Wednesday, December 05, 2012

Senate Resolution Condemning International Child Abduction

The U.S. Senate has today passed a “Bipartisan Resolution Calls on Countries to Do More to Prevent and Resolve Cases of Children Abducted by Parents Across International Borders.”

The Resolution should be useful when seeking to prevent potential abduction to Japan, India, and Egypt, since those countries are specifically “reprimanded.”

The Resolution also reinforces claims that international child abduction is a form of child abuse.

http://politicalnews.me/?id=19341&pg=2&keys=

Dec 05,2012 - Boxer Praises Senate Passage of Resolution Condemning International Parental Child Abduction

Bipartisan Resolution Calls on Countries to Do More to Prevent and Resolve Cases of Children Abducted by Parents Across International Borders

Washington, D.C. – Senator Barbara Boxer (D-CA) praised the passage of her bipartisan resolution condemning the international abduction of all children. The resolution garnered 28 cosponsors and passed the Senate by voice vote.

"I am so proud that today the Senate took a stand to condemn the tragic and devastating crime of child abduction,” Senator Boxer said. “This resolution is a resounding call to the international community to join together to prevent and resolve abduction cases.”

According to the U.S. Department of State, last year 1,367 American children were reported abducted by a parent from the United States to a foreign country.

The 1980 Hague Convention on the Civil Aspects of International Child Abduction is the principal tool for a parent seeking the return of a child abducted across international borders. The Convention provides a legal framework for securing the return of an abducted child so that judicial authorities can make decisions on issues of custody and the best interests of the child. However, many countries do not participate in the Hague Abduction Convention and the Convention does not apply to abductions that occur before a country joins.

The resolution calls on all countries to join and fully comply with the Hague Abduction Convention and to take other steps to prevent and resolve cases of international parental child abduction.

The full text of the resolution is below.

RESOLUTION

Whereas international parental child abduction is a tragic and common occurrence;

Whereas the abduction of a child by one parent is a heartbreaking loss for the left-behind parent and deprives the child of a relationship with 2 loving parents;

Whereas, according to the Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction of the United States Department of State from April 2010, research shows that abducted children are at risk of significant short- and long-term problems, including “anxiety, eating problems, nightmares, mood swings, sleep disturbances, [and] aggressive behavior”;

Whereas, according to that report, left-behind parents may also experience substantial psychological and emotional issues, including feelings of “betrayal, sadness over the loss of their children or the end of their marriage, anger toward the other parent, anxiety, sleeplessness, and severe depression”, as well as financial strain while fighting for the return of a child;

Whereas, since 1988, the United States, which has a treaty relationship under the Convention on the Civil Aspects of International Child Abduction, done at The Hague October 25, 1980 (TIAS 11670) (referred to in this preamble as the “Hague Abduction Convention’’) with 69 other countries, has agreed with its treaty partners to follow the terms of the Hague Abduction Convention;

Whereas the Hague Abduction Convention provides a legal framework for securing the prompt return of wrongfully removed or retained children to the countries of their habitual residence where competent courts can make decisions on issues of custody and the best interests of the children;

Whereas, according to the United States Department of State, the number of new cases of international child abduction from the United States increased from 579 in 2006 to 941 in 2011;

Whereas, in 2011, those 941 cases involved 1,367 children who were reported abducted from the United States by a parent and taken to a foreign country;

Whereas, in 2011, more than 660 children who were abducted from the United States and taken to a foreign country were returned to the United States;

Whereas 7 of the top 10 countries to which children from the United States were most frequently abducted in 2011 are parties to the Hague Abduction Convention, including Mexico, Canada, the United Kingdom, Germany, Ecuador, Brazil, and Colombia;

Whereas Japan, India, and Egypt are not parties to the Hague Abduction Convention and were also among the top 10 countries to which children in the United States were most frequently abducted in 2011;

Whereas, in many countries, such as Japan and India, international parental child abduction is not considered a crime, and custody rulings made by courts in the United States are not typically recognized by courts in those countries; and

Whereas Japan is the only member of the Group of 7 major industrialized countries that has not yet become a party to the Hague Abduction Convention: Now, therefore, be it

Resolved, That—
(1) the Senate—

(A) condemns the international abduction of all children;

(B) urges countries identified by the United States Department of State as noncompliant or demonstrating patterns of noncompliance with the Convention on the Civil Aspects of International Child Abduction, done at The Hague October 25, 1980 (TIAS 11670) (referred to in this resolution as the “Hague Abduction Convention”) to fulfill their commitment under international law to expeditiously implement the provisions of the Hague Abduction Convention;

(C) calls on all countries to become a party to the Hague Abduction Convention and to promptly institute measures to equitably and transparently address cases of international parental child abduction; and

(D) calls on all countries that have not become a party to the Hague Abduction Convention to develop a mechanism for the resolution of current and future cases of international parental child abduction that occur before those countries become a party to the Hague Abduction Convention in order to facilitate the prompt return of children abducted to those countries to the children’s countries of habitual residence; and

(2) it is the sense of the Senate that the United States should—

(A) vigorously pursue the return of each child abducted by a parent from the United States to another country through all appropriate means, facilitate access by the left-behind parent if the child is not returned, and, where appropriate, seek the extradition of the parent that abducted the child;

(B) take all appropriate measures to ensure that a child abducted to a country that is a party to the Hague Abduction Convention is returned to the country of habitual residence of the child in compliance with the provisions of the Hague Abduction Convention;

(C) continue to use diplomacy to encourage other countries to become a party to the Hague Abduction Convention and to take the necessary steps to effectively fulfill their responsibilities under the Hague Abduction Convention;

(D) use diplomacy to encourage countries that have not become a party to the Hague Abduction Convention to develop an institutionalized mechanism to transparently and expeditiously resolve current and future cases of international child abduction that occur before those countries become a party to the Hague Abduction Convention; and

(E) review the advisory services made available to United States citizens by the United States Department of State, the United States Department of Justice, and other United States Government agencies—

(i) to improve the prevention of international parental child abduction from the United States; and

(ii) to ensure that effective and timely assistance is provided to United States citizens who are parents of children abducted from the United States and taken to foreign countries.



Wednesday, November 28, 2012

Qatar’s Child Custody Law

Jeremy D. Morley*

Qatar’s law as to child custody is Sharia law and is codified in the Qatari Law of the Family, Law no. 22 of 2006.


All child custody disputes are decided by Qatari courts based on Islamic Sharia law, regardless of the religion of the parents. The precepts of the statutory law are completely subordinated to the religious precepts of Islam. The Qatari courts are required to apply Sharia law even if the parents are not adherents to that religion.

Qatari law applies the Sharia law concept of a sharp division between the physical custody of a child and the legal guardianship of a child. The mother is given an express statutory preference for physical custody, up to a certain age of the children. The father is given an express statutory preference for guardianship. It is extremely rare for that right to be taken away from him. It is deemed the “natural right” of the father to assert such rights to the exclusion of the mother. Guardianship is akin to legal custody. It provides the father with the exclusive right to make decisions concerning the child.

Qatari law expressly states that the mother shall have custody of children up to certain defined ages. It lists 18 individuals or categories of relatives successively entitled to claim custody of a minor child, starting with the mother, as being entitled to custody, so that if the mother loses her primary right to custody – whether by reason of her remarriage, her denial of Islam or otherwise -- the next relative on the list has the primary right to custody.

Qatari law provides for enormous limitations on a mother’s right to custody if she is non-Muslim

Qatari law provides that if a mother remarries she is automatically subject to the loss of her rights to custody of the child (unless she marries the father’s brother or another close relative of the child). (Qatar Family Law, Article 168)).

Qatari law provides that a women's testimony is equal to half of a man's.

Qatari law expressly provides that a mother who is Muslim has far greater custodial rights than a mother who is not a Muslim. The Qatari family law allows a Muslim mother to have custody of a child until the child is 13 (if a boy) or 15 (if a girl) (Qatar Law, Article 173) but it permits a non-Muslim mother to have custody only until the child is 7 (Qatar Law, Article 175) and even then she must raise the children as Muslims in order to retain custody. (Articles 173 and 175 of the Qatari Family Law)).

Qatari law expressly provides for a mother who renounces Islam to lose all rights of custody over her children. (Qatar Family Law, Article 175).

Qatari law expressly provides for a mother to lose all rights of custody over her children if her conduct creates a “fear that the ward is acquiring a different religion.” (Qatar Family Law, Article 175).

Qatari law provides that the Hanbali school of Islam is the residual source of all governing rules, “unless the court decides to apply a different opinion for reasons set out in its ruling.” In the absence of Hanbali text, the court is directed to “another of the four schools” and failing this to the “general principles of the Islamic shari`a.” (Qatar Family Law, Article 3).

______________________
Jeremy D. Morley has previously provided expert evidence as to Qatari child custody law.

Tuesday, November 27, 2012

Panama – Removal of Children from Panama

Here are the provisions of Panama law concerning taking children out of Panama. As with other Latin American countries Panama has strong and efficient exit controls and in general it bars one parent or anyone else from taking children out of Panama without the express authorization of the other parent or a court order.

PANAMA IMMIGRATION LAW (2008)

(unofficial translation)

TITLE VI

IMMIGRATION CONTROL

CHAPTER 1
ENTRY AND EXIT

Article 38. The immigration control will be exercised by the National Immigration Service, according to the present Law Decree and its regulations, in compliance with the immigration policy as established by the Executive Branch.

Article 39. The nationals in order to exit the country shall present an updated passport or a letter of safe-conduct and comply with the other requirements that the present Law Decree establishes.

The National Immigration Service will carry a registry of immigration control of the underage persons, in which their identities will be included, the country of destination, the identification of the responsible person and the document of authorization.

Article 40. The departure from the national territory of any foreign or Panamanian underage person that is found under any immigration category, will be allowed in the following cases:

*1. If he/she is accompanied by the father or the mother.

*2. If he/she is accompanied by one of their parents, and this one has the written authorization from the other, duly authenticated by a notary public.

*3. If he/she is accompanied by one of their parents, and this one has the written authorization from the judge duly authorized for this purpose, and in the case that one of the parents is deceased, the death certificate of the absent parent shall be attached.

*4. If he/she is accompanied by a third party a written authorization shall be presented from both parents, according to what is established in numerals 2 and 3 by the present Article.

*5. If the underage person travels alone a written authorization from both parents shall be presented, according to what is established in numerals 2 and 3 by the present Article. Paragraph: The foreign non-resident underage persons are excluded from this disposition.

Article 41. The immigration authorities located at the immigration posts shall prevent the entry or exit of foreigners, and the exit of nationals, when there is an order in place issued by a competent authority.

Article 42. The foreigner that has incurred in a infringement or violation of immigration law, may not exit the country without having cancelled the corresponding financial penalties. By not having the financial resources to comply with the imposed penalty, his or her deportation procedures shall proceed.

Article 43. Without prejudice to the current international conventions in the Republic of Panama, in order to enter the national territory, foreigners shall comply with the following requisites:

*1. To enter by land, air or sea immigration posts officially made available.

*2. To present, by petition from the immigration authority, their passport or current travel document and, in case that it is required, the current entry visa.

*3. To allow to be interviewed by the competent authorities at the moment of entry or exit, that their data and biometrics registry to be validated in situ and their luggage and personal documents to be inspected and verified.

*4. To present the Ingress and Egress Card provided by the international transportation company, duly completed, without prejudice of the right from the National Immigration Service to implement other automated mechanisms of collecting the information, according to the international standards.

*5. Not having an impediment to enter.

*6. To have proof of financial solvency to cover their expenses while remaining in Panamanian territory. An exception is made from this disposition when the passenger is in transit who remains within the immigration facility.

*7. To have a return ticket to their country of origin or residence, when required by the immigration category.

*8. To have cancelled all of their obligations with the National Immigration Service.

*9. To comply with health standards as established by the Ministry of Health, as well as any other measures ordered by other competent authorities.

Article 44. The foreigner will have the obligation, at the moment of registration, to present his/her passport or travel document, as well as to provide to the owners or hotel managers or lodging places, the information about their stay and departure. At the same time, the owners or hotel managers or lodging places will have the obligation to send this information to National Immigration Service that will implement automated mechanisms for its collection.

Article 45. Every foreigner that is found within the national territory must carry his/her immigration document of identification and show it to the competent authority, when it is required to do so.

Tuesday, November 13, 2012

Michigan’s Flawed Proposal to Limit International Child Abduction

by Jeremy D. Morley

Jeremy D. Morley is the author of The Hague Abduction Convention, published by the American Bar Association

A draft law in Michigan, which recently received unanimous approval from the Michigan Senate, would require that all Michigan child custody orders must prohibit a parent from taking a child to a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. In my opinion, the proposed legislation is simplistic and will create a mound of unintended consequences.

Specifically the proposed legislation would provide that, “A parenting time order shall contain a prohibition on exercising parenting time in a country that is not a party to the Hague convention on the civil aspects of international child abduction.”

The language is a well-meaning but unnecessarily crude effort to reduce the chances of international child abduction.

The potential problems or flaws with the proposed legislation include the following, among many others:

• Not every country that is a party to the Hague Convention complies with the terms of the treaty.

• Not every country that is a party to the Convention has been accepted by the United States as a treaty partner.

• Not every country that has failed to sign the treaty will fail to return abducted children.

• If a foreign “trailing spouse” (see my article at http://www.international-divorce.com/The-Plight-of-the-Expatriate-Spouse) who comes to Michigan to marry a Michigan resident is automatically barred from taking her child to visit her home country and her family “back home” serious consequences might result. Thus, even though a country such as India is not a party to the Hague Convention and has a legal system that is most unlikely to return abducted children promptly (if at all), it is possible to envisage a situation where an Indian mother should be permitted to take one child to a family visit to India if her other child is to remain in Michigan.

• It might be possible to secure a “mirror order” (see my article at www.international-divorce.com/irror_Orders_to_Help_Prevent_International_Child_Abduction) from a foreign country’s courts that would provide sufficient protection under that country’s laws and legal system (if the Michigan court is supplied with satisfactory evidence that such an order would be effective) as to justify a child being taken to visit his parent’s country of origin.

• The language would apparently bar the relocation of a child to any non-Hague country. It could therefore absurdly prevent a court from allowing an abandoned and impecunious foreign parent who is a victim of extreme domestic violence to return to her home country with her child.

The problem with simplistic solutions to complex issues of international child custody is that in the real world the circumstances of a child vary so much that a one-size-fits-all law is bound to yield unfair and outrageous results.

Friday, November 09, 2012

Back Home From The UAE

We are thrilled to advise that our client, Stacy Peters, has returned to the United States with her two children.

Her oldest child was the subject of a lengthy and hotly-contested international custody battle.

Our client is overjoyed and very grateful but she now asks for some time alone with her children.

Please follow this link for a recent story on the matter:
http://www.thenational.ae/news/uae-news/missing-dubai-toddler-returns-to-mother


Ugandan Divorce Law: Cabinet approves laws on pre-nuptial contracts, elections funding

By NATION REPORTER

Posted Thursday, November 8 2012 at 17:39

In Summary
-Matrimonial Property Bill provides for equal legal status of men and women in marriage and recognises the capacity of either spouse to acquire separate property during marriage.

Cabinet on Thursday passed into law Campaign Finance Bill, 2012, that will regulate and the amount of money to be used during elections.

Cabinet also approved Matrimonial Property Bill, which provides for the rights and responsibilities of spouses in relation to matrimonial property.

The law provides for equal legal status of men and women in marriage and recognises the capacity of either spouse to acquire separate property during marriage.

It also makes provisions for how persons professing the Islamic faith should be governed by Islamic law in all matters relating to matrimonial property.

Further, the new law provides for how matrimonial property shall be dealt with in cases of polygamous as well as customary marriages.

The law also allows for spouses to enter agreements as to how they will own property either separately or collectively.

It also provides for division of matrimonial property between and among spouses within the context of Customary Law, particularly in polygamous unions.

Cabinet also passed into the Marriage Bill, which brings together in one law Christian, Islamic and Hindu marriages as well as marriages consummated under Civil and African Customary law.

It also provides for the legalising of ‘come-we-stay’ marriages.

Under this law, it is proposed that chiefs will be enabled to consider ‘come-we-stay’ affairs that last more than six months as a marriage and to register them as such.

This law now provides legal protection to all marriages and will facilitate the protection of the rights of children and spouses in all types of marriages in country.

It also makes it possible for customary marriage and ‘come-we-stay’ marriages to have marriage certificates.

It also provides for maintenance of spouses and children in a situation where a marriage has broken down or divorce has occurred.  
http://www.nation.co.ke/News/Cabinet+approves+laws+on+prenuptial+contracts+elections+funding/-/1056/1615210/-/cs37dpz/-/index.html

Thursday, November 08, 2012

Testimonials

Testimonials: We receive a constant stream of unsolicited testimonials about our services in international family law, especially concerning international child abduction and international child custody. Please see our Testimonials page at our full site here: 

http://www.international-divorce.com/testimonials.htm

Saudi sharia judges decry Westernizing "stench" of legal reforms

By Angus McDowall
RIYADH
Tue Nov 6, 2012

(Reuters) - Saudi judges who enforce sharia (Islamic law) have condemned what they see as "the stench of Western ideas" in sweeping legal reforms pushed by King Abdullah, underscoring friction between government modernizers and religious hardliners.

In a letter to Justice Minister Mohammed al-Issa seen by Reuters, eight judges complained about foreign trainers who shave their beards contrary to purist Islam, the minister's meetings with diplomats of "infidel" states and plans to let women practice as lawyers.

The authenticity of the letter, which did not directly criticize either the king or Issa, was confirmed by a source in the Justice Ministry who said it was sent late last month.

Saudi lawyers and political analysts say the judicial reforms announced by King Abdullah in 2007 and supported by Issa are needed to make the legal system more efficient and modern.

"The system deters investors, who find the judiciary opaque. Outdated administrative procedures and inadequate judicial training remain problems," the U.S. embassy said in an assessment in 2009 revealed by WikiLeaks.

Since becoming de facto regent while he was crown prince in 1995, Abdullah has pursued cautious reforms aimed at modernizing Saudi Arabia's economy and making it more socially open, but he has often been blocked by powerful religious conservatives.

The world's top oil exporter has no written legal code or system of precedent, and judges determine cases based on their own interpretation of sharia.

Lawyers say this means similar cases often yield starkly different verdicts and sentences. In some cases King Abdullah has stepped in to annul decisions seen as embarrassing to the country, such as the 2007 jailing of a rape victim on charges of consorting with unrelated men.

However, the reforms have made scant progress five years after being announced, according to lawyers and the ministry source, a delay they blamed on conservatives in the Justice Ministry and within the judiciary.

"I think the majority of judges are in favor. They want to see development both as professionals and for society. But there's another 30 percent. They fight (Issa) day and night, trying to slow down what he is doing," said the ministry source.

Saudi society and government remain very religious and socially conservative. Women are barred from driving, only Islam can be practiced in public and morality police patrol the streets to enforce compliance with social and dress codes.
(Editing by Mark Heinrich) http://www.reuters.com/article/2012/11/06/us-saudi-reform-law-idUSBRE8A511020121106

Tuesday, November 06, 2012

Hague Convention 1996 comes into force in UK on 1st November

From: Family Law Week


Convention strengthens the authority of child’s habitual residence

The Hague Convention 1996 on the International Protection of Children comes into force in the UK from 1 November 2012.

The Convention has uniform rules determining which country's authorities are competent to take the necessary measures of protection. These rules, which avoid the possibility of conflicting decisions, give the primary responsibility to the authorities of the country where the child has his or her habitual residence, but also allow any country where the child is present to take necessary emergency or provisional measures of protection. The Convention determines which country's laws are to be applied, and it provides for the recognition and enforcement of measures taken in one Contracting State in all other Contracting States.

An Outline prepared by the Hague Conference says that the following are some of the areas in which the Convention is particularly helpful –

Parental disputes over custody and contact
The Convention provides a structure for the resolution of issues of custody and contact which may arise when parents are separated and living in different countries. The Convention avoids the problems that may arise if the courts in more than one country are competent to decide these matters. The recognition and enforcement provisions avoid the need for re-litigating custody and contact issues and ensure that decisions taken by the authorities of the country where the child has his or her habitual residence enjoy primacy. The co-operation provisions provide for any necessary exchange of information and offer a structure through which, by mediation or other means, agreed solutions may be found.

Reinforcement of the 1980 Child Abduction Convention
The 1996 Convention reinforces the 1980 Convention by underlining the primary role played by the authorities of the child's habitual residence in deciding upon any measures which may be needed to protect the child in the long term. It also adds to the efficacy of any temporary protective measures ordered by a judge when returning a child to the country from which the child was taken, by making such orders enforceable in that country until such time as the authorities there are able themselves to put in place necessary protections.

Unaccompanied minors
The co-operation procedures within the Convention can be helpful in the increasing number of circumstances in which unaccompanied minors cross borders and find themselves in vulnerable situations in which they may be subject to exploitation and other risks. Whether the unaccompanied minor is a refugee, an asylum seeker, a displaced person or simply a teenage runaway, the Convention assists by providing for co-operation in locating the child, by determining which country's authorities are competent to take any necessary measures of protection, and by providing for co-operation between national authorities in the receiving country and country of origin in exchanging necessary information and in the institution of any necessary protective measures.

Cross-frontier placements of children
The Convention provides for co-operation between States in relation to the growing number of cases in which children are being placed in alternative care across frontiers, for example under fostering or other long-term arrangements falling short of adoption. This includes arrangements made by way of the Islamic law institution of Kafala, which is a functional equivalent of adoption but falls outside the scope of the 1993 Intercountry Adoption Convention.



Wednesday, October 17, 2012

International Family Law: ABA Conference

Please follow the below link to view my Power Point presentation on International Family Law Issues at the recent ABA Conference in Philadelphia:

International Family Law

Thursday, October 04, 2012

Law Panel Wants Anti-Dowry Law Toned Down

Section 498A of the Indian Penal Code creates a real and distinct danger for any non-resident Indian husband who may need to secure the assistance of the Indian authorities in any child custody case. The law provides for the punishment of the husband and his relatives if a married woman is subjected to cruelty which is likely to drive a woman to commit suicide or cause grave physical or mental injury to her, and harassment with a view to coercing her or any of her relatives to meet any unlawful demands of property. Unfortunately, it has unwittingly created an easy way – that is very frequently used -- for a disgruntled Indian wife to use the legal system to keep her husband out of India and to subject him to blackmail and abuse in family law cases. I have testified on these matters on several occasions. Now the Indian Law Commission is recommending some changes to the law, in order to reduce the prevalence of what the Supreme Court of India has described as "legal terrorism."


Law panel wants anti-dowry law toned down

The government’s expert panel on legal issues has recommended a change in the criminal law to prevent the immediate arrest of husbands and their family members against whom police complaints are filed by their wives under the anti-dowry law.

The Law Commission of India, in its latest report, has asked the government to water the anti-dowry law down to allow a woman to withdraw her complaint if a compromise with her husband and his family is possible. The panel also wants to make it a compoundable offence but with a court’s permission.

The Supreme court had asked the law commission to give its findings on whether section 498A of the IPC and enabling laws, which deal with physical and mental cruelty by husbands and their relatives against wives over dowry, require amendments following reports of their misuse.

It has sought an amendment to the Code of Criminal Procedure (CrPC) in a bid to introduce a 30-day “reconciliation” period before police can arrest an accused under the anti-dowry law.

“The need for caution in exercising the drastic power of arrest in the context of cases under section 498A the IPC has been emphasised by courts and parliamentary committees time and again,” states the report.

“We, therefore, suggest that a new clause may be added to the CrPC section 41 to make clear that whenever a complaint of physical and mental cruelty is filed by a married woman, a police officer shall set in motion a process of reconciliation between the two parties before he or she resorts to the power of arrest,” the commission recommended.

This 30-day period, however, will not apply if an investigating officer feels that “facts disclose an aggravated form of cruelty” and the arrest of an accused is necessary, it points out.

It has rejected the demands for either recommending a complete repeal of the anti-dowry law or making it a bailable offence. “Misuse by itself cannot be a ground to take away its teeth … We can’t close our eyes to a large number of cases which go unprosecuted,” the commission stated.

http://www.hindustantimes.com/StoryPage/Print/938950.aspx

Tuesday, October 02, 2012

European Court Hearing in Important Hague Case

An extremely important case concerning the Hague Convention on the Civil Aspects of International Child Abduction will be argued in a few days before the Grand Chamber of the European Court of Human Rights. The case is X v. Latvia (ECHR Application no. 27853/09).

The fundamental issue is the reach of the European Court’s disturbing rulings that Hague cases are subject to best interests analyses, as most forcefully enunciated by that Court in the infamous case of Neulinger & Shuruk v. Switzerland in 2010.

In Neulinger the European Court ruled, in apparent derogation of decades of international jurisprudence, that basic norms of human rights -- at least as expressed in the European Convention on Human Rights (the “European Convention”) -- require (a) that courts in every case under the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) must consider the best interests of both the child and the child’s family and (b) that a child should not be returned to its habitual residence, even if that is required by the Hague Convention, if it is not in its best interests to do so.

In the equally disturbing case of X v. Latvia, decided on December 13, 2011, a child was taken from her habitual residence in Australia to Latvia by the Latvian mother. The father in Australia commenced a Hague proceeding promptly and the Latvian court, after a hearing, promptly issued a return order. On appeal the mother asserted that the child would suffer psychologically if she were returned to Australia without her mother. She supported this assertion with a psychologist’s report and claimed that she did not have the financial resources to return to Australia. The appeal failed in January 2009.

Almost three years later the ECHR ruled that the Latvian return order violated Article 8 of the European Convention because the Latvian court had disregarded the psychologist’s report and had not sufficiently considered “what would happen as regards the child’s material well-being if returned to Australia.”

Two judges dissented, asserting that, “Our Court’s function in such matters is merely to verify whether the national authorities followed adequate procedures and conducted a balanced and reasonable assessment of the respective interests of each person” and that “In the present case there is no indication that the Latvian courts disregarded the required procedures or arrived at unreasonable or arbitrary conclusions.”

It is to be hoped that the European Court clarifies its position in a manner that is consistent with the fundamental tenet of the Convention that, while any custody determination must be based on an analysis of the child’s best interests, that issue should be decided by the courts of the country in the habitual residence from which the child was taken and not by the courts of the country to which a child was wrongfully removed or in which the child was wrongfully retained.

For further discussion, see my article, The Hague Abduction Convention and Human Rights: A Critique of the Neulinger Case at:
http://www.iaml.org/cms_media/files/the_hague_abduction_convention_and_human_rights_a_critique_of_the_neulinger_case_revised.pdf?static=1

Monday, October 01, 2012

Book Announcement: Hague Abduction Convention

I'm pleased to announce the publishing of my new book:

The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers. 

The book covers all critical aspects of the Hague Convention, including procedural and practical issues, habitual residence, consent and acquiescence, rights of custody, common exceptions to the treaty, the child's objections, and international relocation and travel. 

Please follow the link below for purchase information from the ABA's website:
ABA: Hague Abduction Convention

Wednesday, September 26, 2012

A (Somewhat) Happy Ending to a Japanese Child Abduction Case

Here is an update about an international child abduction case in which we provided extensive and continuing behind-the-scenes strategic advice to the left-behind father and his local lawyers.

Most parental child abductions to Japan end up very badly. This is an exception to the rule.

Mother who abducted daughter to Japan avoids prison
By Bruce Vielmetti of the Journal Sentinel

After incurring contempt and criminal charges for taking her daughter to Japan during a custody dispute that lasted four years, Emiko Inoue returned the girl to her father in Fox Point last year as part of a deal that gave Inoue a chance to avoid a felony conviction.

But over the summer, a Milwaukee County prosecutor said Inoue engaged in a "direct and flagrant" violation of a deferred prosecution agreement by attempting to have Japanese courts undo a decision granting legal custody to her ex-husband and should be sent to prison.

Assistant District Attorney Mattew Torbenson backed off that position at a hearing Tuesday, withdrawing his motion after Inoue turned over documents and said under oath she hasn't obtained or sought travel documents for her or her daughter. She also said she understands her ex-husband has been granted legal custody by courts in Wisconsin and Japan.

Circuit Judge Mel Flanagan did order that Inoue be freed of GPS monitoring, explaining that the high-tech tracking technology is intended for defendants on pre-trial release only.

Inoue, 43, is Japanese with legal U.S. residency while married to Moises Garcia, a physician. She took her daughter to Japan in February 2008, shortly after Garcia had filed for divorce, and ignored court orders to return. Eventually, Inoue was arrested on a Wisconsin warrant when she went to Hawaii in April 2011 to renew her U.S. residency status. She later pleaded no contest to interfering with child custody, a felony, under an agreement that she would ultimately be convicted of a misdemeanor if her daughter was returned to Garcia, who has legal custody.

The girl, now 9, returned in December, but part of the deferred prosecution agreement was that Inoue accede to full jurisdiction and orders of Milwaukee County family court, which in February specifically ordered that she not engage in any legal efforts in Japan to alter the current custody arrangement. Two days later, she filed an appeal in Japanese courts, according to local prosecutors.

At Tuesday's hearing, her attorney Gerald Boyle supplied purported affidavits from Japanese court officials indicating there are no pending appeals there.

Boyle later said Inoue hasn't seen her daughter since turning her back to Garcia in December. Garcia's attorney, James Sakar, said that is because Inoue hasn't yet met requirements set out in family court. Garcia said Inoue did start sending their daughter some letters over the summer and that he's not opposed to her eventually having visitation if she follows court rules.

The case drew international last year. An advocacy group for parents whose children have been kidnapped and taken to other countries, usually by their other parent, said it was the first return of such a child from Japan. Not only does Japan not return children of Japanese citizens to the U.S., it does not extradite accused abductors to the U.S. either, according to the group Global Future.

Japanese TV crews covered Inoue's court appearances in Milwaukee.

Patrick Braden, the founder of Global Future, said in December he was hopeful the case will make it easier for other parents whose children were taken to Japan illegally by their other parent to bring those kids back to the U.S., but expected Japan to "do everything it can to make sure this never happens again."

http://www.jsonline.com/blogs/news/170987351.html

Thursday, August 23, 2012

An Update Concerning Japan’s Continuing Failure to Sign the Hague Abduction Convention

Over the past couple of years the Japanese Government has made a succession of statements concerning its purported intention to sign the Hague Convention on the Civil Aspects of International Child Abduction. These statements were quite effective in that they served to limit the international pressure on Japan to sign the treaty.

Of course, more important than what the Japanese Government says is what the Japanese Government does. Although legislation to authorize acceptance of the treaty was introduced at the last session of the Japanese Diet the proposed law was not debated and was allowed to "die on the vine."

In May the Ministry of Foreign Affairs of the Government of Japan announced a so-called "pilot project" to assist in child abduction cases. Indeed, it renamed a division as the "Hague Child Abduction Convention Division". On August 1, 2012 the Ministry of Foreign Affairs announced that the program has been extended until March 29, 2013. See http://www.mofa.go.jp/policy/human/pilot_120501_en_2.html

Unfortunately, the pilot project has absolutely no substance. It merely allows a left-behind parent to make one telephone call for up to one hour to a Japanese lawyer to receive information. The Ministry cautions that, "The lawyer will not give you professional consultation on your specific case. This pilot project is designed to allow you, who reside outside Japan, to gain a deeper understanding as to what scheme currently available in Japan might be of help to you."

Very few left-behind parents will use the "pilot program," since it offers them no actual benefit. One might wonder if its real purpose is to show that those who pressure Japan to adopt the Convention are exaggerating the problem.

In my personal opinion, if the Government of Japan were making full disclosure to left-behind parents it would – and should – also state that, "The Japanese Government regrets to inform you that it will do nothing to help you except express words of sympathy for your situation and regrets that the legal system in Japan will provide no meaningful assistance to you."

Wednesday, August 15, 2012

Preventing International Travel: Connecticut Court Relies on Jeremy Morley's Expert Testimony

The Superior Court in New Haven, Connecticut relied in substantial part on the expert evidence presented by Jeremy Morley as to family law in India in ruling that the mother of a young girl should not be allowed to travel to India with the child for a visit with family.  The child’s father opposed the travel because of his legitimate concerns that the child might never return.  The Court relied primarily on Mr. Morley’s testimony in its ruling, which was issued on July 18, 2012.  The Court’s stated that: 
“The Court is absolutely convinced that—well, let me back up for one second.  We, normally in these matters, do not have the opportunity to hear from an expert witness, particularly someone as learned and experienced in what I’ll call international issues as Attorney Morley who was here this morning.  As everyone knows, Attorney Morley only testified for probably about 15-20 minutes.  We sometimes, lawyers and judges will discuss people’s testimony and sometimes say it’s the quality not the quantity of the testimony that is appropriate.
In that 15-20 minutes Attorney Morley laid out what I’ll refer to as both, I think, the social interaction between the parents and the political in India, the United States, the Hague Convention, their courts, our courts, that sort of thing in a very succinct, intelligent and sophisticated manner; the Court found Attorney Morley’s testimony to be extremely credible.”

Friday, August 10, 2012

International Child Relocation & the Plight of the Expat Spouse

by Jeremy D. Morley

June 1, 2012 – for Australian Family Lawyer

International child relocation is a hot issue in the States as it is in Australia. And some hot issues just don’t get solved.

We’ve been trying a case for weeks (on and off) in New York between two French parents, one of whom wants to relocate to Paris. The law on the topic is extremely simple, but its application is difficult and potential outcomes are quite unpredictable. Our legal brief cites little more than one case, the famous Tropea case from New York’s Court of Appeals. The case holds that each relocation case should be decided on its individual facts to determine what is in the best interests of the child. While various factors should guide the court in its analysis, there are no presumptions. It is simply up to each court to determine, based on all the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interests.

Since cases are completely unpredictable, each side often chooses to fight to the bitter end. And lawyers feel compelled to supply all possible evidence because New York’s top court has instructed trial courts to consider “all the proof.” This means that many cases are full-scale battles with voluminous testimony and extensive expert opinions and psychological reports. New York generally requires the appointment of a lawyer to represent the interests of the child, so there are usually at least three sets of lawyers to any case. The one predictable result is often financial disaster.

Last weekend I attended an excellent American Bar Association meeting on international family law in Washington. One session was on international child relocation. The international panelists did their level best to do more than merely complain about the unhelpful state of the law, but on this topic that is really hard to do.

The discussion focused on a grandiosely-named document entitled “the Washington Declaration on International Family Relocation” developed by an august group of experts. I remember when, with some real enthusiasm and expectancy, I opened my first email about the Declaration and noticed that there were 13 Articles and 13 Factors. While I did not quite expect something akin to the Declaration of Independence or the Universal Declaration of Human Rights, I was frankly astonished to discover that it all added up to just about nothing. It is another laundry list of factors that judges should consider. It contains no presumptions and no priorities. This is not a criticism of the valiant people who drafted the document. It reflects the disagreements between decision-makers and pressure groups on this topic.

Some years ago the American Academy of Matrimonial Lawyers prepared a Model Relocation Act, but its members could not agree on even the most basic issues, such as who should bear the burden of proof and whether a relocation request justifies opening a full custody modification hearing. As a result the Model Act merely presents possible alternatives that individual states might consider.

Until recently the English courts followed a clearer course. In the leading case, Payne v. Payne, Thorpe LJ stated with approval that relocation applications by the primary care provider would normally be granted except when incompatible with the child’s welfare. The benefit of that ruling was that the English law was at least fairly predictable. However, in Re K (Children) [2011] EWCA Civ 793, the Court of Appeal has now backed away from “the Payne guidance.” Just how far remains to be seen.

In the United States, international child relocation applications are governed by the same legal principles that apply in domestic relocation applications. Given the sheer size of its geography and population there are very many more domestic relocation cases before the courts than international cases. However, while international applications cover the same ground as applications to move with a child to another location in the same state or to another U.S. state, they also typically raise significant additional issues that are not present in domestic cases. Unfortunately, the fundamental differences are often insufficiently appreciated by lawyers and judges.

A key difference between international and domestic cases concerns the nature of the applicants. Parents who apply for international relocation generally have fundamentally different circumstances, concerns, and needs than parents who want to relocate domestically. Such factors should be better understood.

Special circumstances of expatriate spouses

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. Applications by expats for international relocation are often made by mothers who want to return to their country of origin. They seem to fall into three distinct categories. (In a text 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).

A “trailing spouse” is one who accompanies the other spouse (typically 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.

In what is a very typical scenario, after some years in the foreign country, the parties' entire world has changed. The husband has advanced his career, has adapted well to life there and wants to stay indefinitely, or at least extend his stay. However, his wife has had an entirely different experience. She is lonely, isolated, and miserable. She does not work, misses her family and her friends, and has experienced far more culture shock than she expected. The relationship between the spouses has spiraled downward. The wife wants to “go home” with their child while the husband insists that they stay put or that she return without the child.

The wife is shocked that the husband refuses to allow her to take their child back home. She feels that she was dragged to a foreign country, is furious that he does not appreciate the sacrifices that she has made for his career and feels betrayed that he husband is forcing her to live in an alien country without support, family, friends, or career.

The husband's argument is also compelling. He opposes relocation on the grounds that the child has by now lived for a large portion of his life in the current location; is thriving there; and all of his friends are there. He contends that the wife is being selfish in wanting to take their child away from his father to a place that he does not remember, and away from everything that the child knows in his current home. This argument is often the winning one, especially if the focus is on the child to the exclusion of the mother. While the court may give lip service to the notion that a happy mother is a better mother, that issue is often trumped by the “facts on the ground” that the child has been in the current location for a considerable period of time.

The second category is the “romantic expat” who moves from his or her home country for romance, often to a country whose culture, traditions, and language are entirely different. Such relationships are especially prone to breakdown even after (and perhaps because) they have a child. When that occurs the foreign mother inevitably wants to go back home with the child. She is shocked when the husband insists that she must not do so; after all, she came to the current country only because of him and now that he has “let her down” she cannot understand why he wants to keep her a prisoner here. In court the father presents all of the arguments that the husband in the previous scenario presented, with the additional factor that the child has lived his entire life in the current jurisdiction.

The third category is the “holdover expat.” This is someone who left his or her home country for a temporary period of time, perhaps coming to the current jurisdiction to study or on a work assignment. After some years there he or she meets someone and they have a child. When the relationship breaks down the expat wants to return to the country of origin with the child. In court the party who opposes relocation uses the same arguments as were used in the two prior scenarios, but with the added factor that the foreign parent was already living in the current jurisdiction when they met and has lived in there for a longer period of time.

In all three scenarios the arguments presented in opposition to the relocation application often prevail. The courts 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 wellbeing. 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:
i. The mother feels that she is imprisoned in this country.
ii. The mother considers abducting the child.
iii. The father increasingly fears that the mother will abduct the child.
iv. Each parent tries to increase his or her control over the child.
v. The mother takes steps to take the child to her home country.
vi. The father makes an emergency application to court to prevent abduction.
vii. The court issues an order preventing the mother from leaving the jurisdiction.
viii. 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 causes 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. 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 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.” 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 cases a fair, appropriate and enforceable compromise solution would be a far better result than a blanket denial of relocation. If the other country has a developed an 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 be to allow relocation more liberally provided that many of the terms listed in the following section are included in the court's order.

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, August 09, 2012

ABA BOOK: The Hague Abduction Convention: Practical Issues and Procedures for the Family Lawyer


Announcing the Publication of

The Hague Abduction Convention: Practical Issues and Procedures for the Family Lawyer

by Jeremy D. Morley

A NEWLY RELEASED BOOK PUBLISHED BY  BY THE AMERICAN BAR ASSOCIATION
Every family lawyer should understand the workings of the Hague Convention on the Civil Aspects of International Child Abduction. Family law is becoming increasingly internationalized as the world is shrinking, international relationships are increasing and international travel is growing. Clients who fear that their children may be abducted, or who worry about allowing their children to travel overseas, or who are contemplating international marriage or international divorce expect their family lawyer to be conversant with the treaty.

The Hague Abduction Convention tells family lawyers how this critical treaty works in the United States, both in theory and in practice. The renowned author, Jeremy D. Morley, has enormous experience counseling clients and fellow practitioners as to international family law matters globally, as well as lecturing on international child custody law to audiences around the world.

The Convention is misunderstood by many family lawyers, and judges may not be fully aware of the law and the voluminous case law that has developed around it. It operates in the United States in ways that are significantly different than in other Hague countries due to federal legislation that implements the treaty, the concurrence of federal and state jurisdiction, the uniform state legislation on child custody jurisdiction and a host of other factors.

This book provides a much-needed practical resource for U.S. practitioners that explains the operation of the treaty in American courts, both federal and state, and unravels the relationship between the Hague Convention, the Uniform Child Custody Jurisdiction and Enforcement Act and foreign child custody laws. Focusing mostly on what are sometimes called "incoming" abductions, or abductions from other countries into the U.S., The Hague Abduction Convention begins with a brief overview of the Convention. Subsequent chapters address the issues of primary concern for practitioners:
  • Procedural and practical issues

  • The threshold issue of establishing the child's "habitual residence"

  • Rights custody

  • Provisions regarding consent and acquiescence to the child's removal

  • The "one-year-and-settled" exception

  • The role of the child's objection to the return

  • The critical "grave risk of harm" exception

  • The human rights exception

  • International relocation and travel

Monday, July 30, 2012

Turkey and International Child Abduction
by
Jeremy Morley
Turkey has a record of failing to comply with international norms concerning the return of internationally abducted children and the Hague Abduction Convention.

Courts in Turkey have frequently insisted that a Hague case requires the courts to conduct a full and lengthy “best interests” evaluation. Such practices are in flagrant disregard of the treaty, which requires that courts must not consider “best interests” and must return wrongfully removed or retained children so that the courts of the habitual residence of the children may decide what is best for them.

Furthermore a return under the Hague Convention should normally occur within six weeks of the initiation of a case but the Turkish record is that it generally takes one year or often far more than that for a return to take place.

There has been insufficient training of judges and lawyers concerning the Hague Convention.
The U.S. Department of State issues annual compliance reports to Congress as to the compliance of Hague treaty partners with the terms of the Convention. Such reports are extremely conservative in their views but it is remarkable that Turkey has perennially been sharply and negatively criticized by the United States Department of State for its misconduct in failing to return children abducted to Turkey from the USA to Turkey. They establish that the Turkish courts have failed to return abducted children and in many other cases have failed to do so until many years have elapsed.

The European Court of Human Rights (the "ECHR") has ruled on at least two seperate occasions that Turkey has violated the human rights of left-behind parents by failing to return children who were abducted to Turkey.

On March 5, 2012 the ECHR rendered a ruling in that Turkey had violated its obligations to a father residing in the United States whose Turkish wife took their daughter for a visit to Turkey in 2007 and failed and refused to bring her back. In plain violation of the Hague Convention the Turkish courts had made a best interests ruling in the father’s Hague case. At first instance and on appeal they had held that it was best for the child to stay in Turkey. The ECHR ruled that Turkey had thereby violated the treaty. Unfortunately the only result of the ruling – after close to five years of litigation -- was that the Government of Turkey was required to pay a nominal sum of damages to the left-behind father, but that the child remained in Turkey.

In another case the ECHR ruled that Turkey violated the rights of a left-behind Icelandic mother to have access to her children in Turkey. The mother had travelled to Turkey from Iceland on more than 100 separate occasions to try to see her children but these efforts had been entirely unsuccessful because the father had hidden the children each time and the Turkish authorities had failed to take any meaningful measures to assist her. Again the result was merely a fine.

On May 24, 2011 an American mother testified before the United States House of Representatives’ Foreign Affairs Committee that she had allowed the child’s Turkish father to take their son from their home in Ohio to Turkey for a family visit; that the father had provided her with a round trip travel itinerary; that he had given her a signed, notarized statement promising to return with the child on the stated dates; and that he had nonetheless kept the child in Turkey. She testified as to enormous efforts to get her child home – all of which had been entirely unsuccessful – and to her consequential emotional distress and devastation.

In yet another case, a child was abducted from Israel to Turkey in 2004 by her mother. The left-behind father promptly sought the child’s return under the Hague Convention. The Turkish authorities eventually ordered the child’s return. The case went on appeal to the ECHR, which upheld the return order. At that stage the mother hid the child in Turkey and the Turkish authorities failed to find her for two years. Only then – four years after the abduction and only after an enormously expensive series of court battles and after the father had traveled to Turkey more than fifty times – was the child ultimately returned.

Since the court system in Turkey in Hague cases has improperly allowed a taking parent to demand a full plenary best interests analysis, the taking parent invariably has had ample opportunity to create “facts on the ground” in terms of getting the child sufficiently settled into life in Turkey as to justify a Turkish court in ultimately deeming that it is best to keep the child in Turkey.
Will matters improve? The Turkish Central Authority promises that they will.

Friday, June 15, 2012

Client Returns Child to Brazil under Hague Convention

We are very pleased that, working with local counsel Jean-Paul Gallelli, we have secured the return of our client's child from California to Brazil under the Hague Abduction Convention, pursuant to a successful application to the Superior Court in Los Angeles.

Wednesday, June 13, 2012

Preventing International Travel: Bali, Indonesia

In a recent Nevada case, I was asked to testify as an expert concerning the risk of a child's international travel to Bali, Indonesia. The Nevada Court relied upon my expert testimony as to Indonesian law and practices concerning child abduction. Indonesia is not a signatory to the Hague Convention on International Child Abduction, and if the court allowed the father to take his two minor children there, the only available recourse to the mother would have been through the Indonesian courts in the event of a wrongful retention.


My testimony was well accepted by the court, and referenced throughout the written opinion. The following are selected excerpts:

“In support of Mother’s concerns, she attached the affidavit of Jeremy D. Morley, a prestigious international family law attorney, wherein Mr. Morley described several child custody matters he has handled involving Indonesia. Mr. Morley opined that Indonesia did not comply with international norms for the return of abducted children and noted that parental child abduction is not a crime under Indonesian law. Mother drew attention to Mr. Morley’s discussion of the implications of the children’s dual nationalities, as dual citizenship could hamper the U.S. Embassy’s ability to protect the children.”

“Based upon the Court’s concerns regarding Indonesia’s status as a non-signatory to the Hague Convention, the implications of the children’s dual citizenship, evidence of Father’s lack of significant ties to Reno, and in consideration of Mr. Morley’s Affidavit, the Court does not find that good cause exists to allow the children to travel with Father to Bali.”

Once again, this case shows that the many countries who have not signed the Hague Convention on international child abduction and who do not have an independent and reliable family law system are doing a disservice to their own citizens.

Since the Indonesian legal system cannot be relied upon to return internationally abducted children, courts should be wary of permitting a child's travel there, if the potentially left-behind parent objects.

Friday, May 11, 2012

No-Fault Divorce: New York

Please follow the link below for my article "Letter from New York," appearing in the Autumn 2012 publication of Australian Family Lawyer.  This article covers the newly enacted no-fault divorce law in New York State. 

http://www.international-divorce.com/no_fault_divorce_new_york

Tuesday, May 08, 2012

Dubai vs. U.S.: International Child Custody Case

From an article concerning a case in which we are working on getting a baby back from Dubai, United Arab Emirates

Clarksville, TN--Stacy Peters returned to her family’s home in Dubai United Arab Emirates (UAE) on March 27 to a nightmare that has left her fighting for the chance to once again see her now-16-month-old daughter, Caroline Grace Peters.

Stacy Peters and her daughter Caroline left their Clarksville home and went to Dubai in August 2011 to live with her husband, Charles “Chuck” Peters. Charles Peters, a former major in the U.S. Army’s Special Forces, had taken a two-year contract working in contractor training for UAE special forces.

Two-days after she left Dubai, Charles Peters filed criminal charges alleging prostitution, neglect and adultery. The charges under UAE law, which is written with Islamic Shari’a principles, could end in a death sentence for Stacy Peters if she is convicted, according to one of her attorneys, Lee Berry IV.

Despite the legal hurdles including possible prosecution for crimes that Stacy Peters said she did not commit, a team of attorneys are working to bring Caroline Peters back to U.S. soil.

On April 16, Judge John H. Gasaway granted an injunction and Caroline Grace Peters was to be returned to the United States. Monday, an attorney for Charles Peters, Joshua Lindsey, of Nashville, filed an emergency motion to dismiss the case.

After the hearing, Judge Gasaway denied Lindsey’s motion to dismiss the case, stating, he didn’t “have to recognize UAE laws, but only the laws in the state of Tennessee” and he was “not governed by the laws in UAE.”

He ruled Tennessee was Caroline’s home state and ordered Lee and Bates to draft a detailed order for the immediate return of Caroline to the United States. Included in the order will be Gasaway’s ruling involving the civil contempt of Charles Peters, the granting of temporary custody to Stacy Peters and child and spousal support. Questions involving Charles Peters’ passport being revoked, so he cannot flee Dubai, as well as travel orders, are still under consideration, according to court records.

Although Gasaway ruled in Stacy Peters’ favor, he wished her luck and told her that she would possibly have to use “diplomatic channels” to get relief, including reaching out to state and national leaders.

The judge’s order is the first step in many to reunite the toddler with her mother. Berry and Bates said they will continue fighting to ensure the safe return of Caroline.

“Our primary concern to this matter is the safe return of the child to the United States and her mother,” the attorneys said in an official statement. “We believe justice will be upheld today and strongly hope that this court’s orders are followed here and abroad. We will continue to fight until Caroline has been returned to the loving embrace of her mother.”

Jeremy Morley, a New York-based international attorney, who is also representing Stacy Peters, said Dubai judicial laws and United States laws differ greatly and getting an order from a U.S. judge is not the end of the line in bringing Caroline home.

“The law in UAE is that custody is based on the Shari’a law which is an Islamic law, and in applying that law they look at a parent’s religion, gender and the behavior of the parents. They will find a mother incompetent to have custody if she has engaged in behavior they consider to be immoral,” Morley said.

“In addition, they have a law that is enforced severely that allows one spouse to accuse the other spouse of adultery or other improper sexual conduct. That’s what’s happening here. The UAE courts do not usually enforce American orders and the courts in UAE. They are not part of the Hague Convention on International Child Abduction. They chose not to participate in the international communities in dealing with international problems by signing the Hague Treaty and that’s an enormous red flag.”

The Hague Convention on International Child Abduction seeks to protect children from the harmful effects of abduction and retention across international boundaries. The UAE is not a signatory under the Uniform Child Custody Jurisdiction Enforcement Act. The UCCJEA is designed to deter interstate parental kidnapping and promote uniform jurisdiction and enforcement provisions in interstate child custody and visitation cases, according to a U.S. Department of Justice, Juvenile Justice report.

Morley said his office has handled “hundreds and hundreds” of similar cases involving international divorce and child custody. Many involve military personnel living overseas, he said.

“Unfortunately children are used as pawns in a very serious game in which parents are fighting with each other and accusing each other of conduct,” Morley said. “It would be remarkably unusual if the authorities in Dubai would enforce this kind of an order that way. We would expect the law enforcement authorities to assist in securing the Tennessee order. UAE is a sovereign country. If this parent chooses to ignore the order he will be arrested.”

In 2009, Morley represented Chris Savoie, a Tennessee father, who was jailed in Japan after he went overseas to get his children. His wife, Norika Savoie, originally from Japan, took the children to Japan after an American court granted Christopher Savoie full custody. Savoie was imprisoned for 18 days in Japan facing kidnapping charges, according to a CNN report.

In March 2011, the Japan Cabinet approved a plan to bring the country in line with the Hague Convention on International Child Abduction, according to a CNN World report.

“The publicity led to pressure being put on Japan by the Western world and caused Japan to sign the Hague Convention,” Morley said. “It is our hope UAE follows.”

The victory Monday left Stacy Peters and her family with hope that Caroline will be returned despite the many hurdles they may have to cross.

Stacy said that, although she knows she has a large international battle ahead of her, she is hopeful she will see her daughter again.

The entirety of the article, written by Tavia Green, appears here:

http://www.theleafchronicle.com/article/20120507/NEWS01/305070020/Clarksville-woman-faces-international-child-custody-battle?odyssey=navhead

Friday, May 04, 2012

Argentina and the Hague Abduction Convention

The Office of Children’s Issues of the U.S. State Department’s Bureau of Consular Affairs, has recently released the annual report on Hague Convention compliance. The report details various issues of non-compliance with member countries. It places countries under two categories; “Not Compliant” and “Demonstrating Patterns of Noncompliance,” with the former category signaling more serious compliance problems. The 2011 report succinctly stated that Argentina is a country having “enforcement concerns.” This year, Argentina has been classified “Not Compliant.” The text of the report follows here, as well as some case summaries demonstrating the reason(s) why Argentina has been categorized as noncompliant.


Patterns of Noncompliance with the Convention:
Argentina
-Argentina demonstrated patterns of non-compliance in judicial performance. The USCA is not aware of any successfully enforced order for return from Argentina to the United States since 2006. In 2011, the USCA continued to observe significant delays in the execution and enforcement of return orders under the Convention. In one longstanding case, the Supreme Court upheld an order for return in December 2010, but has stayed enforcement of the order pending the left-behind parent’s fulfillment of several undertakings regarding the taking parent’s immigration status and financial requests. These particular undertakings go well beyond the scope of the Convention.

-The USCA and the Argentine Central Authority (ACA) maintain an excellent working relationship. The ACA has been extremely attentive and very responsive to USCA inquiries, and provides prompt status updates on cases. However, the USCA has concerns regarding the working relationship between the ACA and the Departamento de CooperaciĆ³n Internacional (General Prosecutor’s Office, or GPO), which assigns public defenders to left-behind parents in need of pro-bono legal assistance. The USCA noted the ACA had great difficulty contacting and communicating with the GPO during the reporting period, particularly with offices outside Buenos Aires. Public defenders in two cases were not responsive to the ACA, USCA, U.S. Embassy, or to left-behind parents’ inquiries, which resulted in excessive delays in scheduling Hague hearings and left-behind parents unable to communicate with their legal counsel. One of these cases, filed in 2009, has not yet had a Convention hearing after more than two years.

Case Summaries:

1. Abducted/Retained June 2008, Application Filed July 2009
The first hearing on the Convention application occurred in November 2009. In August 2010, the left-behind parent (LBP) initiated a non-Convention proceeding in family court; that court recognized a U.S. court order awarding the LBP sole legal custody and physical custody of the children. In October 2011, the court hearing the Convention case refused to recognize the custody order and denied return under the Convention. An appeals court reversed the decision and ordered the family court to execute the order of return. The taking parent (TP) appealed to the Supreme Court, which has not yet issued a decision. The USCA and U.S. Embassy Buenos Aires have regularly requested updates from the ACA on court proceedings.

2. Abducted/Retained August 2009, Application filed June 2010
No hearing on the Convention application has been scheduled. In December 2010, the ACA informed the USCA that the LBP’s attorney was no longer handling the case and the court assigned two public defenders in February 2011. For nine months the public defenders did not respond to communication from the ACA, USCA, the U.S. Embassy, or the LBP. In October 2011, the court appointed another public defender. In November 2011, the USCA convened a conference call with the LBP and public defender. The public defender is working with the court to schedule the first hearing in the Convention proceeding. The USCA and U.S. Embassy Buenos Aires have regularly requested updates from the ACA on the progress of setting a Hague hearing date.

3. Abducted/Retained September 2009, Application Filed December 2009
The court ordered the child’s return under the Convention in May 2010. The TP filed a complaint against the court, and also filed an appeal of the Convention return order. On October 28, 2010, the appellate court decided not to hear the appeal of the return order until TP’s previous complaint was heard. Both the complaint and appeal are still pending the appellate court’s decision. The LBP’s attorney filed motions asking the court to address the appeal urgently and the ACA has reminded the court of the importance of reaching a prompt decision under the Convention. The USCA and U.S. Embassy Buenos Aires have regularly requested updates from the ACA on court proceedings.

4. Abducted/Retained January 2009, Application Filed April 2009
The court ordered the child’s return in November 2009. The TP appealed. In May 2010, the appellate court rejected the TP’s appeal and affirmed the ordered return of the child to the United States. In August 2010, the TP filed an “extraordinary appeal” with the Supreme Court of Argentina, which dismissed the appeal and ordered the lower court to execute the return order. In April 2011, the Argentina’s Ministry of Interior denied the TP’s request for asylum because she is an Argentine citizen and thus had no basis for seeking asylum. In November 2011, the court stayed the execution of the return order until undertakings requested by the TP are met, which require that the United States grant the TP legal permanent residency and that the LBP provide financial support and health care to the TP. The USCA and U.S. Embassy Buenos Aires have regularly requested updates from the ACA on court proceedings.

5. Abducted/Retained August 2008, Application Filed April 2009
The court interviewed the child in accordance with the U.N. Convention on the Rights of the Child. During the interview, the child stated that he wanted to stay in Argentina. The court determined it would not continue with the case until the LBP responds to domestic violence allegations, provides a U.S. police report, and provides information regarding whether the TP will be able to reside and work in the United States until 2014. In August 2011, the ACA indicated that the TP presented documentation to the court, from the LBP, authorizing the TP to seek the permanent residency of the child in Argentina. The USCA is waiting to receive confirmation from the LBP regarding this matter. The USCA and U.S. Embassy Buenos Aires have regularly requested updates from the ACA on the progress of scheduling a Hague hearing.

The report can be found in its entirety at:
http://travel.state.gov/pdf/2012HagueComplianceReport.pdf
For more information on Argentina and Child Abductions, please follow this link to our website:
http://www.international-divorce.com/ca-argentina2.htm

Thursday, May 03, 2012

Singapore and The Hague Convention

With effect from May 1, 2012, the 1980 Hague Convention on the Civil Aspects of International Child Abduction has entered into force between the United States and Singapore. This means that if a wrongful taking or retention of a child from Singapore to the United States or from the United States to Singapore occurred on or after May 1, 2012 the Hague Convention may be used to secure the child's return. We work on many U.S. - Singapore child abduction and child custody matters.





Tuesday, May 01, 2012

Divorce Law in Korea


A new article on Korean Family Law has been added to my website at international-divorce.com.  This article discusses the legal grounds for a divorce in Korea, the statutes that govern financial issues in Korean divorce cases, and how Korean courts handle "choice of law" issues in these cases.  The article also focuses on Korean recognition of foreign divorce decrees, outlining how these foreign judgments will be valid and enforceable in Korea. 

Please follow the below link to read our full article on Divorce Law in Korea.                                 

http://www.international-divorce.com/d-korea.htm