Thursday, September 18, 2014

Notes on Algeria and International Child Custody

Jeremy D. Morley
Algeria is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.
A well-publicized 2012 case of an abduction from New Zealand to Algeria demonstrated the difficulties of securing the return of children from Algeria.
Although Article 29 of the Algerian constitution states that, “All citizens are equal before the law. No discrimination shall prevail because of birth, race, sex, opinion, or any other personal or social condition or circumstance,” Article 2 of the constitution provides that Islam is the religion of the state.
The United Nations “Special Rapporteur on adequate housing as a component of the right to an adequate standard of living” made an official visit to Algeria in 2011 and reported that:
-Despite legal improvements, in particular the 2005 reform of the Family Code, Algerian women still do not have the same status as men within the family and continue to be victims of de jure discrimination in access to housing. According to Algerian law (articles 142 and 144 of the Family Code), women cannot claim the same part of an inheritance as men, since they have the right to only half of what men are entitled to.

-Article 72 of the Family Code provides that, if a couple has children and the woman is granted custody upon a divorce, the father must ensure that she has decent housing or else must pay her rent. Moreover, a woman who has custody has the right to remain in the matrimonial home until the father implements the judicial decision.

-However, Article 72 does not guarantee that a woman who has child custody can stay in the matrimonial home; this is not ensured until the father implements the judicial decision concerning housing.

-In cases in which women are granted child custody, it is the judge who decides case by case and may rule that the wife must continue to live with her children in the matrimonial home or that the husband must pay his former spouse an amount deemed to be sufficient to pay her rent. However, the amount set by the judge is based on official rental prices, whereas actual market prices are much higher. Moreover, it is reported that judges do not always rule on the question of housing. In both those cases, women do not have the means to pay the rent, and often their only alternative is either to become homeless or to remain in the home of their former spouses, where they are often victims of violence.

Article 64 of the Family Code vests custody in the first instance in the mother, then in the father and then in the closest relatives. The Algerian Government reported to the United Nations’ Committee on the Elimination of Discrimination against Women that, “Amendments to this part of the Family Code conform to the principle of the overriding importance of the child’s interests. Accordingly, the father is now in second place, after the mother, in the order of persons to whom custody may be awarded.”

Under the earlier version of the Family Code (Art. 52), only in cases in which the wife obtained custody of the children and she did not have a guardian who agreed to take her in did she and her children have the right to her own housing, in keeping with the husband’s possibilities. However, the matrimonial home was excluded from that decision if it was the sole housing.

In 2005, the position of divorced women with children was strengthened by giving them the right to stay in their former conjugal homes, forced arranged marriages were outlawed, and polygamy constrained by requiring consent of the first or second wife and validation by a local court. Furthermore, women were no longer legally required to be obedient to their husbands. http://www.gloria-center.org/2009/03/gray-2009-03-05/
However, the concept of wali, guardian, was affirmed. This law stipulates that an adult woman remains under the lifelong tutelage of a guardian–the legal reform merely allowed a woman to choose her guardian. A guardian’s approval is required if a woman wants to marry and–though based on social custom and not the law—banks, for instance, routinely require signed consent by a guardian if a woman wants to open a bank account. http://www.gloria-center.org/2009/03/gray-2009-03-05/
The Family Code continues to treat men and women differently in the case of divorce. Men have the right to divorce without any justification, although the court may place conditions on the divorce. By contrast, women can obtain a divorce only under certain conditions (e.g. abandonment), or the practice of khula, whereby a woman can divorce her husband unilaterally if she pays him a sum of money.

Under the 2005 Family Code, the conditions under which a wife can seek a divorce have been broadened, and include ‘inconsolable differences’ and failure to observe conditions included in the marriage contract.

When a mother has been granted custody of her children, she obtains parental authority over them. If a woman remarries, she loses custody of her children.

The U.S. Department of State urges U.S. citizens who travel to Algeria to evaluate carefully the risks posed to their personal safety.  There is a high threat of terrorism and kidnappings in Algeria.

Wednesday, September 17, 2014

Manga and the Hague Abduction Convention

Jeremy D. Morley

The Japanese Ministry of Foreign Affairs has prepared a manga-style booklet explaining the Hague Abduction Convention, which it has sent to Japanese embassies and consulates.
Much of the booklet is actually well done. However, some have claimed that the booklet is racist. The cover appears to show a Western-looking man beating an Asian-featured child; the same Western man removing a child; and a Japanese woman with no money worrying about her daughter. 


Tuesday, September 16, 2014

Mother's Arrest at D/FW Airport Shows Difficulties of International Custody Disputes

By JULIETA CHIQUILLO
14 September 2014


Like many divorces, Padmashini and Dean Drees’ breakup in 2004 was bitter.
There were mutual allegations of abuse, suspicions of infidelity and a nasty fight over custody of the couple’s toddler son, Drew.
But when Padmashini Drees traveled with Drew to India seven years ago and didn’t return, the family’s problems reached the U.S. State Department and the FBI.
Though custody battles tend to be messy, international cases like the one involving the Dreeses can drag on for years. The U.S. Supreme Court has wrestled with at least two disputes since 2012. Clashing legal systems become hurdles for the parents.
The parent left behind has little recourse if a U.S. court order is not recognized in another country. The parent who takes the child abroad in violation of a custody order could face criminal prosecution should he or she ever return to U.S. soil.
The North Texas case appeared to have a movie-script ending July 9, when Dean Drees reunited with Drew, who is now 10. A McKinney police photo showed a smiling father embracing his son.
Officers arrested Padmashini Drees when her flight landed at Dallas/Fort Worth International Airport. They accused her of abducting her son and put her in jail.
The case is not settled.
Padmashini Drees was released from the Collin County Jail on Sept. 2. Her felony charge of interference with child custody is pending. If convicted, she faces up to two years in state jail.
“Today, Padma has the option of making a comfortable life anywhere in the world,” said her attorney, Scott Mackenzie, in a written statement. “She has chosen to stay in the United States to fight for her son and get the justice that she truly deserves.”
Neither Padmashini Drees nor Dean Drees would speak with a reporter except through their lawyers.
The mother
Padmashini Drees’ life in the U.S. began in the early 2000s as her first marriage, an arranged union, crumbled, her attorney said.
Trained as an architect, she enrolled in a computer-aided design class where she met Dean Drees. The couple married in August 2003 and started a family in a middle-class neighborhood in McKinney.
Dean Drees filed for divorce in October 2004, nine months after Drew’s birth.
In 2006, a court in Collin County granted Padmashini and Dean Drees joint custody of Drew. It also set the boy’s primary residence with his father and ordered his mother to pay child support.
Mackenzie said Padmashini Drees, a green-card holder, lived under her husband’s constant threats of deportation.
“In light of that, I can understand why she felt the need to run,” Mackenzie said.
Dean Drees’ attorney, Tiffany Haertling, denied the allegations. She lamented that Padmashini Drees “would choose to continue to inflict hurt and grief on an already unfortunate situation.”
Drew was about 3 years old when his mother took him overseas. They lived in India and also traveled to England, France, Switzerland, Italy, Indonesia and Thailand, according to a court document.
The father
Dean Drees told a Collin County court that he made “continuous efforts” to get his son back for the seven years he was away. He hired private investigator Danny Russell to track down Drew. Russell worked with federal agencies and others to locate the boy.
Dean Drees missed Drew “immensely” and was desperate to find him, Russell said.
“He was a very polite father who was fearful of the worst because he didn’t know what had happened to his son,” Russell said. “He had no contact.”
India is a haven for parental child abductions, said Jeremy Morley, a New York attorney and former co-chairman of the International Family Law Committee of the American Bar Association.
The Asian nation hasn’t signed the Hague Abduction Convention, a treaty that encourages the safe return of children taken from their home countries.
“There is no consistency in the approaches of the Indian courts in these cases,” Morley said, “and the Indian legal system is extremely slow and can be corrupt.”
The U.S. State Department reported 702 parental child abductions from the U.S. to another country in 2013. India accounted for 28 cases, trailing only Mexico and Canada.
Coming home
In December, Padmashini Drees restored Drew’s contact with Dean Drees through video chats. Dean Drees asked his ex-wife to come back with Drew so they could both parent the boy, Mackenzie said.
“Despite the warnings given to her by Indian authorities and other people … she kind of hoped Dean would have mercy on her and try to work with her,” the attorney said.
On July 16, a Collin County court suspended Padmashini Drees’ access to her son as part of the civil custody case.
Her legal team wants to resolve the felony case before pursuing visitation with Drew, Mackenzie said. Padmashini Drees has no intention of taking her son back to India, the attorney said.
Parents should seek proper legal advice instead of trying to resolve custody issues themselves, said Morley, the New York attorney.
“She took the law into her own hands,” he said of Padmashini Drees. “Now she’s paying the price.”


Friday, September 12, 2014

Malaysia Child Custody: Next Step in 5+ Year-old Case

Court strikes out appeal by Muslim husband in interfaith custody case
BY V. ANBALAGAN, ASSISTANT NEWS EDITOR
Published: 10 September 2014
The Court of Appeal today struck out an appeal by Muslim convert Muhammad Ridzuan Abdullah who was found in contempt of court for his refusal to hand over his daughter to the mother in a unilateral conversion case.
A three-man bench led by Datuk Balia Yusof Wahi said it was trite law that the court could not hear an applicant who has yet to purge his contempt.
"Public interest demands that respect for the law be maintained," he said in allowing M. Indira Gandhi's application to strike out her ex-husband's appeal against the May 30 High Court ruling, which found him guilty of contempt.
Following this, applications by the Attorney-General and the Inspector-General of Police to intervene in the case as well as Ridzuan's motion for an extension of time, were also struck out.
Ridzuan had filed an application for extension of time to file his record of appeal to state his grounds on why High Court judge Lee Swee Seng was wrong in finding him guilty of contempt of court.
Indira then filed an application to the Court of Appeal to strike out Ridzuan’s appeal based on a Federal Court ruling that the court would not hear an applicant who had yet to purge his contempt.
On June 26, A-G Tan Sri Abdul Gani Patail and IGP Tan Sri Khalid Abu Bakar applied to the Court of Appeal to be made parties in custody battles between two Hindu mothers – Indira, as well as S. Deepa – and their ex-husbands who had converted to Islam.
Gani and Khalid said the High Courts in Seremban and Ipoh had exceeded their authority in issuing recovery orders to the police to locate the children of Deepa and Indira from their fathers.
Like Indira, Deepa is also embroiled in a custody battle over her two children following their unilateral conversion to Islam by her ex-husband Izwan Abdullah.
Gani and Khalid said if their applications to be interveners were allowed, they wanted the Court of Appeal to stay the High Court orders compelling police to locate Ridzuan and Izwan.
Khalid said police were in a quandary because there were two custody orders, from the High Court and the Shariah High Court, and executing one would mean showing disrespect to the other.
The shariah courts had granted both fathers custody of the children.
Gani and Khalid said a stay of the orders was vital or else their attempts to appeal would be futile as the status of the High Court and Shariah Court under Article 121(1A) of the Federal Constitution had to be determined.
In Indira's case, Ridzuan refused to hand over their youngest daughter Prasana Diksa despite a 2010 Ipoh High Court order awarding her custody of their three children.
Ridzuan has held on to Prasana Diksa since April 2009 when she was 11 months old.
The Shariah High Court in Ipoh had in 2009 given Ridzuan custody of the three children after he unilaterally converted them to Islam.
But in July last year, the Ipoh High Court quashed the certificates of conversion of the three children and ruled that the certificates were null and void because they were unconstitutional.
In Deepa's case, the Seremban High Court on April 7 granted her custody of Sharmila and Mithran, both of whom had been converted to Islam by Izwan last year without their mother's knowledge.
Judge Datuk Zabariah Mohd Yusof said the court had the power to dissolve Deepa's civil marriage with Izwan and provide reliefs, including custody.
Two days later, Izwan abducted Mithran, saying it was for the child's "protection".
Deepa then obtained a recovery order from the High Court on May 21 to get police to search for Izwan and Mithran.
Lawyer Aston Paiva, who appeared for Indira and Deepa, had earlier conceded to the A-G and IGP becoming interveners in Deepa's matter due to different circumstances.
He said there was no conclusive finding of contempt against Izwan by the High Court, and the Shariah High Court in Seremban had made a specific direction to the police to locate his children.
Joanne Leong, who appeared with Aston, said Izwan's appeal against custody order and recovery order would be heard by the Court of Appeal on December 4. – September 10, 2014.
Read more about Malaysia here:


Thursday, September 11, 2014

How to Win a U.S. Hague Abduction Convention Case

by Jeremy D. Morley
Here are some tips for attorneys and clients faced with instituting or defending child abduction proceedings under the Hague Convention on the Civil Aspects of International Child Abduction, whether in the United States or internationally.
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 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.

In addition to the Hague application and lawsuit itself, counsel for the left-behind parent should take many other steps.

First, counsel should 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.

Second, if there is no custody order in place from a court in the jurisdiction of the habitual residence, counsel in the United States should consider advising the left-behind parent to 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.

Third, 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.

Fourth, counsel must decide quickly whether to bring suit in state or federal court. The International Child Abduction Remedies Act provides for concurrent jurisdiction. Note that if a state court is chosen the respondent has the absolute right to remove the case to the federal court.

2. 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.

3. 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 depends 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 of 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; and 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.

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.

4.  DISCOVERY
Discovery is generally permitted in Hague cases in the United States 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.

5. 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. Moreover, 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 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 globally 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.

6. 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.

7. BE FLEXIBLE CONCERNING EVIDENCE
In Hague cases evidence rules may be 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, if that is available. As a last resort, seek leave to submit affidavits.

8. 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. At the same time it may be critically important to also have local counsel who is familiar with the local courts.
 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.


Wednesday, September 10, 2014

Law-Shopping & Forum-Shopping in International Prenuptial Agreements

by Jeremy D. Morley

We handle many prenuptial agreements between spouses who have connections to the United Kingdom and the United States, always working with local counsel as appropriate.

Drafting prenuptial agreements is always challenging but the complexities are greatly magnified when the clients are international, whether in their citizenship, the location of assets, their employment or their residency, or because such international connections are anticipated or reasonably on the horizon.

In such situations lawyers have a responsibility to consider the impact of the different laws of the various jurisdictions with which the parties are connected or are likely to become connected. To do so they work with international counsel who have sophistication and experience in handling international prenuptial agreements and who can bring in appropriate  local counsel in selected jurisdictions relevant to the issues that the clients has raised or should have raised.

It is often sensible for counsel to propose a "home" for the prenuptial agreement that is not the jurisdiction in which the lawyer practices. In some cases such advice to a client is absolutely essential.

"Choice of law" clauses are common in the United States and they are usually upheld there, provided the parties had a significant connection with the chosen jurisdiction and provided also that the outcome does not violate the public policy of the forum state.

"Choice of court" clauses are also a common feature of US prenuptial agreements. While they can usually not oust a court's jurisdiction they may be useful in persuading a court that it should accept a case that is brought in the jurisdiction selected by the parties or that it should decline a case brought in another jurisdiction.

"Shopping" for a suitable law and forum is not only appropriate but it may well be good practice - and some might argue that it is even an essential practice - whenever one represents an internationally-connected client with significant current or anticipated assets who wants to maximize the chances that such an agreement will enforced and/or who wants to include terms that might fall foul of a fairness test but which would more likely survive a test based on unconscionability.

Lawyers cannot guarantee the enforceability of pre- or post-nuptial agreements to clients, but they should steer clients to jurisdictions that are more likely to satisfy their goals.

For example, New York's public policy is to promote the resolution of issues between spouses by means of prenuptial and postnuptial agreements. That policy is reflected in a host of decisions from the New York courts upholding such agreements, including agreements that might well not be enforced in other jurisdictions.

For that reason counsel representing a client who has (or whose spouse-to-be has) a New York connection - whether based on current, prior or contemplated residency, current, prior or contemplated employment or other factors - should consider recommending that the parties make an express choice of New York law to govern their agreement.

Indeed, if such a choice is made, counsel might perhaps suggest that such a client should enhance the connections with New York by signing the agreement in that state and/or entering into the civil marriage there (even if the marriage festivity occurs elsewhere).

Since an English court might not fully enforce such an agreement, or might modify it in the interests of “fairness”, one might recommend that the parties should enter into two separate prenuptial agreements.

One would be drafted with a view to English law and would apply only if the "stronger" foreign-oriented agreement were invalidated, either in whole or in significant part.

Alternatively the agreements could provide that the "weaker" agreement would apply only if the financial issues were resolved in England while the "stronger" agreement would have priority if the financial issues were resolved elsewhere.

It is all too easy to refuse to look beyond one's own borders in these matters but international clients now expect us to do so.


Tuesday, September 09, 2014

Plight of the Expatriate Spouse

Jeremy D. Morley
International child relocation applications raise substantially different issues from those raised in domestic relocation cases, whether intrastate or interstate. Unfortunately, the fundamental differences are not often adequately appreciated by lawyers and judges. This is partly because both domestic and international applications are governed by the same legal principles. It is also because, even in today's globalized world, international relocation applications are relatively unusual.

A key difference between international and domestic cases concerns the nature of the applicant. Parents who apply for international relocation have fundamentally different circumstances, concerns and needs than do parents who want to relocate domestically.

A second critical difference is that while sister states have similar laws and legal systems, the legal systems in foreign countries vary dramatically in their recognition and effective enforcement of U.S. custody and access orders. This factor will be the subject of a subsequent article.

SPECIAL CIRCUMSTANCES OF THE APPLICANT

Expatriate parents who seek to relocate internationally with their children typically share similar experiences and challenges, which need to be better understood by lawyers who act as their advocates and by judges who decide the fate of their children. (This article does not cover applications by American parents who wish to move overseas for love or work). In my experience, based on counseling very many expats in family crises, applications by expats for international relocation are usually made by mothers who want to return to their country of origin. They seem to fall into three distinct categories. (In an article such as this, there is no way to avoid making generalized observations. The purpose is not to stereotype people, but to promote better understanding of their circumstances.)

The Trailing Spouse

A "trailing spouse" is one who accompanies her husband on an assignment to a foreign country, usually for a limited number of years. The husband has usually achieved significant success in his career and is pleased to improve his situation by making an international move. It is a situation that is often fraught with danger for the trailing spouse.

A typical scenario might be as follows: H and W are Germans and have lived in Germany for all of their lives. H works for a technology company and W is a teacher. They have a two-year-old child (C). H is offered a promotion conditional on his moving to New York for a four-year assignment. W is excited about the prospects of living in the Big Apple but is sad that she will have to leave her teaching job.

Three years later their entire world has changed. H is thrilled with his assignment, loves his job, thrives on being independent of head office and has adapted well to life in New York. His "only" problem is that W is having an entirely different experience.

W is lonely, isolated and miserable. She does not work and is upset that her German teaching qualifications are not transferable to the U.S. She misses her family and her friends in Germany. She has experienced far more culture shock than she expected. While her language skills are reasonably good, she is finding that English is far more difficult than she realized. She has no one to complain to -- except H, and when she does, H becomes increasingly impatient.

The relationship between H and W has spiraled downward. H comes home later and later. He ultimately has an affair and a divorce and custody case ensues. H announces that he wants to stay in New York, while W wants to go back home to Germany with C, who is now a happy and healthy five-year-old. W is shocked that H refuses to allow her to take C back to Germany. She feels that he cheated her by dragging her to a foreign country and then refusing to allow her to return home with her child. She is furious that he does not appreciate the sacrifices that she has made for his career, that he has broken his vows of fidelity, and that he is shockingly compounding his betrayal by forcing her to live in an alien country without support, family, friends or career.

In court, H opposes relocation on the grounds that C has lived most of his life in New York; all of C's friends are in New York; and C is thriving there, except for the fact that W is moody and silent. H contends that W is being selfish in wanting to take C away from his father to Germany, a place that C does not remember, and away from everything that C knows in his home in New York. H's argument is compelling and often is the winning one, especially if the focus is on C to the exclusion of W. While the court may acknowledge that a happy mother is a better mother, the court often gives more weight to the fact that the couple and their five-year-old child have spent three years in New York.

The Romantic Expat

A "romantic expat" is someone who moves from his or her home country for romance. Perhaps H from Chicago meets W in Japan and convinces her to marry him and move to Illinois. They have a baby, C. Life in Illinois is not what W expected. Americans are "rude, pushy and inconsiderate." Public transportation in Chicago is inconvenient and unpleasant, and she is scared to drive on the busy roads. She has made no friends except for a couple of Japanese women who were on temporary assignment with their spouses and who have been fortunate enough to have gone back home to Japan. She misses her family and friends and finds it hard and stressful to speak in English. She worries that C is being raised as an American and not as a Japanese.

Inevitably the marriage breaks down, and W wants to go back home to Japan with C, who is now aged three. She is shocked when H insists that she cannot do so; after all, she came to this country only because of H and now that he has "let her down," she cannot understand why he wants to keep her a prisoner here.

In court, H presents all of the arguments that the husband in the previous "trailing spouse" scenario presented, with the additional factors that: 1) C has lived his entire life in the U.S.; 2) relocation will remove C not only from H but also from H's family, with whom C has become attached; and 3) Japan has only recently become a party to the Hague Abduction Convention, does not enforce foreign custody or access orders, does not endorse shared parenting and does not effectively acknowledge a foreign father's right to play a significant role in the life of his children.

Holdover Expats

A "holdover expat" is one who left his or her home country for a temporary period of time, perhaps coming to the U.S. to study or on a work assignment. After some years here he or she has a love affair in the U.S. and decides to stay here.

Perhaps W is from Colombia, came to study in Florida intending to return home when she had a degree. After a couple of years here, she met and married H who asked her to stay in Florida. Their child, C, is two years old when they decide to divorce. Again, W wants to go back home with C, but H is opposed to relocation. H uses the same arguments as the husbands used in the two prior scenarios, but with the added factor that W was already living in the U.S. when H met her and has lived in the U.S. for a longer period of time than the other wives.

TYPICAL JUDICIAL RESPONSE

In all three scenarios, H's arguments are compelling and they often succeed, especially if the focus is on C, to the exclusion of W. As mentioned above, while the courts may acknowledge that a happy mother is a better mother, that consideration is typically trumped by the fact that C lived or remained in the U.S. The courts will focus on the "best interests" of the child without fully appreciating the drastic impact that the mother's unhappiness and often justifiable bitterness will have on the child's well-being. Not only are the mother's concerns insufficiently understood, they are often labeled unfairly by lawyers and judges as selfish, irrational, crazy and obsessive. In each scenario the mother is the primary caregiver. She is the one who is typically required to choose between abandoning her child and abandoning her family, friends, career and culture in her home country. It is difficult not to feel great sympathy for her predicament, especially if she is the one who has been abandoned.

RESULTS OF DENIAL OF RELOCATION APPLICATION

Denial of an application for relocation can have severe and devastating consequences. A typical downward spiral is as follows: 
- The mother feels that she is imprisoned in this country. 
- The mother considers abducting the child.
- The father increasingly fears that the mother will abduct the child. 
- Each parent tries to increase his or her control over the child. 
- The mother takes steps to take the child to her home country. 
- The father makes an emer-gency application to court to prevent abduction. 
- The court issues an order pre-venting the mother from leaving the jurisdiction. 
- The relationship between the parents is completely destroyed, to the substantial detriment of the child. 
The consequences may then include: parental alienation; criminal child abduction; Hague Convention litigation; enormous expenditures on legal fees; parental inability to agree on anything; and increasing police and judicial intervention, all of which cause awful consequential damage to innocent children.

A PLEA FOR UNDERSTANDING

There is no quick and easy solution to these problems. However, a starting point is to understand better the plight of the expatriate spouse. In my experience, clients who wish to return to their country of origin in situations such as these often find that their lawyers and, therefore, the courts, do not adequately appreciate the extent of their plight and the merit of their cases. Many such spouses complain with justification that they are treated as difficult, uncaring or crazy, even by those who are supposed to be helping them. It is essential to understand what it is that these people are going through and to appreciate -- and communicate effectively to the court -- that their responses are the natural and typical consequences of the situations in which they have been placed.

Such understanding exists in the business world, where it is commonly accepted that spouse/partner dissatisfaction and other family concerns are the most significant cause of "expatriate assignment failure" -- defined as "the inability of an expatriate to perform effectively in a foreign country and, hence, the need for the employee to be fired or recalled home. See, e.g., Relocation Trends Surveys, a wide-scale, yearly report issued since 1993. International companies now devote substantial resources to what I have termed the "plight of the expatriate spouse." The legal system should encourage similar understanding.

A POSSIBLE SOLUTION

In many of the cases with which I have dealt -- representing mothers and fathers, both expats and local natives -- it would have been far better if the parties had agreed -- or if the judges had ordered -- a fair, appropriate and enforceable compromise solution.

If the other country has a developed and effective legal system, child custody laws that reflect a similar philosophy to ours, and strong laws to prevent international child abduction, an appropriate solution might include the following terms: 
- Authorizing W to relocate with C once specific conditions have been fulfilled; 
- Requiring extremely generous visitation of C with H; 
- Requiring daily Internet contact, with webcams, between H and C; 
- Providing for joint decision-making between H and W as to all important matters affecting C; 
- Requiring W to obtain an order from the court in her home country that mirrors the terms of the order in H's jurisdiction, that acknowledges that the court in H's jurisdiction has continuing exclusive jurisdiction concerning all matters as to C's custody and visitation, and requiring the appropriate authorities in W's home country to enforce such orders; and 
- Imposing a significant penalty on W if she fails to comply with the order, including a severe financial penalty. This might take the form of a substantial bond or a reduction or suspension of financial support. Or a substantial portion of the assets being divided upon divorce might be held in escrow. 
Such a solution is far from perfect, but it would often be far better than the present policy in many courts of routinely denying most international relocation applications even in compelling cases.
EXPERT TESTIMONY ESSENTIAL
Expert testimony as to the laws and practices of the foreign country concerning international child custody is generally absolutely essential in such cases.

Jeremy D. Morley handles international child custody cases globally, always acting with local counsel as appropriate. He also frequently appears as an expert witness in courts in the United States, Canada and Australia on international child custody matters. He has provided expert evidence as to the international child custody law and practice of many countries, including Brazil, Bulgaria, China, Colombia, Czech Republic, Egypt, England, France, Germany, India, Indonesia, Italy, Japan, Jordan, Kuwait, Lebanon, Malaysia, Mexico, Morocco,  Pakistan, Poland, Qatar, Russia, Saudi Arabia, Syria, Singapore, Taiwan, Turkey, Venezuela & UAE


Wednesday, September 03, 2014

Preventing International Child Abduction

By Jeremy D. Morley

American Bar Association GP SOLO, 2011, Vol. 28, No. 3

International family law is expanding as people travel more and spend time with people from different countries. International personal relationships produce an abundance of conflict and litigation. It is hard enough for people to live together when they share a similar background, but it is far harder when they are from different countries, cultures, religions, ethnicities, educational experiences, languages, traditions, and family structures. The resulting pressures may become especially acute when international couples have children and disagree about such matters as child-rearing methods, the role of in-laws, proper education, religious issues, and ultimately the desire of one of them to take the children “back home” to his or her country of origin.

When international personal relationships dissolve, the legal work is often extremely challenging. I have focused on such work for many years and have found it a great way to leverage my international know-how and experience gained as an Anglo-American national with a Japanese wife and children of various citizenships, who has lived, worked, studied, and run businesses around the world and who has taught law on three continents.

The financial aspects of international family law disputes are often complex and difficult to resolve. But when children are the subject of such disputes, the challenges are often greater and the emotions generally run far higher. Simply put, money can be divided but children cannot. Divorcing parents who stay in the same town can often make sensible arrangements to share the parenting of their children, and if they cannot, a local court can issue appropriate orders and also enforce them as needed. But when the parents cannot even agree on which country to live in, all bets are off.

I represent many parents who live in desperate fear that the other parent will abduct their child to another country and that they will never see the child again. I also represent many parents who desperately want to “go home” with their child to their country of origin.

 What Law Governs?

When an international client asks as basic a question as, “What law governs our case?” the answer may well be far from clear. We must often advise that it will depend overwhelmingly on which court—or courts—will have jurisdition over the case. Although the courts in the state in which the child is currently located have exclusive custody jurisdiction from their own perspective, if the child is taken to visit another country, the courts there will often have jurisdiction under the local law of that country to determine what is best for the child. In addition, these cases often have a strong international law component: More than 80 countries, including the United States and most developed countries, have adopted the Hague Convention on the Civil Aspects of International Child Abduction, which requires that children who have been “wrongfully taken” or “wrongfully retained” overseas should normally be returned promptly to their country of habitual residence.

In practice, international child custody cases often yield complex and messy conflicts between the laws and courts of different countries, demonstrating serious clashes of societal views about culture, religion, gender roles, parental rights, and children’s rights, as well as of the role of the legal system in intervening in disputes about children.

Prevention of Abduction

An increasing number of cases involve the prevention of international child abduction. Let’s assume that you receive a frantic call from a client somewhere in the United States, who tells you, “I’m sure my spouse is about to take our child to [India/Japan/China/Colombia/England/
Germany] and they will never come back. Please help!” What do you do?
Your initial advice may well be purely practical. It will be designed to prevent the immediate threat.

Some issues to cover are:

  •    You must discuss the passport issue. Most likely you should talk about how to secure the child’s passport. You might discuss the location of the other parent’s passports (recognizing that it is that person’s property). You will need to alert the client to the fact that control over passports does not create complete security because many foreign consulates issue renewal passports or other travel documents to their own nationals, without requiring the consent of the other parent and frequently even in the face of a U.S. court order. You should discuss how the U.S. State Department’s Office of Children’s Issues might help ensure that no new U.S. passports are issued.

   •    You should talk about how to track the child’s whereabouts. Who can watch the child? Should you alert school authorities? What about placing a GPS tracking device in the child’s clothing or cell phone? What about alerting the police or hiring a private investigator?

  •    Perhaps your client should contact the airlines to discover if the other parent has bought airline tickets for the child. Perhaps you should write to the airlines to demand that they prevent the child from boarding.

  •    You should discuss whether your client should contact other family members about the issue and what to say to them.

   •    You should advise your client how to instruct the child as to what to do in case of an emergency.
 
•    You should advise your client about collecting and securing evidence for a potential court hearing.

You may well want to secure an emergency restraining order very promptly from the family court. An initial temporary order should be easy to secure, but it will be far more difficult to keep such an order in place over the long term or to ensure that it has sufficient teeth to be effective. The United States has no exit controls, with certain exceptions, and a mere court order will not trigger the kind of effective checks that other countries have in place to prevent children from being taken out of the country by one parent or family member. Ideally the short-term solution should be to give sole custody to your client and to require that any access by the other parent be strictly supervised.

Burden of Proof

The long-term burden will be strongly on your client to present compelling evidence sufficient to justify what the court will likely see as extraordinary relief. That evidence must be of two distinct types. First, you must establish that the other parent represents a serious risk of being an international child abductor. Second, you must show, if appropriate, that the foreign country’s legal system will not return an abducted child at all or will do so only after great delay and expense. There will be a significant interplay between these two factors. The more that you establish a strong likelihood that the other parent will abduct the child, the less evidence you should need that the country in question presents a high degree of risk. So if the potential country is one such as England or New Zealand, which have strong and effective laws and systems in place to return abducted children, you will likely need very strong evidence of an anticipated abduction. Conversely, if the country presents an obviously greater risk of not returning an abducted child (think Japan or Venezuela), much less evidence of the likelihood that the particular parent will be an abductor should be required.

Your evidence concerning the specific parent should focus on establishing as many of the so-called risk factors as possible. These factors are well established and have been codified in the Uniform Child Abduction Prevention Act (UCAPA). The most compelling evidence would be clear proof of a threat to abduct. Surprisingly, some parents make explicit threats in e-mails. More typically you will need to build a circumstantial case based on such factors as the parent having moved money overseas, vacated a residence, made international job inquiries, retained few ties to the United States, or kept strong connections to the foreign country and community, or being disdainful of the United States.

In order to show that the foreign country’s legal system will not return an abducted child at all or will do so only after great delay and expense, you will start with the Hague Convention. It will be highly significant if the country has not signed the Convention or if the United States has not accepted its accession. However, just because a country has signed the Convention does not mean that it will enforce it. As a signatory, Mexico is obliged to return abducted children promptly; in reality, it does not do so, as the U.S. State Department has repeatedly reported.

Likewise, just because a country has not signed the Convention does not necessarily mean that it will not return abducted children. For example, Singapore has not yet acceded, but its courts follow the spirit of the Convention.

Frequently you will need to ask the court to consider and evaluate the real facts as to a country’s legal system. Generally speaking, U.S. judges are extremely uncomfortable evaluating another country’s legal system and predicting the results that may be expected of a case overseas. Although such reluctance is perfectly understandable, it must be overcome. It is absolutely essential in this area that judges should not shirk from their responsibility to judge whether or not a child is likely to be returned from abroad if a parent or others in his or her family decides to keep the child in that country.

How do you prove that a foreign country’s legal system in international child custody cases is ineffective, corrupt, or slow? How do you establish the extent to which the courts in another country will recognize and enforce foreign—and especially U.S.—judgments, particularly in the family law area? Or the extent to which discrimination—sexual, religious, ethnic, or national—might impact the issue in the courts of that country?

And how do you convince a court that it is both appropriate and necessary for it to act as a judge of the legal systems in place in other countries?

Expert testimony is the key. For example, in a recent case in Ontario, Canada, a mother sought to prevent the child’s father from taking the child to visit his family in India. Counsel for the mother presented my expert affidavit as to India’s law and practice concerning international child abduction to that country. Based on my experience with similar cases and my research on , I opined that if the child were kept in , the authorities  there would be most unlikely to secure his return. The court ultimately decided to prevent the proposed visit, relying primarily on my expert opinion, which, it said, “unequivocally outlined the many challenges, frustrations—and indeed roadblocks—which the Applicant would face in attempting to secure [the child’s] return if the Respondent elected not to return the child from India.”

 The Court of Public Opinion

Publicity may sometimes be helpful. In 2009 my client’s children were abducted from Tennessee to Japan. The Tennessee court then gave sole custody to my client, who went to Japan and tried to bring the children home to America. Instead, he was jailed in Japan. We quickly launched a high-profile campaign to secure his release and to highlight the fact that Japan is a haven for international child abduction. The client was then freed. While he has not seen his children again, at least the world now knows of the problem. The U.S. House of Representatives has now condemned Japan in extremely strong terms, and the Office of the Secretary of State has now joined with a host of other countries in demanding that Japan change its laws and sign the Hague Convention. One extremely constructive result of the campaign is that judges are now far more aware of the dangers of allowing children to be taken to particular countries if there is a real reason to suspect that the child may not be returned—and are aware of the firestorm of publicity that such cases can elicit. In subsequent cases concerning Japan, this has enabled me to be far more successful than before in persuading courts to prevent children’s visits to that country.

Representing the Other Parent

What if you are representing the other side in these cases? Perhaps your client genuinely wants to take the child for a limited family visit to his or her country of origin. Or perhaps your client came recently to the United States from another country with an American spouse, and now that the relationship is over wants to “return home” with the child.

In any such case you will need to explain how the U.S. legal system works in the area of child custody. Often you will need to encourage the client to use the system and to explain the grave dangers of disrespecting that system. The client will often say, “It’s my child. I’m the one who looks after him. The other parent is never around. Why on earth should I have to go to court to ask for permission?”

You may well need to discuss with the client that acting unilaterally might lead to a criminal as well as civil difficulty. For example, the International Parental Kidnapping Crime Act of 1993 makes it a federal felony to remove a child from the United States with intent to obstruct the lawful exercise of parental rights. Once a federal warrant is issued, Interpol may issue a “red notice” seeking the person’s arrest wherever found.

If a client tells you that he or she intends to covertly take and retain a child overseas, you need to exercise great care—you may have a duty to report the planned felony to the police, notwithstanding the attorney-client privilege.

In presenting an application to a court for a temporary visit with a child overseas, you will present those facts and those arguments that show that the client is unlikely to abduct and that the country in question is one that respects U.S. custody orders and returns abducted children. In a case for an Italian client living in New York, I offered testimony that Italy was in full compliance with the Hague Convention and that its performance was significantly better than that of the United States. The court accepted my expert testimony and authorized the visit.

If the request is for relocation, the burden of proof on the applicant is far higher. Domestic child relocation cases are generally difficult to win, and international relocation cases are much more so. They often require lawyers to present evidence as to the legal, social, cultural, political, economic, religious, and educational environment of a foreign country and, in particular, as to whether a U.S. custody order will be recognized and enforced in that country. It is generally a major mistake for a lawyer to present any such case without having worked intensely with the client to prepare an attractive relocation package. The plan should demonstrate the serious steps that the parent has taken to secure optimal conditions for the child and the client in the proposed new location. Equally important, it should establish that the taking parent will not merely permit the left-behind parent to participate in the child’s life but will actively encourage and genuinely promote such ongoing
contact.

Conclusion

In this article I have been able to provide no more than a brief introduction to a fascinating area of the law. International child custody cases are always stimulating and sometimes extremely frustrating. But when a client e-mails to say, “Thanks to you, my children are safe” or “Blessings, thanks to you, I got the kids back,” they can be the most rewarding cases of all.