Friday, July 13, 2018

Expats with Children-Top Tips from an International Family Lawyer


Expats with Children
  Top Tips from an International Family Lawyer[1]

By Jeremy D. Morley*

  1. Before you move overseas, you absolutely must realize, understand and fully evaluate the fact that, if you are in a new country with a child, you may find yourself trapped there indefinitely if the other parent refuses to let you take the child back to your home country.
Here are just some of the relevant factors:

·         In some countries, it is easy for one parent to obtain an order that bars the other parent from leaving the country with their child. Middle East countries often have such procedures.
·         In other countries, one parent may not leave with a child without the written and notarized authorization of the other parent. Most Latin American countries have such requirements and very strong exit controls.
·         Almost 100 countries, including the United States, have adopted the Hague Convention on the Civil Aspects of International Child Abduction. It provides that if you take the child away from his or her country of habitual residence in breach of the other parent’s rights, and without that parent’s clear consent, you will have “wrongfully removed” the child. You will then normally be ordered to return the child immediately to the place where the other parent lives.
·         Courts in the United States are most often required to “rubberstamp” initial child custody orders issued by foreign if the child had been living for six months before the case was commenced. In these circumstances, a U.S. court must usually enforce the terms of the foreign court order, even if you believe that the foreign order is unfair, even if you have suffered domestic violence, and even if an American court would have provided you with a more favorable result.
·         In many countries, it will be a criminal offense for you to take your own child away, without the other parent’s permission, from the country where you and the child have been living (just as it would normally be a crime if a parent were to unilaterally remove a child from the United States).

Example: Angie the American and Gus the Greek (from Cyprus) moved to Cyprus with their baby. Life in Cyprus hasn’t work out for Angie. In fact, she absolutely hates it there. But Gus refuses to leave and he refuses to allow Angie to take the baby back to the States to live. Since both Cyprus and the U.S. are parties to the Hague Convention, Angie will be in big trouble if she takes the child back to the States without Gus’ permission. Angie wishes she had consulted an international family lawyer before she moved overseas. Now she’s stuck there.

Another example: Eddie the Egyptian persuades Abigail the American to take their children to visit his family in Cairo. He assures her that they’ll be back home in Missouri in a couple of weeks. On the plane he takes everyone’s passports and then laughs at her and tells her that he fooled her, and that she should return to America but he’s keeping the kids in Egypt. Our Egyptian colleagues tell us that effective legal relief in that country is probably impossible. (She eventually escapes with the children, but that is only because of her amazing self-help, a lot of luck and some U.S. Embassy help).  

  1. Foreign courts, not U.S. courts, probably have jurisdiction. When you go overseas you will probably be subjecting all issues about child custody to the courts of the foreign country. There are complex rules about international custody jurisdiction under the laws of each American state – as to which you will need to consult with knowledgeable counsel – but usually the American courts will defer to the foreign courts if your family has relocated overseas. And in any event, none of that usually matters to a foreign court, which is governed by the jurisdictional rules of its own legislature. In most countries, once you’re habitually residing there, the local courts have jurisdiction to handle the case.
  1. Foreign law usually applies. Some people think that when they go away their American citizenship somehow travels with them and provides a cloak of protection concerning child custody matters. Usually that is absolutely wrong. You need to assume that when you are in Rome you must do as the Romans do .. and that when you are in Saudi Arabia, Saudi law will govern. Most countries apply their own domestic law to child custody matters, even if all of the family members are foreigners. And in the minority of countries that apply the law of the parents’ common nationality to custody issues you need to understand that the foreign court will probably have great difficulty in understanding and applying the law of your local American state and might well have great reluctance to apply it in any similar way.
  1. The law in real life is not the law on the books. Most of the laws about child custody and parental rights that are on the books in countries around the world read well. But there can obviously be all the difference in the world between the law as it is written and the law that is actually applied. China has rules about divorce jurisdiction that do not seem to be applied in cases concerning foreigners. Japanese family court orders are invariably unenforceable. The Japanese Civil Code has innocuous provisions about child custody that disclose nothing about how cases there are really conducted. India has a law to prevent cruelty to wives that is frequently used – in a process described by the Supreme Court of India as “legal terrorism” - to arrest their husband’s family members on the basis of trivial or concocted charges, and to deter their husbands from returning to India. Obtaining strategic and experienced advice about these matters is usually absolutely essential. 
Example: Adam the American is married to Junko from Japan. They move with their two children from New York to Tokyo. One day he raises his voice at her for a trivial reason. When he returns home that evening he is locked out. He consults with counsel in Japan and learns that, since Junko has physical possession of the child, she is the de facto sole custodial parent. He commences a court case and learns that he must undergo mandatory mediation. After four unproductive sessions, each spaced two months apart, he finally realizes that he will be unable to see his children again except at best for a monthly 2-hour daytime supervised visit. He abandons the case and eventually returns to live in the U.S.

  1. The Hague Convention won’t protect you.  Just because the foreign country has signed the Hague Abduction Convention does not mean that the courts there will be ready, willing or able to help you. There are no provisions in the Convention that will help you if you are arguing with the other parent about custody matters. And, as stated above, the Convention may bar you from taking your child to your home country.
  1. An American court order may not count. Just because you have a clear court order from a U.S. court that supposedly gives you protection and provides clear rules about who has the kids and at what periods of time, you’re far from guaranteed that the terms of the order will be respected overseas. The rules about recognition and modification of custody orders overseas are usually entirely different from the rules in the United States. The provisions of our Uniform Child Custody Jurisdiction & Enforcement Act are not paralleled in foreign countries. Very many countries have no requirement or practice of applying foreign custody orders. And the courts in almost all foreign countries are empowered under their own laws to modify foreign custody orders once a child is habitually resident in the foreign country, which can occur quite quickly.
Example: A court in Germany will have the right to modify a foreign custody order as soon as the child is habitually resident there. And under E.U. rules, which apply in Germany, a child is normally “habitually resident” there as soon as he or she is there with merely “some degree of being settled.” 

Further example: Courts in India often state that they will grant comity to foreign custody orders if it is appropriate to do so, but they must first be satisfied that doing so is in the best interests of the children. And in 2017 the Supreme Court of India ruled that it was inherently preferable for a child to live in India with his grandparents and extended Indian family than to live in the United States with his loving mother (upon whom no negative aspersions were cast in the judgment) and his younger brother. 

  1. Beware of exit controls. The United States has no exit controls. With minimal exceptions, no one checks whether you have a legal right to remove a child. But the same is not true overseas. For example, you cannot take your child out of most South American countries without a notarized document establishing that the other parent has consented or a local court order.
  1. Beware of visa rules. You can’t normally stay overseas or re-enter the foreign country without complying with the correct local residency requirements. This can be a terrible problem if the other parent has control of your status and therefore owns the virtual “key to the door.”  Example: A Saudi father agreed that his wife could leave Saudi Arabia for a family visit to the States. She left their child temporarily in Riyadh. While she was away he divorced her in Riyadh and canceled her visa. She could never return. He had the child and she was powerless.
  1. Beware of local laws and customs. In many countries a parent’s conduct that may be acceptable in the United States may be frowned upon or even criminal elsewhere and engaging in any activities that could be deemed to be inappropriate could adversely affect your rights to custody or even access to your child.
Example: A client’s husband accused her of adultery -- and worse -- in Dubai. Knowing the extreme seriousness of the charges in the UAE, we recommended that she leave Dubai that night without her young child, who was in the husband’s possession. (We later used other methods to help retrieve her child).

Further example: A foreign father who acts impatiently at a mediation session in Japan, or who is seen as having raised his voice at his wife, will then likely be viewed extremely negatively and his chances of obtaining any access to his child will be significantly reduced. 

  1. If you make a deal with your husband or wife that you’re going overseas just for a trial and that you’ll return if it doesn’t work out – get it in writing! Verbal agreements always seem to be forgotten when things blow up. But also know that even a written agreement may very well not work. A foreign court handling your child custody case may state that it doesn’t care what your deal with was with the other parent; it must only consider what it thinks is best for the child. It is critical to obtain reliable competent legal advice from experienced international family law counsel before going overseas in reliance on the other parent’s promises.
  1. Before leaving home, you should hope and plan for the very best. But you also need to be prepared for the very worst. So, if you are a “trailing spouse,” consider the following:
·        Don’t sell the house. If you maintain an address in the States it will be easier to claim that you maintained your home as your permanent residence. Certainly, it will indicate that it continues to be your “domicile” (the place you live in indefinitely, which remains as your domicile even if you move temporarily to another place). Having a place to return to will also make your case a lot stronger if you need to prove that your kids should be allowed to move “back home.” 
·        Keep your contacts with your job. Prepare for the day when you may want to re-enter the job market back home. Perhaps you can even continue to do some work even while overseas.
·        Keep your network of friends and family at home. Stay in touch with them. Visit them if possible. Make sure that your children develop strong contacts with them, whether by visits in your new country, visits back home, or through online video.

  1. If you’re overseas and are “planning” to get divorced, be as strategic as possible. Plan your moves. Consult with someone who really understands the big picture in these cases. Figure out where it’s best for you to be at the time you tell your soon-to-be-ex that it’s all over. You may need to move yourself, the kids, the soon-to-be-ex and the marital assets to another place before you break the news that you want out of the marriage. And don’t leave without the evidence. It’s very frustrating when a client claims that the other spouse engaged in gruesome physical abuse and shameless hiding of marital assets but that the evidence was all left behind in the foreign country before the client came back home. Intelligent planning, with strategic professional advice, is the key.
  1. If you’re feeling stuck overseas and have children with you, don’t just bolt for the (airplane) door with the kids and run “back home” to the States. Plan things out first. If you take the kids, you may be guilty of international child kidnapping. You could even be arrested at the airport before you leave. If you make it to the States, you may well be forced by an American court to return your child – and then, to completely add insult to injury, you’ll probably have to pay your spouse’s legal fees and travel expenses as well as your own. Then, when you return overseas, your case will be heard in the foreign court, where you will be branded as an international child abductor. Consult with knowledgeable international family law counsel sooner, rather than later.
  1. On the other hand, if it’s your spouse who’s feeling unhappy and upset and who may “do a runner” back home, there are lots of things that you should be doing in advance. Some are pretty obvious: be kind; be understanding; and don’t stay out all night with the guys or gals from the office. Other tips are not so clear, and whether you implement them depends very much on the circumstances. Hide the passports. Befriend her travel agent, who may tell you if she’s making an airline reservation. Consult her friends. Suggest counseling. Have a plan to call the police and alert the border guards if you discover that she has taken the kids.
  1. If you’re overseas and pregnant, and not 100% confident that you’ll always want to live in the overseas country, consider very seriously getting out of there now. If your baby is born overseas, whether in Sweden or Saudi Arabia, the child’s “habitual residence” for purposes of the Hague Convention will likely be Sweden or Saudi Arabia – and that can create terrible problems if you want to take your baby “back home.”
  1. Don’t assume that the local authorities won’t help. So many times, expats feel that the local social welfare agencies won’t understand and that they will automatically side with the other spouse who is a citizen. In fact, in many countries the support services are excellent, and you should try them. Plus, an American court in a Hague Convention case won’t accept your defense that returning a child to the foreign country will put the child in “grave risk of harm” unless you can show that the foreign support services are unable to provide the needed protection.
  1. Consult with an experienced international family lawyer. You need to plan strategically but you cannot do that without knowing the basic facts. Local family lawyers may not be your best bet. There is just so much wrong information out there about these issues. It is absolutely shocking how many clients have previously been given poor advice that is often not only mistaken but also damaging. An experienced international family lawyer, who consults with local lawyers as appropriate, can give you much more objective “big-picture” advice and, most critically, can assist you in creating the best strategies.
_________________________
* Jeremy D. Morley may be reached at 212-372-3425 and through his website, www.international-divorce.com. Jeremy has written the leading U.S. treatises on international family law. He consults on international family law matters with clients around the world, always working with local counsel as appropriate. 



[1] This copyrighted article may be reproduced, in unabridged form if full credit is given to the author and if the asterisked information about him is fully included, but not otherwise.

Tuesday, June 19, 2018

Preventing International Child Abduction


Jeremy D. Morley
The Department of Homeland Security, U.S. Customs and Border Protection (CBP), in coordination with the U.S. Department of State and other federal agencies, has had for some time a program – which our office has frequently used - to prevent the departure of a child from the United States when presented with a valid, enforceable court order which prohibits the child’s removal from the United States. 
Now the State Department has made official mention of the existence of the program. https://www.cbp.gov/travel/international-child-abduction-prevention-and-return-act

Friday, June 15, 2018

State Department's Annual Report on International Child Abduction: United Arab Emirates


The U.S. State Department has recently released their annual report on International Child Abduction. Below is our last post in a series here focusing on the twelve countries classified as “demonstrating patterns of noncompliance.”  Today’s country is the United Arab Emirates.
Country Summary: The United Arab Emirates does not adhere to any protocols with respect to international parental child abduction. In 2017, the United Arab Emirates demonstrated a pattern of noncompliance. Specifically, the competent authorities in the United Arab Emirates persistently failed to work with the Department of State to resolve abduction cases. As a result of this failure, 50 percent of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for two years.

Central Authority: In 2017, the competent authorities in the United Arab Emirates demonstrated a pattern of noncompliance by regularly declining to work with the Department of State toward the resolution of pending abduction cases. Moreover, the competent authorities have failed to resolve cases.
Location: The Department of State did not request assistance with location from the Emirati authorities.

Judicial Authorities: The lack of clear legal procedures for addressing international parental child abduction cases under Emirati law makes it difficult for the United Arab Emirates to resolve these cases.
Enforcement: The United States is not aware of any abduction cases in which a judicial order relating to international parental child abduction needed to be enforced by the Emirati authorities.
Department Recommendations: The Department will continue to encourage the United Arab Emirates to accede to the Convention and expand public diplomacy activities related to the Convention.

Wednesday, June 13, 2018

Common Law Marriage in Israel


Jeremy D. Morley

Common law marriages are alive and well in Israel. 
They are increasingly popular as a means of circumventing the religious monopoly on civil marriage in that country. 
The religious control over civil marriage in Israel, and the accompanying restrictions imposed by the ultra-orthodox rabbinate and other religious authorities, is a key factor behind the growth of common law marriage.
To qualify as a spouse in a common law marriage under Israeli law, it is simply necessary to establish the existence of a common household with cohabitation as a family unit between two adults of any religion, nationality or gender,
Some couples who establish a common law marriage in Israel enter into a written agreement defining the terms of their relationship. Other couples have a wedding ceremony but without a religious officiant, knowing that, since religious marriage is the exclusive way to be formally married in Israel, their relationship will be not be accepted as a legal marriage by the State of Israel.  Other couples simply live together as a common household unit. 
Common law couples have mutual rights and obligations to each other that are very similar to those of a married couple. They include the right to alimony, to pension funds of a deceased partner and to a division of assets accumulated during the relationship. The children of a common law couple have the same legal rights as the children of married parents. They can carry their mother’s or father’s family name, or both names. Their parents have the same status as married parents with regard to custody issues and support, even when the issues are brought to the rabbinical court. 
The parties to a common law marriage may be of the same or of different sexes. They may choose a common name, simply by submitting a Name Change form to the Interior Ministry.
Upon the death of a common law spouse, the surviving spouse usually continues to receive full compensation and pensions. It has even been held that a married man who lived with another woman in a shared household was deemed to have two widows upon his death.
Many Israeli common law couples obtain domestic union cards, issued by advocacy groups upon the submission of an affidavit describing the relationship, in order to confirm their common law status. However, common law relationships are not registered by the Interior Ministry and the formal personal status of the partners remains ‘single.’
One wonders whether the growth of de facto marriages in Israel, along with the long-standing practice of couples flying to Cyprus or other foreign destinations for an actual civil marriage, will ultimately dilute the religious monopoly over civil marriage in Israel, or strengthen the division between extreme religious orthodoxy and secular society in that country.  

Tuesday, June 12, 2018

State Department's Annual Report on International Child Abduction: Peru


The U.S. State Department has recently released their annual report on International Child Abduction. Below is our eleventh post in a series here focusing on the twelve countries classified as “demonstrating patterns of noncompliance.”  Today’s country is Peru.
Country Summary: The Hague Abduction Convention has been in force between the United States and Peru since 2007. In 2017, Peru demonstrated a pattern of noncompliance. Specifically, Peru’s judicial branch regularly fails to implement and comply with the provisions of the Hague Abduction Convention. As a result of this failure, 36 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average these cases were unresolved for one year and 11 months. 
Initial Inquiries: In 2017, the Department received four initial inquiries from parents regarding possible abductions to Peru where no completed applications were submitted to the Department.

Significant Developments: In the last year the Peruvian Central Authority (PCA) has expressed interest in additional support and training for the judges in Peru. The Office of Children's Issues is working with the PCA to find ways to reduce judicial delays in Hague Convention Cases. In October 2017, members of the Central Authority, and judiciary visited the United States on a two-week child abduction-focused International Visitor Leadership Program. 
Central Authority: The United States and the Peruvian Central Authorities have a strong and productive relationship that facilitates the resolution of abduction cases under the Convention. The PCA gives the United States regular updates on all open cases, and conducts a bi-monthly conference call with the U.S. Central Authority. The PCA is quick to respond to questions or concerns on cases.
Voluntary Resolution: The Convention states that central authorities "shall take all appropriate measures to secure the voluntary return of the child or to bring about an amicable resolution of the issues." In 2017, two abduction cases were resolved through voluntary means. 

Location: The competent authorities regularly took appropriate steps to locate children after a Convention application was filed. The average time to locate a child was 30 days. 
Judicial Authorities: The Peruvian judicial authorities demonstrated a pattern of noncompliance with the Convention due to serious delays in deciding Convention cases. As a result of these delays, cases may be pending with the judiciary for over one year. In addition, there was a strike by administrative workers in the judicial system during the year, further slowing the scheduling of hearings. 
Enforcement: The United States is not aware of any abduction cases in which a judicial decision ordered under the Convention needed to be enforced by the Peruvian authorities.
Department Recommendations: The Department will continue intense engagement with the Peruvian authorities to address issues of concern and expand public diplomacy activities related to the resolution of cases. 
Access: In 2017, the U.S. Central Authority had one open access case under the Convention in Peru. By December 31, 2017, this case (100 percent) had been resolved.

Monday, June 11, 2018

Court Ruling on Expert Testimony of Jeremy Morley Concerning Japan


From the transcript of Reasons for Judgment in matter in the Court of Queen’s Bench of Alberta, Calgary, Alberta, Canada, dated June 1, 2018:
THE COURT: “… I heard expert evidence on Japan and its adherence to and enforcement of foreign parenting orders from Mr. Jeremy Morley, a New York attorney with an international family law practice and a focus on Japan and Japanese child custody law. Mr. Morley has testified in other Canadian court cases and in 2016 was accepted as an expert in British Columbia proceedings before Justice Arnold-Bailey. Relying on Mr. Morley’s evidence, Justice Arnold-Bailey denied mom’s request to take the children to Japan. 
I accept Mr. Morley’s evidence regarding dad’s likelihood of access to [the child] if mom is permitted to move with [the child] to Japan and dad’s likelihood of success in getting [the child] back from Japan under the Hague Convention if mom takes [the child] to visit Japan and doesn’t return. Mr. Morley opined that if mom relocates to Japan, dad will not have meaningful access to [the child] unless his mom allows him to do so and dad will have no more than a slight chance of success in getting [the child] back from Japan should it be necessary under the Hague Convention. 
Mr. Morley testified that …
I did not find mom’s [Japanese] expert … testimony to dislodge the concerns raised by Mr. Morley.”

Thursday, June 07, 2018

Testimonials


Testimonials: We receive a constant stream of unsolicited testimonials about our services in international family law, especially concerning international child abduction, international prenuptial agreements, international divorce matters and international child custody cases.  Here’s the newest one, received today:
“I needed a complicated pre-nuptial agreement that covered multiple countries. Jeremy did a great job coordinating an international team of lawyers to make it happen. He was also a pleasure to work with.”
Please see our Testimonials page at our full site here:  

Wednesday, June 06, 2018

State Department's Annual Report on International Child Abduction: Morocco


The U.S. State Department has recently released their annual report on International Child Abduction. Below is our tenth post in a series here focusing on the twelve countries classified as “demonstrating patterns of noncompliance.”  Today’s country is Morocco.
Country Summary: The Hague Abduction Convention has been in force between the United States and Morocco since 2012. In 2017, Morocco demonstrated a pattern of noncompliance as a result of failure by the competent authorities to take appropriate steps to locate a child for more than one year after a Convention application was filed. 
Initial Inquiries: In 2017, the Department received two initial inquiries from parents regarding possible abductions to Morocco where no completed applications were submitted to the Department.

Central Authority: The Moroccan Central Authority demonstrated a pattern of noncompliance with the Convention due to delays in the processing of cases and a lack of effective communication with the U.S. Central Authority regarding their resolution. In spite of repeated requests from the U.S. Central Authority, the Moroccan Central Authority failed to maintain timely and efficient communication. In addition, in one case, the Moroccan Central Authority has failed to confirm the location of a child for more than a year, thereby preventing the case from being brought to competent judicial authorities in a timely manner.
Voluntary Resolution: The Convention states that central authorities “shall take all appropriate measures to secure the voluntary return of the child or to bring about an amicable resolution of the issues.” In 2017, one abduction case was resolved through voluntary means. 

Location: The Department of State requested location assistance but the Moroccan authorities have not yet confirmed location. The Central Authority has been unable to confirm the location of one child for over one year. 
Judicial Authorities: The United States is not aware of any abduction cases brought before the Moroccan judiciary in 2017. 
Enforcement: The United States is not aware of any abduction cases in which a judicial order relating to international parental child abduction needed to be enforced by Moroccan authorities. 
Department Recommendations: The Department will continue intense engagement with the Moroccan authorities to address issues of concern, including pre-Convention cases, and expand public diplomacy activities related to the resolution of cases.
Access: In 2017, the U.S. Central Authority had one open access case under the Convention in Morocco. This case has been filed with the Moroccan Central Authority. No new cases were filed in 2017. While no cases had been resolved by December 31, 2017, this case was closed for other reasons. 
Pre-Convention Cases: At the end of 2017, one pre-Convention abduction case remained open in Morocco. 

Tuesday, June 05, 2018

State Department's Annual Report on International Child Abduction: Jordan


The U.S. State Department has recently released their annual report on International Child Abduction. Below is our ninth post in a series here focusing on the twelve countries classified as “demonstrating patterns of noncompliance.”  Today’s country is Jordan.
Country Summary: Jordan does not adhere to any protocols with respect to international parental child abduction. In 2006, the United States and Jordan signed a Memorandum of Understanding to encourage voluntary resolution of abduction cases and facilitate consular access to abducted children. In 2017, Jordan demonstrated a pattern of noncompliance. Specifically, the competent authorities in Jordan persistently failed to work with the Department of State to resolve abduction cases. As a result of this failure, 50 percent of requests for the return of abducted children remained unresolved for more than 12 months. On average these cases were unresolved for one year and 11 months. Jordan has been cited as noncompliant since 2014. 

Initial Inquiries: In 2017, the Department received three initial inquiries from parents regarding possible abductions to Jordan where no additional assistance was requested.
Central Authority: In 2017, the competent authorities in Jordan demonstrated a pattern of noncompliance by regularly declining to work with the Department of State toward the resolution of pending abduction cases. Moreover, the competent authorities have failed to resolve cases. Repeated requests by the Department for information on resources available to parents and the judicial processes to resolve abduction cases have gone unanswered over a period of two years.

Voluntary Resolution: In 2017, three abduction cases were resolved through voluntary means. 
Location: The Department of State did not request assistance with location from the Jordanian authorities. 
Judicial Authorities: The lack of clear legal procedures for addressing international parental child abduction cases under Jordanian law makes it difficult for Jordan to resolve these cases. 
Enforcement: The United States is not aware of any abduction cases in which a judicial order relating to international parental child abduction needed to be enforced by the Jordanian authorities. 
Department Recommendations: The Department will continue to encourage Jordan to accede to the Convention and expand public diplomacy activities related to the Convention.

Monday, June 04, 2018

State Department's Annual Report on International Child Abduction: Japan


The U.S. State Department has recently released their annual report on International Child Abduction. Below is our eighth post in a series here focusing on the twelve countries classified as “demonstrating patterns of noncompliance.”  Today’s country is Japan.
Country Summary: The Hague Abduction Convention entered into force between the United States and Japan in 2014. Since then Japan has made measurable progress on international parental child abduction. The number of abductions to Japan reported to the Department has decreased since the Convention came into force for Japan. Despite this progress, in cases where taking parents refused to comply with court return orders, there were no effective means to enforce the order, resulting in a pattern of noncompliance. As a result of this failure, 22 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average these cases were unresolved for one year and 10 months. The Department continues to urge Japan to resolve the 21 pre-Convention abduction cases that remained open at the end of the year, all of which have been outstanding for many years. 
Initial Inquiries: In 2017, the Department received three initial inquiries from parents regarding possible abductions to Japan where no completed applications were submitted to the Department.

Central Authority: The United States and the Japanese Central Authorities have a strong and productive relationship that facilitates the resolution of abduction cases under the Convention. The Japanese Central Authority has focused effectively on preventing abductions, expanding mediation between parents, and promoting voluntary returns. The average number of children reported abducted to Japan each year has decreased by 44 percent since 2014, when the Convention came into force in Japan.
Voluntary Resolution: The Convention states that central authorities "shall take all appropriate measures to secure the voluntary return of the child or to bring about an amicable resolution of the issues." In 2017, four abduction cases were resolved through voluntary means. 

Location: The competent authorities regularly took appropriate steps to locate children after a Convention application was filed. The average time to locate a child was 15 days. 
Judicial Authorities: The judicial authorities of Japan routinely reached timely decisions in accordance with the Convention. Japanese courts routinely issued orders pursuant to the Convention for children's return. 
Enforcement: Unless the taking parent voluntarily complied with a return order under the Convention, judicial decisions in Convention cases in Japan were not enforced. There are two cases (accounting for 100 percent of the unresolved cases) that have been pending for more than 12 months where law enforcement has failed to enforce the return order. Japan’s inability to quickly and effectively enforce Hague return orders appears to stem from limitations in Japanese law including requirements that direct enforcement take place in the home and presence of the taking parent, that the child willingly leave the taking parent, and that the child face no risk of psychological harm. As a result, it is very difficult to achieve enforcement of Hague return orders. In addition, the enforcement process is excessively long. Left-behind parents who have obtained Hague return orders can spend more than a year in follow-on legal proceedings seeking an order to enforce the Hague order. 
Access: In 2017, the U.S. Central Authority acted on a total of 37 open access cases under the Convention in Japan. Of these, three cases were opened in 2017. A total of 36 access cases have been filed with the Japanese Central Authority, including two of the three cases opened in 2017. By December 31, 2017, six cases (16 percent) have been resolved and five cases have been closed for other reasons. Of those resolved, one was as a result of a voluntary agreement between the parents. By December 31, 2017, 26 access cases remained open, including 23 that have been active for more than 12 months without achieving meaningful access. The total number of Convention access cases at the beginning of 2017 includes 14 pre-Convention abduction cases that later filed for access under the Convention. Of these, one resolved, four closed for other reasons, and nine remained open at the end of 2017. In addition to filing for Hague access, these LBPs continue to seek the return of their abducted children. 
Pre-Convention Cases: At the end of 2017, 12 pre-Convention abduction cases remained open in Japan. In 2017, seven pre-Convention cases were resolved and one pre-Convention case was closed for other reasons. In these cases, the parents have chosen not to file for access under the Convention.
Department Recommendations: The Department will continue its engagement with relevant Japanese authorities to address the areas of concern highlighted in this report.

Friday, June 01, 2018

State Department's Annual Report on International Child Abduction: India


The U.S. State Department has recently released their annual report on International Child Abduction. Below is our seventh post in a series here focusing on the twelve countries classified as “demonstrating patterns of noncompliance.”  Today’s country is India.
Country Summary: India does not adhere to any protocols with respect to international parental child abduction. In 2017, India demonstrated a pattern of noncompliance. Specifically, the competent authorities in India persistently failed to work with the Department of State to resolve abduction cases. As a result of this failure, 90 percent of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for one year and ten months. India has been cited as noncompliant since 2014.
Initial Inquiries: In 2017, the Department received 11 initial inquiries from parents regarding possible abductions to India in which no additional assistance was requested or necessary documentation was not received as of December 31, 2017.

Central Authority: In 2017, the competent authorities in India demonstrated a pattern of noncompliance by regularly declining to work with the Department of State toward the resolution of pending abduction cases. Moreover, the competent authorities have failed to resolve cases. While the Indian government repeatedly met with U.S. officials to discuss abduction cases, thus far, it has failed to take concrete steps to resolve pending cases.
Voluntary Resolution: In 2017, seven abduction cases were resolved through voluntary means.

Location: The Department of State did not request assistance with location from the Indian authorities.
Judicial Authorities: Without the Hague Abduction Convention or any other protocols intended to resolve abduction cases, parents generally must pursue custody of abducted children in Indian courts. Judicial action in custody cases in India has been slow, and Indian courts tend to default to granting custody to the taking parent. The lack of clear legal procedures for addressing international parental child abduction cases under Indian law makes it difficult for India to resolve these cases.
Enforcement: While domestic court orders in India are generally enforced, in some cases the Indian authorities faced challenges with enforcement.
Department Recommendations: The Department will continue to encourage India to accede to the Convention and expand public diplomacy activities related to the Convention.