Appellate Division ruled that the father’s failure to seek a hearing within the statutory twenty-day period precluded him from subsequently contesting the registration of the Israeli order. Confirmation of the registration “precludes further contest of the order with respect to any matter that could have been asserted at the time of registration” and meant that the Family Court had necessarily and correctly concluded that the California order had been effectively modified by the Israeli order.

The Lesson: Pursuant to the UCCJEA, if the registration of a foreign custody order is confirmed after the opposing party has failed to request a hearing within twenty days of service of the required statutory notice, that party cannot subsequently assert that the foreign order was issued by a court that had no jurisdiction to do so.

Switzerland: Child Custody

A very helpful introduction to Swiss Child Custody Law is provided by the Association of Counselling Agencies for Binational and Intercultural Couples and Families, Switzerland, as follows:

 

It is important to a child’s harmonious development that he or she be able, as far as possible, to maintain a close relationship with both parents. As of July 1, 2014, separated or divorced parents as a rule will share (in the case of separated parents, continue to share) custody for children they have together. There are exceptions in cases where joint care would conflict with the child’s welfare. Priority is given to children’s welfare. And a child has the right to an independent relationship to each parent, but that is not all. A child also has the right to stable and dependable conditions of care and the right to financial security.

Joint custody also applies for unmarried couples. For this, a joint statement is required; this is most easily provided at the same time as acknowledgment of paternity at the civil registry office. The joint statement can also be provided at a later time at the Child and Adult Protection Authority (KESB, Kindes- und Erwachsenenschutzbehörde, formerly Vormundschaftsbehörde, Guardianship Authority). Without a joint statement, the mother continues to have sole parental custody. If the mother refuses to provide a joint care statement, the affected father may call the KESB in the child’s place of residence. If there is no rationale against joint care, the KESB will issue an order in that regard. The application must be done latest one year after the new law enters into force (application before July 1, 2015).

As of July 1, 2014, divorced parents who do not have joint care pursuant to the new law may contact the KESB in the child’s place of residence and apply for joint care. If only one divorced parent submits the application, there is a deadline of one year after the new law enters into force (application before July 1, 2015) and the divorce ruling may not have been more than five years before the law enters into force (divorces after July 1, 2009). 

Joint parental care means:

• The parents decide together (as previously in a marital relationship), e.g. about names, general childrearing, education, medical matters, religion, other matters that set the course for or significantly influence the child’s life, the child’s income and property, etc.
• New: The parent who is caring for the child may make decisions alone if:  1. the matter is a routine or urgent one, e.g..: food, clothing, recreational activities, contact with friends, etc or 2. the other parent cannot be reached with a reasonable amount of effort.

• New: The concepts of caregiving and custodial care are not spelled out in the law. The concept of actual custodial care: The parent with whom the child lives most of the time. The concept of caregiving goes further: A parent who does not provide official custodial care is giving care when the child is with him or her within the scope of the law governing visits.

• New: Parental care includes the right to determine the child’s domicile. In the case of joint parental care, either the other parent’s approval or a decision by the court or the KESB is necessary in order to change the child’s domicile if: 1. the new domicile is in another country or 2. the change of domicile has significant effects on the other parent’s ability to provide parental care and maintain personal contact. Requirement for consent only in the case of significant effects, i.e., if the move results in significant restriction of visiting rights. Legal consequences in the case of violation and of a move to another country: Repatriation proceedings due to international child abduction.

Responsibilities in the case of disputes:

For divorced parents, the KESB in the child’s place of residence is responsible. If a divorce judgment must be changed (custodial care, custody, child support), the court is responsible.

For unmarried parents, the KESB in the child’s place of residence is responsible. The court is responsible for new regulations concerning child support.

If the parents repeatedly cannot agree about important questions in the child’s life, such that the child’s welfare is seriously jeopardized, the question arises of whether parental care should be taken away from (both or just one of) them. Legal questions related to child support and caregiving are not addressed by the new law. Legal questions related to child support and caregiving should, like parental care, be arranged in such a way that no disadvantages to the child arise from the parents’ marital status.

Recognition of paternity

In the case of married couples, the mother's husband is considered to be the child's father. Paternity needs to be regulated for children of unmarried parents (ZGB art. 260). In addition, a maintenance contract (ZGB art. 279 ff) needs to be concluded and - if the parents do not live together - visiting rights need to be regulated. Parents can do this of their own accord, i.e. they inform the responsible registry office of the paternity. Otherwise, the guardianship authority will establish a declaration of legal support in the interest of the child with the aim of regulating paternity and maintenance (ZGB art. 309). The interests and rights of the child are the main objective here. If a mother keeps the paternity a secret and/or forgoes maintenance, this damages the interests of the child. Keeping paternity secret and/or renouncing maintenance by a mother may be detrimental to the child's interests.

United Arab Emirates' Noncompliance - International Child Abduction - U.S. July 2018 Action Report

Country Summary:

The United Arab Emirates does not adhere to any protocols with respect to international parental child abduction. In 2017, the United Arab Emirates demonstrated a pattern of noncompliance. Specifically, the competent authorities in the United Arab Emirates persistently failed to work with the Department of State to resolve abduction cases. As a result of this failure, 50 percent (two cases involving two children) of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for two years.

Report of Actions Taken:

Upon release of the 2018 Annual Report, U.S. Embassy Abu Dhabi delivered a demarche to the Emirati government noting that the Department had cited the United Arab Emirates in the 2018 Annual Report for demonstrating a pattern of noncompliance.

Peru's Noncompliance - International Child Abduction - U.S. July 2018 Action Report

Country Summary: 

The Convention has been in force between the United States and Peru since 2007. In 2017, Peru demonstrated a pattern of noncompliance. Specifically, Peru’s judicial branch regularly failed to implement and comply with the provisions of the Convention. As a result of this failure, 36 percent (four cases involving five children) of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average, these cases were unresolved for 23 months. Peru has been cited as noncompliant since 2014.

Report of Actions Taken:

In October 2017, the Department sponsored an International Visitor Leadership Program (IVLP) that brought Peruvian officials to the United States to discuss the Convention with U.S. officials and judges, and to learn about how Convention cases are handled in the United States. IVLP participants included Peruvian judges and officials from the Peruvian Central Authority.

In August 2017, and again in June 2018, U.S. Embassy Lima delivered demarches notifying the Peruvian Ministry for Women and Vulnerable Populations about Convention abduction cases that have been pending with Peruvian courts for more than one year.

In June 2018, the Department delivered a demarche to the Peruvian Ministry of Foreign Affairs stating that the Department cited Peru in the 2018 Annual Report for demonstrating a pattern of noncompliance.

The Department has frequently raised concerns about the Peruvian judiciary’s failure to meet its Convention obligations in both public and private fora. Additionally, to improve communication between the U.S. and Peruvian Central Authorities, the Department conducts bi-monthly conference calls with the Peruvian Central Authority.

Morocco's Noncompliance - International Child Abduction - U.S. July 2018 Action Report

Country Summary: 

The Convention has been in force between the United States and Morocco since 2012. In 2017, Morocco demonstrated a pattern of noncompliance. Specifically, the Moroccan Central Authority and law enforcement authorities in Morocco failed to take appropriate steps to locate a child in one case for more than one year after a Convention application was filed.

Report of Actions Taken:

In September 2017, U.S. Consulate General Casablanca built upon the prior spring’s visit by the Office of Children’s Issues to urge officials in the Moroccan Central Authority (MCA) to improve central authority functioning with regard to locating children and to communicating with the U.S. government. U.S. officials discussed the Act, including citations, to stress the importance of improving collaboration with the United States under the Convention.

The U.S. Consul General in Casablanca met with the Director of the MCA at the Ministry of Justice in December 2017 on the continued inaction by the Government of Morocco. In April 2018, the Assistant Secretary for Consular Affairs traveled to Rabat to meet with senior Moroccan officials. During this meeting, the officials agreed to exhaust all resources available to the Moroccan government to locate children and improve communication with the United States.

Upon release of the 2018 Annual Report, U.S. Consulate General Casablanca delivered a demarche to the Moroccan government noting that the Department had cited Morocco in the Annual Report for demonstrating a pattern of noncompliance.