Monday, December 31, 2007

Hague Abduction: New 6th Circuit Case on Grave Risk of Harm

The U.S. Court of Appeals for the Sixth Circuit has issued a highly significant ruling on the grave risk of harm defense to a Hague Convention international child abduction petition. Simcox v. Simcox, File No. 07a0502p.06; decision dated December 28, 2007. The decision speaks to the role that undertakings should play in rulings that concern the defense.
The Sixth Circuit held that Hague cases concerning abuse should be categorized into three broad categories.
The first category is that of cases in which the abuse to the minor is relatively minor. In such cases “it is unlikely that the risk of harm caused by return of the child will rise to the level of a “grave risk” or otherwise place the child in an “intolerable situation” under Article 13b.” The Court held that, “In these cases, undertakings designed to protect the child are largely irrelevant; since the Article 13b threshold has not been met, the court has no discretion to refuse to order return, with or without undertakings.”
The second category is that of cases in which the risk of harm is clearly grave, such as where there is credible evidence of sexual abuse, other similarly grave physical or psychological abuse, death threats, or serious neglect. The Court held that in these cases, undertakings will likely be insufficient to ameliorate the risk of harm, given the difficulty of enforcement and the likelihood that a serially abusive petitioner will not be deterred by a foreign court’s orders. The Court cited Van de Sande v. Van de Sande, 431 F.3d 567, 570 (7th Cir. 2005) for the proposition that unless “the rendering court [can] satisfy itself that the children will in fact, and not just in legal theory, be protected if returned to their abuser’s custody,” the court should refuse to grant the Hague petition.
The third category is that of cases “that fall somewhere in the middle, where the abuse is substantially more than minor, but is less obviously intolerable.” Whether, in these cases, the return of the child would subject it to a “grave risk” of harm or otherwise place it in an “intolerable situation” is “a fact-intensive inquiry that depends on careful consideration of several factors, including the nature and frequency of the abuse, the likelihood of its recurrence, and whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the child caused by its return.”
The Court held that in this middle category, “undertakings should be adopted only where the court satisfies itself that the parties are likely to obey them.” Thus, undertakings would be particularly inappropriate if the petitioner has a history of ignoring court orders. It stated that, “Where a grave risk of harm has been established, ordering return with feckless undertakings is worse than not ordering it at all.”
The Court found that the case at bar fell into the middle category. Although it was a close question, the mother had met her burden of establishing a grave risk of harm. The nature of abuse was both physical (repeated beatings, hair pulling, ear pulling, and belt-whipping) and psychological (the father’s profane outbursts and abuse of the children’s mother in their presence). They were not isolated or sporadic incidents. A psychologist had found that all but the youngest child were suffering from some level of post-traumatic stress disorder. Such psychological trauma could be exacerbated if a child is returned to Mexico and comes again into contact with his father. Although the youngest child appears to have largely escaped the physical and psychological injuries suffered by her older siblings, “nothing in the Convention requires that a child must first be traumatized by abuse before the Article 13b exception applies.”
The Court then examined the district court’s undertakings. That court had conditioned the return of the children to Mexico on (a) their remaining in the custody of the mother in the family’s residence in Mexico until the Mexican Court heard and determined whether a protective order would be appropriate; and (b) the father having no contact with the mother until the Mexican Court determined access and visitation rights.
The Sixth Circuit found two problems with the undertakings. The first problem was that the court ordered the mother herself, not just the children, to return to Mexico. The mother could defeat the order of return by simply refusing to accompany her children to Mexico. Assuming that the district court could not compel the mother to return to Mexico, the court must provide for a contingency to assure the children’s safety and care should she choose to remain in the United States.
The second problem was that “there may be doubts as to the enforceability of these undertakings.” The reason for such doubts was that the district court had already found that the father had exhibited “an arrogance, a need to be in control and a tendency to act out violently.” The Sixth Circuit ruled that “such traits raise questions as to [the father’s] willingness to abide by the court’s undertakings, as do his threats to have his wife arrested upon her return to Mexico. However, the latter claim may well be mere bravado, based on [the father] claiming a power he does not possess.”
Accordingly, the Court remanded the case to the district court to determine what undertakings, if any, will be sufficient to ensure the safety of the children upon their return to Mexico pending the outcome of custody proceedings.
The Sixth Circuit provided some guidance to the court below by stating that,
  • “Any order on remand should be explicit as to the appropriate and efficacious undertakings that will apply should [the mother] decline to accompany her children;” that
  • “One possibility may be for [the father] —who, like [the mother], is a U.S. citizen and passport holder— to remain in the United States and surrender his passport for a period of time” and that
  • if the district court “determines that no such arrangement is feasible, or that the only way in which the children may be protected from harm is for them to remain in the custody of their mother, then it may be necessary to deny the petition. We reiterate that the burden for establishing the appropriateness and efficacy of any proposed undertakings rests with the petitioner.”

Thursday, December 20, 2007

England Inching Towards Prenuptial Enforcement

The English courts yesterday took a further step towards eventual enforcement of prenuptial agreements.

In Crossley v. Crossley, the spouses had signed a prenuptial agreement in England. The wife asked the divorce court to ignore it because her husband had failed to tell her of the full extent of his fortune. He retaliated by successfully asking the court to disregard normal divorce procedures and to “short-circuit” the case, because the marriage was short and childless, both parties had independent wealth and they had signed a prenuptial agreement.

The Court of Appeal upheld the short-circuit procedure. Lord Justice Thorpe said that if ever there is to be a paradigm case in which the court will look to the pre-nuptial agreement as not simply one of the peripheral factors of the case, but as a factor of magnetic importance, this was just such a case.

The Court of Appeal appears to have sent out a clear signal that in such cases the prenuptial agreement is likely to be the paramount factor, and there will be little opportunity to argue other issues.

Lord Justice Thorpe also called for legislation to clarify the status of prenuptial agreements. He admitted that it bothered him that this decision may have already elevated their status beyond what current legislation provides and he complained – most justifiably, in this writer’s opinion – that the British Parliament seems “quite incapable of dealing with such potentially controversial moral matters as reform of the divorce system,” leaving the courts to keep up with the “ever-changing Zeitgeist.”

Sunday, December 16, 2007

Canadian Court - Jewish Divorce

The Supreme Court of Canada made a rare foray into the religious forum yesterday, coming to the aid of a 48-year-old Jewish woman whose estranged husband had stubbornly refused for 15 years to grant her a religious release from their marriage:

A 7-2 court majority said that judges must tread warily when they adjudicate religious matters, but that it would be wrong to shy away when a bedrock Canadian principle - such as gender equality - is jeopardized.
The court awarded $47,500 to the plaintiff, Stephanie Bruker, on the basis that her right to remarry and have more children within her faith was unfairly curtailed by her vindictive ex-husband, Jason Marcovitz.
Writing for the majority, Madam Justice Rosalie Abella said that courts are empowered to referee religious disputes provided they "take into account the particular religion, the particular religious right, and the particular personal and public consequences - including the religious consequences - of enforcing that right."
However, two dissenting judges - Madam Justice Marie Deschamps and Madam Justice Louise Charron - issued a dire warning that by intruding into religion, the decision will drag the courts into potentially explosive cases where they have no place.
"The courts may not use their secular power to penalize a refusal to consent to a 'get,' failure to pay the Islamic mahr [dowry], refusal to raise children in a particular faith, refusal to wear the veil, failure to observe religious holidays, etc.," they said. "It has taken the Canadian state centuries to reach the still precarious balance we now have."
Married on July 27, 1969, Ms. Bruker and Mr. Marcovitz of Montreal signed an agreement setting out how they would settle matrimonial disputes if their marriage broke down. It included a commitment to attend a rabbinical court in order to obtain a get.
However, when they did split up in 1980, Mr. Marcovitz, 65, refused to adhere to the agreement he had signed. He also disparaged his wife's devotion to her religion and accused her of restricting his access to his daughters. He said the courts could not intrude into the dispute without violating his religious freedom guaranteed under the Quebec Charter of Human Rights and Freedoms.
Lawyers for Ms. Bruker countered that the agreement was an enforceable contract. They sought monetary damages on the basis that Ms. Bruker had been unable to remarry and any children she might have would not be seen as "legitimate" within her faith.
In 1995, Mr. Marcovitz relented, agreeing to grant a get. But it was too late. By this time, Ms. Bruker was 46, unmarried and past child-bearing age.
"This represented an unjustified and severe impairment of her ability to live her life in accordance with this country's values and her Jewish beliefs," Judge Abella wrote for the majority. "Any infringement of Mr. Marcovitz's freedom of religion is inconsequential, compared to the disproportionate disadvantaging effect on Ms. Bruker's ability to live her life fully as a Jewish woman in Canada."
Judge Abella said that the matrimonial agreement the couple signed was akin to a binding contract. Only a male can consent to a get, she added, and the Jewish community generally disapproves of a man who refuses to grant one.
But Judge Deschamps noted in her dissenting reasons that, under both Canadian and Quebec law, nothing prevented Ms. Bruker from remarrying if she chose to do so.
"Only her religious rights are in issue, and only as a result of religious rules," she said. "Where religion is concerned, the state leaves it to individuals to make their own choices. It is not up to the state to promote a religious norm. This is left to religious authorities ... In short, contract law cannot be relied on to enforce religious undertakings."
Source: Globe & Mail, December 15, 2007

Tuesday, December 11, 2007

Barbados Divorce Law

The Barbados Family Law Council is reportedly in favor of amending the Barbados Family Law Act, which governs divorce and related issues in Barbados but which is now 25 years old.
The amendments under consideration include:
  • A procedure for streamlined case management, focused on keeping one case before the same judge for all proceedings;
  • The provision of counseling for those in the process of a divorce;
  • A provision that would expedite the allocation of matrimonial property which, under the current law can be deferred until the divorce has been finalized;
  • An amendment that would allow divorce proceedings and the determination of related property and other financial issues to continue and be completed notwithstanding the death of one of the parties; and
  • The establishment of a table of maintenance as guidelines for judges, in order to the guesswork out of the provision of support payments.

Child Abduction to Mexico Ends Happily

Our heartiest congratulations to our British client whose tiny baby was abducted by the Mexican father from Texas to Mexico.

The mother and her family endured months of unbelievable worry, fueled further by the father’s death threats and outrageous claims as he was “on the run” in Mexico. The family mounted a campaign of civil and criminal cases, enlisted the support of governmental officials in three countries and remained focused throughout on the goal of doing whatever was needed to get the child out of the hands of a very dangerous person. In the end psychological manipulation seems to have done the trick.

Mexico is a very difficult place in which to track down a child and get results but this family has pulled it off. They are now home, safe and sound, in England.

A very happy Christmas to them all!

Thursday, November 29, 2007

German divorce, Syrian marriage

An interesting German international family law case concerning a Syrian marriage has been summarized by Jurgen Basedow and Simon Schwarz:

A Syrian couple filed for divorce before German courts whose jurisdiction was established under Arts. 1(1)(a), 2(1)(a) of the Brussels II-Regulation since the spouses had their habitual residence in Germany at that time. An important incidental question (Vorfrage) was whether there was a valid marriage under the applicable Syrian law at all.

More interestingly, however, appears to be the court’s subsequent reasoning as regards the possibilities to dissolve the marriage in case it had been formed validly. German private international law referred this question to the law of the spouses’ common nationality, i.e. Syrian law, whose internal conflicts regime pointed to the religious law of each of the spouses.According to the pertinent provisions of the applicable canon law it was likely that the marriage could not be dissolved at all.The BGH held that such a result would manifestly be contrary to German public policy (ordre public). In doing so, the court explicitly overturned its former leading cases which dated from the 1960s and still approved of the impossibility of getting an divorce under an applicable foreign law.

In his thoroughly motivated judgment the BGH explains that the ordre public is by no means a static and absolute rule but rather has to be interpreted in the light of the changing social and legal environment. In his reasoning, the BGH particularly accounted for the legal developments in foreign countries and pointed to the fact that the German ordre public is becoming more and more European rather than a purely domestic yardstick.

Please see:
Bundesgerichtshof (BGH – Federal Court 26.9.2006 11.10.2006, case XII ZR 79/04 (available at : ; published in : BGHZ 169, 240 ; FamRZ 2007, 109 ; NJW-RR 2007, 145)

Monday, November 26, 2007

Hague Convention on the International Recovery of Child Support

Delegates from sixty-eight States and the European Community have finalized the Convention on the International Recovery of Child Support and other Forms of Family Maintenance at the 21st Diplomatic Session of the Hague Conference on Private International Law.

Basically, the states that ratify the convention agree to assist citizens from other states who have also ratified the convention to recover child support.

The United States immediately signed the Convention, the first (and, thus far, only) State to do so.

The following are some extracts from the press release that was issued at the beginning of the Diplomatic Session:

"A new Convention…designed to respond to the needs of children and other dependents by providing international procedures which are simple, swift, cost-effective, accessible, and fair."

Unpaid child support – as well as support of other dependent family members – amounts to billions of Euros worldwide. When the person liable for support lives abroad, the difficulties of recovery are often insurmountable. At present, international procedures are typically slow, complicated, costly, and under-utilized. They are simply not serving the needs of the children and other family dependents who, in a mobile world in which multinational families are no longer exceptional, are increasing in number exponentially. The new Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance is designed to respond to the often modest needs of children and other dependents by providing international procedures which are simple, swift, cost-effective, accessible, and fair."

Tuesday, November 13, 2007

When Is a Saudi Woman Considered an Adult?

Maha Akeel, Arab News. Nov 2, 2007

It is surprising and frustrating to see that women in Saudi Arabia, despite all their achievements, continue to be treated as underage dependents who need and are forced to be managed by their male guardians.

It is necessary at this point of Saudi women’s history to address this important issue.

We cannot claim that a Saudi woman has all her Islamic and civil rights when the system insists on considering her immature, irresponsible and dependent on her male guardian no matter how old she is, how highly educated and intelligent she might be or what she has achieved in her professional career. At what age and under what circumstances is a woman in Saudi Arabia considered an independent, sane, responsible adult?

We see story after depressing and humiliating story in our daily life and reported in the newspapers of how women struggle to go about their normal life without unnecessary complications, let alone fighting for their rights in the courts or other government institutions. Why does a young intelligent, ambitious woman needs her guardian’s permission to enroll in a university or apply for work? Does the system even realize that this male guardian does not necessarily have the best interests of the woman when he denies her the right to an education and a job?

At what age is a woman considered old enough to decide to marry whom she chooses legally even if her male guardian objects because he might have ulterior motives for not giving his permission, or might force her to marry someone she does not want? Why is it that the system and society do not raise objections to a father marrying his 13-year-old daughter to a 70-year-old man but objects to a 40-year-old woman deciding to marry someone suitable against her father’s wishes because he would like to continue benefiting from her teacher salary? Or why does a court forcefully divorce a happily married couple because some male relative of the wife objects to the marriage while in another case a woman is forced to stay married to a man she does not want? Where is taking the woman’s own opinion in the matter? Doesn’t an adult, mature woman have a say in matters concerning her own private life? Why is it only the man’s wishes are looked at?

If these are some extreme and rare examples of male guardians abusing their authority over the women in their care, what about the daily obstacles women face if they want to purchase property, apply for divorce, gain custody of their child, or travel abroad? In all these cases, she needs a male guarantor or a male representative or permission from her male guardian. A working woman with sufficient salary and funds cannot purchase a car in installments without a male guarantor signing the papers with her. A woman cannot argue her case without a male representative or finalize legal procedures because judges do not recognize her ID card and insist on two men identifying her. A woman, even a 70-year-old woman, cannot travel abroad without the written, signed and notarized permission of her male guardian, who might be her son or nephew. Is this the respect we give our mothers, and we know how highly respected mothers are in Islam?

Simply going to school or to work or going to a hospital for medical emergency or even shopping is an ordeal for women because we have to worry about how we will get there without that “reliable” male driver we so depend on who might be a criminal or a pervert. How can we trust a woman to raise a child, teach our children and treat our illnesses but we cannot trust her to be a responsible adult behind the wheel? We have asked for our right to be licensed to drive a car like any other Muslim woman in the world because we know there is no religious basis for denying us that right.
Yet, we are told that society would not accept women driving on the roads. Assuming that is true, what is being done about that? Are there any real proposals from society to make driving by women easier and safer such as, for example, discussions in schools, training women to be police officers on the roads and in police centers, setting an age limit or hours of the day or specified zones for women to drive in or even, resorting to the same requirement, having her male guardian’s permission to drive?

Again, the issue is at what age and under what circumstances does the system and society recognize a woman as a responsible, independent adult who can make her own decision and choices and have full rights as a citizen?

New Jersey Hague Convention Case

She's only 7, a schoolgirl from Elizabeth, but Arianna Adan soon may change state, national and even international law. Legal briefs filed by two state agencies, a coalition of national organizations and her mother's lawyers seek not only to block Arianna's deportation in an international custody case, but also to change the way the United States abides by the Hague Convention, a treaty designed to end cross-border abduction of children by their parents.

One powerful argument was filed by New Jersey's Office of the Child Advocate, which joined the case to obtain a ruling requiring federal courts to appoint lawyers to represent children caught between feuding parents in international disputes. "The court has an obligation to ensure the protection of the child's compelling interests, which require the appointment of a guardian ad litem," the child advocate's office wrote, using the legal term for an independent lawyer named to represent a minor.

Federal courts should take the step, the state agency argued, in all disputes in which --as in Arianna's case -- the issue of possible harm to the child is raised. Courts have discretion to name a guardian, but often don't, letting warring parents represent children. The brief argues only independent representation can protect "the fundamental rights of all children to be free from physical or psychological harm."

Arianna is an American, born here. Her mother, Elena Mazza, also American, fled Argentina in 2004 after, she says, Arianna's father abused them and local police did nothing. The father, Ariel Adan, an admitted drug-abuser who twice pleaded guilty to state domestic violence charges, denied abusing Arianna. Mazza and Adan are not married.

Federal Judge William Walls twice ordered Arianna's deportation to Adan's homeland where, he said, local courts should determine custody. Walls' first ruling was overturned by the 3rd U.S. Circuit Court of Appeals, which is now reviewing his second decision.

A coalition of groups, many federally funded, also is using Arianna's case to try to change the way this country abides by the treaty -- ratified by the United States in 1988 -- governing international custody disputes.

Most federal courts narrowly construe their role, refusing to return children to the countries from which they were abducted unless they find "grave risk of harm," often interpreted as returning children to a war scene. But women's groups have argued courts must consider the possibility the children were rescued from an abusive parent rather than abducted.

The organizations joining Arianna's case want federal courts to recognize that a child's mere witnessing of domestic violence would be enough to cause harm. The groups include the National Center on Domestic and Sexual Violence, the Battered Women's Justice Project, the Advanced Special Immigrant Survivors Technical Assistance project, the New Jersey Coalition for Battered Women, and the Seton Hall Law School Center for Social Justice. They also argue courts should not return a child to a nation where an abusive parent might win custody because it would violate "fundamental principles of American public policy, which seek to protect child victims from exposure to their abusers."

Adopting the view would dramatically broaden how American courts have treated Hague Convention cases in the last two decades. So would embracing an argument in another brief filed by state Attorney General Anne Milgram for the state Department of Children and Family Services. The state attacks a problem faced by abused women who escape from a nation where paternalistic traditions favor men's rights. Here, fathers can lose custody rights for many reasons; in places like Argentina, those rights rarely are lost.

Walls cited those rights in ordering Arianna to Argentina. Milgram turned the argument around, saying the very difficulty in overturning Adan's rights there meant the child was safer here. "Such differences in procedure which lessen the protections a child receives can themselves preclude the return of a child," the state brief argued. If adopted, such a view also would be a major change in how federal courts have ruled. They have ignored state doctrines like "the best interest of the child." Adan has a month to file a reply.

Star-Ledger, Monday, November 12, 2007

Thursday, November 08, 2007

Top Ten Tips for Expats

… From an International Family Lawyer
Here are some of my “international family lawyer’s best tips” for international clients moving overseas and for expatriates.
  1. Before you move overseas, realize that if you have children in a new country you may find yourself trapped there. An example: Angie the American and Gus the Greek (from Cyprus) moved to Cyprus with their baby. Life in Cyprus didn’t work out for Angie. In fact, she hates it there. But Gus refuses to leave and he refuses to allow Angie to take the baby back to the States to live. Since both Cyprus and the U.S. are parties to the Hague Convention on the Civil Aspects of International Child Abduction, Angie will be in big trouble if she takes the child back to the States without Gus’ permission. Angie wishes she had consulted an international family lawyer before she moved overseas. Now she’s stuck there. See our articles on the Hague Convention listed at our main page on international child abduction.
  1. If you make a deal with your husband or wife that you’re going overseas just for a trial and that you’ll return if it doesn’t work out – Get it in writing. Verbal agreements always seem to be forgotten when things blow up. But also know that even a written agreement may not work. A foreign court handling your child custody case may well that it doesn’t care what your deal with was with the other parent; it must only consider what’s best for the kids.
  1. Before you switch residences, consider how it might impact a possible divorce. An example: Arnie and Alice in America signed a prenuptial agreement before they married. Not only that, but Arnie made pretty sure that it was watertight not only by having it drafted by his own lawyer but also by insisting that Alice have her own independent lawyer, and by putting terms in the agreement that are pretty fair to Alice. Arnie feels secure. Then they move to London, England oblivious of the fact that their prenup may well be unenforceable in a divorce court in England. English courts still hold that prenuptial agreements are against public policy and, while this policy is supposed to be changing, it most certainly hasn’t changed yet. See our article on this topic - Enforceable Pre-nuptial Agreements: the World View. To make matters much worse for Arnie (who had bags of money before the marriage and thought he was fully protected by the prenup), there is no solid distinction in England between marital property and separate property acquired before the marriage. See our article - English divorce law: Divorced from reality. He could be blowing half of his pre-marriage assets just by moving the family to England.
  1. Before leaving home, you should hope and plan for the very best. But you also need to be prepared for the very worst. So if you are a “trailing spouse,” consider the following:
           -Don’t sell the house. If you maintain an address in the States it will be easier to claim that you maintained your home as your permanent residence. Certainly it will indicate that it continues to be your “domicile” (the place you live in indefinitely which remains as your domicile even if you move temporarily to another place remains your home. Having a place to return to will also make your case a lot stronger if you need to prove that your kids should be allowed to move “back home.”
          -Keep your contacts with your job. Prepare for the day when you may want to re-enter the job market back home. Perhaps you can even continue to do some work even while overseas.
          -Keep your network of friends and family at home.
  1. If you’re overseas and are “planning” to get divorced, be as strategic as possible. Plan your moves. Consult someone who really understands the big picture. Figure out where it’s best for you to be at the time you tell your soon-to-be-ex that it’s all over. You may need to move yourself, the kids, the soon-to-be-ex and the marital assets to another place before you break the news that you want out of the marriage. And don’t leave without the evidence. It’s very frustrating when a client tells me a story of the other spouse’s gruesome physical abuse and shameless hiding of marital assets and when I ask for the evidence I’m told that it was all left behind in the foreign country before the client came back home. Intelligent planning, with strategic professional advice, is the key.
  1. If you’re feeling stuck overseas and have children with you, don’t just bolt for the (airplane) door with the kids and run ‘back home’ to the States. Plan things out first. If you take the kids you may be guilty of international child kidnapping. You could even be arrested at the airport before you leave. If you make it to the States, you’ll probably be forced to return by an American court – and then, to completely add insult to injury, you’ll probably have to pay your spouses’s legal fees and travel expenses as well as your own. When you return your case will be heard in the foreign court, where you will be branded as an international child abductor. Consult knowledgeable international family law counsel sooner, rather than later.
  1. On the other hand, if it’s your spouse who’s feeling unhappy and upset and who may “do a runner” back home, there are lots of things that you should be doing. Some are pretty obvious: Be kind; be understanding; and don’t stay out all night with the guys or gals from the office. Other tips are not so clear, and whether you implement them depends very much on the circumstances. Hide the passports. Befriend her travel agent, who may tell you if she’s making an airline reservation. Consult her friends. Suggest counseling. Have a plan to call the police and alert the border guards if you discover that she has taken the kids.
  1. If you’re overseas and pregnant, and not 1000% confident that you’ll always want to live in the overseas country, consider very seriously getting out of there now. If your baby is born overseas, whether in Sweden or Saudi Arabia, the child’s “habitual residence” for purposes of the Hague Convention will be Sweden or Saudi Arabia – and that can create terrible problems if you want to take your baby “back home.”
  1. Don’t assume that the local authorities won’t help. So many times, expats feel that the local social welfare agencies won’t understand and that they will automatically side with the other spouse who is a citizen. In fact, in many countries the support services are excellent and you should try them. Plus, an American court in a Hague Convention case might not accept your defense that returning a child to the foreign country will put the child in grave risk of harm unless you can show that the foreign support services are unable to provide the needed protection.
  1. Local divorce lawyers may not be your best bet. They want your business. They have an incentive to encourage you to bring your lawsuit in the place where they practice and they usually don’t know anything about the laws in other places. An international divorce lawyer, who consults with local lawyers as appropriate, can give you much more objective “big-picture” advice.

AND ...
Consult a good international family lawyer.

Monday, November 05, 2007

Fundraiser for Film on Japanese Child Abduction

Two film-makers, David Hearn and Matt Antell, are working on a film project to draw attention to the scandal of parental child abductions to Japan and in Japan.

They are conducting a fundraiser for their film to be held in Tokyo in December at the Pink Cow restaurant ( in Shibuya on December 11th starting at 7:30. Tickets cost 10,000 yen. Come watch the new trailer, hear discussion from experts and meet left behind parents.

Their website is

This is a subject that we have written on extensively.

Wednesday, October 31, 2007

"Ireland's Divorce Courts a Shambles"

Ireland's divorce courts are overloaded and need a complete overhaul to make breaking up fairer and less of a bank-breaking ordeal, an expert report on the secrecy-shrouded system concluded Tuesday. The government-commissioned report, which offered 45 recommendations to fix the system, faulted the government for doing much too little since the 1997 legalization of divorce in this predominantly Roman Catholic country. Justice Minister Brian Lenihan vowed to make improvements a priority.

The author, Irish Times reporter Carol Coulter, was the first outside expert permitted to witness divorce cases, which are typically conducted without transcripts or detailed written judgments. She spent a year gathering data and testimony on proceedings normally barred to media and other spectators.Her 82-page report said it was common for crowds of breaking-up couples and their lawyers to be kept waiting around court all day — only for their day in court to be put back for months, even in cases involving a child's welfare. "They must then steel themselves to go through it all again," she said.

Coulter said the problems and potential miscarriages of justice were greatest in provincial towns, where courts set aside time for matrimonial cases only four days out of every month, or less."The pressure on the lists forces judges to try to cram as many cases as possible into a day. In such circumstances it is impossible for written judgments to be given, or even for an outline to be given of the judge's reasons for making his or her orders," she wrote.

Throughout the country, she said, the system discouraged people from solving their cases through mediation or other means short of a courtroom confrontation. High legal costs forced some people to represent themselves, slowing down business further."According to some practitioners and court staff, in places where delays are very long, people can end up settling on terms they are unhappy with, just to bring an end to the proceedings," she said, adding that some judges worked marathon sessions from 10 a.m. to 9 p.m. to try to catch up.The wishes of children often were not taken directly into account, even though internationally it is common for children's views to play an important role in determining custody, she said.

She said judges, hobbled by a lack of written judgments for reference, "expressed to me their own frustration at the lack of education and training for judges, and at the difficulty in discovering what their colleagues' understanding and practice of family law is."Irish law permits a couple to file for divorce only after they have been separated for a minimum of four years, a rule intended to give them time to reconcile. Divorce lawyers say this rarely happens. But the delay does encourage more protracted court proceedings involving separate court hearings for separation and divorce.

Tuesday, October 30, 2007

Tuesday, October 30, 2007

India Marriage Registration Call

The Times of India has endorsed a demand by the Supreme Court of India that all marriages in India be registered. In an editorial the newspaper states that:

Marriage law is a touchy issue in India, especially for leaders of the Muslim community. The shadow of common civil code looms over any prospective legislation on the subject. That explains the resistance on the part of the All India Muslim Personal Law Board (AIMPLB) towards the Supreme Court’s call to make registration of marriages mandatory for all Indians. The AIMPLB doesn’t want the law to be made mandatory for Muslims. A few states have obliged the AIMPLB and exempted Muslims from the purview of the law. The SC wants the exemption removed and for valid reasons.

Registration of birth, death and marriage with state authorities is an essential feature of a modern society. The first two have been institutionalised in India, while the third hasn’t. Most marriages are conducted under personal laws or according to religious rites. The Supreme Court has not asked for a common marriage law but wants all marriages to be registered with state authorities. The apex court’s order is based on the reading that the voluntary option regarding registration makes it difficult to enforce laws prohibiting under-age marriage and polygamy. In the absence of proper records, unscrupulous husbands can deny marriage and leave spouses in the lurch on matters of inheritance of property and maintenance.

The opposition to marriage registration is misplaced.

Organisations like the AIMPLB argue that records of marriages are available with clerics and so it is unnecessary to insist on state registration. They fear that a registration law could undermine the importance of religious institutions in the conduct of marriages. But will it trump personal laws concerning marriage and divorce? That may not be the case, though civil authorities could hereafter have a more influential role in these matters, especially in the event of a dispute. And there is nothing wrong with that.

Issues like marriage and divorce can’t be discussed purely in the framework of religious injunctions. They concern civil rights and common laws that codify them are necessary in a modern society. But uniform civil code has always been a contentious issue in India. Ideally, the legislature should take the lead and create a consensus in the society towards a uniform civil code. Its failure to do so has allowed courts to step in and direct the executive to have laws that reduce the influence of social and religious institutions in matters of civil rights. The legislature should take a cue from the Supreme Court.

Thursday, October 25, 2007

Korea’s New Family Registration Law

The South Korean Supreme Court has issued details of its implementation of the new family registration law, which will take effect on January 1, 2008. The new system will replace the traditional “hoju” system, which the Constitutional Court in Korea declared unconstitutional as violating the right to gender equality.

The current hoju system places only a male member as the legal head of the family with all family members listed under the hoju. The status of each family member is defined in terms of his or her relationship to the hoju. When a husband dies, he is usually succeeded by his first son, not by his wife. When a daughter gets married, she is removed from her father's hojeok - family register - and transferred to her husband's. Children are automatically added to the father's hojeok. Even when a couple divorces and the mother retains custody of children, the children keep the father's surname and remain in his hojeok unless he gives permission to transfer. A family without a son naturally means the end of a lineage.

Under the new system, the core concept of a hoju will be discarded, as will the hojeok. Every family member will be registered under his or her own new individual record book, which will contain information on the person's birth, death, marriage and adoption, along with basic information on his or her spouse, parents and children. The new registration system will allow offspring to use the name of the mother with the mutual agreement of both parents at the time of marriage registration. It also will enable a child to change his or her surname in accordance with the stepfather and with court permission, even without agreement from the biological father. Also, extramarital offspring registered under the mother with the mother's family name will no longer be obliged to move to the father's registration or change his or her surname in accordance with the father.

Until now, adopted children and stepchildren had no rights to inheritance and certain rituals, called jesa, of honoring deceased parents. Upon the effective date of the new law, stepchildren will have the same legal rights as the stepfather's biological children, following the family name of the legal father and registered as such, when the mother and father are married for over one year. A person adopted by a couple married for over three years will also have the same legal rights on condition that the biological parents agree. Anyone under the age of 15 will be eligible.

While the new system is expected to greatly enhance the right of Korean females, the public is bracing for confusion as it will have far-reaching influence on both family life and the nation's concept of a family.


Sunday, October 21, 2007

Mahr – Islamic Marriage Contract – Held to be Not Enforceable

An Ohio court has reportedly ruled that a promise made as part of a mahr – a dowry gift given by the groom to his bride upon an Islamic marriage – could not be enforced at law.

The Ohio Case The case in Ohio stemmed from the marriage of a Muslim couple – the bride living in Ohio and the groom from Ireland. The bride’s father and the groom agreed on the terms of the mahr contract immediately before the marriage. Pursuant to the written one-page marriage contract, the groom gave his wife as a dowry a gold bracelet, a ring and a promise of a $25,000 payment. Less than two years later, the marriage was over.

In court, the wife argued that the mahr should be considered as a prenuptial agreement and the bride demanded enforcement of the promise to pay $25,000. Judge Dana S. Preisse in Common Pleas Court, Domestic Relations, Franklin County, Ohio refused to do so. She ruled that because "the obligation to pay $25,000 is rooted in a religious practice, the dowry is considered a religious act, not a legal contract. She held that a prenuptial agreement must be entered into without duress or coercion. In this case, she said, the agreement was made just a few minutes before the wedding ceremony, and the husband did not have time to consult an attorney. Furthermore, a prenuptial agreement is designed to protect a person's assets in the event of a divorce. By contract, the mahr was designed to give the wife money in addition to whatever assets she owned, so that it could not be considered a prenuptial agreement.

Other Cases Cases concerning mahr agreements – some domestic and others entered into overseas – have been litigated in several U.S. courts. The agreements have occasionally been upheld but only when presented as a simple contract and not as a prenuptial agreement. The distinction and application of the principles is well illustrated by two New Jersey cases.

In Odatalla v. Odatalla 810 A.2d 93 (N.J. Super.Ch. 2002), the Superior Court of New Jersey stated: “Why should a contract for the promise to pay money be less of a contract just because it was entered into at the time of an Islamic marriage settlement?” The court found that under the doctrine of “neutral principles of law,” it could enforce the agreement’s secular components – specifically a promise to pay $10,000. The wife presented the parties’ wedding video showing two families negotiating the terms as an imam prepared the document, which everyone read before signing. The judge concluded that it was “nothing more and nothing less that a simple contract between two consenting adults. It does not contravene any statute or interests of society.”

By contrast, in Attia v. Amin, New Jersey Ch. Div., June 12, 2006, the court is reported to have held that the requirements of a valid contract had not been met since the amount of the payment was inequitable and the defendant had signed the agreement under duress, fearing that, if he did not do so, the marriage would not take place and that he would be deported. In an interesting additional argument, the court reportedly relied on testimony of the husband's expert witness that a mahr is valid only if the wife is not more than 50 percent at fault for the divorce. The judge held that since the wife had made false charges of terrorism against the husband and had even called the FBI against him she was more than 51 percent at fault, which voided the mahr.

So When is a Mahr Enforceable?

Clearly a mahr is not a prenuptial agreement as that term is understood in American law and as understood through most of the world. It does not resolve the financial obligations between spouses – even parties to a Muslim marriage – under the civil law under American law. But it might create a claim to a specifically agreed sum of money if it constituted a valid contract.

Finally it should be noted that the Ohio case has prompted the imam who married the couple to change how he performs weddings. It is reported that from now on, he will make the husband sign a promissory note for the mahr, as well as the marriage contract, in order to make the promise more enforceable in the civil courts.

For more on international prenuptial agreements see our website section. For more on Islamic marriage and divorce see our website section

Monday, October 15, 2007

Czech procedure for Hague Convention international child abduction cases

International child abduction cases in the Czech Republic will be assigned to ten specially-selected judges at the Brno District and Brno Regional courts, if a bill that was presented by the Czech Justice Minister Jiri Pospisil is adopted.

The bill would create internal Czech rules for such cases that are brought under the Hague Convention on the Civil Aspects of International Child Abduction. The judges would have to decide whether a child abducted by one of the divorced parents will be returned to the country of origin or not within six weeks. So far, Czech courts have failed to meet the six-week deadline recommended by the Hague Convention.

"We expect in the future to deal annually with up to one hundred cases of international abduction, but our courts are not yet prepared to do so," Pospisil said. At present, individual Czech courts deal with only about ten such cases a year. Under the bill, special judges will be selected who will exclusively focus on the question of whether a child is to be returned or whether it would be better for it to remain in the country to which it was abducted, Pospisil said.

Various Czech experts interpret the condition under which a child should not be returned differently. The Justice Ministry wants to unify their positions. A two-day expert conference that Pospisil opened today is designed to contribute to it.

The amendment to the rules of civil procedure that is to speed up court proceedings on child abduction has been sent to relevant bodies for comments. The government is to receive it till December and parliament is to start debating it as of January, Pospisil said. He said the amendment could take effect next year already.

Saturday, September 22, 2007

Germany's Pattern of Noncompliance with Hague Child Abduction Convention

In an open letter to U.S. Secretary of State Condoleezza Rice in May 2006, this author vehemently protested what he asserted was Germany's noncompliance with its treaty obligations under the Hague Convention on the Civil Aspects of International Child Abduction.

The letter focused on a pattern of lengthy delays and stalling that was preventing the author’s client from securing the return of a child abducted from New Mexico to Germany.

Now, in its 2007 Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction, the Department of State has listed Germany as one of seven countries that are “Demonstrating Patterns of Noncompliance,” citing the New Mexico case as a “particularly egregious example” of the problems.

Specifically, the Report states that:

"The Department finds that Germany demonstrated patterns of noncompliance in FY 2006. Specifically, Germany’s noncompliance relates to the unwillingness of some courts to enforce orders for the return of children, or access to children, under the Convention. Leftbehind parents are unable to secure prompt enforcement of a final return or access order. Since physical force cannot be used to enforce court orders in Convention cases, taking parents can and do avoid allowing court-ordered returns and access. One particularly egregious example can be read about in the “Notable Cases” section of this report. Enforcement of court-ordered returns and access remains a recurrent topic of discussion at the U.S.-German Bilateral Meetings, which are described in the “Efforts to Expand and Strengthen the Convention” section of this report.”

The Report describes the author’s client’s case as follows:

"The mother abducted the child to Germany on September 25, 2004. On November 16, 2004, the left-behind parent filed a Convention application for return, which was denied by the District Court in Celle in June 2005. The basis of the Court’s decision was that the left-behind parent had not seen his daughter on many occasions and had not paid child support, thus he never in fact exercised his custody rights. The left-behind parent appealed to the Higher Regional Court in Celle, which held two hearings on the matter. On February 27, 2006, the Higher Regional Court issued an order directing that the taking parent return the child immediately to the United States. The taking parent subsequently appealed to the Federal Constitutional Court leading the Higher Regional Court to announce that it would not enforce the return order until the Federal Constitutional Court decided whether it would accept the appeal. The case is still pending.

UPDATE AFTER THE REPORTING PERIOD: In November 2006, after the close of the reporting period, both parents attended a mediationsession during which they came to an interim agreement regarding visitation that would be valid until July 2007."

One hopes and expects that better results will now be forthcoming from Germany.

Tuesday, August 28, 2007

Urgency required in child abduction cases

The English courts -- unlike the courts in many countries, including in many situations the United States -- insist that child abduction cases are resolved expeditiously. In the European Union, following the entry into force of the Brussels II bis Regulation, there is now an obligation that the entire process of child abduction cases be completed within six weeks. Indeed, the European Commission has suggested that to guarantee compliance return orders might be enforced pending appeal, see Practice Guide for the application of Council Regulation (EC) No 2201/2003. The English Court of Appeal came down strongly on this issue in In re M (Child abduction: Delay). In its ruling dated July 31, 2007, the Court insisted that courts, judges and lawyers need to be aware of the pressing time limits in cases involving allegations of child abduction. The court of trial had to complete the process within six weeks and once a judgment had been sent to counsel in draft, there should only be a brief period in which to draft the consequential order.

For this reason, the Court of Appeal (Lord Justice Thorpe, Lord Justice Collins and Lord Justice Toulson) refused to grant permission to appeal to the father against the dismissal by Mr Justice Sumner of his application under the Hague Convention on the Civil Aspects of International Child Abduction 1980, as scheduled to the Child Abduction and Custody Act 1985, and Council Regulation (EC) No 2201/2003 (Brussels II)(OJ 2003 L338/1).

The originating summons had been issued on April 4, 2007. The judge heard the case on May 21, 2007 and elected to put his conclusions in writing which were emailed to counsel on May 25. However, Lord Justice Thorpe said that it was quite unacceptable that the sealed order giving expression to that judgment was not dated until June 21. He insisted that to waste a whole month in the timescale of a Brussels II case was completely unacceptable, and that counsel needed to understand that once judgment was with them in draft, there should only be a brief period in which to draft the consequential order.

It is to be hoped that the lesson of this case is heeded in other jurisdictions.

Thursday, July 26, 2007

Prenuptial Agreement Upheld in Singapore

The Singapore High Court has enforced a prenuptial agreement entered into in the Netherlands between a Swedish wife and a Dutch husband. TQ v. TR, [2007] SGHC 106; decision date July 11, 2007.

The couple had lived together in England, had moved for a short time to the Netherlands, where they had married and executed the prenuptial agreement under Dutch law before a notary who had acted for both of them. They had then returned to live in England before moving to Singapore with their three children and had then remained in Singapore. The prenuptial agreement provided that there was to be no community of assets and that each spouse would keep his or her own assets.

The Court found that the wife was not domiciled in the Netherlands, so that Dutch law would not govern the division of matrimonial property. Accordingly it looked to Singapore law and specifically to the “Women’s Charter.” Section 112 of Singapore's Women’s Charter empowers the courts to order such division of matrimonial assets as they deem “just and equitable” and requires the courts to consider a host of specified factors in making that decision. Such factors include “any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce.”

The court awarded “maintenance” (i.e. alimony or spousal support) in the form of a lump sum in the full amount that the wife requested, as well as child support. It then upheld the prenuptial agreement in light of those apparently generous awards.

Monday, July 16, 2007

Pre-Nuptial Agreements: New York Tolls the Statute of Limitations

The New York legislature has passed a law that clears up what had been an enormous problem concerning the enforcement of prenuptial agreements in New York. New Section 250 of the Domestic Relations Law now provides that the three year statute of limitations for commencing an action or asserting a defense that arises from a pre-nuptial or post nuptial agreement is tolled until service of process has been completed in a divorce action or until one of the parties dies. In other words, a party does not have to take any steps to dispute a prenuptial or postnuptial agreement until a divorce or annulment case has been commenced – and even then has three years within which to assert it. (Of course, a litigant should not wait that long but should assert the defense once the case is commenced).

Friday, June 29, 2007

International Child Visitation

How can one parent stop the other parent from taking a child to visit a dangerous country?

How can a parent make sure that a child will be returned if the other parent takes the child to visit his or her native country?

Many international parents are justifiably becoming increasingly concerned about the answers to these questions.

I have just written an article - published in the July 2007 issue of The Matrimonial Strategist and now also available on my website - describing "Ten Key Tips for Parents" that I have developed as a result of handling these issues for parents around the world.

You can read it here.

Tuesday, June 12, 2007

New Jersey Child Relocation to Japan

The Supreme Court of New Jersey has unanimously upheld a decision allowing a Japanese mother to relocate with her six-year old child from their home in New Jersey to Okinawa, Japan over the strong objections of the American husband. The primary concern of the husband was that the provisions for his visitation with his daughter were unenforceable in Japan. MacKinnon v. MacKinnon, Supreme Court of New Jersey, June 11, 2007.  

The ruling should be understood strictly in the context of its specific facts and as being based on the limited evidence with which the courts were presented. The decision does not stand for the (false and extremely dangerous) proposition that Japan recognizes or respects foreign custody orders or rights of visitation.
In particular, it is important to note that the courts below were not presented with any expert evidence concerning Japan’s failure to enforce foreign or domestic custody and visitation orders, or as to its failure to recognize foreign custody orders or even any right of parental visitation.
The father relied primarily on the fact that Japan was not a party to the Hague Convention on the Civil Aspects of International Child Abduction. The Court upheld the ruling of the courts below that simply because a country has not signed the Convention should not automatically bar relocation to that country. The father also submitted a U.S. State Department note to the effect that “foreign parents seeking enforcement of visitation rights are disadvantaged in Japanese courts,” but failed to submit any other evidence concerning Japanese family law.
Instead, the Court placed great reliance – and took great comfort – in the fact that the mother had previously taken the child to Japan for visitation on several occasions, had always returned the child as promised, had genuinely acknowledged to the satisfaction of the trial court that the father loved the child and that she was anxious to maintain the father’s relationship with the child, and had a history of having scrupulously obeyed all court orders in the past.
Thus, the case must be seen as being limited strictly to its specific facts. The Court relied on the evidence of the mother’s good faith rather than upon any determination concerning the Japanese family law system. It is a fact that Japan does not return abducted children and does not enforce foreign rights of visitation. See Jeremy D. Morley, Japanese Family Law - or The Lack Thereof!,
In almost every situation, if a Japanese parent chooses to retain a child in Japan against the wishes of a foreign parent and in violation of an American or Japanese court order, he or she will get away with it. Id. If Mrs. MacKinnon were to choose to ignore those provisions in the New Jersey trial court’s order that require her to allow the father to have extensive visitation with their child, the father will be powerless to compel her to do so as long as she stays in Japan. However, such facts were not before the Court.
While the Court in MacKinnon suggested that future international relocation applications should be conditioned on securing mirror orders in the foreign country, or enforceable contracts, this would not work in the case of Japan, which has no concept of a mirror order and which in any event would never enforce its own order or a contract between parents in such a case. Id.
What this case stands for is the proposition, amply emphasized by the New Jersey Supreme Court, that each case must be viewed individually, on its own particular facts, so as to “permit our courts to flexibly and properly address the myriad, nuanced issues created by family ties that cross international boundaries.” Thus, the Court stressed that in the international removal context, “we afford our trial courts the means to adapt to the variety of unique circumstances presented in family law proceedings.” Every case must be determined on its own facts.

Wednesday, June 06, 2007

South Africa and the Hague Convention

South Africa’s Court of Appeal has blasted the failure of the courts below to order the prompt return of a child, now aged five, who was wrongfully retained in South Africa away from his then habitual residence in the Netherlands by his mother for 3½ years. The Court ordered (June 4, 2007) that the child now be returned immediately to the Netherlands, in compliance with South Africa’s obligations under the Hague Child Abduction Convention.

Judge Belinda van Heerden expressed great concern at the “dismal failure” of South Africa’s courts and its chief family advocate to act expeditiously and to secure the child’s prompt return, stating that proceedings "in the present case were anything but expeditious. Some three and a half years have elapsed from the time of the boy's wrongful retention in SA in December 2003. The boy has spent most of his young life in this country.”

Judge van Heerden also stated that, "The training of South African judicial officers in the principles and procedures underpinning the convention also appears to be less than that required by SA's obligations under the convention. It is to be hoped that these shortcomings will receive the prompt and proper attention of the relevant authorities."

Friday, June 01, 2007

London Program: “International Family Law for the Globetrotting Executive”

The American Bar Association’s Section of International Law will hold its “Fall Meeting” at the Grosvenor House Hotel, Park Lane, London, England from October 3 – 6, 2007.

A session entitled “International Family Law for the Globetrotting Executive” will be held on Thursday, October 4, 2007 from 4:00pm to 5:30pm chaired by Jeremy D. Morley, attorney-at-law in New York City, with presentations from him, Anne-Marie Hutchinson, OBE (Dawson Cornwell, London) and Suzanne Kingston (Dawsons, London).

Description: Complex international family law issues are an occupational hazard for globetrotting executives. International travel is great for business and pleasure but terrible for marital stability. A globetrotter’s legal adviser is expected to have hard data and brilliant strategic advice at the ready but in the real world accurate information and useful “big picture” advice is hard to find. In this fast-moving program, some of the world’s leading experts on international family law will provide practical, useful and straightforward advice concerning:

· International prenuptial agreements;

· Strategic international divorce planning;

· International divorce jurisdiction;

· Which law governs the international divorce?

· International child custody and international child abduction.

· An international family lawyer’s “Top Tips for the Globetrotting Executive.”

All are welcome.