Tuesday, January 24, 2017

Notes on International Child Abduction to Nicaragua

Jeremy D. Morley

1.      Nicaragua is a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. However, the United States is not partnered with Nicaragua under the Convention. There are no bilateral agreements in force between Nicaragua and the United States concerning international parental child abduction.
2.      The State Department has determined that Nicaragua is a “Non-Convention Country” that has “Demonstrated a Pattern of Noncompliance” within the meaning of the International Child Abduction Prevention & Return Act, because with respect to calendar year 2015, because “Fifty percent or more of the total abduction cases are unresolved abduction cases as defined by the Act” and “Nicaragua persistently failed to work with the United States to resolve abduction cases in 2015.”
3.      While the Nicaraguan Central Authority previously cooperated with the Department in efforts to resolve cases of children abducted to Nicaragua from the United States, that cooperation stopped in early 2016 when the Nicaraguan government asked the Department to communicate with the Ministry of Foreign Affairs instead. In the spring 2016, U.S. Embassy Managua delivered a diplomatic note to the Nicaraguan Ministry of Foreign Affairs requesting Nicaragua’s assistance with two international parental child abduction cases.
4.      Upon release of the 2016 Annual Report, U.S. Embassy Managua delivered a demarche to the Government of Nicaragua noting that the Department had cited Nicaragua in the report as demonstrating patterns of noncompliance
5.      The U.S. State Department reports that:
·         The Government of Nicaragua is authoritarian, limits freedom of expression and peaceful assembly, represses internal dissent, and monitors and responds to perceived threats to authority.
·         In 2015 there was also widespread corruption, including in the police, Supreme Court of Justice and other government organs.
·         Nicaraguan authorities may physically or electronically monitor, detain, and question private U.S. citizens concerning their activities, including contact with Nicaraguan citizens, especially related to topics as varied as the proposed interoceanic canal, elections, and criticism of the Government of Nicaragua. 
·         There are severe penalties in Nicaragua for domestic violence, psychological abuse, and non-payment of child support.
·         The government-controlled legal system can result in prolonged detentions of U.S. citizens without charges or due process. 
·         In 2015, although the law provides for an independent judiciary, the judicial system did not function independently. The law requires vetting of new judicial appointments by the Supreme Court of Justice, a process unduly affected by nepotism, personal influence, or political affiliation. Once appointed, many judges submitted to political and economic pressures that compromised their independence. NGOs complained of a delay of justice caused by judicial inaction and widespread impunity, especially regarding family and domestic violence and sexual abuse. Authorities occasionally failed to respect court orders.
·         In 2015, while the government resolved some property claims during the year, it regularly failed to enforce court orders with respect to seizure, restitution, or compensation of private property. Enforcement of court orders was frequently subject to nonjudicial considerations. Members of the judiciary, including those at senior levels, were widely believed to be corrupt or subject to political pressure.
·         Demonstrations occur frequently throughout the country; in the past, these have turned violent.  Avoid demonstrations and exercise caution around large gatherings.
·         Violent crime occurs throughout Nicaragua. Vehicle burglaries, pick-pocketing, and occasional armed robberies occur in store parking lots, on public transportation, and in open markets like the Oriental and Huembes Markets in Managua. Street crime is also common in Puerto Cabezas, Bluefields, and the Corn Islands.  Police presence is extremely limited outside of major urban areas, including on the Pacific Coast and Nicaragua’s Caribbean Coast. Due to the Caribbean Coast’s geographical isolation, we have limited ability to provide emergency services to U.S. citizens there.   
·         All travel by U.S. government personnel to the Northern and Southern Caribbean Coast Autonomous Regions must be pre-approved due to crime and transportation safety concerns.
·         The legal system operates arbitrarily, which can result in prolonged detentions of U.S. citizens without charges or due process. 
·         In many instances, police and prison authorities have ignored or significantly delayed implementing judicial orders. 

Tuesday, January 17, 2017

Notes on Kuwait, Child Custody and Child Abduction

By Jeremy D. Morley
1.            Family and personal status law in Kuwait is governed by religious courts. In Kuwait the Sunni and Shi’a have their own court chambers to handle such matters in accordance with their own jurisprudence. In the case of Sunni Muslims, the Sunni chamber of the Family Court in Kuwait will apply the Maliki or the Hanbali interpretation of Islamic law. The Kuwaiti legal system is based on Islam and is codified into an “Islamicized” code as to marriage, divorce and child custody. 

2.                  The governing laws that apply in child custody cases in Kuwait are the Kuwaiti Constitution and the Kuwaiti Personal Status Law. Article 2 of the Constitution is entitled “State Religion” and it provides that “The religion of the State is Islam, and the Islamic Sharia shall be a main source of legislation.” Such laws are all based on concepts of gender appropriateness, age appropriateness and personal “morality.”

3.                  Pursuant to the Personal Status Law of Kuwait, the Father is generally the legal guardian of the child, while the mother usually has physical custody of children up to a certain age. Article 209 of the statute states that the person with the most right to guardianship of a minor is the father, followed if he is unfit by the father’s father and the male relations in the other of inheritance.  

4.                  Article 192 of the Personal Status Law provides that, “The non-Muslim hadina [person who has residential custody] of a Muslim child shall be entitled to its custody until it starts to understand about religion, or until it is feared that it may become familiar with a faith other than Islam, even if it does not understand about religion. In all cases, such a child shall not remain with such a hadina after it has reached five [now 7] years of age.”

5.                  Pursuant to Article 190 of the Personal Status Law a mother’s claims of custody over her children will be barred if she is shown to lack the necessary fitness and moral character, considered in accordance with Islamic principles of submission to her husband and her personal sexual and other conduct, such as whether she lives with a non-Muslim or has or has had a relationship outside marriage with a man.

6.                  The U.S. State Department Human Rights Country Report on Kuwait states that, “In the event of a divorce, the law grants the father custody of children of non-Muslim women who fail to convert.” 

7.                  In Kuwait, foreign custody orders are merely items to consider as part of an overall de novo custody review. Custody orders and judgments of foreign courts are not enforceable in Kuwait if they potentially contradict or violate local laws and practices

8.                 If a woman obtains custody in Kuwait it will merely be what is often described as “captive custody,” meaning that she will be prohibited from traveling with the child out of Kuwait without her ex-husband’s or the court’s permission. An integral component of guardianship in Sharia law is that the child must reside in the same location as the guardian even if another person has residential custody. Article 195 of the Personal Status Law specifically provides that the hadina (custodian as to residency) may not remove the child from the area of the guardian’s residency without his express permission.

9.                  Travel bans may be imposed by the Kuwaiti government or by private citizens against Kuwaitis and non-Kuwaitis, including U.S. citizens, if there are claims concerning matters such as unresolved financial disputes. Such bans prevent the individual from leaving Kuwait for any reason pending resolution of the dispute.

10.              Kuwait has not acceded to the Hague Convention on the Civil Aspects of International Child Abduction. The Convention is the fundamental international treaty that protects the rights of abducted children and serves to have them returned promptly to the country of their habitual residence. Kuwait has chosen not to adopt the treaty, even though it has been adopted by 95 other countries, including Islamic countries such as Morocco, Turkey and Turkmenistan.

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

Friday, January 13, 2017

Notes on International Child Abduction and the Philippines

Jeremy D. Morley
1.      Although the Philippines has acceded to the Hague Abduction Convention, the Convention is not in force between the United States and the Philippines because the United States has not accepted the Philippines’ accession. Articles 38 and 39 of the Convention provide that the treaty will not enter into force between an existing Contracting State and a newly acceding State unless and until the existing state expressly accepts the accession of the new state.

2.      When a country accedes to the Convention, the U.S. State Department reviews the new signatory’s domestic legal and administrative systems to determine whether the necessary legal and institutional mechanisms are in place for it to implement the Convention and to provide effective legal relief under it. If it determines that a country has the capability and capacity to be an effective treaty partner, the State Department declares its acceptance of the accession by depositing a written instrument with the Hague Permanent Bureau. Only then does the Convention enter into force between the United States and the acceding country. The State Department posts these details on its website and the Permanent Bureau maintains a current status list on its website.

3.      Currently, the United States has not accepted the Philippines as a treaty partner. As a result, the Convention cannot be invoked in the case of abductions of children from the United States to the Philippines, or from the Philippines to the United States.

4.      There are no bilateral arrangements between the United States and the Philippines concerning the return of abducted children.

5.      In July 2016 the State Department issued its Annual Report on International Parental Child Abduction for the year 2015. The State Department reported that, “During 2015, the Philippines did not adhere to protocols with respect to international parental child abduction.” It also reported that, “During 2015, the Department had 23 reported abductions to the Philippines relating to children whose habitual residence is the United States. Of those, seven were newly reported during the calendar year. By December 31, 2015, no cases had been resolved, as defined by the Act, and five reported abductions had been closed. By December 31, 2015, 18 reported abductions remained open.”

6.      There can be no extradition from the Philippines for international child abduction from the United States, since there is no extradition treaty between the U.S. and the Philippines.

7.      Courts in the Philippines are not required to enforce foreign custody orders. There is no system in the Philippines of registration of foreign custody orders or enforcement of foreign custody orders. The Philippine courts will also take into consideration child custody decrees issued by foreign courts but there is no obligation that requires them to do anything more than “consider” such decrees.

8.      The courts in the Philippines have jurisdiction under the law of the Philippines to deal with all matters concerning the custody of children who are in the territory of the Philippines, regardless of the continuing jurisdiction of a foreign court.

9.      Article 213 of the Family Code of the Philippines provides that, “In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.” Article 213 takes its bearing from Article 363 of the Civil Code, which reads:

Art. 363. In all questions on the care, custody, education and property of children, the latters welfare shall be paramount. No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure.

While the rule mandating sole custody of a child to a mother (except in exceptional cases) ends when the child is seven, the strong bias in favor of the mother continues after that age.

10.  The courts in the Philippines are extremely backlogged and are subject to extreme delays.

11.  Once a custody case is commenced in the Philippines, a travel hold concerning the Child will normally be in place in that country. The Philippines Government advises that, “A minor who is the subject of ongoing custody battle between parents will not be issued a travel clearance unless a Court Order is issued to allow the child to travel abroad with either one of his/her parents or authorized guardian. The family shall be responsible to notify the Bureau of Immigration to include the name of the child/ren in the watchlist of minors travelling abroad. It is therefore the Bureau of Immigration’s responsibility to ensure that no child under the watchlist order leaves the country.”

Tuesday, January 10, 2017

Slovakian Noncompliance with the Hague Abduction Convention

Jeremy Morley
The European Court of Human Rights has determined, in the case of the abduction of three children from their habitual residence in Maryland to Slovakia, that the Slovakian legal system failed to protect the left-behind father’s rights and that Slovakia failed to comply with the obligation of our treaty partners to return abducted children promptly. Frisancho Perea v. Slovakia.
The case illustrates all too well the problems that arise from lax enforcement of Hague Convention rights, as well as from a lack of exit controls.
The father commenced his Hague Convention case in Slovakia within two months of their abduction by his wife. A Slovakian court granted his application promptly. The wife appealed and lost. The father then sought judicial enforcement. However the wife brought an appeal to the Slovakian Constitutional Court on the issue of the enforceability of the return order. That court eventually remanded the case to the trial court which then held numerous proceedings. Meanwhile the wife took the children from Slovakia to Hungary thereby rendering the Slovak proceedings moot.
The European Court ruled -- several years later -- that Slovakia had violated Article 8 of the European Convention on Human Rights, which declares that each citizen has the right to respect for family life, by failing to apply the Hague Abduction Convention effectively.
Unfortunately the European Court’s powers were limited to a requiring payment of a small fine.

Tuesday, January 03, 2017

A Possible Child Visitation Law in Japan

Jeremy D. Morley
In Japan, if the parent who does not have physical possession of a child is allowed to have visitation with the child it will generally be limited to a few hours a month and be strictly supervised – usually in the courthouse, a police station or a lawyer’s office – if there is even slight acrimony between the parents. Family court orders concerning visitation are essentially unenforceable.
Court-ordered international visitation is entirely unprecedented and to my knowledge has never been ordered by any Japanese court, although I have worked on many cases in which a non-Japanese parent has requested it.
The Japanese press is now reporting that a group of legislators in Japan is preparing to submit a bill to the Diet “to ensure that children can continue seeing both parents in the event of their divorce.”
The leader of the “Parents and Children’s Network” has welcomed the proposal but has suggested that the prospective legislation “should stipulate standards for visitations so children can promptly receive the love of both parents” after divorce.
However, the notion that children should visit the non-custodial parent (usually the father) is quite controversial in Japan. The proposed legislation will surely face strenuous opposition.
Indeed, a women’s rights group leader immediately opposed the idea of visitation, claiming that, “If the bill makes it a prescribed course for children to see (the parent who does not have custody), it will hamper the recovery from damage caused to their bodies and minds, and risk their safety.” She reportedly stated further that, “Even if children were not directly victimized by physical violence, they can suffer indirectly by seeing the violence one parent has used on the other, and hearing verbal abuse.”
While a law might perhaps be enacted, whether it will actually be meaningful and enforceable is a totally different issue. (Likewise, Japan’s belated adoption of the Hague Abduction Convention was extremely controversial and was implemented only by means of an implementing law that has major loopholes and tremendous enforcement challenges).
In my field of international family law, the situation is completely unsatisfactory. It means that a non-Japanese parent whose ex-spouse has the parties’ children in Japan cannot see his children unless the Japanese parent chooses to permit him to do so. If she does permit it, the visitation will invariably be no more than occasional, will be strictly supervised and will occur only in Japan. And for cultural reasons this sad state of affairs is seen as completely normal, and indeed appropriate, in Japan.

Thursday, December 15, 2016

Child Visits to Mexico

We are pleased to advise that, after a Family Court in California reviewed my lengthy and apparently persuasive expert report on the abduction risks of allowing a child’s visit to Mexico, and upon the Court then ruling that it would admit my expert testimony, the other parent’s application for an order to compel such a visit was thereupon withdrawn in Court yesterday.

Wednesday, December 14, 2016

St. Kitts & Nevis Divorce Jurisdiction

Pursuant to Section 3 of the Divorce Act 2005 of St. Kitts and Nevis, “The Court may hear and determine any Divorce proceedings if either spouse has been ordinarily resident in Saint Christopher and Nevis; for at least one year immediately preceding the commencement of the Divorce proceedings.”

The phrase “ordinary resident” has been interpreted by the High Court of the Eastern Caribbean Supreme Court in accordance with the  definition in Halsbury’s Laws of England as meaning, “residence adopted voluntarily and for a settled purpose as part of the regular order of life for the time being as opposed to such resident as is casual temporary or unusual.” Saxena v. Saxena, 2015.

The courts have the power to stay a divorce case on the grounds of forum non conveniens but only if the applicant adduces evidence that establishes that another available forum is clearly or distinctly available,  is more appropriate, and is the forum “with which the action has the most real and substantial connection.” Saxena v. Saxena, 2015.

Wednesday, November 30, 2016

Philippines’ Laws on Adultery, Concubinage and Marriage Nullity

Jeremy D. Morley
Philippines’ law criminalizes adultery and concubinage. Both are deemed “crimes against chastity” under the Revised Penal Code of the Philippines and are treated as sexual infidelity in the Family Code.
The law discriminates against wives. The crime of adultery can be committed only by a wife and her paramour. The husband need only prove that his wife had sexual intercourse with a man other than him.
The crime of concubinage can be committed only by a husband and his concubine, but it requires that the wife must prove that her husband has kept a mistress in the conjugal dwelling, or has had sexual intercourse under “scandalous circumstances” or lived together with his mistress in any other place.
The penalties are also quite different. For adultery the guilty wife and her paramour may be imprisoned for up to 6 years
For concubinage, the husband may be imprisoned for up to 4 years and 1 day, while his concubine may be merely “banished” but may not be imprisoned.
The laws work to the great disadvantage of women. There is no divorce in the Philippines and abandoned wives are often accused of adultery in order to force them to agree to their husband’s petitions to nullify the marriage. The Philippine Commission on Women reports that, “In many cases, women who are faced by these threats are forced to forego legitimate custodial claims of their children while some are forced to give up their claims over conjugal properties, assets and the like.”

Thursday, November 17, 2016

Singapore Ruling on Consent in Hague Abduction Cases

Jeremy D. Morley

The Singapore Family Court, in a ruling by District Judge Low, has rendered a ruling on consent in Hague abduction cases.  The Court issued the following determination*:

“In summary, the legal principles in relation to consent that may be gleaned from the abovementioned cases are as follows:

            -Consent is not relevant to Art. 3 but to establish a defense under Art. 13(a), i.e. if a child is removed in prima facie breach of a right of custody, the removing parent has the burden of proof to justify the removal and establish that the removal was done with consent;

            -Consent must be proved on the balance of probabilities, but the evidence in support of it needs to be clear and cogent.  If the court is left uncertain, then the defense under Art. 13(a) fails;

            -The consent must be for a stay of sufficient duration or quality properly to be regarded as habitual and where the consent had been given for a purpose which has changed, the parent must have agreed to the continued stay based on the new purpose;
            -If there is ostensible consent and the party seeking the return of the child alleges that there are circumstances vitiating the consent, it is for that party making that claim to prove it on the balance of the probabilities;

            -Proof of deceit or dishonesty in relation to a marital aspect of the consent, going to the root of the consent, is one such circumstance that would vitiate a consent outwardly given; and

            -The court should, in summary proceedings such as Hague applications, be cautious about finding dishonest conduct without having enjoyed the advantage of hearing oral evidence.”
*Together with eminent Singapore counsel, Jeremy D. Morley assisted the successful defendant. 

Tuesday, November 15, 2016

Slovenia: International Child Abduction

                                    Jeremy D. Morley

We have handled, with local counsel, several international family law matters concerning Slovenia.
We have provided an expert report concerning the possibility of child abduction to Slovenia and issues concerning the return of children from that country.
Appeals in Hague cases in Slovenia are permitted without leave of the Court and the effect of such an appeal is to automatically suspend any return or access order pending an appeal. There is no procedure in Slovenia for an expedited procedure or special process of appeal in a Hague Convention case.
In one reported case a Slovenian father brought proceedings before the Slovenian authorities after his daughter’s mother moved the child to Austria and obtained a contact order but the mother successfully appealed that order. Following the remittal of the case and a number of delays due to the authorities’ inability to locate the mother, the Slovenian court eventually issued an interim order and he eventually saw her for the first time in more than nine years. However, his daughter subsequently refused to see him again and an Austrian court suspended the father’s contact rights in a decision. The European Court of Human Rights ultimately ruled that Slovenia had violated Article 8 of the European Convention on Human Rights concerning respect for private and family life. 

Monday, November 14, 2016

Thoughts on India’s Repudiation of the Hague Abduction Convention

Jeremy D. Morley
When I was in India in early September there was great hope among the legal community that India would move forward to join the community of nations in acceding to the Hague Convention on the Civil Aspects of International Child Abduction. Those hopes were dashed by the recent announcement by India’s Women and Child Development Ministry that, “We are very clear that we are not signing the Hague Convention.” India’s status as one of the world’s most significant havens for international child abduction will apparently continue unabated.
In 2009 the Law Commission of India issued a report entitled, “Need to Accede to the Hague Convention on the Civil Aspects of International Child Abduction.” At the time, the recommendation that India should sign the Convention seemed to fall on deaf ears. Meanwhile foreign criticism of India for not returning internationally abducted children grew, especially from the United States and the U.K. Indeed, the U.S. State Department determined that India “demonstrated a pattern of noncompliance by persistently failing to work with the United States to resolve abduction cases.”  As a result, the U.S. Government issued a formal diplomatic protest--a demarche--to India in May 2015 (and again in July 2016).
A sign of progress occurred in February 2016 when the High Court of Punjab and Haryana formally asked the Law Commission of India to examine whether to issue a recommendation “for enacting a suitable law for signing the Hague Convention.” The Government of India then published a draft of a proposed “Civil Aspects of International Child Abduction Bill 2016,” and in July it placed the Bill on the website of the Women and Child Development Ministry. In October the Law Commission issued a new report in which it recommended that India sign the Convention and that certain amendments to the proposed bill should be enacted.
And then everything ground to an apparent halt. The Minister of Women and Child Development stated that acceding to the Convention would not be in the interest of aggrieved women “who have been abandoned by their husbands abroad, had their passports snatched from them, been beaten up, and have somehow scraped the money and are in terrible fear, I wonder whether we should join or not.” Furthermore, she said that there are fewer instances of Indian children being abducted and taken abroad than of children being abducted to India. The Indian press is reporting that the proposed bill is likely to be “junked.”
This decision, if maintained, will put Indian nationals and persons of Indian origin living outside India at a tremendous disadvantage. Courts in the United States will likely not permit then to take children for family visits to India if the other parent objects because the Indian legal system can certainly not be counted on to return the children if they are retained in India.  It means that winning international relocation cases to India will likely be far more difficult than is the case currently. And it means that desperate India mothers (and men) who take their children to India over the objections of the other parent will be committing a serious felony under U.S. law and will likely be unable to leave India because of fear that they will arrested once an Interpol notice is circulated.
It is to be hoped that the Indian Government reconsiders what appears to be a most short-sighted decision.

Wednesday, November 09, 2016

Expert Evidence on Risk of International Child Abduction to Pakistan

Jeremy D. Morley has submitted expert evidence to a court in California that Pakistan does not comply with international norms concerning the return of internationally abducted children and that Pakistan is justifiably well-recognized as being a safe haven for international child abductors.
The opinion resulted in a court order that did not merely bar all travel by one of the parents with the children outside a local geographical area but also required that all visitation with the children by that parent must be supervised at all times. 
Mr. Morley provided an evaluation of the risk factors as to potential international child abduction, the application of the factors to the facts of the pending case and to the balance that must be considered between the risk of abduction presented by the facts concerning a specific parent and the risk that is presented by a specific country.
The more certain it is that the country to which the child might be taken is a fully compliant Hague Abduction Convention treaty partner with an effective legal system, the more evidence is required that the individual parent is likely to be an abductor in order to justify the imposition of strong international abduction prevention measures. With respect to Pakistan, not only has that country failed to accede to the Convention but it is non-compliant with basic international norms concerning international child abduction, to the extent that the Government of the United States has deemed it necessary to issue formal diplomatic protests the Government of Pakistan.   

Monday, November 07, 2016

New York Appellate Courts Now Unified on Hague’s “Send versus Serve” Issue

New York’s appellate departments are now unified with respect to their interpretation of Article 10(a) of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention). The issue of whether Article 10(a) of the Hague Convention permits service of process by mail to a foreign country in the absence of an objection from the state of destination has now been resolved in New York. The First Department in Mutual Benefits Offshore Fund v. Zeltser, 2016 N.Y. Slip Op. 04344, earlier this year reversed itself and joined the state’s three other appellate departments in holding that service of process by mail under those circumstances was indeed permissible.


For those unfamiliar with the workings of the Hague Service Convention, it is a multilateral international treaty first adopted in 1965 that allows for the service of process of legal documents from one signatory state to another without the use of more formal consular or diplomatic channels. The treaty sets up a simplified means for accomplishing service of process by requiring each signatory nation to designate a “Central Authority” to receive the documents and arrange for actual service on the targeted entity in a manner permitted under local law. Once service is completed, the Central Authority sends proof of service to the requesting party. The advantages of this system lie in its speed, its standardized forms and its relatively low costs as compared with the pre−Hague Convention methods in place to serve foreign entities. Seventy countries are now parties to the agreement.
The language of the Hague Convention treaty that beguiled New York’s appellate courts and, over the years, courts throughout the country is that found in Article 10(a) of the treaty. It reads:
Provided the State of designation does not object, the present convention shall not interfere with
(a) the freedom to send judicial documents, by postal channels, directly to persons abroad.
Some American courts, including the First Department in cases before Zeltser (see, e.g., Sardanis v. Sumitomo Corp., 279 AD 2d 225, 718 N.Y. S. 2d 66, 2001), had taken the position that the Hague Convention’s use of the phrase “to send judicial documents” as opposed to the phrase “to serve” meant that mail service of  items such as discovery demands, notices and other legal documents was permitted only after the initial service of process for jurisdictional purposes (i.e., service of a Complaint or Petition for Damages) is made through the Central Authority. BeforeZeltser, the other appellate departments in New York (the Second, Third and Fourth Departments)  along with many other courts around the country had held otherwise. Their rationale was that the Hague Convention’s drafters’ use of the word “send” was the result of poor draftsmanship and that initial mail service of the jurisdictional document was permitted so long as the destination country had not objected under Article 10(a).

Summary & Analysis

As a result of Zeltser, New York’s First Department joined the chorus of jurisdictions permitting mail service. It is now clear in New York that, where the destination state has not expressly objected to service by mail, there is no need to follow the Hague Convention’s requirements for service through a Central Authority and that service in those cases by “ordinary” CPLR means (i.e., through postal channels) is permissible.
The entire “serve” versus “send” controversy begs the obvious question: Why would a country sign onto the Hague Convention treaty and then fail to object to Article 10(a) and, in so doing, expose its citizens to ordinary mail service? Doesn’t Article 10(a) become the proverbial “exception that swallows the rule” if, in fact, it is interpreted in a way that there is no distinction made between the words “send” and “serve”? Perhaps, but recall that there are other features of the Hague Convention that remain in play – such as the need to translate the legal documents into the language of the destination country before service is accomplished. If that “service” is done by ordinary postal channels because the destination country has not objected to Article 10(a), the documents must arguably still be translated before they are dropped in the mailbox.
Let’s agree that’s better than nothing.

Monday, October 17, 2016

USA Says Slow Courts Put Brazil in Poor Position on Child Abduction

In an interview with Estado newspaper, the Special Advisor for Children’s Issues said cases are left pending for too long

The US government says Brazil is not fully complying with the international standards on child abduction stipulated by the Hague Convention. The problem is the slow judicial system, the Special Advisor for Children’s Issues, ambassador Susan Jacobs, told Estado newspaper. Cases have been pending for two, three years – which is a very long time for children and for parents who are separated from them.
The Hague Convention applies to cases of children taken illegally to another country and kept there by one of the parents. Under the international standard, they must be returned as soon as possible to their usual place of residence, where custody will then be discussed. The main extracts from the interview follow below.
What is cooperation between Brazil and the United States in cases of child abduction like?
We have a very good relationship with Brazil’s Central Authority. We have worked in cooperation with them since Brazil signed up to the Convention. The problem is that Brazil’s judicial system is very different from ours. There are a lot of appeals. So, take a long time for cases to be resolved. Cases with Brazil are pending for three years or more. This means that parents are separated from children for that period of time. It’s very sad.
In 2011, Brazil and the United States set up a working group to deal with this issue. Have there been any results?
The working group is a very useful tool to discuss the problems we have. In that regard, it’s very positive. Unfortunately, it has not helped to speed up the processing of cases in court. As a diplomat, I believe it is important to maintain dialogue between our countries.
Do the Brazilian authorities offer any perspective on this?
We have had dialogue about several solutions. For example, judicial training. We are discussing a symposium attended by South American judges with the Hague office and also with the US for case studies. This will help people to feel more comfortable with the ideas contained in the Convention.
You have been to Argentina and now Brazil. Is there any specific point to be dealt with?
We want more cooperation to ensure the return of these children to their permanent residence. The abduction of children is very traumatic. The USA, Brazil and Argentina are parties to the Hague Convention. We want to ensure compliance with the Convention. Our Congress is very interested in this issue and passed a law two years ago. It requires that the State Department draw up an annual report on the level of compliance with the Convention. Brazil, in our view, is not in compliance because of the delays in court cases.
How does Brazil compare with other countries?
Each country is different and has its own problems. There are other countries that have delays in dealing with cases.
You mentioned Congress, and there is a problem at the moment about sending a new US Ambassador to Brazil. The appointment was being blocked as pressure over the Brann case (a boy who was living in the USA and who was brought to Brazil in 2013 by his Brazilian mother for a party and never returned).
I am happy to say that it has been resolved. We discussed it in Congress and explained our efforts in Brazil and the cooperation of the embassy here.
Have you met the Brazilian authorities?
We have had a long meeting with the Brazilian Central Authority. We are going to the Foreign Ministry, the Federal Attorney’s Office to see court authorities. We will continue the dialogue about this cooperation because there is a great interest by the State Department and Congress.
In conversation with court authorities, have you sensed a willingness to make reforms to speed up the processing of cases?
We are planning these meetings precisely to find out what kind of collaboration there may be. For example, training judges is something we do with a certain degree of frequency. The Hague Convention is quite simple. Where was the child living when they were abducted? In general, they must be returned to the jurisdiction of where they were resident to be able to go to a hearing. Sometimes it seems that Brazilian courts make decisions more about custody than on the usual place of residence.
There is confusion there.
Yes. The convention is a neutral instrument. It makes no judgment on ethnicity, gender, what the best country to raise the child is. It does not judge who the best parent to keep the child would be. It thinks of the child’s welfare and where they were resident when they were abducted.
Are you going to deal with specific cases, such as Brann or, on our side, the Heaton case?
We will try to keep the conversation more neutral, about the Convention itself. If we get a good interpretation of the Convention, the cases will be solved more easily.

Tuesday, October 11, 2016

Financial Cohabitation Claims Update

Jeremy D. Morley
Courts in the United States have followed differing paths concerning an unmarried partner’s financial claims arising out of their cohabitation.
The rule in New York is that a contract as to earnings and assets may not be implied in law from the relationship of an unmarried couple living together, but that such a couple are free to contract with each other in relation to personal services, including domestic or “housewifely” services, and that there is no requirement that such a contract be in writing Morone v. Morone, 50 N.Y.2d 481 (1980).
In contrast Indiana, for example, has long ruled that an unmarried partner may be entitled to relief upon a showing of an express contract or a viable equitable theory such as an implied contract or unjust enrichment. Bright v. Kuehl, 650 N.E.2d 311 (Ind. Ct. App. 1995),
Now the Indiana Court of Appeals has refused to reconsider the Indiana rule. McMahel v. Deaton, 2016 WL 477841 (Ind.App.2016).
In its earlier case it specifically held that, “[t]o recover under the theory of implied contract, the plaintiff is usually required to establish that the defendant impliedly or expressly requested the benefits conferred” and that “[a]ny benefit, commonly the subject of pecuniary compensation, which one, not intending it as a gift, confers upon another who accepts it, is an adequate foundation for a legally implied or created promise to render back its value.” Id. (citations omitted).
It further held that, “[t]o prevail on a claim for unjust enrichment, a plaintiff must establish that a measurable benefit has been conferred on the defendant under such circumstances that the defendant’s retention of the benefit without payment would be unjust” and that “[p]rinciples of equity prohibit unjust enrichment of a party who accepts the unrequested benefits another provides despite having the opportunity to decline those benefits.”
In the latest case, it upheld a finding that a man had been unjustly enriched when his 17-year cohabitation with his former girlfriend ended. The woman had provided monetary and other contributions during their cohabitation, cleaned the gutters, painted the house, cleaned the toilets, cooked, and was the primary caretaker of the parties' son. The value of her earnings was 30% of the man’s earnings, and the court awarded her approximately 30% of the parties' combined assets.