Friday, January 29, 2010
Now, an Australian Institute of Family Studies report confirms that there is a real problem. Our concern is that the problem is often greatly enhanced in international cases.
Children 'at risk' in shared parenting
By Xanthe Kleinig
From: The Daily Telegraph , January 29, 2010.
The practice of splitting child custody equally between divorced parents is being questioned after a major study found one in five parents in the arrangement believed it was not working.
An estimated 90,000 Australian children are in shared-care arrangements under a policy introduced by the Howard government with the support of fathers' rights groups.
But the largest study of the family law system, released yesterday, found a presumption of a 50-50 split was putting some children into violent homes.
Attorney-General Robert McClelland said yesterday a "misunderstanding" that parents were guaranteed equal time under the law was to blame. "Bush lawyers or pub lawyers are providing advice to people going through the system that is wrong," he said.
"We are now in a situation where people have resolved cases where the best interest of children may have not been regarded."
Family laws introduced in 2006 included a presumption of equal parental responsibility, widely interpreted as an even-time split.
But researchers said yesterday parents had agreed to shared care even when they did not have to. Other parents were disillusioned because they were not granted a perfectly equal arrangement.
And violence was not being addressed in court because of the threat of paying full court costs if the allegations were not proven.
Mens Rights Agency director Sue Price said any shift away from equal time was a "disastrous" return to the old-fashioned notion that fathers didn't count.
"It is not good for children not to have both mum and dad in their life," Ms Price said.
The Australian Institute of Family Studies report, which took three years and surveyed 28,000 people, found about one in 20 children in shared care had parents who reported violence as a risk.
"There are significant concerns around the minority of families where there are safety concerns," institute director Professor Alan Hayes said. Where safety concerns were reported by parents, children suffered but they suffered the most when they were in shared care agreements, he said.
But researchers found "overwhelming" community support for the concept of shared parenting.
Ms Price said violence by women was ignored in the three reports released yesterday.
Wednesday, January 27, 2010
Our book, International Family Law Practice, by Jeremy D. Morley, is available on the West Publishing website.
It provides a practical approach for U.S. lawyers handling international family law matters. It focuses on international marriage and divorce, international prenuptial and postnuptial agreements, international divorce planning, recognition of foreign divorces, international child support and custody, international relocation of children, and international child abduction.
It will also be helpful to lawyers handling international family matters globally.
Tuesday, January 26, 2010
Currently, the Dutch Central Authority -- which is the part of the Justice Ministry responsible for the implementation of the 1980 The Hague Child Abduction Treaty --acts as the legal representative of the foreign parent when a child is abducted by the Dutch parent to the Netherlands. Under the new law, the Central Authority will only refer the foreign partner to an external lawyer.
The proposed bill accedes to complaints by Dutch parents that the Dutch state takes the side of the foreign parents.
Thursday, January 21, 2010
Child abduction is one of a parent's worst fears, and for a growing number of parents around the world, this fear is being realized and compounded by international custody disputes. In many cases, parents abduct their own children when marriages fail and return home where local laws protect them. In some cases the abducted children never see the other parent again.
On July 13, 2003, U.S. Navy Commander Paul Toland returned home to discover his wife had moved out and taken their 9-month-old daughter Erika with her. At the time, Toland was stationed at a U.S. naval base in Yokohama, Japan. His wife Etsuko, a native of Japan who had become a U.S. citizen during their marriage, took Erika and their belongings from the family's home in Negishi Navy family housing to Tokyo and told her husband she wanted a divorce. To settle the matter, Toland says they went to a Japanese court."The big issue that I wanted to discuss, the most important one, was visitation with Erika. When can I see my daughter? When I said I wanted to see Erika on weekends, the judge and the attorneys in the room laughed, and when I asked to see Erika to give her gifts on her birthday, I was told to mail the gifts to my wife's attorney," he said.
Japan is one of several countries that do not recognize joint custody of a child. The parent who does not win custody in a divorce may apply for visitation, but Toland says such rights are rarely awarded in Japan. He says even when the courts grant visitation, the parent with custody has total discretion to decide whether the child can see the other parent. After several months in court, Etsuko received full custody of Erika. Soon after, Toland was transferred back to the United States, where he continued fighting to see his daughter. The situation took a tragic turn in late 2007, when Toland learned his ex-wife had passed away. Toland says Etsuko's death was devastating, but gave him renewed hope that, finally, he would be able to see his daughter. However, Erika was sent to live with her grandmother in Tokyo. Toland says even now, as her only living parent and after spending more than $200,000 in attorney fees, he has no access to his daughter.
International family lawyer Jeremy Morley is based in the U.S. and has handled custody cases in Japan for more than a decade. He says Toland's case is not unique. "There are several cases in which the parent who took the child to a country such as Japan has actually passed away, and the child has been kept by that parent's family in the foreign country. So, the problem is that when the child is kept in a country such as Japan by the family of the taking parent, there's really no way that works to get the child back, even in such unusual circumstances. The family law system in Japan and in many other Asian countries is just not developed," said Morley.
Japanese family law attorney Satoru Kawamoto agrees, adding Japan has rightfully earned a reputation as an international haven for child abduction, a distinction he says the country will keep until it signs the world's main treaty to prevent cases like Toland's. "Currently there is no physical enforcement to bring back the child to the United States, because Japan hasn't ratified Hague Convention, so I think Japan should ratify the Hague Convention," said Kawamoto.The Hague Convention on International Child Abduction has now been ratified by 81 countries.
Attorney Jeremy Morley says that by signing and complying with the convention, countries will both combat and bring attention to this major worldwide concern. "International child abduction is a huge problem, it's growing and it's underreported. People don't recognize the existence of the problem, they don't recognize how terribly serious it is," said Morley.Commander Toland says he hopes no more parents have to experience what he has been going through. And, despite years of disappointment, he says he will never give up his fight for Erika. "I love her and I want to get to know her. I want to get to know my own daughter. I missed a lot of years with her, but I don't want to miss any more. I want to be there for her," he said.Legal analysts say Toland's case will be an uphill battle and under current Japanese law there is little he can do.
Tuesday, January 19, 2010
Jeremy D. Morley
Expert testimony is frequently needed in international family law cases.
International family lawyers are frequently called upon to act as expert witnesses.
Such testimony is often secured in cases concerning international child abduction, particularly in cases in which one parent is seeking to prevent the other parent from having overseas visitation with the child or relocating with the child to another country. However it is also useful in a myriad of other cases.
Such testimony might concern:
· The factors that indicate that an individual is likely to commit an international child abduction;
· The degree of the risk of an international child abduction that is presented by an individual having specific risk factors;
· The sufficiency of terms of a proposed custody order in preventing a potential international child abduction;
· The likelihood that a foreign country will return an abducted child;
· The lawyer's experience with and knowledge of a specific legal system;
· The division of foreign marital assets;
· The discovery of hidden marital assets; and
· The enforcement of foreign divorce and custody judgments.
Jeremy D. Morley has frequently appeared as an expert witness on international child abduction prevention, international child abduction recovery, international divorce jurisdiction and international family law.
Mr. Morley has submitted evidence as an expert in courts in the United States, Canada and Australia, in the form of testimony, affidavits or affirmations, as to such international family law matters as:
· The terms that should be in a custody order that will allow international visitation but will minimize the risk that the child may not be voluntarily returned;
· The family law system in Japan;
· The fact that particular left-behind parents would be unable to secure any meaningful assistance from the Japanese courts (many cases);
· The extent of Italy's compliance with its obligations under the Hague Convention;
· Whether certain actions committed by a parent constituted international parental child kidnapping within the meaning of the International Parental Kidnapping Crime Act;
· The rampant and scandalous misuse by many divorcing spouses of India's so-called "anti-dowry law";
· The enforceability in the United States of a proposed English shared residency order;
· The unenforceability in New York of another proposed English residency order;
· Whether a particular divorce case should be heard in a U.S state instead of in England;
· Whether Japanese non-judicial divorces would be recognized in U.S. courts;
· The dangers, in terms of potential parental child abduction, of allowing children to visit certain specific countries, including Saudi Arabia, Jordan, Germany, Mexico, Malaysia, the UAE (Dubai), Taiwan, China, Japan and Bulgaria;
· Whether the issuance of multiple passports for a child will enhance the risk that the parent might abduct the child;
· The potential recognition in a U.S. state of an Iranian divorce; and
· Whether a parent had "rights of custody" within the meaning of the Hague Convention under the laws of a U.S. state.
The figures are startling in respect of one country in particular. This is the United States.
The media in the U.S. has been full of criticism of other countries for their failure to return abducted children quickly. But it is high time that we in the United States put our own house in order. See my article at http://www.internationalfamilylawfirm.com/2009/11/people-in-glass-houses.html
Third of Abducted Children Not Returned Home after a Year
More than one in three children abducted from England and Wales and taken abroad have not returned home by the end of the year of being kidnapped, according to figures released under the Freedom of Information Act.
Statistics from the Ministry of Justice show that some foreign countries never return children, despite being signatories to the Hague convention, the multinational treaty designed to reunite families quickly.
Pressure groups said this showed the convention was not doing its job.
The figures revealed that of the 277 cases of child abduction dealt with by the justice ministry in 2008, just 103 led to children coming back to the UK. An estimated 140 youngsters did not return, such cases usually involving a parent taking drastic action after a relationship breakdown.
The figures also show which countries have the best and worst record for returning children. In 2008, no children came back from Croatia, Ecuador, Honduras, Mauritius, Peru, Serbia, Sweden and Zimbabwe, despite all those nations being Hague convention signatories. One case, involving Mauritius, has been continuing since 2004. No children have been returned from Zimbabwe since 2005, and between 2001 and 2008 only four cases involving Mexico have caused children to return to England and Wales.
Eastern European countries have also got a poor record. Just two cases involving Serbia and Montenegro, Croatia and Macedonia have led to children coming home to England or Wales, since at least 1999.
The US has failed to return about a third of the children. In 2008, of the 30 cases dealt with by the justice ministry, 13 were unresolved at the end of the year.
The Ministry of Justice only deals with child abduction cases where children are taken from England and Wales to countries which have signed the Hague convention, which aims to make it easier to resolve child abduction cases among signatories. The high number of children who are not speedily returned suggests the convention often does not work.
Catherine Meyer, founder of Pact, a non-profit organisation that fights child abduction, said: "The overall picture remains depressingly bleak."Despite the fact that parental child abduction is the subject of an international convention, the British government still tends to regard it as a private matter that does not require its vigorous intervention when the child of a British subject is illegally taken to another country."
Some countries take a long time to reach a judicial decision about returning children. In Poland, in 2008, it took an average of 842 days for the courts to decide whether children should be sent home; in Spain, the average was 458 days.
Other countries were much quicker: the average time in Latvia was 54 days, and in Portugal it was 71 days.