Thursday, April 29, 2010

Czech Custody Law Changes

Prague Post, April 28, 2010 by Gabriella Hold

A ruling by the Czech Constitutional Court promises to make it easier for fathers to gain custody of their children, with the court saying cases should be decided according to a child's best interests. While the decision could have a widespread impact, as one in two Czech marriages ends in divorce, critics say it pays little more than lip service to the rights of fathers.

"The position of a father seeking child custody is still very poor," said Aleš Hodina, owner of the Web site Střídavka.cz, which promotes the cause of joint custody.

"There is evidence that, in 90 percent of cases, children are given exclusively to mothers. The usual procedure is that a social worker or a judge will only look at the father's bad points and will overlook his good characteristics."

In its February ruling, the Constitutional Court effectively said fathers' rights would be given greater weighting as custody cases should be decided according to the child's best interests as opposed to the parents'. In addition, a mother's objections to joint custody will only be considered on the basis of the child's best interest.

The decree is a major reversal for Czech law, which has traditionally favored the mother gaining sole custody upon divorce. According to figures from the Justice Ministry, in 2008, a total of 18,840 cases resulted in custody being granted to the mother, and just 1,451 resulted in custody being granted to the father. A total of 635 cases resulted in courts granting joint custody.

Legal experts also say the decision will not change the landscape, as decision-making power still lies with the lesser courts.

"Unfortunately, despite the Constitutional Court decision, in the short term, we will not see radical changes in the decision-making practices in the courts of first instance and district courts that decide on child-custody issues," said Prague-based lawyer Tomáš Pelikán. "The practices are mostly determined by judges, mostly female judges, who have an agenda."
The Constitutional Court itself recognizes the fundamental problem lies in the district courts and has urged change.

"A belief in court practices still persists that it is more appropriate for a child of an early age to be brought up by its mother," said Constitutional Court President Pavel Rychetský. "But law and international conventions, however, say something else. They say both parents have equal parental rights. It is not possible to prefer one or the other on the grounds of sex."

However, observers note that, while the will for change exists, apathy and inefficiency in court procedures means the status quo will persist. Indeed, Hodina, who has been fighting for custody of his son for over a year, just lost his case last week and expects to continue fighting for some time.

"Rychetský has not come up with anything new, but it is good he opened up this issue," he said. "But the inertia of the judges, accustomed to the same processes for years, is huge. Therefore, it is necessary to constantly refer to the Constitutional Court, to the international conventions and also to our Family Code, which also refers to the child's right to both parents."

Pelikán agrees, noting the rigid and unprofessional practices of the courts of first instance means judgments on custody cases have remained intact since 1989.

"The problem first and foremost is the fact that the vast majority of judges are afraid of making decisions and instead try to make both parties come to an agreement," he said. "However, arguing parties do not want to agree and want a court decision instead. Even then, the courts of first instance are very reticent to rule against the will of one party, and subsequently most make a decision based on the custom that a child belongs to his mother."

Tuesday, April 20, 2010

Morocco. Hague Abduction Convention. Update.

Morocco has acceded to the Hague Convention on the Civil Aspects of International Child Abduction, effective June 1, 2010. It is the 82nd party to the treaty.

Thus far Morocco’s accession has been accepted by only two countries, Israel and the Netherlands. The treaty will enter into force with respect to those countries on June 1, 2010.

Caveat: Unless and until a treaty country formally accepts the accession, the treaty is not in force with respect to abductions between Morocco and that country.

Supervised Visitation to Prevent International Child Abduction

In a case in which an American father alleged that the child’s mother, a Moroccan-born dual U.S. and Moroccan citizen, had threatened to abduct their young child to Morocco, an Alabama appeal court has upheld a lower court order that awarded custody to the father and that required that the mother have only supervised visitation with the child. Lee v. Lee, Court of Civil Appeals of Alabama, April 16, 2010.

The parties had met in Bahrain, when the father when stationed there with the U.S. Navy and had then moved to Alabama. The father had received naval orders to relocate to San Diego, where he had secured suitable accommodation. The mother worked at "Club Med" resorts in such places as Florida and the Bahamas, from which it was inferred that she is subject to frequent relocation.

The mother assailed the requirement that her visitation be supervised, citing the proposition that a trial court may not select an overly broad restriction that does more than address a particular concern and thereby unduly infringe upon the parent-child relationship.

The Court of Civil Appeals of Alabama held that “we cannot conclude that requiring supervised visitation was not within the trial court's discretion in this particular case.” In this regard, the Court relied on the following evidence:

• The father testified that the mother had often threatened to abduct the child and transport him to Bahrain or to her home country of Morocco;

• Morocco is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction;

• The father testified that, just over one week before the final hearing, the mother had stated, “If the Judge does not give me what I want, I'm taking him [i.e., the child] to Morocco.”

• Evidence in the record tending to show that the mother's father was a law-enforcement official in Morocco and that one of her sisters worked for an airline serving the Middle East.

• Evidence indicating that the mother had obtained both Moroccan and American passports for herself; and

• Evidence indicating that the mother would be able to obtain a replacement passport for the child by producing a copy, currently in her possession, of the child's birth certificate.

The Court held that, “Although our cases are silent on the point, a number of cases in American jurisdictions recognize the propriety of requiring supervised visitation when the noncustodial parent is shown to pose a risk of abduction. E.g., Shady v. Shady, 858 N.E.2d 128, 143 (Ind. Ct. App. 2006); Moon v. Moon, 277 Ga. 375, 377, 589 S.E.2d 76, 79-80 (2003); and Monette v. Hoff, 958 P.2d 434, 436 (Alaska 1998). We perceive no error here.”

For further discussion of orders preventing international child abduction, see Jeremy D. Morley, International Family Law Practice, Chap. 11, Preventing International Child Abduction.

Friday, April 16, 2010

"International family law expert offers his insight"

From http://legalcurrent.com/2010/04/16/international-family-law-expert-offers-his-insight

Practice tips

Cases involving children, spouses and families can often be complicated when one country’s laws are involved. When those cases reach across borders and time zones the complexity increases.

Now an attorney who the media has often turned to for help in understanding a complicated international family law issue – like child custody – is offering his insight in a new resource to assist United States attorneys involved in family law and collaboration with family lawyers across the globe.

Jeremy Morley provides expert guidance in International Family Law Practice, published by West.

The topics Morley focuses on in his book include 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.

Morley has been involved in several high-profile international cases involving children and families in recent years. He’s also the co-chair of the International Family Law Committee, International Law Section, of both the American Bar Association and the New York State Bar Association.

More information on International Family Law Practice is on the West Web site. And, Morley has some more information on his work and his media clips on his Web site, international-divorce.com.

Wednesday, April 14, 2010

Female Saudi Family Lawyers May No Longer Need Male Guardian

A Saudi news service reports that the Saudi Justice Minister plans to draft a law allowing female lawyers to try family law cases in court. Currently Saudi women are not allowed to enter courts alone. They need to be accompanied by a male guardian, not only if they are parties to a dispute but also if they are lawyers. Apparently the law will be limited to family law cases. The article does not discuss the law that women may not drive in Saudi Arabia.
Presumably if the law is enacted – which is far from certain since it has been discussed for several years and must be approved at various ministerial levels and then signed by the king – it would allow a woman lawyer to enter the court room alone but it would not remove the law that bars her from traveling to the courthouse without a male guardian or from driving there even in the company of a male guardian.
Likewise, it would not free her female clients from the requirement of a male guardian. Human Rights Watch reported that last month a Saudi woman was sentenced to be lashed 300 times and jailed for 18 months for filing complaints against court officials and appearing in court without a male guardian.