EXPERT TESTIMONY ON INDIA CHILD CUSTODY LAW

The Federal Circuit Court of Australia has issued a ruling denying a mother’s application for overseas travel from Australia to India to attend her marriage ceremony.

The decision was based in large part on my expert testimony concerning the child custody laws of India and the risks of international parental child abduction for a child traveling to India.
The decision, dated June 14, 2019, is reported at [2019] FCCA 1577.

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

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 nine countries classified as “demonstrating patterns of noncompliance.” Today’s country is United Arab Emirates.

Country Summary: The United Arab Emirates does not adhere to any protocols with respect to international parental child abduction. In 2018, 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, 100 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 and seven months. The United Arab Emirates was previously cited for demonstrating a pattern of noncompliance in the 2018 Annual Report.

Initial Inquiries: In 2018 the Department received two initial inquiries from parents regarding possible abductions to the United Arab Emirates for which no additional assistance was requested or necessary documentation was not received as of December 31, 2018. 

Central Authority: In 2018, the competent authorities in the United Arab Emirates regularly failed to work with the Department of State toward the resolution of pending abduction cases due to a lack of viable legal options, which contributed to a pattern of noncompliance.

Location: The Department of State did not request assistance with location from Emirati authorities.

Judicial Authorities: There is no clear legal procedure for addressing international parental child abduction cases under Emirati law, and parents face difficulties resolving custody disputes in local

courts.

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.

Cite for Morley Kuwait Expert Testimony Case

The citation for the recent Arizona appeal case which accepted me as an expert witness on the laws and practices of Kuwait as to child custody in international matters, and relied on my expert testimony about Kuwaiti law, is Lehn v. Al-Thanayyan, 438 P.3d 646 (Ariz. App. 2019). 

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 eighth post in a series here focusing on the nine countries classified as “demonstrating patterns of noncompliance.” Today’s country is Peru.

Country Summary: The Convention has been in force between the United States and Peru since 2007. In 2018, Peru demonstrated a pattern of noncompliance. Specifically, the Peruvian Central Authority and judicial authorities persistently failed to implement and abide by the provisions of the Convention. As a result of this failure, 50 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 two years and seven months. Peru was previously cited for demonstrating a pattern of noncompliance in the 2014-2017 Annual Reports.

Initial Inquiries: In 2018, the Department received four initial inquiries from parents regarding possible abductions to Peru for which no completed applications were submitted to the Department.

Significant Developments: In September 2018, the Peruvian Central Authority hosted a seminar for Peruvian family law judges to discuss best practices for Convention implementation, including ways to improve judicial delays.

Central Authority: There have been serious delays in the processing of cases by the Peruvian Central Authority and a lack of effective communication with the U.S. Central Authority regarding IPCA cases, which contributed to a pattern of noncompliance. In addition, the Central Authority, which is within the Ministry of Women and Vulnerable Populations, has reported that because its mandate includes protecting victims of domestic violence, it will not facilitate the institution of judicial proceedings if there are domestic violence claims by the alleged taking parent, despite an obligation to take all appropriate measures to initiate or facilitate the institution of proceedings under the Convention.

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 2018, 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 31 days.

Judicial Authorities: There were serious delays by the Peruvian judicial authorities in deciding Convention cases. As a result of these delays, cases may be pending with the judiciary for over one year, contributing to a pattern of noncompliance.

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 Peruvian authorities. Department Recommendations: The Department will continue intense engagement with the Peruvian authorities to address issues of concern.

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

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 nine countries classified as “demonstrating patterns of noncompliance.”  Today’s country is Lebanon.

Country Summary: Lebanon does not adhere to any protocols with respect to international parental child abduction. In 2004, the United States and Lebanon signed a Memorandum of Understanding to encourage voluntary resolution of abduction cases and facilitate consular access to abducted children. In 2018, Lebanon demonstrated a pattern of noncompliance. Specifically, the competent authorities in Lebanon 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 and one month. Lebanon was previously cited for demonstrating a pattern of noncompliance in the 2015 and 2016 Annual Reports.

Initial Inquiries: In 2018 the Department received one initial inquiry from a parent regarding a possible abduction to Lebanon for which no additional assistance was requested or necessary documentation was not received as of December 31, 2018.

Central Authority: In 2018, the competent authorities in Lebanon worked closely with the Department of State to discuss improvements to the resolution of pending abduction cases. However, the options for resolving these cases under Lebanese law are limited.

Voluntary Resolution: In 2018, one abduction case was resolved through voluntary means.

Location: The Department of State did not request assistance with location from the Lebanese authorities.

Judicial Authorities: There is no clear legal procedure for addressing international parental child abduction cases under Lebanese law, and parents face difficulties resolving custody disputes in local courts.

Enforcement: Judicial decisions in Lebanon were generally not enforced, which contributed to a pattern of noncompliance. There was one case (accounting for 33 percent of the unresolved cases) that has been pending for more than 12 months in which law enforcement has failed to enforce a return order.

Department Recommendations: The Department will continue to encourage Lebanon to accede to the Convention

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 sixth post in a series here focusing on the nine 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 2018, 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, 67 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 and seven months. Jordan was previously cited for demonstrating a pattern of noncompliance in the 2014-2018 Annual Reports.

Initial Inquiries: In 2018, the Department received eight initial inquiries from parents regarding possible abductions to Jordan for which no additional assistance was requested or necessary documentation was not received as of December 31, 2018.

Significant Developments: In 2018, the Government of Jordan began offering mediation services to parents involved in international parental child abductions through the Family Mediation Directorate. Mediation is voluntary, and both parents must agree to participate. The United States is not aware of any abductions cases that were resolved through this service in 2018. 

Central Authority: In 2018, the competent authorities in Jordan discussed with the United States ways to improve the resolution of pending abduction cases. However, the competent authorities have failed to resolve cases due to a lack of viable legal options, which contributed to a pattern of noncompliance.

Voluntary Resolution: In 2018, four 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 United States is not aware of any abduction cases brought before the Jordanian judiciary in 2018. 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.

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 fifth post in a series here focusing on the nine 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 2018, 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, 71 percent of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for 2 years and 10 months. India was previously cited for demonstrating a pattern of noncompliance in the 2014-2018 Annual Reports.

Initial Inquiries: In 2018, the Department received 16 initial inquiries from parents regarding possible abductions to India for which no additional assistance was requested or necessary documentation was not received as of December 31, 2018.

Significant Developments: In July 2018, India’s Ministry of Women and Child Development directed the National Commission for Protection of Child Rights to constitute a mediation cell to resolve international child custody disputes. Since its inception, this group has been accepting applications from parents in order to assist them with mediating their cases. Mediation is voluntary, and both parents must agree to participate. The United States is not aware of any abduction cases that were resolved through this service in 2018.

Central Authority: In 2018, the competent authorities in India regularly failed to work with the Department of State toward the resolution of pending abduction cases. Moreover, the competent authorities have failed to resolve cases due to a lack of viable legal options, which contributed to a pattern of noncompliance.

Voluntary Resolution: In 2018, six abduction cases were resolved through voluntary means. Location: The Department of State did not request assistance with location from the Indian authorities.

Judicial Authorities: There is no clear legal procedure for addressing international parental child abduction cases under Indian law, and parents face difficulties resolving custody disputes in local courts. Some left-behind parents reported difficulty with serving taking parents in India causing delays in court proceedings. Additionally, judicial action in custody cases in India has been slow, and Indian courts tend to default to granting custody to the taking parent. 

Enforcement: While courts in India sometimes granted rights of access to left-behind parents, rights of access were generally not enforced. The United States is not aware of any abduction cases in which a judicial order relating to the return of a child needed to be enforced by the Indian authorities. 

Department Recommendations: The Department will continue intense engagement with the Indian authorities to address issues of concern. The Department will continue to encourage India to accede to the Convention.

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

The U.S. State Department has recently released their annual report on International Child Abduction. Below is our fourth post in a series here focusing on the nine countries classified as “demonstrating patterns of noncompliance.”  Today’s country is Egypt.

Country Summary: Egypt does not adhere to any protocols with respect to international parental child abduction. In 2003, the United States and Egypt signed a Memorandum of Understanding to encourage voluntary resolution of abduction cases and facilitate consular access to abducted children. In 2018, Egypt demonstrated a pattern of noncompliance. Specifically, the competent authorities in Egypt persistently failed to work with the Department of State to resolve abduction cases. As a result of this failure, 91 percent of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for three years and nine months. Egypt was previously cited for demonstrating a pattern of noncompliance in the 2015 and 2016 Annual Reports.
Initial Inquiries: In 2018, the Department received one initial inquiry from a parent regarding a possible abduction to Egypt for which no additional assistance was requested or necessary  documentation was not received as of December 31, 2018.

Central Authority: In 2018, the competent authorities in Egypt worked closely with the United States to discuss ways to improve the resolution of pending abduction cases. However, the competent authorities have failed to resolve cases due to a lack of viable legal options, which contributed to a pattern of noncompliance.

Voluntary Resolution: In 2018, two abduction cases were resolved through voluntary means.

Location: The competent authorities of Egypt failed to take appropriate steps to locate a child after the United States submitted a request for assistance, which contributed to a pattern of noncompliance. As of December 31, 2018, there is one case (accounting for ten percent of the unresolved cases) where the Egyptian authorities remain unable to initially locate a child.

Judicial Authorities: There is no clear legal procedure for addressing international parental child abduction cases under Egyptian law, and parents face difficulties resolving custody disputes in local courts.

Enforcement: A judicial decision in Egypt was not enforced in one case, which contributed to a pattern of noncompliance. This case (accounting for 10 percent of the unresolved cases) has been pending for more than 12 months.

Department Recommendations: The Department will continue to encourage Egypt to ratify the Convention.

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

The U.S. State Department has recently released their annual report on International Child Abduction. Below is our third post in a series here focusing on the nine countries classified as “demonstrating patterns of noncompliance.”  Today’s country is Ecuador.

Country Summary: The Convention has been in force between the United States and Ecuador since 1992. In 2018, Ecuador demonstrated a pattern of noncompliance. Specifically, the judiciary persistently failed to implement the provisions of the Convention. As a result of this failure, 33 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 five months. Ecuador was previously cited for demonstrating a pattern of noncompliance in the 2015-2018 Annual Reports. 

Initial Inquiries: In 2018, the Department received two initial inquiries from parents regarding possible abductions to Ecuador for which no completed applications were submitted to the Department. Significant Developments: Ecuador enforced the return of one child to the United States in one case in 2018, resolving a six-year-long Convention application. The Ecuadorian Central Authority (ECA) and Ecuador’s specialized law enforcement unit for children, Dirección Nacional de Policía Especializada para Niños, Niñas y Adolescentes (DINAPEN), coordinated with the Department to ensure the safe return of the child. In the reporting year, the ECA and other IPCA stakeholders in Ecuador expressed interest in additional support and training for judges in Ecuador. In July 2018, members of the ECA and DINAPEN visited the United States on a week-long child abduction focused International Visitor Leadership Program. Additionally, the Special Advisor for Children’s Issues traveled to Quito for high-level meetings to discuss Ecuador’s noncompliance with the Convention with the ECA, the Ecuadorian Hague Network Judge, the Ministry of Foreign Affairs, DINAPEN, and the president of the National Court of Justice. Finally, the ECA moved from the Ministry of Justice to the Secretariat of Human Rights in December 2018.
Central Authority: The United States and the Ecuadorian Central Authorities have a strong and productive relationship that facilitates the resolution of abduction cases under the Convention. In 2018, the Department noted substantial improvement in information sharing and improved coordination with the ECA.

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 2018, one abduction case was resolved through voluntary means.
Location: The United States and the Ecuadorian Central Authorities have a strong and productive relationship that facilitates the resolution of abduction cases under the Convention. The average time to locate a child was 59 days. As of December 31, 2018, there is one case where the Ecuadorian authorities remain unable to initially locate a child.
Judicial Authorities: The Ecuadorian judicial authorities issued a series of decisions that were not consistent with the Convention, and there were serious delays in deciding Convention cases, which contributed to a pattern of noncompliance. As a result, cases may be pending with the judiciary for over one year. Some of the language in a decision issued by the court raised concerns that defenses to return under the Convention may be interpreted too broadly, in contrast with the commonly held understanding that exceptions to return must be narrowly interpreted to maintain the efficacy of the Convention. Additionally, the judicial decision suggested that the enforcement of Ecuadorian domestic laws and the interpretation of other treaties took priority over implementation of the Convention.
Enforcement: Decisions in Convention cases in Ecuador were generally enforced in a timely manner. In some cases, Ecuadorian authorities reportedly encountered difficulties attempting to enforce judicial orders and/or locate children, either due to lack of authority or lack of clear procedures.
Access: In 2018, the U.S. Central Authority acted on a total of two open access cases under the Convention in Ecuador. Of these, one case was opened in 2018. This case has been filed with the Ecuadorian Central Authority. This case was filed in 2018. By December 31, 2018, both cases remained open.
Department Recommendations: The Department will continue intense engagement with the Ecuadorian authorities to address issues of concern. 

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

The U.S. State Department has recently released their annual report on International Child Abduction. Below is our second post in a series here focusing on the nine countries classified as “demonstrating patterns of noncompliance.”  Today’s country is Brazil.

Country Summary: The Convention has been in force between the United States and Brazil since 2003. In 2018, Brazil demonstrated a pattern of noncompliance. Specifically, the Brazilian judicial authorities persistently failed to regularly implement and comply with the provisions of the Convention. As a result of this failure, 44 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 five years and 10 months. Brazil was previously cited for demonstrating a pattern of noncompliance in the 2006-2017 Annual Reports

Significant Developments: In September 2018, the Brazilian Ministry of Justice, Ministry of External Relations, and judiciary along with officials from the U.S. Central Authority and a U.S. Hague Network Judge participated in the second annual judicial seminar aimed at providing judges with additional guidance related to the Convention. The National Council for Justice also drafted and issued guidelines to the Brazilian judiciary focused on expediting Convention cases. 

Central Authority: The United States and the Brazilian Central Authority have a strong and productive relationship that facilitates the resolution of abduction cases under the Convention.

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 three months and six days. As of December 31, 2018, there is one case where the Brazilian authorities remain unable to initially locate a child. 

Judicial Authorities: There were serious delays by the Brazilian judicial authorities in deciding Convention cases. As a result of these delays, cases may be pending with the judiciary for over one year, contributing to a pattern of noncompliance. 

Enforcement: While courts in Brazil ordered returns under the Convention, the Brazilian judicial authorities were not always able to enforce these orders. In one notable case, after nine years of litigation at all levels of the Brazilian judiciary, the Brazilian court still failed to enforce its own order for return. 

Access: In 2018, the U.S. Central Authority acted on a total of seven open access cases under the Convention in Brazil. Of these, one case was opened in 2018. This case was filed with the Brazilian Central Authority in 2018. By December 31, 2018, four cases (57% percent) have been resolved. Of those resolved, two were a result of a voluntary agreement between the parents. As of December 31, 2018, three cases remained open. Two cases have been pending with the Brazilian authorities for more than 12 months. 

Department Recommendations: The Department will continue intense engagement with the Brazilian authorities to address issues of concern.

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

The U.S. State Department has recently released their annual report on International Child Abduction. The Department of State leads the U.S. government’s efforts to prevent and resolve international parental child abductions, as part of the Department’s mission to advance the interests and safety of the American people.

The 2019 Annual Report on International Child Abduction illustrates the Department of State’s efforts to prevent and resolve international parental child abductions during 2018. Despite continued progress, during 2018 some countries demonstrated a pattern of noncompliance as defined in the Sean and David Goldman International Child Abduction Prevention and Return Act of 2014. This Report cites nine such countries.

ARGENTINA

Country Summary: The Convention has been in force between the United States and Argentina since 1991. In 2018, Argentina demonstrated a pattern of noncompliance. Specifically, the Argentine judicial authorities failed to regularly implement and comply with the provisions of the Convention. As a result of this failure, 25 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 nine years and 10 months. Argentina was previously cited for demonstrating a pattern of noncompliance in the 2014-2018 Annual Reports. Initial Inquiries: In 2018, the Department received three initial inquiries from parents regarding possible abductions to Argentina for which no completed applications were submitted to the Department.

Significant Developments: Argentina ordered the return of one child in one case in 2018, resolving a six-year-long Convention application. The Argentine Central Authority, together with the broader Argentine Ministry of Foreign Affairs and Worship, coordinated with the Department to ensure the safe return of the child. The U.S. Embassy in Buenos Aires organized an International Visitor Leadership Program focused on the Convention, inviting officials from the executive and judicial branches of the Government of Argentina to the United States to learn about Convention implementation in the United States. Argentina’s Supreme Court issued a decision on one Convention case from the United States, holding, among other things, that Convention cases should be heard in provincial family court circuits rather than in Argentine federal court. The impact of this decision on the Department’s longstanding concern over judicial delays remains to be seen. Additionally, during this reporting period the Argentine executive branch submitted a draft national procedural law on child abduction cases, designed to reduce delays in judicial procedures, to the Argentine Congress. 

Central Authority: The United States and the Argentine Central Authorities have a strong and productive relationship that facilitates the resolution of abduction cases under the Convention. 

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 one year and three

months. This average is a result of one case where law enforcement failed to locate the child until

this reporting period, after four years and nine months. In another case, the child has not been

located at the address provided, and, during this reporting period, law enforcement has failed to

locate the child, leading to delays in judicial proceedings.

Judicial Authorities: There were serious delays by the Argentine judicial authorities in deciding

Convention cases. As a result of these delays, cases may be pending with the judiciary for over one

year, contributing to a pattern of noncompliance.

Enforcement: While courts in Argentina ordered returns under the Convention, Argentine

authorities were not always able to enforce these orders. Argentina’s legal system allows multiple

appeals both on the merits of the decision and on the manner in which the decisions are enforced,

thereby creating excessive delays. In this reporting period, Argentina did promptly enforce the

court-ordered return of one child in one case.

Access: In 2018, the U.S. Central Authority had one open access case under the Convention in

Argentina. This case was opened in 2018. This case has been filed with the Argentine Central

Authority. This case was filed in 2018. By December 31, 2018, this case remained open.

Department Recommendations: The Department will continue intense engagement with the

Argentine authorities to address issues of concern.

Abduction from Hong Kong of the Children of Unmarried Fathers

Jeremy D. Morley

In Hong Kong, an unmarried father has no rights of custody over his son or daughter unless and until he brings a court case and succeeds in obtaining a court order that provides him with express rights. This appears to apply even if the mother has added the name of the father to the child’s birth certificate.

This means that if the child is removed from a habitual residence in Hong Kong, and even though Hong Kong is a party to the Hague Abduction Convention, the Convention cannot be used to secure the child’s return to Hong Kong because the father has no “rights of custody” within the meaning of the Convention.

Hong Kong’ s law on the guardianship and custody of children dates back to the late 1970s. Section 3 (c) of Hong Kong’s Guardianship of Minors Ordinance provides that “where the minor is illegitimate … a father shall only have such rights and authority, if any, as may have been ordered by a court on an application brought by the father…” The Act provides that the child’s mother automatically has sole custody.

If, after the unilateral removal of a child from Hong Kong, the left-behind father obtains a court order providing him with rights of custody over the child and requiring the child’s return to Hong Kong, that may not cure the problem concerning the Hague Convention.

However, the Hong Kong post - “abduction” order could normally be registered and enforced in courts in the United States pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (or predecessor statute in Massachusetts). But similar laws do not exist outside the United States. Also, Hong Kong has not adopted the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.

Practice Tip on Returning Abducted Children to Japan

Jeremy D. Morley

We just won a Hague Abduction Convention case in Sweden, working with Swedish counsel, and obtained an order to return the abducted children to Japan. Of the greatest importance, the Swedish court granted our express application that our client, the left-behind parent, is the parent who will take the children back to Japan.

Japanese family law is extremely weak. Child custody orders in Japan are essentially unenforceable.  Japanese law applies the one-parent rule, whereby only one parent is permitted to have custody of a child. Visitation rights are minimal and unenforceable. For these reasons, the parent who is in possession of a child in Japan is usually, by default, the custodial parent.

This has to be explained, and proved, usually by expert evidence, to a court handling a Hague petition seeking the return of a child to Japan.

It is often also necessary in such cases to handle suggestions from the abducting parent or the court about undertakings. These are provisions that impose conditions of the return of an abducted child. They might, for example, require that, before a child can be returned to Japan, a Japanese court should issue an order concerning the terms under which the parties should reside prior to the issuance by a court in Japan of a comprehensive custody order. Such conditions are completely counter-productive and entirely naïve when it comes to the return of children to Japan. Japanese courts do not issue such orders and, even if they did, they would be unenforceable.

For these reasons, it is critical to ensure that the focus is on which parent will take the child back to Japan because the reality is that legal system in Japan is essentially a vacuum when it comes to child custody and visitation. Basically, whoever possesses a child in Japan has de facto custody.

_____________________

Jeremy D. Morley handles numerous cases concerning Japanese family law. He lectured earlier this year on such issues at the Japanese Foreign Ministry and has frequently been called as an expert witness on Japanese family law in courts throughout the world.

Recent Update: United States and Jamaica Become Partners Under the Hague Abduction Convention

On April 1, 2019, the 1980 Hague Convention on the Civil Aspects of International Child Abduction entered into force between the United States and Jamaica. The United States now has 79 partners under the Convention.

Lehn v. Al-Thanayyan: Expert Testimony, Jeremy Morley, Child Abduction, Kuwait

 by Jeremy D. Morley

The Arizona Court of Appeals has rendered an extremely significant new decision on the admissibility and reliability of an international family lawyer’s expert testimony concerning the laws and practices of a foreign country concerning child custody and abduction. Lehn v. Al-Thanayyan, dated March 7, 2019. 2019 WL 1070824.

The Court upheld the reliance by an Arizona trial court on my testimony concerning the laws and practices of Kuwait as to child custody in international matters. 

The case concerned a Kuwaiti father with permanent residency in the United States, his wife who was a U.S. citizen, and their two children, of dual Kuwaiti and U.S. nationality. They had previously lived in Kuwait but, with the father’s consent, the mother and children had relocated to Arizona while the father remained in Kuwait but visited the U.S. regularly. 

The mother requested that the father’s parenting time occur only in Arizona because she feared that if he were permitted to take the children to Kuwait, he would not return them to the United States. Mother also requested that the father be ordered to surrender his passport and U.S. permanent resident card to his attorney before exercising parenting time in the U.S. 

I submitted an extensive expert report on the Kuwaiti and international family law aspects of the case. I provided an opinion that if the father were to take the children to Kuwait and keep them there, then, notwithstanding the issuance of orders requiring return or access by courts in Arizona, it would be exceedingly difficult and most likely impossible for the mother to secure the children’s return home from Kuwait. I also stated that, in my opinion, if the Father had unsupervised access to the children in the United States, he would likely be able to take them to Kuwait or elsewhere notwithstanding the issuance of preventative measures imposed by the Arizona court. I then testified at the trial remotely and was subjected to through cross-examination.

The trial court upheld my testimony and ruled accordingly. The father appealed, claiming inter alia that I was not qualified to provide the expert testimony that I did provide. The Court of Appeals did not agree. 

It ruled that:

“Morley testified that he worked exclusively on international family law matters, including international child custody matters, international child abduction prevention, and recovery of internationally abducted children. He explained that his opinions about Father were based on facts provided by Mother and Father’s expert, and he acknowledged that his opinions may lack foundation if those facts were incorrect. The factual statement Mother provided to Morley, however, was substantially consistent with her trial testimony. Therefore, viewing that evidence in the light most favorable to affirming the decree, see Boncoskey, 216 Ariz. at 451 ¶ 13, Morley’s opinions did not lack foundation. 

Moreover, Morley’s opinions in this case were based on his extensive experience and research. He relied on official statements and information about Kuwaiti law from the United States Department of State, the United Kingdom, and non-governmental organizations that provide information relating to international child abductions. Morley testified that he had gained significant knowledge about international child custody disputes, written several articles and two treatises on the subject, and provided expert testimony in the United States and internationally. Father also stipulated that Morley was an expert and that his own expert agreed with some of Morley’s testimony regarding Kuwait family law. The family court acknowledged the strengths and weaknesses in both experts’ positions and was in the best position to judge their credibility. See Gutierrez, 193 Ariz. at 347 ¶ 13. Thus, the court did not abuse its discretion by accepting Morley’s testimony and report.”

The Court of Appeals also upheld my opinions concerning the risk factors of potential international child abduction. Based on my evidence the lower court had based its parenting time orders on findings that are consistent with several factors listed in Section 7 of the Uniform Child Abduction Prevention Act for determining whether a parent poses a risk of abducting the child. The appeal court held that, “As Mother’s expert testified, other United States courts have applied these and similar risk assessment factors. … Although Arizona has not adopted the UCAPA, the court nevertheless had the discretion to rely on these factors in the absence of a specific statute to the contrary as long as it also considered the children’s best interests.”

Expert Testimony: Recent Update

I am pleased to have been accepted again as an expert on the child custody laws and practices of India in international child abduction cases by a court in Canberra, Australia. I testified yesterday as to the recent decisions of the Supreme Court of India, including the most recent case of Lahari Sakhamuri v Sobhan Kodali.

Saudi Guardianship Laws

Jeremy D. Morley

www.international-divorce.com

Even if the American woman whose ex-husband is reportedly not letting her leave Saudi Arabia escapes, she could be forced to leave her 4-year-old daughter behind

Business Insider. Article by Ashley Collman, 3-7-19

On Tuesday, The New York Times published a report on Bethany Vierra, a 31-year-old American woman whose cousin said she has been trapped in Saudi Arabia with her 4-year-old daughter since divorcing her Saudi husband.

In Saudi Arabia, women are controlled by male "guardians" who must sign off anytime they want to leave the country. Even though she is divorced, her husband still has that power and has reportedly refused to let her return to the US.

Even if Vierra manages to find a way to get around this rule herself, her ex-husband will maintain the power to keep his daughter, a legal expert told INSIDER.

The outlook is not looking good for the American woman whose ex-husband is reportedly not letting her leave Saudi Arabia.

Legal experts told INSIDER that even if 31-year-old Bethan Vierra escapes the country, she could have to leave her 4-year-old daughter behind.

On Tuesday, The New York Times published Vierra's story, whose cousin said she has not been allowed to leave the country with her 4-year-old daughter, Zaina, since divorcing her Saudi husband a year ago. Vierra's cousin declined to comment to INSIDER.

Saudi Arabia's guardianship laws assign a male relative control over every woman. Though she is divorced, Vierra's husband is still her guardian, maintaining control over her ability to travel internationally or get a job.

Her cousin told The Times that Vierra tried to come back to Washington state to spend Christmas with her family, but her ex wouldn't allow it.

Vierra's case is somewhat unique in that she is a foreigner. Usually after a divorce, a Saudi woman's guardianship passes back to her father, or to her closest living male relative. It's possible that Vierra's ex remains her guardian because she has no Saudi male relative for her guardianship to pass to.

Even if Vierra were able to leave the country herself, either through permission from her ex or through petitioning the local courts, there's little hope that she'll ever be able to take her daughter with her because the girl's biological father will remain her guardian until she marries, and the Saudis don't recognize Zaina's dual citizenship.

Legal experts say there's little hope her daughter could get another guardian

While women can sometimes petition to get a new guardian, these situations are usually narrowly tailored to women whose male guardian has grown too old for the responsibility, according to Human Rights Watch.

In the vast majority of cases, a girl's father is her guardian at birth and the only time it transfers is when she marries, and even then her guardian must sign off on her suitor, according to HRW. If her husband dies before her, the woman's guardianship passes to another male relative.

Jeremy Morley, founder of an international family law practice in New York, told INSIDER it's highly unlikely Vierra could get a new guardian for her daughter Zaina.

She would have to show a "heavy burden of proof" that her ex is mentally ill, a criminal, or not fulfilling his guardian responsibilities — and even then Zaina's new guardian would just be another male member of her father's line, Morley said.

Zaina's dual citizenship won't help her, either. Though the girl was born in Saudi Arabia, her mother's American citizenship passed to her at birth. But the Saudi government doesn't recognize dual citizenship, so she'll get no special treatment if her mother finds out a way to leave and tries to take her with her, without the permission of the girl's father.

Furthermore, custody of Zaina will transfer to her father when she turns 7, under Sharia law, according to HRW.

Robert D. Arenstein, a New York-based lawyer who has tried over 400 international child custody cases, called the policy "very chauvinistic."

"Unless she can get out of Saudi Arabia in some way, which is not necessarily going to happen, I would tell her to try and stay with the child and get a lawyer that does Sharia law to help her out," Arenstein told INSIDER.

Saudi Arabia has made it somewhat easier for women to petition for custody of their children in the last year, not requiring them to file lawsuits and go through the court Saudi system like in the past. But Vierra would still have to apply for custody of Zaina.

When couples divorce in the US, state law determines the process for who gets custody of the children. If it's disputed, courts often decide based on the "best interests of the child."

The US probably can't help, either

Morley said Vierra can petition a court in her home state of Washington to take the custody case, but even then there's "no chance whatsoever that the Saudi courts will pay attention to an American ruling."

"She is in desperate trouble," he said. "She can ask for political help. That is all I can see beyond begging for mercy from her husband. Make promises to him that she will treat him in a certain way, or give him something else that he wants."

And if that fails, "she can possibly find a very dangerous way to be smuggled out of the country."

The State Department declined to weigh in on Vierra's case to the Times, citing privacy rules, but the department's deputy spokesman, Robert J. Palladino, did address the issue generally at a press briefing on Tuesday.

Palladino said that anytime an American travels overseas they're "subject to the laws of the country in which they travel," including Saudi Arabia where women require their guardian's permission to leave the country.

"We routinely encourage American citizens to make sure — to read — what we publish and to understand the laws of the countries to which they're visiting," Palladino said.

He added: "We engage with the Saudi government and all nations on [women and girls rights'] issues. It's something that we do routinely in our diplomacy. It's something that we continue to stand up for and something that is part of what we as the diplomatic corps do globally."

Lecturing in Japan about International Child Abduction, Custody and Parenting

Jeremy Morley

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

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

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

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

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

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