Saturday, January 31, 2009

Brazil's Compliance with the Hague Abduction Convention is Questioned

Karen Mazurkewich, Financial Post Published: Saturday, December 27, 2008

Francois Larivee is fighting for the return of his five-year-old son from Brazil. But being on the right side of the law is cold comfort to the 38-year-old businessman. He has won two court decisions in Brazil, and has followed The Hague Convention on the Civil Aspects of International Child Abduction to the letter of the law, but Mr. Larivee's custody battle, which has stretched over four years, shows no signs of being resolved.

"It's a nightmare," says Mr. Larivee, who works in finance in Montreal and has seen his son only three times since his former partner kidnapped his son and moved back to Rio de Janeiro. "Every day you wake up you think of this," he adds. Every time I call, it takes me days to recover it's so traumatic, says Mr. Larivee. "It's sad because [my son] always asks: 'Daddy, why are you not here with me?' "

Cross-border custody battles are on the rise in Canada. With more people working and travelling around the globe, there is an explosion in divorces that have an international dimension, says Jeremy Morley, who runs an international family law office in New York. "The world is getting smaller and there is mixing of different backgrounds," he adds. But with the growth of bicultural marriage comes cross-border divorce.

Money and alimony is one thing, but as Mr. Larivee discovered, the worst part of separating from a spouse who no longer wants to live in the same country as you is the tragic problem of custody.

In 2001, Mr. Larivee started dating Ione, a Brazilian woman who had been working five years as an architect in Montreal. Two years later, after learning she was pregnant, the couple bought a house and moved in together. But their relationship turned "tense" following the birth of their son. In January, 2004, she travelled to Brazil for an extended 12-week trip. But when she returned to Montreal two months later, their relationship fell apart.

By August, Mr. Larivee had moved out, arranging visits with his young son three to four times a week. Before they even had a chance to explore custody arrangements, his ex-partner, on the ruse of taking a short trip to the U. S., fled illegally to Brazil with their son. Mr. Larivee learned of her deception only when he showed up at their former home after a long weekend and found his son's belongings were missing.

Mr. Larivee called the police, but his attempts to have his son returned to Montreal -- even for a basic custody hearing -- have been thwarted. "At the time, I thought it would take a month or two to bring him back," he says. I never wanted it to be public, but now I think there is nothing to do but to turn to the media, he adds.

Parental abductions are on the rise globally. The U.S. has the highest reported number of incidents in the world with 169 applications filed in 2003 -- according to the most recent statistics compiled by The Hague Abduction Convention. This represents a 13% rise since 1999. The U. S. also received 286 applications to have children returned to another country, representing a 23% rise during the same period. By contrast, Canada received 56 requests from another country seeking to have a child returned and has made 43 applications to have a child returned from another country, representing a 3% rise in cases over that four year period. The Hague convention on child abduction was drafted in 1980 to deal with the issue of parental kidnappings in cases in which the parent has rightful custody and the child in question has been taken out of the country where she/he has been residing. Since the convention was created, 74 countries have become signatories.

Under the rules of the convention, the child must be returned to their country of residence within six weeks. The convention does not decide child access. Its goal is to ensure that the courts where the child was living will have the right to make that decision.

Mr. Larivee's ex-partner, Ione, had been granted a custody judgment by a family court in Rio de Janeiro, claiming the father had abandoned them. Ms. Harnois had to fight to have the case extracted from family court and heard at the federal court level. By March, 2007 -- almost 2½ years after their first filing -- the federal court ruled that the child should be returned to Canada. The child could not leave until any appeals were heard. By October, 2007, the Federal court of appeal threw out Ione's arguments and demanded that the child be returned to Canada. Mr. Larivee's heart lifted as he flew to Rio to pick up his son. It was supposed to be a stealth operation, but when the court officers arrived to take custody of his son, Ione had taken the boy and fled once again. Her lawyer, however, sat parked in front of the house and informed the officers that the door was open. According to Ms. Harnois, Ione's father, who was also at home, told the officers: "Francois is a good guy, but my daughter is a lioness and she'll fight until the end; you'll never have that child."

Two days later, Ione obtained a decision from the vice-president of the federal court of appeal suspending the decision to have the child removed to Canada. Not only did she get another reprieve, she's working on two more appeals -- one with the Supreme Court of Justice in Brasilia and the second at the Federal Supreme Court in Rio. She's seeking to have the previous judgments overturned. The revolving doors of Brazil's justice system have not stopped turning. Mr. Larivee's case, while unusual, is not the only one pending in Brazil. David Goldman, a father from New Jersey, has also been fighting Brazilian courts for the return of his son, Sean. In June, 2004, Mr. Goldman's wife, Bruna Bianchi Carneiro Ribeiro, travelled to Brazil on vacation with their son. The day they arrived, she called back home and informed her husband she was not returning. He has never been permitted to see his son, and a panel of five judges at the Superior Court in Brazil awarded custody to Bruna in a three-to-two decision.

The Goldman case has made media headlines in the U. S., and he's gone on talk shows such as Dr. Phil to present his story. Mr. Goldman did not get the same positive court outcomes in Brazil that Mr. Larivee has had to date, but he was certain he would finally get custody of his son after learning his ex-wife, who had remarried in Brazil, had died in childbirth in August, 2008. But the case has since taken an ugly twist. In September, Mr. Goldman learned that his wife's widower, Joao Paulo Lins e Silva, ironically a family lawyer in Brazil, had filed to get Mr. Goldman's name taken off his son Sean's birth certificate and have it replaced with his own so the child could remain with him in Brazil. Mr. Silva was awarded temporary guardianship. "He's from an influential family and they are using their power and connections to make it more difficult [for me]," says Mr. Goldman who argues that his case is a basic violation of human rights. "It seems this far in Brazil, possession is nine-tenths of the law," he adds.

Mr. Larivee is holding out hope that his son will one day be returned. He's burned through $150,000, and still there is no end in sight. Brazil's record on judgments on The Hague cases has been spotty. In addition to the Goldman case, a return to Israel was refused, a return to Norway was partly granted--for summer periods only -- and the outcome of another request from the U. S. remains indeterminate.

Mr. Larivee has been learning Portuguese to better communicate with his growing son who's not been taught English or French, although his ex-partner is fluent in both languages. Although he hasn't seen his son much over the years, Mr. Larivee is inspired by the affection the little boy apparently holds for him.

When it comes to love and custody, the Brazilian courts are not playing fair. Mr. Larivee is worried that even if he does eventually win his case, the court won't send the child back to Canada on the grounds that too much time has passed and it would not be humanitarian to remove him from the country he's grown up in. Mr. Larivee is haunted by his ordeal, yet he only shrugs when asked if there was anything he would do differently. "I've done everything I could do, everything right," he says. "Maybe, don't marry a Brazilian."

Saturday, January 17, 2009

California Disclosure Rules Scare Wealthy Spouses

Further evidence that California is an excellent jurisdiction for a spouse who does not have complete knowledge of the other spouses’s financial condition is supplied by the just-issued decision in In re Marriage of Straus, 2009 WL 98447 Cal.App. 4 Dist.,2009.  In that case the appellate court upheld an award of $3,000 in sanctions against the husband because he did not voluntarily respond to two letters from his wife’s attorneys seeking information about his retirement benefits.

Section 271 of the California Family Code provides that “the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys."

Since the wife filed a motion to compel discovery the trial court required the husband to pay a penalty which was in excess of the amount of the legal fees that the wife had paid her attorneys to make the motion.

The appeal court ruled that, “These facts support a finding that James's conduct frustrated the policies of promoting cooperation, settlement of litigation and reduction of litigation costs that underlie section 271, because Candyce was forced to file a motion and serve discovery to obtain James's cooperation. Because section 271 allows the imposition of sanctions when a party's conduct frustrates its underlying policies, the trial court was within its discretion to impose sanctions on James."

California’s approach to discovery, which requires litigants to voluntarily provide full access to their financial circumstances, stands in total contrast to the approach in most other jurisdictions, and especially civil law jurisdictions in other countries. It is why wealthy international spouses with a potential California divorce will often look for any possible way of avoiding the California courts, perhaps by asserting lack of jurisdiction or by rushing to file first in another jurisdiction.

Wednesday, January 14, 2009

Texas Court Holds that Mexico’s Legal System is Ineffective

It is unfortunate that courts are usually extremely reluctant to judge the effectiveness of other countries’ legal systems, even when such findings need to be made in international custody and visitation cases. Judges often feel great discomfort in making negative findings as to a sovereign country’s judges and courts. They may feel that they are not in a position to make fair evaluations of foreign legal systems; that they might be accused of xenophia or insensitivity to foreign ways; and that “people in glass houses shouldn’t throw stones.”

However there is no way to evaluate the true risks involved in authorizing or failing to prevent international child visitation and international child relocation without evaluating the effectiveness of the foreign legal systems that will be called upon to remedy a child’s wrongful retention in a foreign country.

Judicial reluctance to make the necessary decisions on these issues -- hard as the decision-making task may be -- endangers children when it results in a child being taken to a country which is unlikely to order the child’s return to the United States. In the face of strong evidence to the contrary -- which courts should encourage -- courts should not blithely assume that a foreign court will probably do the right thing when it comes to ordering the return (for example) to the United States of the child of a citizen of the country in question.

In some extreme cases the U.S. State Department makes a judge’s work much easier. While for diplomatic reasons the State Department is understandably reluctant to cast aspersions on many foreign countries, it does issue critical judgments as to some of the worst offenders.
Such determinations provided the basis for a Texas appeal court to uphold a decision to require supervision of all visitation between a father and his son since there was a serious risk that the father might abduct the child to Mexico. In re Sigmar, --- S.W.3d ----, 2008 WL 4816557 Tex.App.-Waco,2008.

International family lawyers know all too well that it is extremely difficult, and very often entirely impossible, to get an abducted American child back from Mexico. Although Mexico is a party to the Hague Convention on the Civil Aspects of International Child Abduction it does not do what it is required to do under the terms of that treaty.

In the Sigmar case the Texas court made findings as to the Mexican legal system and as to safety in that country by relying exclusively on the State Department’s published materials. These materials included the State Department evaluations of Mexico’s compliance with the Hague Convention, and its published warnings concerning travel in certain parts of the country and concerning trafficking in women and children for the purpose of sexual exploitation.

In reliance on such reports the trial court made rulings, which the appeal court upheld, that Mexico:

§ Has no legal mechanism for the immediate and effective enforcement of a child custody order;

§ Has local laws or practices that would enable the father to prevent the mother from contacting the child without due cause, restrict the mother from freely traveling to or exiting from the country because of gender, nationality, or religion; and restrict the child's ability to legally leave the country when she reaches the age of majority because of gender, nationality, or religion;

§ Is a country for which the State Department has issued a travel warning to U.S. citizens; and

§ Poses a risk to the child's physical health and safety because of her specific circumstances and because of “human rights violations committed against children, including child labor and lack of child abuse laws.”

As a result of those findings and in view of evidence that the father posed a risk of abduction, including the fact that the father was liquidating assets in the United States, the court required that all visitation between father and child be strictly supervised.

While one may certainly applaud the willingness of the Texas courts to make blunt findings concerning a foreign country, one wishes that the trial court had asked both sides to submit evidence on the issue, rather than simply relying on the State Department’s conclusions. The State Department is not a judicial body and while its conclusions may be afforded great significance they are not the be-all and end-all when it comes to deciding whether a foreign judicial system is likely to return an abducted child promptly and effectively. Those decisions should be made by the courts after the submission of evidence for and against the proposition.

The case is now on appeal to the Supreme Court of Texas.

Monday, January 05, 2009

China and International Child Abduction

We were recently asked to research the issue of potential child abduction in China and the remedies for securing the return from China of a child if the Chinese national parent kept her in that country. The results of our research were depressing.
China is not a party to the Hague Convention on the Civil Aspects of International Child Abduction (except for Hong Kong and Macau). Nor are there any signs that China is about to join the Convention or is even considering doing so.
There are no international or bilateral treaties in force between China and the United States dealing with international parental child abduction.
Furthermore it is unusual for foreign court orders to be recognized in China and that is most especially so when it comes to foreign child custody orders. Chinese law requires the existence of a treaty or de facto reciprocity in order to enforce a foreign judgment; neither exists between the United States and China. (Clarke, Donald C.,The Enforcement of United States Court Judgments in China: A Research Note (May 27, 2004).
China is also reported to have an enormous problem of domestic child abduction and child trafficking, with numerous articles on the topic printed even in the communist party newspaper, China Daily.
Finally, China has effective exit controls -- which is usually a good thing since it can prevent child abduction -- but children with Chinese passports, including dual national children, are reportedly barred from leaving China without the consent of both parents. Since that requires the consent of the allegedly abducting parent, the left-behind parent’s opportunity for self-help may be denied.
All of this means that U.S. courts should be most reluctant to sanction trips to China by dual national children accompanied by a Chinese national parent if the other parent raises genuine and well-founded fears that the child may not be returned.
Jeremy Morley