Monday, December 19, 2011
One might think that the dangers of marrying Saudi nationals and living in Saudi Arabia would by now have been sufficiently well publicized as to cause Western nationals, especially Western women, to steer clear of living in Saudi Arabia with a Saudi spouse.
Unfortunately many still fail to heed the warnings and contact international family law counsel after the fact.
Foreigners who intend to marry Saudi nationals or to live in Saudi Arabia should be warned that their “family law” rights are likely to be extremely limited, especially if they have children and especially if their spouse is a Muslim man.
We have represented numerous clients of various nationalities and faiths who have been in Saudi Arabia.
While we have worked with Saudi counsel it is necessary to report that the level of discrimination against foreigners and non-Muslims in Saudi Arabia at all levels of society, including the highest, is extreme and creates great danger for foreigners and most especially for foreigners with children.
Merely by way of example, women in a Saudi household cannot leave the country without the permission of the Saudi male head of their household. This applies to foreign nationals just as much as to Saudi citizens.
A foreign parent cannot take her or his children out of Saudi Arabia if the other parent is a Saudi national even if the foreigner has been granted custody rights.
Foreigners holding Saudi work and/or residency permits require an exit visa to depart Saudi Arabia.
Saudi authorities have confiscated the U.S. passports of U.S. citizens and U.S.-Saudi dual nationals when they have applied for Saudi citizenship or a Saudi passport.
The public display of non-Islamic religious articles such as crosses and Bibles is not permitted.
Women who do not wear a full-length black covering and cover their heads are at greater risk of being confronted by the religious police.
Men and women may not mingle in public unless they are family or close relatives. The religious police may demand proof that a couple is married or related. Women who are arrested for socializing with a man who is not a relative may be charged with prostitution.
Women are not allowed to drive or ride bicycles on public roads in Saudi Arabia.
In substance if “family law” means a law that protects the family, there is no family law in Saudi Arabia.
Friday, December 16, 2011
Newspapers around the world have carried an article entitled “Japan, India pressed to curb child abductions” that calls attention to the fact that both countries violate human rights norms by failing to provide remedies for international child abduction. The articles describe the circumstances of several of my clients and state that,
“Jeremy Morley, a New York lawyer who specializes in international family law, says India is ‘a safe haven for child abductors" in part due to its slow-moving court system.’
‘An abductor has ample time to create facts on the ground in terms of getting the child sufficiently settled into life in India as to justify an Indian court in ultimately deeming that it is best to keep the child in India,’ Morley writes on his Web site.”
Japan, India pressed to curb child abductions
AP foreign, Tuesday December 7 2010
NEW YORK – Japan and India are among America's most prized allies. Yet to scores of embittered parents across the U.S., they are outlaw states when it comes to the wrenching phenomenon of international child abduction.
The frustrations of these "left-behind" parents run deep. They seethe over Japan's and India's noncompliance with U.S. court orders regarding children taken by the other parent to the far side of the world, and many also fault top U.S. leaders for reluctance to ratchet up the pressure for change.
"If they really made it an issue to solve these cases, I believe they could be resolved tomorrow. ... They don't have the will," said Christopher Savoie of Franklin, Tenn.
Savoie was arrested in Japan last year, and spent 18 days in custody, after a failed attempt to reclaim two children taken from Tennessee by his ex-wife in violation of a U.S. court order.
More than 80 nations have signed an accord aimed at curtailing such incidents, but only a handful of Asian countries are among them. Of the continent's non-signatories, Japan and India pose the biggest problem for the U.S. — accounting for more than 300 cases, involving more than 400 children, opened by the State Department since 1994.
The State Department says it cares deeply about international parental child abductions, which its experts believe will increase as binational marriages become more common.
The department has boosted the staff dealing with abduction cases from 18 to 65 over three years, and says it is working harder than ever to convince Japan and other Asian allies to sign the 1980 Hague Convention on international abduction.
The department's special adviser on children's issues, Susan Jacobs, and its top official for Asia, Assistant Secretary of State Kurt Campbell, have raised the topic on multiple occasions. Campbell used the word "kidnapping" in protesting the many cases in Japan where mothers living overseas with foreign husbands returned home with their children and kept the fathers from having contact with them.
"This is a hard job — we don't get as many successes as we want," said Stefanie Eye, chief of the State Department's Eastern Hemisphere abductions division. "We want every child in the right place." ….
Many times previously, Japan has said it would consider signing the Hague Convention, but it also has expressed concern that doing so might leave some Japanese women and their children vulnerable to abusive foreign husbands.
Stefanie Eye said that in Japan, unlike many Western countries, it's accepted practice that only one parent — usually the mother — has custody of a child after a divorce. That leaves many fathers, including foreigners, unable to see their children until they are grown up because of lack of visitation rights.
"Part of what we're doing is offering the Hague country perspective of why it's important for children to have access to both parents," Eye said.
The State Department says it knows of no cases where a child taken from the U.S. to Japan by one parent has been ordered returned to the U.S. by Japanese courts.
There has been some progress elsewhere in Asia, Eye said. She cited an announcement by Singapore that it will sign the Hague Convention and a preliminary indication by South Korea that it will do likewise.
"We're seeing a lot of movement," she said. "We're waiting for someone to stand out and be a leader."
For the moment, India shows no signs of being that leader. Though a national law commission recently recommended that India sign the Hague Convention, the government hasn't signaled that this will be a priority, and an External Affairs Ministry spokesman, Vishnu Prakash, told The Associated Press in New Delhi that he had no comment on the issue.
"This government is not really interested in ensuring the children's rights," said Bharati Ali, co-director of HAQ — a non-governmental children's rights group in India.
The State Department's assessment is blunt.
"Once a child has been abducted to India, remedies are very few," says an official advisory. "India does not consider international parental child abduction a crime, and the Indian courts rarely recognize U.S. custody orders, preferring to exert their own jurisdiction in rulings that tend to favor the parent who wants to keep the child in India."
Jeremy Morley, a New York lawyer who specializes in international family law, says India is "a safe haven for child abductors" in part due to its slow-moving court system.
"An abductor has ample time to create facts on the ground in terms of getting the child sufficiently settled into life in India as to justify an Indian court in ultimately deeming that it is best to keep the child in India," Morley writes on his Web site.
The California-based Rakshak Foundation has tried to help numerous Indo-American fathers entangled in cases of alleged child abduction.
Among them is Avinash Kulkarni, 45, of San Diego, who says his son — then 6 months old — was taken back to India by his ex-wife in 1990, and 18 years passed before he saw his son again. He said he won a civil case against his ex-wife in 2001, but made no headway with the Indian legal system in his efforts to make see his son.
"In India, the whole concept of human rights and fairness is nonexistent compared to here," he said. "Fighting that is a losing battle. ... I lost my prime years trying."
Another father, Vipin Gopal, said he has been unable to exercise custodial and visitation rights granted by courts in Connecticut after his daughter was taken to India by his ex-wife four years ago.
He hopes the U.S. intensifies pressure on India to cooperate as part of the broader efforts to expand bilateral ties.
"Recently, during a visit to India, the Obama administration negotiated multibillion dollar trade deals and supported a U.N. Security Council seat for India," Gopal said. "But if we can't negotiate with India about the basic rights of our own children, that's where America as a nation fails."
Rex Arul, an energy consultant from Smyrna, Ga., is trying to regain custody of his 3-year-old daughter, who was taken back to India in July by his wife, a corporate attorney, in the midst of wrangling over a divorce. Arul says he subsequently obtained a U.S. court order awarding him custody, but is not optimistic.
"The cards are stacked against me," he said. "The Indian courts always say the priority is the child's best interest, but in the end it's always rewarding the abductor."
Thursday, December 15, 2011
In many cases this view is naïve and it can be extremely harmful.
Now the English Court of Appeal has demanded stronger enforcement of criminal laws against international child abduction, full punishment for the commission of such offenses and new legislation to allow for longer jail terms.
On the appeal of two cases in which fathers had abducted their children and taken them overseas, where they had retained them for several years, the English Lord Chief Justice, Lord Judge, described child abduction as “an offence of unspeakable cruelty.” R v Kayani and Solliman  EWCA Crim 2871. He insisted that a plea for mitigation based on a “right to family life” was “misconceived”, both at common law and under Article 8 of the European convention on human rights. He said that “We can see no reason why the offence of child abduction should be placed in a special category of its own when the interests of the children of the criminal fall to be considered,”
The fathers had been sentenced under the Child Abduction Act 1984, which provides for a maximum seven-year sentence.
Not only were the jail sentences upheld but the Court of Appeal suggested that child abduction should be treated as kidnapping and that the maximum sentence should be increased beyond seven years, to as long as a sentence for life. Previously courts had refused to treat parental child abduction as subject to equal punishment as kidnapping. The Court of Appeal overturned prior precedents. Lord Judge insisted that a discrepancy in sentences between child abduction and kidnapping was “illogical”. He stated that “Our view is clear. Simply because the child has been abducted by a parent, given current conditions, it no longer necessarily follows that for policy reasons a charge of kidnapping must always be deemed inappropriate. To that extent the observation of the court in R v C has been overtaken by events and has no continuing authority.”
Thursday, December 01, 2011
Such testimony can be of vital importance. Unfortunately many family lawyers and their clients often do not recognize the potential value of such testimony.
Exert testimony can make the difference in a case in which a parent who fears a potential international child abduction seeks to prevent a child from being taken to another country. Often the issue is whether the legal system in the country to which the child may visit or to which the child may be abducted has a reliable legal system that will recognize and enforce U.S. custody orders or will promptly return a child under the Hague Abduction Convention.
Expert testimony may be decisive in international relocation cases, in which the issue is whether the courts in the country to which a child's relocation is requested will provide recognition and prompt enforcement of child access orders issued by the courts in the child's current residence.
Thus, this author has presented expert testimony as to the dangers that might result if a child were taken to and retained in Japan, China, Taiwan, Russia, Morocco, Hungary, Jordan, Morocco, Saudi Arabia, Mexico, Malaysia, the UAE (Dubai) and Bulgaria, as well as other countries. He has also presented testimony as to the strength and effectiveness of the legal system in other countries such as England, Italy and Germany.
Expert testimony can also be useful as to the red flags that might show that a person is likely to abduct a child internationally.
It can also be useful on the issue of whether a parent's activities are in violation of the federal International Parental Kidnapping Crime Act.
The author has also provided evidence concerning the anti-dowry law in India, otherwise known as the "498-A" law; as to whether the courts in England or the United States should hear a divorce case; as to the terms that should be included in a visitation order in order to reduce the risk of international child abduction; and as to the potential recognition in a U.S. court of divorces issued by certain foreign countries.
Some specific examples are as follows:
- In a case in the Superior Court in DeKalb County, Georgia this author provided expert testimony at the request of a father as to the law and practice in China as to international child abduction and international child custody. The case concerned two Chinese national who lived in Georgia with their child. The mother was about to be deported because she had no immigration visa. She asked the Court for custody of her child and the right to relocate with the child to China. The father believed that the Chinese legal system would not help him to see the child if the mother's application were granted. The Court gave "great weight" to this author's testimony and as a result decided the case in favor of the father.
- In a case in the Superior Court in Toronto, Ontario, Canada the author provided expert evidence as to the family law of India. The case concerned two parents of Indian origin, one of whom wanted to take their child for a visit to India. The father believed that the child would never be returned home to Canada if a visit were authorized, notwithstanding the mother's promises to do so. The Court relied almost entirely on the author's opinions, described as "a detailed and helpful affidavit" which "unequivocally outlined" the hazards of any visit to India and provided a "sobering warning" of such risks. Consequently the court ruled in favor of the father and barred the proposed visit.
- In a case in the Supreme Court, New York County, the issue was whether to permit a proposed visit of a child living in New York to the country of Italy. The author testified that Italy was fully compliant with the Hague Convention on the Civil Aspects of International Child Abduction. Opposing expert testimony was also presented. The Court accepted the author's testimony and the visit was authorized.
The evidence that is required in such cases can often be supplied remotely. The author has testified in person in several U.S. states but he has also been permitted to testify as an expert witness in cases throughout the United States, as well as in Canada, Australia and New Zealand, either by affidavit or telephone or video.
Tuesday, November 22, 2011
Child Abduction Victory Does Not Signal a Change in Japan’s “Do Nothing” Approach to International Child Abduction
But let no one be mistaken. It was the legal system in the U.S. – and some unusually good luck – that did the trick, not the Japanese legal system.
While Dr. Garcia tried his utmost – and at substantial expense -- to secure the assistance of the Japanese legal system, the courts in Japan did nothing to help him and did everything to hinder his efforts, while paying lip service to his plight.
The Japanese courts purported to acknowledge that he had custody of the child, which he had been awarded in Wisconsin, where the child was born and lived, but then decided that the child should stay in Japan with her Japanese mother because by that time the delays had been such that she had already been in Japan for a significant period of time.
It is reported today that the child's mother has now entered a plea agreement, after having spent several months in jail in Wisconsin, pursuant to which she agrees to have the child returned to Wisconsin by Christmas.
The only reason that this case appears to have had a successful outcome is that the mother left Japan (without the child) and entered the U.S., traveling to Hawaii to renew her green card. She was then arrested in Hawaii because of the actions taken by my client's legal team in Wisconsin.
This case does not signal any change in heart on the part of the Japanese legal system. Anyone who understands what has really occurred here will conclude that the mother would have gotten away with her abduction if she had stayed in Japan.
The Japanese courts are not ready to take any action in any such case and they have never done so. That will not change even when Japan signs the Hague Convention on international child abduction unless and until the entire family law system is overhauled and until Japanese society recognizes that kids are entitled to two parents even if parents are divorced.
The Law Office of Jeremy D. Morley has represented very many parents whose children have been abducted to Japan, as well as children abducted to other countries throughout the world. We also represent many parents who fear that their children may be abducted overseas and seek assistance in preventing a potential abduction. We may be reached at email@example.com and through www.international-divorce.com
Wednesday, November 16, 2011
To the overwhelming elation and relief of our client, a terrified and panic-stricken Chinese mother, we succeeded recently in having a baby intercepted at an airport exit gate as his father was about to abduct him from the United States to India.
Mother’s joy at being reunited with her lost child capped our office’s relentless two-week search.
The family – a Chinese mother, her American husband and their dual national child – were living in China. After an argument between the spouses, the father grabbed the child and threatened to take him to the States. The Chinese police and then the Hong Kong police were completely unhelpful. The father then took the baby to an undisclosed location in the United States. That is when the mother called us from China, desperately scared and frantic.
We got word that the father was in California and with the help of local counsel and others there we secured an ex parte temporary custody order and restraining order in favor of our client.
We assisted the mother to obtain an emergency visa allowing her to fly to the States.
We then learned that the father was in Arizona near the Mexican border and we sought emergency police assistance there.
We then received some information that the father was ticketed for a flight to India. We suspected that India had been chosen because, as we have long warned, India is a well-recognized haven for international child abduction.
Just minutes before the plane left we succeeded in having the police at LAX pick up the child at the departure gate for the flight to India.
And just a few minutes later the child was safely in our ecstatic client’s arms.
The successful outcome resulted from enormous emergency effort in working with courts, police forces across the country, the State Department and other agencies.
It was frustrating, expensive and extremely nail-biting, most especially for the distraught mother.
And we were very lucky.
But the entire process was completely unnecessary.
If the United States would heck who leaves this country we could prevent international child abductions.
Unlike most other countries the United States has no exit controls (with minimal exceptions). Laws that require the United States to impose such controls have never been effectuated.
The measures that exist in the United States to prevent and deter international child abduction are minimal to nonexistent. Those laws that do exist are extremely hard to implement. Court orders barring cross-border travel are routinely violated. Laws that require dual nationals, including children, to possess a U.S. passport when leaving the U.S. are ignored. Amber alert programs are reserved for the most outrageous death-threat type of cases. Police forces don’t want to handle matters that concern child custody issues.
Even when an abduction is clearly in progress the resources that are available to assist parents are negligible.
We control who enters this country but we leave the doors wide open for any to leave – and to take whoever they wish with them, whether that is a child or anyone else.
Wednesday, November 02, 2011
The left-behind father is my client and I will not comment on the case except to say that:
(a) The facts have been utterly distorted and misstated in the Japanese press, which is what usually happens in these cases, and
(b) The Japanese legal system has again proved itself to be entirely dysfunctional in the area of international child abduction, which will certainly not be corrected by Japan’s signature to the Hague Convention.
Mainichi Japan, October 27, 2011
Japanese ex-wife arrested in U.S. on accusation of making off with child
A Japanese woman has been arrested in Hawaii on accusations she took her 9-year-old daughter with a Nicaraguan ex-husband back to Japan without permission, it has been learned.
The 43-year-old Japanese mother and her 39-year-old ex-husband, who lives in the United States, have custody disputes over the child ongoing in both Japan and the U.S. The Foreign Ministry says that it is highly unusual for a Japanese national to be arrested abroad during a custody dispute with a foreign ex-partner.
According to legal officials and the Ministry of Foreign Affairs, the woman married and bore the child in February 2002. She lived in the state of Wisconsin in the U.S., but in February 2008 she returned to Japan with the child. In June 2009 her divorce was finalized, but the father was given custody rights.
The woman went to court in Japan to have the custody rights changed, and in March this year the court awarded them to the woman, giving the father just 30 visitation days a year in the U.S. Both sides immediately appealed the ruling, and the case is now being deliberated at the Osaka High Court.
The woman flew to Honolulu on April 7, 2011 local time to renew her permanent U.S. resident status. However, an arrest warrant for the woman was on issue from Wisconsin authorities for violating the father's custody rights by taking the child to Japan without permission, and the woman was arrested by Hawaii authorities. She remains in custody, and a trial is ongoing in Wisconsin. Prosecutors suggested a plea bargain where she would be given a suspended sentence in exchange for returning the child, who currently lives with the woman's grandparents in Japan, but she has refused and maintains her innocence.
The ex-husband has reportedly said that if the woman will return the child, he does not want her held further, and he wants the child to be able to meet both parents. A lawyer for the woman, however, says that she fears that if she returns the child once, the child will never be able to come back to Japan.
According to the Ministry of Health, Labor and Welfare, records of Japanese international marriages since 1992 show a peak in 2006 of around 44,700, after which they have been declining, with around 32,000 in 2010. On the other hand, Japanese international divorces have increased, peaking at about 19,400 in 2009. International divorces are accompanied by unique problems like differences in national law, children's nationality and parental custody rights, and people leaving the relevant countries.
Professor Takao Tanase of Chuo University's law school says, "The Hague Convention on the Civil Aspects of International Child Abduction's primary objective is to get the child in such disputes returned to the country they were taken from, and therefore civil-level procedures to return the child are prioritized. If the child is returned, criminal legal action is often not pursued. If Japan joins the convention, I think that there will be fewer cases that lead to arrests."
Thursday, October 06, 2011
Mirror Orders to Help Prevent International Child Abduction
Mirror Orders to Help Prevent International Child Abduction
By Jeremy D. Morley
So-called "mirror" orders can be a useful tool in the arsenal of lawyers who handle cases concerning international child travel and the prevention of potential international child abduction. So, what exactly is a mirror order, and how can it be employed to protect your client’s parental interests?
The Typical Case
Increasingly, courts are being asked to enjoin parents from taking children overseas because of the other parent’s fear that the children will not be returned. Courts must take such applications extremely seriously, especially if a child is likely to be taken to a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, or that does not return children promptly to their habitual residence. On the other hand, it is also well-recognized that children have an interest in seeing the world. In addition, children with a foreign parent should be encouraged to learn of their overseas heritage and to get to know their family members who live at a distance.
A potentially left-behind parent’s application for an injunction is usually supported by: 1) Expert testimony as to the practices and laws concerning international child abduction and international child custody in the country to which the child may be taken; 2) Expert testimony as to the "red flags" or "risk factors" that research establishes are the indicia that a particular parent might indeed abduct his or her child; and 3) Lay testimony as to any facts that establish the existence of any and all such risk factors.
In those cases, a judge will invariably ask a basic question: "What conditions can I include in my order that will minimize the risk that the child will not be returned?" Unfortunately, the true answer is often, "None." This point is evidenced by the epidemic of "successful" abductions to countries such as Japan, frequently in flagrant violation of court orders.
The Mirror Order As Insurance
In many cases, a court faced with a parent who wants to take a child overseas and a left-behind parent who fears the child will not be returned should require the traveling parent to obtain a "mirror order" from a court in the foreign jurisdiction before being allowed to take the child overseas.
A mirror order is one that is issued by another court and contains the same terms as those that are contained in the order that is being mirrored. Inherent in the mirror order concept is the fact that the foreign court shall have the right — and more importantly the obligation — to enforce the terms contained in the order, specifically including the obligation to effectuate the prompt return of the child at the end of a designated period of time. Equally critical is that the foreign court should not be permitted to modify the original order.
Will It Be Enforced?
The viability of a requirement that the foreign country’s courts enforce these mirror orders varies substantially from country to country. By way of example, a very recent decision of the Supreme Court of India (Majoo v. Majoo, (2011) INSC 515) made it clear that the courts in India will not allow mirror orders to be entered in child custody matters and that they will always conduct a full plenary review of the child’s best interests (which invariably equates to a decision that the child — who, by the time of the ultimate decision has typically been in India for some years — should remain in India).
It is also obvious that a court in Japan, even in the utterly unlikely event that it were to issue a mirror order, would not enforce the terms of any such order since its family law system is toothless and its orders are invariably not enforced. See www.international-divorce.com/Japan-Child-Abduction-police-hurt.htm.
By contrast, a country such as Australia has a custody registration system that operates in a very similar way to the system of registration of foreign custody orders in the Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA). However, Australia is very much the exception rather than the rule. The European Union has a registration system, but it applies only to orders issued by an EU court, and the practice within Europe varies substantially from country to country.
Indeed, foreign lawyers are generally shocked and amazed when they learn of the registration provisions in the UCCJEA. In particular, they are often shocked that a U.S. court will generally have exclusive continuing jurisdiction for many years after a child has left the jurisdiction as long as one parent continues to live there.
In the case of W v. W (Minor) (Mirror Order) (2011) EWCA CIV 703, the issue was recently before the Court of Appeal in England. (Since that court is headed by a judge who is also that country’s "Head of International Family Law," its decisions on such issues are far less likely to be parochial than similar rulings from some courts in the United States and many other countries.) In W. v. W., the child in question was living in Malaysia. A Malaysian court awarded custody to the father, an English national, and contact to the mother "at reasonable times." The father then asked an English court for a mirror order so that he could apply for a British passport for the child. However, the English court not only issued a mirror order, but it also granted the mother’s application to reopen the entire case. On appeal, the English Court of Appeal ruled that the trial court had been right to issue the mirror order but wrong to claim any broader jurisdiction. It made clear that a litigant who seeks a mirror order does not accept the jurisdiction of the court to do any more than reiterate the provisions of the order issued by the primary jurisdiction. By definition, an application for a mirror order cannot supplant the primary jurisdiction. The court ruled that if the mother wished to challenge the order or seek specific contact, she should apply in Malaysia.
Making the Application
Lawyers bringing applications to enjoin children’s foreign travel, and lawyers opposing such applications, need to tailor their presentations. Their proposals should address the specific laws, procedures, customs and practices concerning international family law, international child custody and international child abduction of the specific country or countries that the child is to visit.
The next consideration — a highly important but often overlooked one — is this: Once the child is taken to the agreed-upon country, where may he subsequently be taken? After all, once a child lawfully enters one country, local laws may make it very simple for that child to be moved to another country. For instance, once a child is in any European country that is within the "Schengen Zone," he or she may be taken to any other such country without passing through any passport control.
It is also important to understand that merely because an American court conditions an event upon a foreign mirror order, the foreign court might not have jurisdiction to issue any such order.
That situation arose in Danaipour v. McLarey, 286 F.3d 1 (1st Cir. 2002), in which a district court in Massachusetts acted on the mistaken assumption that a Swedish court would provide a stipulated mirror order. In fact, the Swedish court refused to do so.
Another critical factor is that once a child is taken into a foreign country, it may be extremely difficult to bring him or her home. Many countries have stringent exit controls that require the written consent of both parents or a sole custody order to remove a child. This is particularly the case with South American countries. Even if a U.S. court issues the requisite order, it may have no effect in a foreign country; even if ultimately effective, the lack of a local court order might cause significant border delays.
When a Mirror Order Is Hard to Get, Get Tough
In my office, issues have arisen when parents seeking to take a child out of the country claimed they could not obtain a mirror order. What then?
One of our clients was legitimately worried that a child would be retained in Bermuda if the father took him to visit his family there. Upon our advice, the client negotiated a strong New York consent order that specified that New York had continuing exclusive jurisdiction, that contained a host of other protective clauses and that permitted a visit to Bermuda only if a mirror order were first obtained. Subsequently, the father asserted that he had been unable to obtain the requisite mirror order from the Bermudan courts. As a result, the Family Court authorized a visit without the mirror order. We successfully obtained from the Appellate Division, First Department, an emergency order barring the scheduled visit.
Another client settled an action under the Hague Abduction Convention by agreeing to limited and supervised visitation between the father and the child in Quebec, Canada, conditioned on the child’s prompt return to New York. We insisted that a mirror order be obtained from the Quebec courts before any visit could occur. Again, the father reported difficulty on obtaining the required order, which led to a delay in the scheduled visitation. Only when the mirror order was in place did visitation in Canada successfully occur.
When to Seek a Mirror Order
In my capacity as an expert in international custody issues, I have sometimes suggested, as part of my written expert evidence or expert trial testimony, that a mirror agreement would be futile because the family law system of the foreign country could not be relied upon to enforce the mirror order. For example, I recently so testified in a case concerning a child’s travel to China.
In other cases, I have testified that a mirror order might be a good idea because it would provide useful additional security for the prompt return of the child if the parent taking the child for an overseas visit were to keep the child there. I have testified to this effect in cases concerning travel to Italy and Hong Kong, because the family law systems in those jurisdictions are reliable and effective.
In conclusion, depending on the circumstances, mirror agreement requirements may be useful, but they may also be counter-productive if they induce a false sense of security. They should never be requested or opposed except by counsel having full knowledge and understanding of international family law.
Jeremy D. Morley, a member of this newsletter’s Board of Editors, concentrates on international family law. He may be reached at 212-372-3425. He is the author of the treatise, International Family Law Practice. His websites are www.international-divorce.com and www.internationalprenuptials.com. Access his blog at www.internationalfamilylawfirm.com.