Australia - Child Relocation

Reviewing Australia’s Family Law Amendment (Shared Parental Responsibility) Act 2006 leads to great concern that international (and domestic) relocation cases in Australia might become extremely difficult to win.

The Act creates a presumption that it is in a child's best interests for each parent to have equal shared parental responsibility. It requires the presumption to be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence.

The statutory preference for shared parental responsibility will often conflict with the reasonable desire of a parent whose marriage is over to “go home” to her country of origin or to make a fresh start.

Assume that Australian Jack and American Jill meet on vacation in Fiji. Jack persuades Jill to join him in his place on the beach in Queensland. Jill has a child there but Jack doesn’t come home much and Jill desperately misses her family and friends back home in the States. She gets a job but it does not pay much while Jack goes on unemployment.

Jill’s Australian lawyer advises her that Jack has full rights to shared parental responsibility over the baby. Jill says that if she goes home to the U.S. she will be able to get a better job and will have the support of family and friends. Her lawyer explains that the fact Jack is not working actually helps his case because he has plenty of time to spend with the baby. While an Australian court has the power to decide that it is in the best interests of the child that her mother be allowed to relocate with her to the U.S., the statutory presumption in favor of joint parental responsibility could well tip the balance in favor of blocking relocation except in extreme cases.

Has the Australian legislation gone too far?

Will the Australian courts redress the balance?

In B & B [2006] FamCA 1207 (15 November 2006) the Full Court of the Family Court of Australia in Brisbane may have started that process. It upheld a decision allowing a mother to relocate with her children from one part of Queensland to another, over the strong opposition of the father. In its decision, the Court stressed that in relocation cases regard should be had not only to the best interests of the child but also to the right to freedom of movement of a parent. It described the relationship between the two concepts as “a delicate interplay of concepts.”

How that interplay works itself out in Australian relocation cases remains to be seen.

Japan's International Child Abduction Policy

By Kirsten Brown

(AXcess News) Washington - Four fathers quietly filed into a theater to watch "Abduction: The Megumi Yokota Story," a documentary about North Korea's kidnapping of Japanese citizens in the 1970s and 1980s.

If the names Walter Benda, Patrick Braden, Chris Kenyon and Paul Toland don't sound Japanese, it's because they're not. But their children are half-Japanese, and these fathers say Japan has committed the same crime against them that Japan accuses North Korea of committing.

Although the North Korean abductions stoked a national frenzy in Japan, the American fathers' cries have fallen on deaf ears both here and in Japan.

"I understand the situation that Megumi's parents find themselves in," said Benda, 49, who has been separated from his children since 1995 when they were taken by his ex-wife, a Japanese citizen. "I just wanted to make a statement that Japan should maybe look inside its own borders."

The fathers came with fliers bearing the faces of their children - heart-breakingly beautiful children with wide almond eyes and wider smiles. The foursome stood in the chilly night for hours handing out fliers and hoping to speak with one of the prominent Japanese officials at the screening, including Ambassador Ryozo Kato. But they were kept away.

"Here they were, co-sponsoring a movie about abduction," Benda said, "yet they are condoning abduction themselves - the abduction of the children of foreign parents." "Like my daughters," he added, softly.

Benda of Max Meadows, Va., has seen his two daughters three times from a distance in the 11 years since he came home to find the door locked and his family gone. He cannot obtain visitation rights to his children in Japan, so he can look forward only to far-off glimpses of them. Braden said a mixture of empathy and frustration overcomes him whenever he sees publicity for the kidnapped Japanese citizens. "Their loss is the same as our loss," he said. "It's just that they're here, asking for our help, and it's kind of a slap in our face."

Many congressional hearings on international custody disputes have been held with few gains, said Rep. Tom Lantos, D-Calif., the rising chair of the House International Relations Committee. "Every single one of these cases is a tragedy," Lantos said. "They are extremely difficult to deal with, because there are differing laws and differing countries."

While not the only country to overrule U.S. custody verdicts, Japan is the No. 1 offender among Asian countries. A State Department spokeswoman said parents like Benda are "severely disadvantaged" in the Japanese court systems, where joint custody is viewed as a psychological burden on the child.

The system instead favors a "clean-cut" approach, in which the non-custodial parent disappears from the child's life as if that parent never existed, international family lawyer Jeremy Morley said.

"The idea of both parents being involved in raising the child is foreign to the Japanese culture," Morley said. "There's been no historic role for both parents being involved, and the legal system makes no provision for any kind of visitation rights."

Japanese judges also demonstrate a clear bias toward awarding their citizens full custody in international divorce cases, he said. Children born in the United States automatically have Japanese citizenship if one of their parents is Japanese.

"A Japanese court will never give custody to a foreign parent," Morley said. "If the child is a Japanese national, the system will only see it as his right to be raised in Japan. They will feel it would be extremely unfair to a child to deprive him of the opportunity to live in a wonderful place like Japan."

Abductors, including parents violating court orders, face up to three years in prison and $250,000 in fines under U.S. federal law, plus state prosecution. Japan does not recognize abduction by a family member as a crime.

Japan remains the only Group of 7 nation to abstain from signing the Hague Convention on international child abduction, rendering the U.S. powerless to extradite Japanese citizens charged with violating U.S. courts' custody rulings.

A Japanese embassy spokesman said foreign judgments are recognized in Japan if they meet certain legal criteria under Japanese law. But Japanese judges may disregard a U.S. ruling is if it is not deemed "compatible with public order or good morals of Japan."

The State Department has 32 open cases involving Japanese citizens, all of them mothers. The government cannot claim any success stories, as the one child who returned to his father did so entirely on his own.

Mike Gulbraa's son Chris was that child. After five years in Japan with his abducting mother, Etsuko Tanizaki Allred, Chris learned he could go to a U.S. consulate in Japan and apply for a passport. Chris slipped away on his bike the evening of Aug. 31. Hours later, he was on a plane to the U.S. When Gulbraa saw his son step off the plane, memories of the boy's birth washed over him. "I had that same type of feeling when he walked off that plane," said Gulbraa, a Columbus, Ind. businessman. "It was like a rebirth."

Even pre-emptive efforts by U.S. courts to prevent abduction have failed. Braden, 46, of Los Angeles obtained a temporary restraining order meant to prevent his ex-girlfriend from taking their 11-month-old daughter, Melissa, to Japan. But on March 16, Ryoko Uchiyama got Melissa on a plane anyway. "I couldn't believe that she had really done it," said Braden, an antiques dealer. "I thought there would be police to stop her at the airport, but there was nothing."

Toland, 39, a Navy commander stationed in Arlington, Va., has given up hope of help from the U.S. government in getting back his 4-year-old daughter, Erika. He has spent less than hour with his daughter since his wife, Etsuko Futagi Toland, took her from their home more than three years ago. "The State Department can't do anything for us," Toland said. "I'm kind of tired of sitting on my hands." Because he is in the military, Toland shied away from the limelight, but has decided drawing more attention to his story may be his last shot at seeing Erika again.

"Maybe by getting our story out there, we can finally put pressure on the American government to do something for us," Toland said, "the same way that Megumi's parents put pressure on the Japanese government to do something for them." In the meantime, Toland and the other childless fathers continue to buy tickets to each retelling of Megumi's story.

Source: Scripps Howard Foundation Wire

Mirror International Prenuptial Agreements

We frequently recommend mirror prenuptial agreements for people with international domiciles, citizenship or businesses.

Love doesn’t always last but the consequences of failed marriages can endure for a lifetime.

The problems can be multiplied when the people and/or the assets are international.

In the context of international prenuptial agreements, a mirror agreement is one that is drafted in one jurisdiction to follow the terms of an agreement that applies in another jurisdiction.

The purpose is to maximize the chances of enforcement of the agreed terms in multiple jurisdictions.

Thus if H and W live in London but one of them has a New York domicile, they must be advised that prenuptial agreements are not enforceable in England.

An English prenuptial agreement will be given some weight – sometimes a lot, sometimes a little -- in an English court, but that’s all. Whether an English agreement will be enforced in the U.S. is uncertain, since an American court may well determine that its validity is governed by English law since it was negotiated in England and that is where the parties were most closely connected at the time of execution.

A New York prenuptial agreement may not be enforced in the U.K., Singapore, Hong Kong or some other jurisdictions.

If H and W believe that they might move to the U.S. in the future, it makes sense to have two agreements, one under English law and the other under the law of the American state with which they are most closely connected.

Another benefit of having a New York agreement in these circumstances is that New York is among the toughest jurisdictions in the world for enforceability. New York lawyers will insist that there be full disclosure of assets; that the terms be fair to both parties; and that both sides be represented by independent counsel. This means that a well-drafted New York agreement may well survive in any American state and in many other jurisdictions around the world.

Since international people can surely not predict with any certainty where they will live in the future, this provides significant benefits.

Of course, to provide greater security to the party whose assets are being protected it is advisable to seek advice from matrimonial counsel in every jurisdiction in which a client says that he might live in the future. In one case involving a famous international globetrotter we fput together a global team of divorce lawyers to cover as many bases as possible.

It is important to provide for one of the agreements to be superior to the other. The primary agreement should normally be the one that is the jurisdiction which provides the greater chance of enforceability. Thus, between an English and a New York agreement, it is normally preferable to provide that the New York agreement will have priority. The English agreement should provide that it will come into play only if the New York agreement is for any reason unenforceable.

EU Member States Attack Divorce Conflict of Laws Scheme

16.11.2006 - 09:30 CET | By Teresa Küchler
EUOBSERVER / BRUSSELS - EU member states are lining up to attack a European Commission proposal to establish common rules for cross-border divorces which could - in an extreme scenario - see Iranian divorce rules applied in European courts in future.

The proposal - called Rome III and presented last July - sets out which national legislation should apply in the case of a couple of two nationalities or a couple living in their non-native country, such as an Irish and Finnish pair of EU civil servants living in Brussels.

The commission argues it will give clarity and prevent disputes related to "shopping" for jurisdictions, so that if the couple in the example divorced but could not agree whether to do it under Irish, Finnish or Belgian law, Rome III would impose the law of the country where they live or have the strongest ties to.

In cases involving non-EU citizens or non-EU states, Rome III would also favour a legislature to which both spouses have a strong connection, with a Swedish justice ministry document plotting a potential scenario in which European courts have to deal with a dispute under Iranian law.

The Swedish view of Rome III imagines a Swedish woman who marries an Iranian man in Sweden and emigrates to Iran but after several years decides to leave both her spouse and his country and go home. "The proposal means that Iranian divorce law would be applied by the Swedish court," the justice ministry study states.

The strong difference in marital law worldwide - with some countries forbidding divorce or propagating a culture of arranged marriages - turns the universal dimension of Rome III into a legal and political minefield in the predominantly liberal democracies of Europe, legal experts say.

"Forced marriage, where a spouse - most probably the woman- cannot get out of the marriage, is one of the topics that is bound to come up for discussion", one lawyer told EUobserver.

Even within the EU, divorce laws differ widely - it is illegal in Roman Catholic Malta but quick and easy in Sweden, while other member states require different lengths of time of separation prior to divorce or different "bases of fault" on which to legally split.

Malta has stated it will oppose any proposal that would oblige Maltese courts to apply foreign laws to circumvent its ban on divorce.

"If Ireland were to adopt and implement this measure, this would allow EU nationals resident in Ireland to obtain a divorce in our courts on substantially different and less onerous grounds than that provided for in our constitution", the Irish justice ministry recently said, planning an opt-out from Rome III.

Meanwhile, some EU member states such as the UK dislike Rome III because it encroaches into the national domain of family law and could see divorce cases drag out in time as UK courts struggle to find experts on foreign jurisdictions in Britain's increasingly multi-ethnic society.

"It [Rome III] would sadly not bring about the benefits it was intended to bring about, at least not in the UK," a UK diplomat said, confirming that the UK has also requested an opt-out from the bill.

Claim for Concealment of Value of Marital Assets Dismissed in New York

Once a divorce case is settled, parties often experience “buyer’s or seller’s remorse’ but a just-decided New York case shows how tough it is to set aside a divorce settlement -- even in an extreme case in which the value of an asset turns out to have been undervalued by many millions of dollars.

In Kojovic v. Goldman a New York appellate court expressed its “disdain” for post-divorce claims of concealment of the value of marital assets.

The parties settled their divorce case after the parties had exchanged financial information. The husband had disclosed his minority interest in an information technology company. The settlement agreement gave the wife nearly $1.5 million.

About one month later, Standard & Poor's bought the company for $225 million, of which the husband’s share was $18 million. The understandably-furious wife sued to set aside the settlement agreement on the basis of fraud and unconscionability.

The Appellate Division, First Department would not allow the wife to present her case at trial, finding that she had not stated a valid cause of action. It held that merely because the wife now believed that her husband privately harbored a more optimistic assessment of the potential value of his minority interest in that company, or even had additional information that he kept to himself, was irrelevant.

What is significant, the Court held, is that the wife, a former equity research assistant at Morgan Stanley with a degree in finance, along with her experienced counsel and accountant, could have freely availed themselves of any number of valuation and discovery procedures during the divorce proceeding but declined to do so, as was expressly acknowledged in the separation agreement. Thus, “the wife has only herself to blame for her failure to inquire further. Such failure is not, however, a basis upon which to vacate the settlement.”

Matrimonial lawyers should note with some trepidation the Court’s reference to their responsibility to protect the parties in this kind of a case.

Habitual residence of a baby in a Hague case

The Seventh Circuit has issued a significant new ruling on habitual residence of babies and young children in Hague international child abduction cases in Kijowska v. Haines, (7th Cir. Sept. 8, 2006).

Interplay of UCCJEA and the Hague Abduction Convention

The Uniform Child Custody Jurisdiction and Enforcement Act and the Hague Convention on the Civil Aspects of International Child Abduction need to be applied consistently with each other -- or there can be serious confusion and unfairness.

A very recent New York case, Krymko v. Krymko , (App.Div. 2d Dept., 9/19/06), demonstrates the sensible application of the two laws in an integrated fashion.

A married couple moved with their young child from their home in Ontario, Canada to New York in mid-2004. After about five months in New York the mother took the child back to Canada without the father’s consent and she promptly initiated a custody action in Toronto, Ontario.

The father thereupon instituted suit for custody in New York. He also applied for the return of the child under the Hague Convention and instituted a Hague Convention case in Ontario.

In April, 2005, the Ontario court ruled that the child had been “habitually resident” in New York on the day that she was taken back to Canada. Accordingly, the Ontario court ordered that the mother return the child to New York.

The mother brought the child back to New York but asked the New York court to dismiss the New York custody action on the ground that New York was not the “home state” of the child under the UCCJEA.

The UCCJEA defines the "home state" as "the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding . . . A period of temporary absences of any of the mentioned persons is part of the period." (New York’s Domestic Relations Law Sec. 75-a(7))

The mother claimed that at the time that the New York case had been commenced, the child had been in New York for only five months before being taken back to Canada. The father claimed that the time before the child went to Canada was six months, not five.

The Appellate Division held that, even if the time in New York had been only five months, the subsequent stay in Toronto followed a removal that the Ontario court had determined was wrongful within the meaning of the Hague Convention. Accordingly, it should be deemed to be a “period of temporary absence” within the meaning of the UCCJEA, which should be added to the prior period of five months so as to constitute the required six-month period.

In this regard, the Court held -- citing cases in Indiana and Texas (Ortman v. Ortman, 670 NE2d 1317 (Ind); Matter of Lewin, 149 SW3d 727 (Tex]) -- that “[t]he appellant may not decide the timing and forum of the custody proceeding through wrongful removal of the child from the jurisdiction.”

The Second Department ruled that, in any event, Ontario’s Hague return order meant that Ontario had deferred jurisdiction to New York and that substantial evidence was available in New York so that, even if the six month rule had not been satisfied, a New York court had jurisdiction to make an initial custody determination under Domestic Relations Law Sec. 76.

The case illustrates the need for counsel to consider the UCCJEA and the Hague Convention together when handling international child abductions cases in this country.

Three Sides to Every International Child Abduction Story

The British media have been full of hype about a 12-year old girl who was allegedly abducted from her home in Scotland and taken to Pakistan by her father for what was claimed to be a forced marriage.

The case illustrates the way in which public opinion in international child custody cases can easily be manipulated and how there are two (or three) sides to all of these stories.

On Tuesday the Daily Mirror was reporting that ‘A missing girl of 12 was in Pakistan last night amid fears her father snatched her for an arranged marriage. Molly Campbell, also Misbah Rana, is thought to have been duped by elder sister Tahmina into joining her dad Sajad Rana on a flight to Lahore. Interpol has been alerted. Molly's gran Violet Robertson, 67, said: "It's an arranged marriage. Molly doesn't know the man - he's 25. She doesn't want to go to Pakistan. She wants to be with her mum."

On Wednesday, the Sun was calling the girl “The Kidnap Bride” while Mirror’s headline screamed “MOTHER: GIVE ME MY MOLLY” and the newspaper reported that “A mum last night begged her ex-husband to bring back their daughter amid fears she may be forced into marriage in Pakistan. Louise Campbell, 38, told of her anguish since Molly, 12, vanished. It is believed her father, Sajad Ahmed Rana, took her from school on Friday to marry a 25-year-old man in Pakistan.”

On Thursday a British MP got in on the act by claiming amidst a storm of publicity that he was flying out to Pakistan to rescue the abducted child.

Only after the girl herself appeared at a press conference in Pakistan did the truth begin to emerge. The girl reported that she had gone to Pakistan of her own free will and she appeared to be quite happy about the move.

In this particular case the girl was of sufficient age and maturity to be able to express herself articulately and effectively – and the press backed off.

But that is highly unusual. Most kids are too young, too frightened or too upset to be able to explain effectively what has happened to them. Then it is the parent with the loudest bullhorn who typically sways the media to his or her side.

On Friday we were interviewed about these problems on BBC Worldwide. As we explained, emotions run terribly high in these cases because parents feel that they are “all or nothing cases.” They fear, often justifiably, that their children will never be part of their lives if the case is lost.

The lesson of all this is that people must keep an open mind about these cases. Not only are there two sides to every story – the mother’s side and the father’s side – but there is also the child’s side. It is the child’s best interests that are often neglected as each parent battles for total victory against the other parent.

There are Two Ways to Prepare for an International Divorce

Are you someone who always runs at the last minute to catch a plane? Or do you prefer to arrive at the airport ten minutes early and relax?

This is a question that ‘marketing guru’ Seth Godin asks so as to illustrate the benefits of sensible planning in business.

In my area -- international family law -- it raises these questions:

• Do you think it’s better to wait until you’re served with divorce papers before running to a lawyer in a panic?

• Or would be better to plan in advance?

• If you and/or your spouse are internationally connected, would it be best to wait until your relationship has exploded to find out whether your case can and should be brought in another jurisdiction?

• Or would it better to know the international choices that you have at a time when you can still influence the results?

The answers to the questions are pretty obvious.

It’s better to get regular dental check-ups than waiting for a toothache and then having nasty root canal work.

And it’s better to ask an international family lawyer to do some Strategic International Divorce Planning than to wait for the last minute when it may be too late for you to change course.

It’s the doing that’s tougher than the agreeing. In our case we’ll do most of it for you. But you have to get things started.

Enforceable Prenuptial Agreements: Their Time Has Come

"Jeremy D Morley, Attorney-at-Law, International Family Law Office, New York, USA. The author says that the failure of English courts to enforce prenuptial agreements is an anachronistic peculiarity of English law that demonstrates a stubborn refusal to adapt the law to new conditions. The recent judgments of the House of Lords in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 1 FLR 1186 point to the urgent need for the courts to set aside the preposterous contention that it is 'substantially uncontestable' that substantial harm to the public would arise if prenuptial agreements were enforceable.

The current law results from the ruling in 1929 in Hyman v Hyman [1929] AC 601 that binding prenuptial agreements contravened public policy. However, society has changed dramatically since 1929. When Hyman was decided, people had little expectation of getting divorced and divorce was generally regarded as sinful. People with assets did not require contractual protection should a divorce occur because the law did not provide for capital transfer upon divorce. The status of marriage itself provided all of the necessary terms of the relationship between spouses.

See September [2006] Fam Law for the English law article. The full version of the article containing comparative international references will be published in Issue 4 of 2006 International Family Law"

New Parental Relocation Law in Connecticut

Connecticut has passed “An Act Concerning the Relocation of Parents Having Custody of Minor Children,” to be effective October 1, 2006, that significantly changes the law of parental relocation in Connecticut.

The Act is a result of the decision of the Connecticut Supreme Court in Ireland v. Ireland, 246 Conn. 413, 428, 717 A.2d 676 (1998) which had made it easier for custodial parents to relocate.

The Ireland case held that a custodial parent seeking to relocate must prove, by a preponderance of the evidence, that the proposed relocation is motivated by a legitimate purpose and that the new location bears a reasonable relation to that purpose. Once that initial hurdle was overcome, the burden shifted to the opposing parent to establish why relocation would not be in the child’s best interests.

Fathers’ organizations in particular opposed the approach in Ireland on the ground that it was unfair to compel a non-custodial parent to prove that relocation to another state or country would be contrary to the child’s best interests.

The new law reverses the burden of proof. It provides that the relocating parent has a triple burden of proving, by a preponderance of the evidence, that the proposed relocation is for a legitimate purpose, that the proposed location is reasonable in light of such purpose, and that the proposed relocation is in the best interests of the child.

The act also specifies that the court should include in its consideration (1) each parent's reasons for seeking or opposing the relocation; (2) the quality of the relationships between the child and each parent; (3) the impact of the relocation on the quantity and the quality of the child's future contact with the non-relocating parent; (4) the degree to which the relocating parent's and the child's life may be enhanced economically, emotionally and educationally by the relocation; and (5) the feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements.

Custody orders not respected internationally; Children abducted overseas

The news story below demonstrates why it is so important for the courts to listen to parents who are concerned that their children may be taken to countries that do not respect custody orders issued by the courts of the countries from which children are taken.

The article concerns the abduction of a child to Syria and explains that the reason for the problem is that Syria is not a member of the Hague Convention on the Civil Aspects of International Child Abduction. However, it is extremely important that courts do not fall into the trap of believing that merely because a country has agreed to the terms of the Hague Convention its courts will comply with their Hague Convention obligations. Many countries do so – but many countries that are parties to the Hague Convention do not comply with their treaty obligations.

Clash between Islam and West strands children in embassy

By Rohan Minogue Jul 25, 2006, 3:32 GMTAmsterdam - Two children have spent the past month in the Dutch embassy in Damascus, caught in a tug-of-love between their Syrian father and Dutch mother and between two conflicting concepts of family law.

Ammar, 13, and Sara, 10, are being cared for by the diplomats, and a teacher has been specially flown in to tend to their schooling, but they lack the normal context of family and friends that others their age have as a matter of course.Ammar celebrated his birthday under these conditions on July 12. According to his mother, Janneke Schoonhoven, he is 'desperate' to mark his next birthday at home in Oude Pekela in the northern Netherlands.

In the view of the Dutch authorities the father, Hisham al-Hafez, abducted the children in August 2004 under the pretext of taking them to the Paris Disney World. He is officially registered as having taken the children illegally.
Syrian officials see things differently: al-Hafez is the father and has the right to decide how and where they are brought up.

Schoonhoven prompted her children to run away while on a visit to them. She gave them a map with directions on how to reach the embassy days before they ran away from their grandparents' Damascus home on June 26.

'They have had a really difficult time of it, otherwise they would not have taken such a big step as to run away,' she told a Dutch television programme.'They were really desperate. Negotiations are continuing at a high level, but it is not easy, because there are completely different laws in Syria.'

Al-Hafez, 51, sees the situation very differently. Both he and the children were 'suffering psychologically,' he told Deutsche Presse- Agentur dpa.
He has called for their immediate release, saying they are 'in a real prison' and complaining that while their mother was speaking to them daily by phone, he was being denied contact.Al-Hafez said that after he and Schoonhoven divorced in 1997, she had custody of the children until she married again and gave birth to twins in 2000. Schoonhoven is unable to afford to bring up four children, he says.
The issue is a 'purely personal one,' Al-Hafez believes, and he accuses embassy staff of 'kidnapping' his children.

The children have now written both to the Dutch queen, and the press has taken up their cause, backing the mother to the hilt.'Queen Beatrix, could you please help us??? Or the prime minister? Help us please. Mama wants us back, papa want us back, but we want only to go to mama and to our family and friends in the Netherlands,' the letter reads according to the version published by the Telegraaf newspaper.
The Algemeen Dagblad has begun a readers' campaign to mark a month since the children went to the embassy.

'Send your personal wish to Sara and Ammar,' the newspaper urges its readers, providing an address and assuring them the letters will get to their destination.
Within hours, dozens of messages had been posted on its website, universally praising their courage and hoping that they will soon be united with their mother.
But Dutch legal experts hold out little hope for the discussions proceeding between top diplomats on both sides.

Syria has not signed the 1980 Hague Convention on the Civil Aspects of International Child Abduction that took effect in 1983. Around 80 countries are participants, but the vast majority of them are Western nations.

The Dutch Justice Ministry registered 75 cases involving a total of 105 children being taken out of the country by one parent in 2005 alone.While almost half of these cases were resolved, in the 16 cases where the children were taken to a Muslim country, no solution has yet been found.

Given the irreconcilable conflict between Dutch and Syrian family law, Sara will in all probability celebrate her next birthday - she turns 11 on August 1 - in the company of Dutch diplomats in Damascus.

© 2006 dpa - Deutsche Presse-Agentur

International Relocation of Children

Our article, International Relocation of Children: American and English Approaches, by Jeremy D. Morley and James H. Maguire, has been published in International Family Law.

See http://www.international-divorce.com/international_relocation_of_children.htm

India: Safe Haven for International Child Abduction

For several reasons, India has become a safe haven for child abductors.

First, India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. The Convention is the fundamental international treaty that protects the rights of abducted children and serves to have them returned promptly to the country of their habitual residence.

Second, the court system in India is extremely slow so that an abductor has ample time to create “facts on the ground” in terms of getting the child sufficiently settled into life in India as to justidy an Indian court in ultimately deeming that it is best to keep the child in India.

Third, the law in India was previously settled that foreign children taken by a parent to India without the consent of the other parent would normally be returned to their country of residence or nationality. However recent decisions of courts in India have changed that rule and have held that foreign custody orders are merely items to consider as part of an overall custody review. Thus in a decision dated March 3, 2006 the Bombay High Court at Goa refused to issue a writ of habeas corpus on behalf of a British mother from Ireland whose eight-year-old daughter had allegedly been abducted to Goa by the child’s American father. The High Court dismissed the mother’s application on the ground that normal custody hearings should be undertaken and completed in Goa.

Fourth, no Indian legislation sets forth helpful law on this issue.

As a consequence, courts outside India should be extremely wary about allowing parents to take children for temporary visits to India over the objections of the other parents since there is a great likelihood that parents who wrongfully retain children in India will get away with their wrongful conduct scot-free in India.

Thus in Katare v. Katare, 125 Wn. App. 813, 105 P.3d 44 (Wash. 2004) the Court of Appeals in Washington State upheld in relevant part the trial court’s ruling in a case involving an American mother and an Indian father. The trial court held that it was not convinced that there was a serious threat that the father would abduct their children to India. However, the potential consequences of any abduction to India were severe and “irreversible.” Accordingly the court was warranted in imposing severe limitations on the husband's residential time with the children, including strict restrictions on the locations of such visitation, surrender of his passport, notification of any change of his citizenship status, and prohibition of his holding or obtaining certain documents (i.e. passports, birth certificates) for the children.

Strategic International Divorce ™

International family lawyer, Jeremy D. Morley, announces the launch of the Strategic International Divorce Planning™ service. Morley contends that people with assets and international connections who are contemplating a divorce, as well as the spouses of such people, should first seek strategic planning support.

The financial consequences of being divorced in one jurisdiction rather than another might be highly significant. For example, the difference between getting divorced in London instead of in New York can be staggering. England has recently acquired an extremely well-deserved reputation as the divorce capital of the world for anyone whose spouse is well-endowed with assets. Once the English divorce courts have finished their work, and the English solicitors and barristers have collected their fees, a once-married spouse with assets will now most likely become an ex-spouse with far less assets. Such people often wonder too late why they did not seek international divorce planning advice before it was too late.

Likewise, the disparity between the practices of divorce courts in Tokyo as compared to those in Sydney, and of the divorce courts in Hong Kong as compared to those in Frankfurt, are equally vast – or possibly even more so.

Yet very few people do their homework on these critical issues at a time when it could really make a big difference. They simply assume that wherever they live is necessarily the jurisdiction in which they must sue or be sued. They walk in blind to what may be the most significant financial transaction of their life.

The differences between one divorce jurisdiction and another are far more than the difference between a soccer team playing at home or playing away. It is instead a difference between playing one game at home and a totally different game with totally different rules away.

The analogy to a game is not inappropriate. Any serious competitor plays a competitive game strategically. Is the process of divorce any less serious than that?

Morley has taught in law schools in England, Illinois and Canada. He has lived in Japan and has done business in more than 20 countries in Europe, Asia and South America. He is admitted to practice law only in the State of New York. Any information that he provides concerning the law of another jurisdiction is subject to a client obtaining legal advice from counsel in that jurisdiction. When appropriate he will retain the services of local counsel to assist us in providing advice to a client.

German Failure to Expedite Hague Child Abduction Cases

It is our personal experience handling international child abduction cases in Germany (with local counsel) that serious problems apply with respect to the prosecution and satisfactory resolution of Hague Child Abduction Convention applications in Germany.

The situation is so serious that we have written a letter to Secretary of State of State Condoleezza Rice and Senator Richard Lugar as Chairman of the Senate Foreign Relations Committees. et al. asserting that Germany is in plain violation of its treaty obligations under the Hague Convention and seeking assistance in thisregard for a client. http://www.international-divorce.com/ca-germany.htm

Delays in Hague proceedings have long been a major problem in Germany. In May 1999, the State Department reported to Congress that the German administrative and judicial processing of abduction cases took 18 months or longer, a period that the State Department considered entirely unacceptable. The international criticism of Germany led Germany to enact procedural reforms and Germany and the United States set up a binational commission to pursue cooperative approaches.

In April 2001, the General Accounting Office issued a report for the Senate Foreign Relations Committee entitled “Changes to Germany’s Implementation of the Hague Child Abduction Convention.” It concluded that the delays in Germany’s processing of Hague applications had been excessive; and that even “the German task force acknowledged that German courts have taken too long to adjudicate abduction cases in the past.” The General Accounting Office concluded by stating that Germany was adopting reforms which would hopefully solve the problem.

In our opinion, the German reforms have not worked. The court system encourages abductors to stall and delay and the judges are either powerless or unwilling to stop it.

Abducting parent (Canada to France) in Jail

Vancouver court gets serious

Woman accused of abducting her children to France is denied bail at 19:22 on May 11, 2006, EST.
http://www.940news.com/nouvelles.php?cat=23&id=511119

VANCOUVER (CP) - A woman accused of abducting her two children and hiding out in France has been denied bail and ordered to stay in prison while she is pregnant.

Nathalie Gettliffe-Grant will stay in jail until her trial date is set July 17, a judge has ruled. "Obviously we're not happy with the decision and we're obviously very disappointed," the woman's lawyer, Deanne Gaffar, said outside court. "It is very much a lot of stress, particularly for someone who's pregnant."

Gettliffe-Grant's ex-husband Scott Grant was at the bail hearing Thursday. He said after the hearing he hopes his former partner pleads guilty.

"My hope is that she pleads guilty and that there's no trial and that she saves herself a lot of grief, because it will be the most terrible thing she'll ever go through, to go through that trial.
"I think even today might have been a shock to her, so I hope there is no trial."

Gettliffe-Grant landed at the centre of an international child abduction case.

She is accused of spiriting her children out of the country to France after a 2001 B.C. Supreme Court decision refused her request to take the children to visit their grandmother there.
Gettliffe-Grant's ex-husband took the case to court in France where he won three rulings, including one by the country's top court.

He said outside court Thursday that he does worry that his he is being painted as 'the bad guy" who put the mother of his children in jail.

His ex-wife was arrested last month at the Vancouver airport when she returned to defend a doctoral thesis at the University of British Columbia.

Grant took the abduction case to court in France, where he won three successive rulings. One was handed down on Feb. 14 by the country's top court and stated that Gettliffe-Grant had breached the Hague Convention on Civil Aspects of International Child Abduction and that the children should be returned to Canada.

It has become one of the longest parental child-abduction cases handled by the provincial office.
She could face up to 10 years in prison in Canada on two counts of child abduction.

The case has taken on a nasty flavor.

California mother held in custody breach case

I am posting this to draw attention to what should be simply routine: the arrest of a parent after her abduction of her child. Hats off to California -- the most progressive American state in this regard.


By Sara Eaton
The Journal Gazette
May 10, 2006

Police arrested a California woman Monday on charges of violating a child custody order by removing her son from his father’s Fort Wayne home last July and never returning him.
Latonna Whitt, 28, of El Cajon, Calif., was booked into the Allen County Lockup at 9:32 a.m. Monday on a single count of violation of custody. She was being held without bail.

According to a probable cause affidavit, Whitt picked her son up from his father’s Fort Wayne home July 3 for a weekend visit but failed to return him the following Sunday as scheduled. Although the boy’s father tried to alert police right away, he was referred to his attorney from the custody case, according to court records.

In October, the father learned Whitt had withdrawn their son from Fort Wayne Community Schools and enrolled him in a school in California, according to the affidavit.

A court order allowed Whitt to have weekend visits with her son but restricted her from removing him from Indiana. The charge is punishable by six months to three years in prison.

“Rights of Custody” under the Hague Convention

In Bader v. Kramer, decided on April 17, 2006, the Fourth Circuit reviewed the meaning of the term “rights of custody,” which is one of the fundamental elements of any application under the Hague Convention on the Civil Aspects of International Child Abduction.

The parties were married, lived in Germany, had a daughter in 1999 and were divorced in 2002. In 2003 the mother petitioned for sole custody and the father promptly counterclaimed for similar relief. On March 20, 2003, the German court ruled on the petitions, setting forth a visitation schedule for the father and granting the mother an award of child support. In April 2003 the mother thereupon took the child to live in the United States, without the father’s permission.

In June 2003 the father filed a second petition in Germany for sole custody, followed by a Hague Convention return application. The German Central Authority sent a letter to the American Central Authority in November 2003 stating that, when Bader and Kramer "were divorced, no decision about the rights of custody was issued. So both still have parental responsibility for the child pursuant to Section 1626 of the German Civil Code (BGB)." In the following month, a German court granted sole custody to the father.

The U.S. district court denied the father’s return application on the ground that he did not have rights of custody. The court determined that, although German law presumptively confers joint custody of a child upon both parents until a competent court enters a contrary order, the German court’s March 20, 2003 order "functioned to alter the presumption of joint custody" by setting forth a visitation schedule.

That determination was overturned on appeal to the Fourth Circuit. The appeal court distinguished Fawcett v. McRoberts, 326 F.3d 491 (4th Cir. 2003), in which a Scottish court had issued a divorce decree modifying a parent's right to custody. The decree had contained a "Residence Order," which gave the father "the exclusive power to determine [the child's] residence, thereby necessarily depriving [the other parent] of that same right." Id.
Although Scottish law prohibited the abducting parent from removing the child from Scotland (equivalent to a so-called ne exeat clause), the Fourth Circuit in Fawcett held that this merely allowed "a parent with access rights to impose a limitation on the custodial parent's right to expatriate his child.” It ruled that “This hardly amounts to a right of custody" within the meaning of the Hague Convention because the divorce decree had deprived the mother of the right to determine the child's place of residence. Id. at 500.

By contrast, in the pending case, the German court order had delineated a schedule of visitation rights that clearly affected the father's rights of access, but it had made no mention of modifying his rights to custody. Since rights of access and rights of custody are not mutually exclusive, the mere fact that the German court had modified the former did not eliminate the latter.

The district court had also relied in part on the fact that the mother was the child’s source for "pecuniary and emotional support" and that the father had exercised his visitation rights to only a limited extent. The Fourth Circuit held that that such matters were entirely irrelevant to the question of whether the German court had issued an order contrary to the presumption of joint custody.

Accordingly, the Fourth Circuit remanded to the district court for an expeditious determination of whether the father was exercising his custody rights and whether any defenses apply under the Hague Convention.

Rabbinic Courts in Israel

Israel's High Court of Justice has ruled that Israel’s rabbinic courts may not resolve divorced couples' property and financial disputes unless they have explicit legal approval to do so. The Court rejected the rabbinic courts' authority to serve as arbitrators in financial disputes, even though both parties had agreed to the proceeding.

The Court held that the rabbinic courts' legal authority was limited by the provisions of the statute governing rabbinic court jurisdiction, and that no court could grant itself authority that it had not been granted by the law, even if the parties agreed. The High Court followed case law, whereby it intervenes in religious court decisions only in "extreme cases" in which the courts exceed their authority, deviate from the law relating to religious courts or impinge upon the principles of natural justice.

The new decision generates many difficulties regarding past rulings by rabbinic court judges who acted as arbitrators. In an editorial, the Haaretz newspaper has called upon Israel’s legislature, the Knesset, to give legislative validity to such prior rulings.

Islamic divorce vs. U.S divorce

Islamic men who are foreign nationals but American residents often seek to divorce their spouses under the Sharia law prevailing in their country of origin rather than the secular law prevailing in the state of their marital domicile. Their intent is (a) to obtain an instant divorce by merely speaking certain words, (b) to take advantage of the Islamic “marriage contract” pursuant to which a wife receives nothing more than a nominal “deferred dower” payment upon divorce, (c) to take advantage of child custody laws that discriminate against women and (d) to have the wife labeled as a “bad Muslim.”

A New Hampshire court ruling (In the Matter of Ramadan, ruling dated 2/14/06) shows just how foolish such tactics can be.

The Ramadans had married in Lebanon and had signed a mahr, an Islamic marriage contract. They subsequently lived in Massachusetts, Texas, Egypt and Lebanon, before ultimately settling in New Hampshire. The husband declared “I divorce you” three times in the wife’s presence in New Hampshire. He then telephoned a lawyer in Lebanon, with two witnesses listening, and declared that he had divorced his wife. He promptly went to Lebanon and secured an order from a religious magistrate that he had done so. Meanwhile the wife instituted an action for divorce and ancillary relief in New Hampshire, serving him upon his return from Lebanon.

The husband retained counsel in New Hampshire who informed the court of the prior Lebanese divorce and declared that the husband would ignore the New Hampshire case, which he proceeded to do. The Family Division ultimately entered a divorce decree which adopted in its entirety the terms proposed by the wife. The husband appealed. The Supreme Court of New Hampshire ruled that the Family Division had jurisdiction to enter a divorce decree since the parties were domiciled in New Hampshire. It refused to recognize the Lebanese decree on two separate grounds.

First, a New Hampshire statute (RSA 459:1 (2004)) provides that “a divorce obtained in another jurisdiction shall be of no force or effect in this state … if both parties to the marriage were domiciled in this state at the time the proceeding for the divorce was commenced.” The court held that this statute applies to overseas divorces.

Second, the court held that in any event the principle of comity, pursuant to which courts generally give recognition to foreign divorces, would not apply if application of the policy would violate “a strong public policy of the forum state.” The Court ruled that recognition of an ex parte foreign divorce obtained in a jurisdiction in which neither party is domiciled would cause hardship and would be in derogation of sound public policy.

The husband then asked the appeal court to vary the trial court’s division of marital property and award of custody. The New Hampshire Supreme Court held that he was too late. He had failed to provide the trial court with any of the information that it needed in order to make a more balanced award. He now had to live with the consequences, unbalanced as they might be.

The simple moral: If you choose to live in this country you are subject to the laws of this country.

English divorce law: Divorced from reality

Today’s (London) Times contains an opinion article from the paper’s former editor, William Rees-Mogg, attacking the English divorce system. The article, entitled “Divorced from the realities,” reflects a rising tide of anger in England that the English divorce laws, as they have been changed drastically but badly by the English judiciary in the past five years, have become an international laughing-stock.

As it now stands, the English divorce law contains no real guidance to divorcing people who have assets as to how their affairs will be handled in the event of a divorce and it refuses to allow the parties to make plans for their future since England still does not recognize prenuptial agreements.

The English “system” makes matters even worse by throwing everything into the pot of marital assets that the courts have power to carve up, including everything that a spouse brought into the marriage and everything that he or she has inherited. And then, to really add insult to injury, the courts seem to be opening the door to allow each party to use the other’s purported misconduct as a significant factor for the court to consider in determining the asset division.

Accordingly, as things now stand, if you are representing spouses in a case involving substantial assets, you (a) can provide the client with no realistic idea of what to expect as the outcome of the case, (b) must advise you client to dig up all possible dirt about the other client, because you must expect that the other side will do the same thing concerning your own client, and (c) must investigate intensely whether, in an international case, an English award will be enforceable in other jurisdictions, or whether it will be rejected overseas on the grounds that the current English divorce law is in derogation of the fundamental public policies prevailing in other jurisdictions.

The present situation is the results of judges having exercised the power to change the law on a case-by-case basis in order to reform an antiquated system but not having the power to create rules that make sense universally. The common law development of legal principles has worked well over the centuries to create useful bodies of law, but it cannot work well in the short term if
judges change prior law overnight and then wait for other cases to make their way through the courts that will eventually lead to a sensible group of tested rules.

Let us hope that the House of Lords provides some further clarification and reform in the two cases that are now pending before it. More significantly, this is a matter that cries out for legislative reform.

Hague Convention: Consent & Acquiescence

The High Court in England seems to have made it far easier for a child-abducting parent to prove the defenses of consent and acquiescence in a Hague Convention child abduction case than has previously been the case.

In CJ v KJ [2005] EWHC 2998 (Fam), Mr. Justice Sumner accepted the evidence of the mother, who had refused to return the parties’ 4-year old daughter to their home in Connecticut after a Christmas visit back to the parties’ original home in Wales, that the father had said that if they were ever to divorce she would get the baby and he would be left with the dog. The judge used that, plus the fact that the mother’s pending application for permanent resident status in the U.S. had not yet been approved, as key evidence to establish that the father had consented to the mother’s taking the child from Connecticut to Wales and keeping her there.

Another factor of great significance was that when the father had arrived in Wales and the mother had told him that the marriage was over, he broke down and became extremely passive. While the mother's parents advised him to fight to save the marriage, he had failed to take action and had returned to Connecticut in a state of great shock and upset. Once back home he had consulted a series of lawyers but they had advised him to attempt to reconcile with his wife rather than threaten litigation. Accordingly he did not aggressively demand the child’s return.

These were the key facts that were led the Court to hold that he had consented to the retention of his child in Wales and subsequently acquiesced in the retention.

In our opinion, the result was extremely harsh, and should be overturned on appeal, but we are admittedly biased since we have provided litigation advice to the father.

Hague Convention – Burden of Proof Case

The U.S. Court of Appeals for the Fourth Circuit has ruled – in Humphrey v. Humphrey, a Hague Convention child abduction case concerning the removal of children from England to Virginia – that a federal district court in Virginia committed a fundamental error when it held that the left-behind father must establish the children’s habitual residence in England "beyond a reasonable doubt."
The International Child Abduction Remedies Act ("ICARA") requires a petitioner seeking return of an abducted child to show "by a preponderance of the evidence" that "the child has been wrongfully removed or retained within the meaning of the Convention." 42 U.S.C. § 11603(e)(1) (emphasis added). The Hague Convention, in turn, requires a petitioner to demonstrate that, among other things, that the children were "habitually resident" in petitioner’s country of residence at the time of their removal.
The Fourth Circuit sent the case back to the district court for a rehearing at which time the correct standard must be applied.

English Divorce Law in Turmoil

England is a forum of choice for spouses with less assets to sue their internationally-connected wealthier spouses for divorce.

Until 2000 the English courts divided a married couple’s assets in a way that would ensure that the “reasonable needs” of the financially weaker party — usually the wife — were met. It meant that the spouse who had more assets in his name than his wife was able to keep most of them.

Everything changed in the famous case of White v. White. England’s top court, the House of Lords, ruled that the lower appeal court, the Court of Appeal, had got it all wrong for 25 years. The House of Lords ruled that it was wrong to limit a wife leaving a long marriage to no more than was needed for her “reasonable needs.” From now on, everything was to be determined by “fairness.” The problem is that “fairness” is an elusive term.

Then a famous soccer star, Ray Parlour, was ordered to pay his wife one-third of his future earnings for at least four years, plus a large lump sum, two valuable mortgage-free houses and a large annual sum for child support.

And in a case that has caused an outcry in England, an (American) woman who earned a good salary before marrying an English multi-millionaire, received a payoff of £5m for less than three years of a childless marriage in her divorce last year. The House of Lords will hear that case, Miller v. Miller, on January 30th.

The surprising situation in England results from several peculiarities of the English system.

The first is that in England the “pot” of assets that is to be divided includes everything that the spouses own, including everything that they each had before they got married. This is in sharp contrast with most legal systems which say that whatever you have on the date of the marriage stays yours unless you take specific steps to give it to the marital partnership.

The second difference is that the English courts place one party’s inherited assets into the marital pot.

Third, the English courts allow fault to govern the fairness issue. This allows each party to assert that the other party was the “wrongdoer” who should be financially punished for breaking up the marriage.

Fourth, England is one of the few places where lifetime spousal maintenance (alimony) payments are routinely ordered by the courts in favor of the spouse with fewer assets or less earning capacity.

Fifth, England uses the concept of the ‘clean break’ as an ideal way to resolve financial matters. It is intended to mean that one ex should not have to continuously chase the other ex for money. It’s a very nice theory, but well nigh impossible to put into practice.

Finally, to make matters even more unpredictable, prenuptial agreements are not legally binding in England, so that it is difficult or even impossible for a wealthy person to provide himself with predictable protection if he is considering marriage.

Now divorce lawyers and wealthy individuals are looking to the House of Lords to provide some clarification and fairness.