Thursday, April 17, 2014

Do We Have Enough Sensible Malays? Zaid Says Unable To Answer A Definite ‘Yes’

KUALA LUMPUR: Datuk Zaid Ibrahim lamented today the lack of empathy among fellow Malay-Muslims towards non-Muslims caught in inter-religious child custody tussles.
The former de facto law minister pleaded with the Malay-Muslim majority to put themselves in a non-Muslim’s shoes and to imagine if hypothetically, the law allowed a non-Muslim parent to convert a Muslim child to Hinduism or Christianity without the consent of the Muslim spouse.
“Sensible Malays are those who will not do to others what they do not want done to them,” Zaid wrote in a blog post today titled “What sensible Malays should do”.
“Today, Malays do not seem outraged that a mother can’t have custody of her own son—even with a High Court order—just because she is Hindu.
“Instead, Malays seem to be supportive of the father who became a Muslim and took the son away illegally, telling everybody of course that it was to prevent his son from being converted to Hinduism,” he added.
Zaid questioned the mindset of many Malays who have taken the side of Muslim parents in inter-religious marital disputes.

“Do we have enough sensible Malays in the country? I’m afraid it’s a difficult question and, as a Malay, I feel embarrassed that I am unable to say a definite yes.”
Last week, a Hindu mother, S. Deepa, won full custody of her two children ― a nine-year-old daughter and a six-year-old son — at the Seremban High Court.
But her estranged husband, a Muslim convert born N. Viran who now goes by Izwan Abdullah, had snatched the boy from the mother two days later, insisting he too had full custody as awarded by the Shariah Court, after he converted their children to Islam last year without his wife’s consent or knowledge.
The police have refused to act on Deepa’s abduction complaint against the child’s father, with Inspector-General of Police Tan Sri Khalid Abu Bakar citing the two conflicting court orders as the reason.
Zaid said today that a generation ago, Malays would not have condoned such a “travesty of justice”.
“Malays of the past would have had no difficulty accepting that changing the religion of a child requires the decision of both parents (or guardians). It’s just common sense.
Malays of the past would not have accepted the proposition that a single parent could unilaterally change the religion of a child against the wishes of the other parent. Those Malays had no difficulty following the law that enabled the child to decide what his or her religion was upon reaching the age of 18,” he added.
The former minister who had served in the Abdullah administration told The Malay Mail Online earlier today that the Federal Constitution was clear that the consent of both parents is required to convert their child’s religion.
He also called the government “weak” for not enforcing the country’s supreme law, pointing out that proposed amendments to the Law Reform (Marriage and Divorce) Act 1976 and the Islamic Family Law have yet to be tabled in Parliament since they were mooted five years ago.
According to Zaid, Putrajaya had proposed the amendments to ensure that a child keeps the religion they were born with until they turn 18, if both parents cannot agree on converting the child, and to ensure that maintenance and custody disputes are handled in the court in which the marriage was registered, even if one spouse embraces another religion later on.
“I am still Malay and I hope more Malays will not be cowards like our leaders. They must speak up for justice and the principle of fairness to all,” Zaid wrote on his blog.

-The Malay Mail

For more information on Malaysian Family Law, please see our page at:

Tuesday, April 15, 2014


Jeremy D. Morley

On March 21, 2014 Iraq acceded to the Hague Abduction Convention, with no reservations, declarations or notifications.
On April 14, 2014 the Ministry of Foreign Affairs of the Republic of Iraq issued the following announcement:
A celebration took place in the headquarters of the Peace Palace in The Hague for the countries that have recently joined the Hague Convention, including the Republic of Iraq on the Civil Aspects of International Child Abduction in the presence of a number of ambassadors and representatives of States in The Hague.

Mr. Joseph Damoaso Chairman of the Department of treaties in the Dutch Foreign Ministry presented the Iraqi Ambassador in The Hague, Dr. Saad Abdul Majid a document to support the Government of Iraq's accession to the Convention attached with the text of the Convention.

Mr. Damoaso thanked the Government of Iraq for its commitment to the agreements that guarantee the rights of the child and the family and is working to strengthen the foundations of the democratic system.

In turn, Ambassador Dr. Saad Abdul Majeed emphasized that Iraq's accession to this agreement reflects the image of the new Iraq, and its belief in the principles of justice and international peace.
Iraq’s accession has not yet been accepted by the U.S. Government. Accordingly, as of today’s date the Convention is not in force between the United States and Iraq, and child abductions from or to Iraq and from or to the United States are not yet covered by the Convention.

Friday, April 11, 2014

Court hands win, loss to Hackensack law firm, Hasbrouck Height's dad seeking girl's return from Spain


An appeals court has reversed a $424,000 award to the daughter of a Hasbrouck Heights man who sued a Hackensack law firm, claiming its release of her passport allowed the girl to be kidnapped to Spain by her mother in a bitter matrimonial split.
At the same time, the state Appellate Division panel affirmed a jury’s 2011 verdict awarding $700,000 in damages from the law firm for emotional distress to the father, Peter Innes, plus $292,332 in interest and attorneys fees.
“Innes’s testimony was sufficient to permit the jury to award him emotional distress damages proximately caused by defendants’ breach of their duty,” the Superior Court appeals court said in a 67-page opinion filed Monday. “The loss in this case was particularly personal in nature — the inability of a father to see his daughter for many years, and the likely prospect that he may never see her again,” it said.
The judges, however, said they were compelled to reach a different result with the award on behalf of his daughter, Victoria: “There was simply no testimony regarding her emotional distress, meaning the jury’s award was based upon speculation,” the opinion said.
“I am very happy the appellate court agreed that these lawyers had no right to surrender my daughter’s passport and that their actions were a violation of their professional rules of conduct,” Innes said Tuesday.
He added he was disappointed the judicial panel vacated the damages, interest and legal fees awarded to his daughter in the suit against the firm Lesnevich & Marzano-Lesnevich.
“Because she is concealed from me in Spain, I could not offer any proof of her emotional harm. However, I think it goes without saying that a 4-year-old child, who is taken from her father, is certain to have been emotionally harmed,” he said.
Walter A. Lesnevich, a partner in the Lesnevich & Marzano-Lesnevich firm, said the firm, which appealed the original awards, intends to press a bid to overturn the Innes award to the state’s highest court.
“This is just the interim decision,” he said of the appellate ruling. “We’re appealing to the Supreme Court to remove the rest of the award. So it’s got another year at least to go.”
Innes said he does not think that he will he will pursue a further appeal.
The May 2011 verdict stemmed from an acrimonious matrimonial dispute between Innes and Maria Jose Carrascosa, a native of Spain. The couple separated in 2004 after a five-year marriage. The two signed a parenting agreement in October 2004 to take care of their only daughter, who was 4 at the time. The agreement prohibited either party from taking the child on an international trip without the consent of the other parent. As part of that clause, Carrascosa’s attorney was obligated to hold Victoria’s American passport in trust.
After Carrascosa changed lawyers, Madeline Marzano-Lesnevich, a partner at the Hackensack firm, turned over the passport to her in December 2004. A month later, Victoria was on a plane to England with her grandfather and then on to Spain, where she remains.
A Superior Court judge in Hackensack, meanwhile, granted full custody of the child to Innes and ordered the mother to bring the child back to New Jersey. Carrascosa refused, arguing that the Spanish courts have jurisdiction over the case. The courts in Spain ruled that Victoria cannot leave the country until she is 18.
In 2006, Carrascosa, an attorney admitted to practice in the European Union, returned to New Jersey and was arrested for contempt of court. Bergen County prosecutors later charged her with criminal interference with child custody. She was convicted and is now in the eighth year of a 14-year prison sentence.
Innes, who runs a small graphics design and advertising company, said he has fought in state and federal courts and in Spanish courts to be reunited with his daughter. “I blame a lot of this on the Lesnevich lawyers, who the jury said, and the appellate court agreed, had absolutely no right to give up my daughter’s passport. That act of giving up the passport is what enabled my daughter to be abducted,” he said. “I’m hoping maybe this money allows me to hire another lawyer in Spain and fight for my daughter over there,” he said. He added that his daughter, who he hasn’t seen since she was 4½ , will turn 14 this month. “My daughter was abducted over nine years ago. It’s been a long strange trip through the legal system in two countries. But in the end, I know that everything I’ve done has been with my daughter’s best interest at heart, and I am certain that someday she will understand that.”

Wednesday, April 09, 2014

Important Indian Ruling on India’s Notorious Section 498A Law

Jeremy D. Morley

In an important ruling on India’s notorious “Section 498A law” (see, the Bombay High Court has ruled that a wife who made unsubstantiated allegations in a criminal case that she initiated against her husband and family under Section 498A of India’s Penal Law has thereby committed acts of cruelty sufficient to provide a ground for the husband to divorce her [Mr. M v. Mrs. M, Family Court Appeal No. 71 of 2006, decided on 7th February, 2014].
Section 498A makes it criminal for a husband and his relatives to subject a married woman to cruelty is which is likely to drive a woman to commit suicide or cause grave physical or mental injury to her, and harassment with a view to coercing her or any of her relatives to meet any unlawful demands of property.
The problems with the law were the result of a “perfect storm” that was entirely unanticipated when the law was introduced to protect woman in 1983. The elements of the storm included:

     - Extremely vague statutory language.

     - A separate law that prohibited the provision or acceptance of a dowry.

     - A custom that has been difficult to eradicate of a bride giving a dowry upon marriage.

     - A law that may only used by women against men.

     - A provision that extends criminality to any of the husband’s allegedly-participating relatives.

     - A police force that is notoriously corrupt.

     - A law that in the past allowed for the immediate arrest of the husband and members of his family by the police on the basis of a woman's complaint.

     - A provision that the offense was non-bailable.

     - A domestic relations procedure that is extremely cumbersome and in many ways unworkable.
The result has been that when a marriage breaks up the woman is often able to get her husband and many of his family members arrested by simply filing a claim of cruelty and persuading the local police to arrest the so-called wrongdoers. This is much more effective than initiating an ordinary case for divorce. In one famous case, the Supreme Court of India described such conduct as “legal terrorism.”
The wife had made two serious allegations against the husband and members of his family, which the alleged ill-treatment had resulted in her arthritis and had led to her father's death from shock.
In the new case, the Court ruled that the husband had established that the respondent could not substantiate the allegations of cruelty in the criminal trial and that, between 2001 and 2004, he and his family members were required to attend 56 court hearings before they were ultimately acquitted.
The Court stated that, considering the manner in which the criminal case proceeded, the respondent and his family members were subjected to humiliation, trauma and agony.
For this reason, the Court held that the conduct amounted to mental cruelty to the husband and therefore set aside a Family Court order that had denied a divorce to the husband from his wife.
However, while the ruling is sensible, it must be pointed out that it occurred in 2014 – 14 years after the wife’s misconduct was initiated. The wheels of justice turn slowly in India.

Tuesday, April 08, 2014

Morley’s Expert Opinions as to India’s Child Custody Laws and Sec. 498A of India’s Penal Code Upheld in California

A California court has upheld my expert evidence on the child custody laws of India to the effect that if a child is taken to and wrongfully retained in India it will generally not be possible to secure the child’s prompt return from India.  
The Court also found that any effort to seek the assistance of the Indian courts would be extremely slow and expensive, and would most likely be ultimately unsuccessful. Accordingly, the court denied the mother’s move-away application.
In refusing to permit the move-away, the court rejected the opinion of an Indian lawyer who sought to refute my opinions.
My opinions also concerned the impact on the child’s father of a case brought by the mother under the notorious Section 498A of India’s Penal Code. I opined that the initiation of a Section 498A case or even the threat of such a case creates a real and distinct danger for a non-resident Indian husband who is engaged in hostile divorce or custody proceedings in India with an alienated wife of Indian origin.

Wednesday, March 19, 2014

Japan: Lawmakers launch group to ensure visitations after divorce

More than 40 Japanese lawmakers set up a group Tuesday with an aim to enact legislation to ensure visitations between children and their parents separated due to divorce or marital disputes in Japan.

The lawmakers from both ruling and opposition parties will strive to prevent severance of the parent-child relationship for the child's best interest, as more than 150,000 children in Japan every year are estimated to lose contact with noncustodial parents following divorce.

Japan adopts the sole custody system and the country's courts tend to award mothers custody. It is not unusual for children to stop seeing their fathers after their parents break up.

At the first meeting of the parliamentarians' group, Minoru Kiuchi, a ruling Liberal Democratic Party member of the House of Representatives, said that not being able to meet with their own child would "violate the human rights of fathers."

Kiuchi referred to his own experience of being temporarily separated from his children in the past due to a dispute with his wife.

A group of parents separated from their children urged the lawmakers at the meeting to increase the frequency of visitations, ban parental child abductions and oblige couples to work out a joint parenting plan for their children when they get divorced.

According to a government survey on visitations in fiscal 2011, 23.4 percent of 1,332 single mothers and 16.3 percent of 417 single fathers said they have agreed on a scheme of exchanges between children and their separated parents.

As for the frequency of visitations, 36.5 percent of 603 single mothers and 42.3 percent of 225 single fathers said their children have met with nonresident parents more than once a month.

LDP lower house member Hiroshi Hase, who heads the secretariat of the lawmakers' group, said that members will meet once a month and conduct fact-finding surveys before starting work to craft a new law.
The members will also promote awareness among the general public that it will be desirable for children to maintain access to both parents, he said.

Wednesday, March 05, 2014

Supreme Court New Hague Abduction Convention Ruling

The U.S. Supreme Court has today, in Lozano v. Montoya Alvarez, upheld the Second Circuit ruling that the one year period in the “one year and settled” exception to the Hague Abduction Convention is not subject to equitable tolling. 

The decision is not surprising since that is what the treaty provides and the American equitable tolling gloss was not contemplated in the Hague drafting process and has only been applied in this country. 

What is refreshing in the opinion of Justice Thomas is his use of international authority as the key basis for the decision. 

Justice Thomas relied significantly on case law from England, Canada, New Zealand and Hong Kong in reaching the conclusion that the U.S. reliance on equitable tolling was out of the international mainstream and inappropriate.

Now, if only the Supreme Court would bring the U.S.’s crazily conflicting and confusing interpretations of habitual residence in Hague cases into the international mainstream!

Monday, March 03, 2014

Russia to establish special courts for international kidnapping cases

17:08 03/03/2014
  MOSCOW, March 3 (RAPSI) – Russia will establish special courts to adjudicate cases involving international kidnapping cases, Deputy Minister for Education and Science Veneiamin Kaganov told RIA Novosti Monday.

In 2011, Russia joined the International Convention on the Civil Aspects of International Child Abduction, which aims to facilitate the immediate retrieval of children unlawfully transported to any of the 87 member states of the Convention.

Earlier in February, the Russian State Duma passed a bill establishing a review procedure for cases concerning the return of children, and granting custody rights. 

Russia has seen a number of international custody rows, including several with France and Finland.
Irina Belenkaya, a Russian national accused of kidnapping her daughter and orchestrating an attack on her ex-husband Andre, received a two-year suspended sentence in a French court in 2012. The couple has been embroiled in a bitter custody battle resulting in their daughter Elise being "kidnapped" back and forth three times in 2007-2009. Andre was awarded custody by a French court after their divorce in 2007.

Several similar cases have arisen in Finland following the introduction of a 2008 law stating that children should be taken from their families immediately, where mistreatment is suspected.

Rimma Salonen's case was one of the first public scandals to emerge involving Russian-Finnish children.
After Salonen brought her son Anton back to Russia, he was again returned to Finland in the trunk of a diplomat's car three years ago by his father Paavo Salonen and diplomat Simo Pietilainen, who have escaped criminal liability in Finland. Rimma Salonen was deprived of her parental rights by a Finnish court and received a suspended sentence for abducting her son after her divorce from Paavo.

Friday, February 28, 2014

English Prenuptial Plan Ill-Considered

Jeremy D. Morley
I believe that the U.K. Law Commission’s hot-off-the-press proposal about prenuptial agreements in England and Wales is somewhat ill-considered.
The reason that parties who marry want prenuptial agreements is to create security as to the financial terms of their future relationship and to avoid the potential expense, intrusiveness and uncertainty of litigation concerning the financial aspects of their potential divorce. That is particularly so in England, whose divorce courts are renowned for applying the loose term of “fairness” in unpredictable and expansive ways.
Unfortunately, while the Law Commission has proposed that prenuptial agreements will be enforceable in England and Wales, it has also proposed an exception insofar as such agreements do not satisfy the “financial needs” of the parties. The exception might appear at first blush to be innocuous and sensible. In fact, however, it would create a gaping chasm of uncertainty that would undermine the basic goals of predictability, simplicity and autonomy. The proposed exception is so broad and its terms are so vague that no one will really know how it might be applied to the facts of any particular case. The Law Commission proposes some kind of non-binding “guidance” about “needs” to assist decision-makers in their task of interpreting that term in specific cases, which serves to underscore the fact that there will be substantial uncertainty under its proposal as to what the exception will include and how it will be applied.

The result may well be as follows:
a. Prenuptial agreements will be far more expensive than would otherwise be the case because lawyers will need to analyze the parties’ current and prospective circumstances in order to be able to provide any kind of useful advice, and will need to draft contracts with loose terms and enormous disclaimers in order to handle such uncertainty.
b. Prenuptial agreements will be of limited value. Current English law provides that the financial needs of the parties are the basis upon which the English courts decide the financial side of divorce cases in England unless the parties have more financial resources than is required to cover all of their “needs.”  Since prenuptial agreements cannot be less generous than the courts would apply in a needs case there may be little or no point in going through the trouble and expense of entering into any such contract.
c. Prenuptial agreements will probably have to include provisions that are even more generous than current “needs” might suggest. It is impossible to guess the financial circumstances that parties will be in at the time of a potential divorce years down the line. Therefore it will be impossible to come up with specific financial terms that will satisfy a test which is based on future circumstances. Alternatively, prenuptial agreements will require broadly written exceptions that will be entirely unpredictable as to their potential application.
d. The role of the courts in the financial aspect of divorces will continue to be vast, intrusive and expensive, since unhappy litigants will always claim that their needs have not been met.
e. There will continue to be a substantial incentive for forum shopping, since courts in most of the rest of the world may well enforce prenuptial agreements far more liberally, reliably and usefully than the courts in English and Wales.

The Law Commission’s fundamental mistake stems from the fact that it does not trust the parties to make sensible agreements. It believes that the judiciary should continue to act in a quasi-parental capacity to oversee the decisions made by adults who purposefully, deliberately and freely enter into contracts that will define the financial terms of their relationship.
Quite appropriately the Commission’s proposal contains substantial provisions to ensure that any prenuptial agreement must be entered into with the parties’ eyes wide open. Thus, it proposes that there should be a gap of 28 days between the execution of the agreement and the date of the marriage; that disclosure of “material circumstances” should be required (although this term is hardly defined in the proposal); and that the parties should have legal advice (presumably independent advice) before signing the contract. However, the Commission then proceeds to carve out the mammoth exception of “financial needs” in order to make sure that consenting adults do not sign silly agreements.
It is important to point out that the exception would not be limited, as many other jurisdictions provide, to periodic spousal support.  It would also extend to the assets of the parties, and unlike most other jurisdictions that will include pre-marital as well as post-marital assets.
I am not usually a flag-waver for the jurisdiction in which I practice but, in the case of prenuptial agreements, I think that New York has got it about right. Our statute provides, in essence, that properly-executed prenuptial agreements are binding absent “unconscionability,” which requires proof of inequality that is “so strong and manifest as to shock the conscience and confound the judgment of any [person] of common sense.” A lower standard is reserved for terms that limit spousal maintenance, which will be upheld if “fair and reasonable at the time of the making of the agreement and … not unconscionable at the time of the [divorce].” While mere fairness is required, it is measured at the time the contract is made so that the circumstances then in existence can be sensibly evaluated at that time. In addition, unlike England, spousal support is always periodic in New York and is invariably time limited at the outset. There is a clear and very strong public policy in New York favoring the right of parties to set their own terms when they marry but there will be greater scrutiny if there has not been adequate disclosure of financial matters before marriage or independent legal representation or a reasonable gap between the presentation of a prenuptial agreement, its execution and the parties’ marriage. The result is that New York prenuptial agreements are relatively easy to draft, relatively inexpensive, and extremely useful since they are invariably upheld if properly drafted. We are able to advise clients sensibly and predictably.
In sharp contrast, the U.K. Law Commission proposes to create a prenuptial regime that retains an excessively paternalistic role for the English courts that is likely to lead to excessive litigation, complicated agreements and unpredictable results.

Friday, February 21, 2014

Cayman Islands: Family court rulings made public

Family court rulings made public
Local courts buck long trend of secrecy
20 February, 2014

Court cases involving child custody, adoption and divorces heard in the Cayman Islands Grand Court, Family Division are – in certain instances – now being made public once a judgment is rendered.

To protect the identities of the parties involved, the court’s judgment contains only initials in relation to the individuals being discussed, not their full names. Also, Courts Administrator Kevin McCormac said it remains in the discretion of the presiding judge whether the ruling on a particular case is put into the public domain.

“In the majority of family proceedings, the decisions are purely about the private affairs of the parties involved,” Mr. McCormac said. “Occasionally, there will be a judgment that is of wider interest.”
So far, the courts have released five such cases believed to have some broader public interest from the Grand Court’s Family Court Division.

The latest release involves a Jan. 15, 2014 judgment on a Cayman Islands residency case where the right of two children to remain in the islands was being reviewed, following the death of their father – a permanent resident of independent means. The residency status of the children was granted as dependents of their permanent resident father, who died late last year.

“There is a live issue as to whether their right to residency had ceased upon [their father’s] passing and uncertainty as to their right to continue residing in the Cayman Islands,” the judgment written by Grand Court Justice Richard Williams indicated.

In addition to deciding whether the children could continue to reside in the Cayman Islands, there was an ongoing issue as to legal guardianship and who might be responsible for their care if they could not remain here.

In the end, the judge ruled that the children should be made temporary wards of the court and placed in the interim care of relatives who reside in Florida. However, that decision was based largely on what the court considered best for the children at the time, rather than a decision based on their immigration status in the Cayman Islands.

Another case from July 2013 contained an important declaration from Cayman Islands Chief Justice Anthony Smellie with regard to child custody in divorce matters, the specific case involving the custody of a five-year-old girl.

“There is no presumption that the child must reside with one parent or the other,” the chief justice wrote in his decision on the case. “Her tender age and gender may be important considerations strongly supporting a more suitable arrangement for residence with her mother, but they are not conclusive.
“Ultimately, what will generally be in her best interests will be determinative of the arrangements to be made.”
Such matters, Mr. McCormac said, will end up setting guidelines for similar matters that judges use in their decisions on future cases and may be of interest to the general public. However, he said protecting the identity of participants in Cayman Islands cases will be more difficult than in larger jurisdictions.
“In a small country, like ours, that’s more of a challenge,” Mr. McCormac admits.

It is, at least partly, for that reason that the Cayman Islands court system did not follow what had already been done with the family courts of England and Wales. Mr. McCormac said the courts there typically release almost all family court judgments to the public.

In the local scenario, only Grand Court case judgments would be released, not those that come before the Summary Court. In addition, the judges themselves will maintain sole discretion over which rulings are made public, Mr. McCormac said.

Wednesday, February 19, 2014

Bond Unreliable to Deter Potential International Child Abduction

by Jeremy D. Morley

A Florida appeal court has sensibly overturned a lower court’s decision that had allowed the visit of two children to Jamaica to see their father conditioned primarily on his filing a $50,000 bond. 

The father had been deported to Jamaica upon convictions for battery on the mother and had repeatedly threatened to kidnap the children. 

The appeal court stated that the trial court’s concern about a potential abduction was well founded, but ruled that “its decision to address that concern through a monetary bond is not. Given the fact that Jamaica is not a signatory to the Hague Convention, there is no evidence suggesting that the mother would be able to gain return of the children from Jamaica through legal processes, no matter how much money was available to her from a bond…. Nor would the evidence support a finding that the bond, standing alone, could deter a potential kidnapping given the father's demonstrated disregard for the law and repeated threats to take the children from the mother.” Matura v. Griffith, --- So.3d ----, 2014 WL 338750 (Fla.App. 5 Dist.,2014).

We have repeatedly warned that, since children are priceless, bonds are never “painful” enough to overcome the decision that parental abductors often make that – at any and all cost -- their child should be away from the other parent and with their family in their country of origin. While bonds may provide a litigation war chest they will not even provide much value in that regard unless the foreign legal system is likely to take action, as the Florida court has now usefully recognized.