Monday, February 21, 2011

International Custody Battle Over Girl, 4

A four-year-old girl in Abu Dhabi is at the centre of an international child custody case that pits her divorced American parents against each other from different sides of the world. Sophie Azzolina goes to swimming and dance classes and has friends at her Abu Dhabi nursery school. Her mother describes her as "a bright and sweet little girl".

But while Sophie lives here with her father, Charles Azzolina-Michlin, who has been awarded custody by a UAE judge, her mother, Anna Sokolowska, lives in Texas, where she has been awarded custody by a US judge. "Despite multiple arrest warrants for Sophie's father in the US, both state and federal, I have not been able to secure her return home to Texas," Ms Sokolowska said. But Mr Azzolina-Michlin, a helicopter pilot, says he is acting in Sophie's best interests. "It's not as simple as it looks," he said. "Anna should never have been able to leave the country with Sophie, what she did was wrong, and she's gotten traction by jumping jurisdictions."

The couple moved to Abu Dhabi with baby Sophie in 2007 but their relationship began to deteriorate a year later. During a holiday in Kenya with Sophie in December 2008 Ms Sokolowska decided not to return to the UAE, and eventually took the child to Texas. After she left, Mr Azzolina-Michlin was granted custody of Sophie by a UAE court. However, a US court gave the couple joint custody in February 2010, and Mr Azzolina-Michlin was forbidden from taking Sophie to the UAE. He breached the order four months later, after telling a judge that he was taking Sophie to Italy, where he is a citizen. A US federal warrant was issued last month for Mr Azzolina-Michlin’s arrest on charges of unlawful flight to avoid prosecution on child custody and kidnapping charges. Stories such as Sophie’s are becoming increasingly common in the UAE, experts said. Because the country is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, and has its own child custody laws, foreign governments cannot enforce their own such laws here. “What happens when you get a non-Hague Convention country, where there is no mechanism between countries, you are governed by the civil laws of the country where the child is,” said Sharon Cooke, a spokeswoman for Reunite International Child Abduction Centre, a UK-based charity. Alexandra Tribe, a British family lawyer based in Dubai, said about 20 per cent of the cases she deals with, or about five a year, are related to child custody and alleged parental child abduction. “I’ve seen considerably more cases while working here than in England,” she said.

The US State Department reported seven new cases of child abduction under US law, involving nine children, in the UAE in 2009, the last year data was collected. This number is up from six cases in 2008 and four cases in 2007. The UK’s Foreign and Commonwealth Office does not keep annual statistics, but 27 cases in the UAE have been reported since a child abduction unit was formed in 2003, with seven cases remaining active.
Jeremy Morley, a New York-based international family lawyer who has consulted in “a few dozen” UAE cases, said the increasing number could be attributed to the UAE’s high expatriate community. “As more expats are coming and going, there’s a massive problem arising on where children are taken,” Mr Morley said. “It is increasing globally because travel is easier, and it’s increasing in the UAE in particular because the economy has been so active there. There’s so much more travel to and from.”

The return of children after they have been brought to the UAE from other countries is uncommon. Decisions are made under sharia and UAE courts may take into consideration the parents’ religion, place of permanent residence and income, as well as the age and sex of the children. “This is the most challenging thing I have ever faced,” said Ms Sokolowska. “It’s crazy, because he’s residing in a different country and I have an order here, and it just doesn’t mean anything.”  Interpol has been notified of the US arrest warrant, but Abu Dhabi authorities would not take action on it here. The US Office of Children’s Issues has also met Sophie in the capital, but because there are no relevant treaties in force between the UAE and the US, it is “quite difficult to obtain the return of children from the UAE”, according to a letter from the director of the Office of Children’s Issues to Ms Sokolowska’s congresswoman.

The situation is similar for children brought from other countries. “A UAE lawyer would have to make a case in a UAE court,” said Ms Cooke, from Reunite International. “It is not common for returns to come from the UAE through the court system; a lot of the returns are voluntary.” Mr Azzolina-Michlin said ideally he would like to have Sophie’s mother and younger sister, who is 19 months old, return to Abu Dhabi so that his daughters could be near both their parents. “I’m between a rock and a hard place, and I have to do what’s best for my daughter,” Mr Azzolina-Michlin said.

Jen Thomas

U.S. diplomat discusses S. Korea's accession to convention on child abductions

A senior U.S. diplomat met with South Korean officials Friday to discuss Seoul's planned accession to an international convention on the custody of children from international marriages.

The Hague Convention on the Civil Aspects of International Child Abduction aims to prevent parents in custody battles from abducting their children and taking them to another nation in search of a more favorable arrangement. It also lays out a procedure for promptly returning children to their original country of residence.

"We're here to talk about the Hague Convention on International Abductions with the ministry of foreign affairs," Susan Jacobs, the U.S. State Department's special adviser for children's issues, said ahead of talks with Paik Ji-ah, director-general of the ministry's international organizations bureau.

"All the partners want South Korea to accede to the convention," she said.

South Korean officials said they are making preparations to accede to the 1980 convention, with a Justice Ministry task force drafting a bill that outlines the government's role and rights with regard to the treaty. A rough version of the bill is nearly completed, they said.

Relevant government offices, such as the foreign, justice and welfare ministries, are laying the groundwork for the country's membership, which could come as early as this year after submitting the bill to parliament, officials said.

Monday, February 14, 2011

The Plight of the Expatriate Spouse

Just today, a client and then a potential client told me that this article describes their exact circumstances.

We are reprinting the article now because so many have said it that it is reassuring to know that others understand their circumstances.

We regularly counsel clients who call from all over the world about exactly these situations and how to extricate themselves from them.


Jeremy D. Morley

International child relocation applications raise substantially different issues from those raised in domestic relocation cases, whether intrastate or interstate. Unfortunately, the fundamental differences are not often adequately appreciated by lawyers and judges. This is partly because both domestic and international applications are governed by the same legal principles. It is also because, even in today's globalized world, international relocation applications are relatively unusual.

A key difference between international and domestic cases concerns the nature of the applicant. Parents who apply for international relocation have fundamentally different circumstances, concerns and needs than do parents who want to relocate domestically.

A second critical difference is that while sister states have similar laws and legal systems, the legal systems in foreign countries vary dramatically in their recognition and effective enforcement of U.S. custody and access orders. This factor will be the subject of a subsequent article.


Expatriate parents who seek to relocate internationally with their children typically share similar experiences and challenges, which need to be better understood by lawyers who act as their advocates and by judges who decide the fate of their children. (This article does not cover applications by American parents who wish to move overseas for love or work). In my experience, based on counseling very many expats in family crises, applications by expats for international relocation are usually made by mothers who want to return to their country of origin. They seem to fall into three distinct categories. (In an article such as this, there is no way to avoid making generalized observations. The purpose is not to stereotype people, but to promote better understanding of their circumstances.)

The Trailing Spouse

A "trailing spouse" is one who accompanies her husband on an assignment to a foreign country, usually for a limited number of years. The husband has usually achieved significant success in his career and is pleased to improve his situation by making an international move. It is a situation that is often fraught with danger for the trailing spouse.

A typical scenario might be as follows: H and W are Germans and have lived in Germany for all of their lives. H works for a technology company and W is a teacher. They have a two-year-old child (C). H is offered a promotion conditional on his moving to New York for a fouryear assignment. W is excited about the prospects of living in the Big Apple but is sad that she will have to leave her teaching job.

Three years later their entire world has changed. H is thrilled with his assignment, loves his job, thrives on being independent of head office and has adapted well to life in New York. His "only" problem is that W is having an entirely different experience.

W is lonely, isolated and miserable. She does not work and is upset that her German teaching qualifications are not transferable to the U.S. She misses her family and her friends in Germany. She has experienced far more culture shock than she expected. While her language skills are reasonably good, she is finding that English is far more difficult than she realized. She has no one to complain to -- except H, and when she does, H becomes increasingly impatient.

The relationship between H and W has spiraled downward. H comes home later and later. He ultimately has an affair and a divorce and custody case ensues. H announces that he wants to stay in New York, while W wants to go back home to Germany with C, who is now a happy and healthy five-year-old. W is shocked that H refuses to allow her to take C back to Germany. She feels that he cheated her by dragging her to a foreign country and then refusing to allow her to return home with her child. She is furious that he does not appreciate the sacrifices that she has made for his career, that he has broken his vows of fidelity, and that he is shockingly compounding his betrayal by forcing her to live in an alien country without support, family, friends or career.

In court, H opposes relocation on the grounds that C has lived most of his life in New York; all of C's friends are in New York; and C is thriving there, except for the fact that W is moody and silent. H contends that W is being selfish in wanting to take C away from his father to Germany, a place that C does not remember, and away from everything that C knows in his home in New York. H's argument is compelling and often is the winning one, especially if the focus is on C to the exclusion of W. While the court may acknowledge that a happy mother is a better mother, the court often gives more weight to the fact that the couple and their five-year-old child have spent three years in New York.

The Romantic Expat

A "romantic expat" is someone who moves from his or her home country for romance. Perhaps H from Chicago meets W in Japan and convinces her to marry him and move to Illinois. They have a baby, C. Life in Illinois is not what W expected. Americans are "rude, pushy and inconsiderate." Public transportation in Chicago is inconvenient and unpleasant, and she is scared to drive on the busy roads. She has made no friends except for a couple of Japanese women who were on temporary assignment with their spouses and who have been fortunate enough to have gone back home to Japan. She misses her family and friends and finds it hard and stressful to speak in English. She worries that C is being raised as an American and not as a Japanese.

Inevitably the marriage breaks down, and W wants to go back home to Japan with C, who is now aged three. She is shocked when H insists that she cannot do so; after all, she came to this country only because of H and now that he has "let her down," she cannot understand why he wants to keep her a prisoner here.

In court, H presents all of the arguments that the husband in the previous "trailing spouse" scenario presented, with the additional factors that: 1) C has lived his entire life in the U.S.; 2) relocation will remove C not only from H but also from H's family, with whom C has become attached; and 3) Japan is not a party to the Hague Abduction Convention, does not enforce foreign custody or access orders, and does not acknowledge a foreign father's right to play a significant role in the life of his children.

Holdover Expats

A "holdover expat" is one who left his or her home country for a temporary period of time, perhaps coming to the U.S. to study or on a work assignment. After some years here he or she has a love affair in the U.S. and decides to stay here.

Perhaps W is from Colombia, came to study in Florida intending to return home when she had a degree. After a couple of years here, she met and married H who asked her to stay in Florida. Their child, C, is two years old when they decide to divorce. Again, W wants to go back home with C, but H is opposed to relocation. H uses the same arguments as the husbands used in the two prior scenarios, but with the added factor that W was already living in the U.S. when H met her and has lived in the U.S. for a longer period of time than the other wives.


In all three scenarios, H's arguments are compelling and often win, especially if the focus is on C, to the exclusion of W. As mentioned above, while the courts may ac-knowledge that a happy mother is a better mother, that consideration is typically trumped by the fact that C lived or remained in the U.S. The courts will focus on the "best interests" of the child without fully appreciating the drastic impact that the mother's unhappiness and often justifiable bitterness will have on the child's well-being. Not only are the mother's concerns insufficiently understood, they are often labeled unfairly by lawyers and judges as selfish, irrational, crazy and obsessive. In each scenario the mother is the primary caregiver. She is the one who is typically required to choose between abandoning her child and abandoning her family, friends, career and culture in her home country. It is difficult not to feel great sympathy for her predicament, especially if she is the one who has been abandoned.


Denial of an application for relocation can have severe and devastating consequences. A typical downward spiral is as follows:

- The mother feels that she is imprisoned in this country.

- The mother considers abducting the child.

- The father increasingly fears that the mother will abduct the child.

- Each parent tries to increase his or her control over the child.

- The mother takes steps to take the child to her home country.

- The father makes an emer-gency application to court to prevent abduction.

- The court issues an order pre-venting the mother from leaving the jurisdiction.

- The relationship between the parents is completely destroyed, to the substantial detriment of the child.

The consequences may then include: parental alienation; criminal child abduction; Hague Convention litigation; enormous expenditures on legal fees; parental inability to agree on anything; and increasing police and judicial intervention, all of which cause awful consequential damage to innocent children.


There is no quick and easy solution to these problems. However, a starting point is to understand better the plight of the expatriate spouse. In my experience, clients who wish to return to their country of origin in situations such as these often find that their lawyers and, therefore, the courts, do not adequately appreciate the extent of their plight and the merit of their cases. Many such spouses complain with justification that they are treated as difficult, uncaring or crazy, even by those who are supposed to be helping them. It is essential to understand what it is that these people are going through and to appreciate -- and communicate effectively to the court -- that their responses are the natural and typical consequences of the situations in which they have been placed.

Such understanding exists in the business world, where it is commonly accepted that spouse/partner dissatisfaction and other family concerns are the most significant cause of "expatriate assignment failure" -- defined as "the inability of an expatriate to perform effectively in a foreign country and, hence, the need for the employee to be fired or recalled home. See, e.g., Relocation Trends Surveys, a wide-scale, yearly report issued since 1993. International companies now devote substantial resources to what I have termed the "plight of the expatriate spouse." The legal system should encourage similar understanding.


In many of the cases with which I have dealt -- representing mothers and fathers, both expats and local natives -- it would have been far better if the parties had agreed -- or if the judges had ordered -- a fair, appropriate and enforceable compromise solution.

If the other country has a developed and effective legal system, child custody laws that reflect a similar philosophy to ours, and strong laws to prevent international child abduction, an appropriate solution might include the following terms:

- Authorizing W to relocate with C once specific conditions have been fulfilled;

- Requiring extremely generous visitation of C with H;

- Requiring daily Internet contact, with webcams, between H and C;

- Providing for joint decision-making between H and W as to all important matters affecting C;

- Requiring W to obtain an order from the court in her home country that mirrors the terms of the order in H's jurisdiction, that acknowledges that the court in H's jurisdiction has continuing exclusive jurisdiction concerning all matters as to C's custody and visitation, and requiring the appropriate authorities in W's home country to enforce such orders; and

- Imposing a significant penalty on W if she fails to comply with the order, including a severe financial penalty. This might take the form of a substantial bond or a reduction or suspension of financial support. Or a substantial portion of the assets being divided upon divorce might be held in escrow.

Such a solution is far from perfect, but it would often be far better than the present policy in many courts of routinely denying most international relocation applications even in compelling cases.

Thursday, February 10, 2011

Singapore Acceeds to the Hague Convention on International Child Abductions

Singapore has acceded to the Hague Convention on the Civil Aspects of International Child Abduction. The accession occurred on December 28, 2010 and will have effect from March 1, 2011. No country has yet accepted the accession and so even after the effective date the Convention will not be in force between Singapore and any other country until other Hague countries expressly accept the accession.  Singapore enacted the International Child Abduction Act on 16 September 2010 to implement Singapore’s obligations under the Convention. The Ministry of Community Development, Youth and Sports is designated the Central Authority to discharge the relevant functions under the Act.

Follow the link below to read the full text of the Act:
Singapore International Child Abduction Act