Monday, December 19, 2011

No Family Law in Saudi Arabia

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

India and International Child Abduction

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

English Criminal Law in International Child Abduction Cases

Courts, prosecutors and the police are often reluctant to apply criminal law in international child abduction cases. They feel that such cases are mere family disputes that should be resolved privately or through the civil courts.

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 [2011] 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

Expert Testimony As To International Child Abduction And Other International Family Law Issues

International family lawyers are frequently called upon to act as an expert witness concerning international child abduction and other family law issues.

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.