Thursday, December 01, 2011
Expert Testimony As To International Child Abduction And Other International 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.