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