Thursday, April 23, 2015

Mexico “enforces” the Hague Convention by returning the wrong child:

Joy, Anger for Family of Mexican Girl Wrongly Sent to US
By PETER ORSI Associated Press
When a woman in Texas claimed that Alondra Luna Nunez was her long-lost daughter, the girl's real parents in Mexico say they presented more than a dozen documents from baptismal records and a copy of her birth certificate to family photographs. They were sure it was enough to demonstrate her true origins.
In the end, they say, Alondra was sent screaming to the U.S. based on a scar on the bridge of her nose resulting from a remote-control car mishap as a young girl. And they blame their traumatic weeklong separation squarely on the judge who made the final call.
"The other girl had a scar, but on the eyebrow, and I have one on my nose. I mean all this was stirred up over that," Alondra, 14, told The Associated Press on Wednesday at an emotional reunion with family after nearly a week away. "The judge said, 'No, it's her,' and that was that."
DNA testing proved Alondra was not Houston resident Dorotea Garcia's daughter.
The case drew international attention after a video of the distraught girl being forced into a police vehicle last week circulated in media and on social networks.
Judge Cinthia Elodia Mercado told the AP that she held to her obligation to make sure that international child-abduction conventions were followed.
"Our only job is to resolve whether the child needs to be returned or not," she said.
But the resulting drama touched not only Alondra's family in Mexico but also Garcia, who believed she had finally found her daughter, Alondra Diaz Garcia, taken from the U.S. illegally by her father nearly a decade ago.
That girl's whereabouts are unknown, and a felony warrant remains for the father, Reynaldo Diaz, who is suspected of abducting her from Houston in 2007.
Garcia, speaking to a Houston television station, said the first time she saw Alondra Luna, "I saw my daughter." She gave few details about how she ended up leaving Mexico with the girl, although she said she knows many won't look kindly on her actions.
"The people who know me don't need me to give an explanation for what happened," she said later to the AP. "Whatever explanation I give won't change the minds of people in Mexico or here."
Alondra said Garcia and the woman's family members apologized to her before she returned.
After Alondra flew into Guanajuato in Central Mexico around noon Wednesday, the family gathered for an afternoon and evening barbecue at her aunt's house. They celebrated with balloons, streamers and steak and chorizo sausage sizzling on the grill.
"Welcome to your real home, Alondra," read a homemade sign.
Wearing jeans, a gray T-shirt and a silver necklace with an image of the Virgin of Guadalupe, Alondra laughed and hugged brothers, cousins, aunts and uncles. As the sun went down in the hilly working-class neighborhood where they live, family and friends lit candles and recited the rosary on a sidewalk. Alondra wept as an elderly neighbor swept her into an embrace that lasted for minutes.
Family members were spending the day together in private again Thursday, and Alondra planned to return to school on Monday.
Uncle Ruben Nunez said the family was considering whether to pursue legal action, though he did not specify any potential targets of a lawsuit and said no lawyer has been consulted.
Garcia traveled to Mexico this year and said she had found her daughter in Guanajuato. She did not elaborate how, in her brief comments to the AP.

Tuesday, April 21, 2015

What is International Family Law?

By Jeremy D. Morley

          International family law is a loose term that describes any and all family law matters that have an international element. That element may be that a spouse, a spouse-to-be, or a child is a national or domiciliary of another country. Or it may be that the spouses are in a country other than their country of origin, or that a child is away from its country of origin, or that spousal assets are in another country. It may even include a family that lives in the country of origin of all members of the family, one of whom might in the future be located overseas or have assets overseas. As such it could encompass almost all families since it is now the norm for families to have at least one member who is out of the country at some point of time.

          International family law is a fast-growing area. More and more people are residing internationally and experiencing international relationships. Americans travel and spend time overseas much more than before and immigration into the United States continues unabated. There is also an explosion in remote relationships as the Internet allows people to link up with anyone in the world. Consequently, many more relationships in this country now have an international component.

          International relationships are particularly prone to breakdown because of the additional pressures that result from differences in culture, language, and religion and the issues that may arise from such factors as extended family involvement, particular economic pressures that international relationships often create, immigration or emigration difficulties, and job transfer problems.

          Paradoxically, while we live in an era of globalization and instantaneous international connections, family laws remain almost completely local and parochial. Family law is handled in the United States at the state level. Although the differences between the states as to family law have been reduced in recent years, as a result of federal legislation in some areas (e.g., child support), the promulgation of uniform laws in other areas (e.g., child custody), and a general trend towards uniformity in all matters across the country, changes in family law are made by state legislatures. Elsewhere, family law continues to be the domain of nation states and to be interwoven with local culture, religion, and history. Within some regions, of which continental Europe is the prime example, there is a trend towards some regional standardization of family laws but in general nation states continue to guard, often jealously, their sovereign right to promulgate family laws that purport to be right for their local society.

          Moreover, family law changes at a far slower pace than society in general. While the numbers of non-marital heterosexual partnerships and of same-sex relationships are growing enormously, at least in the Western world, most countries have still not fully reformed their family laws to accommodate these trends. Likewise, while the model of a family unit that is permanently located in one particular jurisdiction is in fact becoming increasingly outmoded, divorce laws generally remain wedded to the idea that marriages should be governed by the law of the one certain place to which they belong.

What international family law is and is not

          There is really no such thing as International Family Law. Clients and even some lawyers who do not know this area of the law often ask, What is the international law? on such issues as, Which court has jurisdiction of my divorce case? or Will my marriage be recognized? The answer invariably is that “international law” does not apply and that the question cannot be answered without first knowing which country (and often which state or province within a country) will be the forum in which the issue will be raised, then by determining and applying the law of that particular jurisdiction as to which country’s or state’s law will apply, and then by applying that local law.

          International family law is really nothing more than domestic family law as it applies to the international aspects of a case. There are some international treaties that apply to some of these cases, the most prominent of which is the Hague Convention on the Civil Aspects of International Child Abduction, but they apply only because they have been incorporated into domestic law and only to the extent of that incorporation. Although the United States Congress has power to enter into binding international treaties, in the area of family law it has done so rarely. In any event, such treaties are generally brought into domestic law by specific legislation. There is no international court that applies or enforces treaty obligations in the area of U.S. family law. Within regional country groupings, international regulation of family law matters may be somewhat supranational in nature, as is the case with the European Union, but the United States is not a member of any such organization.

          Even when international treaties concerning family matters have been brought into domestic law, their interpretation and enforcement is handled at the local level. Consequently there may be substantial variance in the meaning and effect of those treaties as they are applied by local courts and enforced by local authorities. For example, the terms right of custody and habitual residence in Article 3 of the Hague Abduction Convention are interpreted in very different ways in different U.S. circuits and in foreign countries, despite the fact that the courts in the U.S. and the U.K., for example, have asserted that there should be “an autonomous meaning, a meaning independent of that which they would be given in the domestic laws of any of the states parties.”

          In many ways international family law is international comparative law. An international family lawyer must be open to understanding, and sometimes even mastering, the family laws of other countries. Clients with ties to different jurisdictions need to understand the potential impact of the family laws of different countries on the situation they are in currently or in which they may find themselves in the future. While an international family lawyer in the United States is unlikely to be admitted to practice in other countries he or she will usually have a good understanding of the family laws of some other countries and will be open to learning about the family laws of all other jurisdictions.

Collaboration function of international family lawyer

          An international family lawyer is usually a collaborator who works well with local family lawyers in other jurisdictions, whether of a similar legal heritage or an entirely foreign one. While an American lawyer will be reasonably comfortable collaborating on a U.S.-Australian case with an Australian lawyer who not only speaks English but also is trained in and works in a common law based on English notions of stare decisis, it will be far more challenging in a U.S.-French, a U.S.-Chilean, or a U.S.-Japanese case for an American lawyer to work with a French, Chilean, or Japanese counterpart. The language challenges are likely to be far more surmountable than the challenges of understanding enough of the foreign law to be able to make a useful contribution to decisions of importance to a client.

It is generally important that the international family lawyer should have, or develop, an international network of lawyers around the world with whom to collaborate.   

Qualities required to succeed as an international family lawyer

          International family law is intellectually stimulating. This author loves it because the skills that it requires are not those of the conventional divorce lawyer but include the following:

   &b; Understanding the laws of different countries, as written and more importantly as actually applied;

   &b; Understanding the role of law in particular foreign societies, especially in the area of domestic relations;

   &b; Comparing the laws of different countries;

   &b; Unraveling the often highly complex story of an international family's chain of multiple international residences and its accumulation of global assets and liabilities;

   &b; Understanding the unique challenges that confront families who relocate overseas, including challenges that result from:

   - The responsibilities that may be owed to other members of a spouse's family;

   - The involvement in family life of other members of a spouse's family;

   - The position of the trailing spouse overseas;

   - The implicit responsibilities of a working spouse in particular foreign countries and in particular fields; and

   - The needs and concerns of children who are relocated to foreign climes.

   &b; Understanding the position of children in foreign countries, especially the prevailing societal views concerning child custody and access;

   &b; Understanding the position of women in foreign countries and of their expected role;

   &b; Understanding the place of religion in foreign countries, especially as religion has an impact on the roles and status of men, women, and children and interacts with legal rules in place in particular foreign countries;

   &b; Working with professionals and clients who come from an extraordinary range of cultures, nationalities, and religions; and

   &b; Strategizing, Strategizing, Strategizing. The strategizing is primarily in areas in which there is no right answer and in which the intellectual puzzle may be to:

   - Understand the client's goals;

   - Understand the other party's goals;

   - Understand the law that currently governs the situation;

   - Understand the client's position in life;

   - Understand the other party's position in life;

   - Figure out whether there are any other potential jurisdictions; ascertain whether those jurisdictions would yield a better result for the client;

   - Determine what needs to be done to allow the best jurisdiction to take the case; and

   - Brainstorm with the client as to how to create the facts on the ground that will allow that best jurisdiction to take the case and that will preclude other jurisdictions from doing so.

          The focus will often not be on financial matters. For expatriates with children the overwhelming issue is more often that of how to get back home with the kids and how to make sure they are then not taken back overseas. Even here, though, money may play a large role since a party who asserts viable financial claims may gain crucial leverage to use in negotiations about children.

          International family law is not easy. Far from it. Done well it is incredibly challenging, thought-provoking and intellectually taxing. Each case is a new puzzle to solve and some of the puzzles are really tough. Would we want it any other way?

Monday, April 20, 2015

The Role of the International Family Lawyer

                                  Jeremy D. Morley

A key role of the international family lawyer is to review the big picture of an actual or proposed family law case that has an international component. In most such cases the international family lawyer will work with local lawyers in the various jurisdictions. While the international family lawyer will contribute to the team's discussions concerning the laws of countries, states, or provinces in which he or she is not admitted to practice, the international family lawyer will and must allow decisions concerning any such foreign law to be made by the lawyers who are admitted to practice in those jurisdictions. Nonetheless the international family lawyer's role in such discussions will often be of critical importance and value. He or she should be the one who keeps the focus on the client's overall goals, particularly as they apply on the international stage, and who creates a dialog between the local lawyers so that the best strategy and tactics for a client are chosen and so that the individual team members and the client understand what they need to know in order to make sensible decisions and in order to act consistently with the client's overall objectives. This can place the international family lawyer in an extremely delicate position.

Pitfalls resulting from failing to perceive international family law issues

          In many cases a family lawyer who has not acquired substantial experience in handling international family law cases may not recognize the international issues and may handle the matter as if it were just another local case.

          Unfortunately it would take an extraordinarily long list to include all of the possible serious mistakes that family lawyers could make by failing to recognize and handle the particular issues that arise in matters that have an international component. The list would include the following, and very many more:

   &b; Drafting prenuptial agreements without determining whether the agreement will be enforced in the other countries with which the parties are connected and to which they or one of them might move. (This could be massively detrimental to a client who lives in the U.S. but who is British and who might relocate to England or Hong Kong where prenuptial agreements are not fully enforced.)

   &b; Failing to include a suitable choice of law clause in a prenuptial agreement whereby not only is an optimal jurisdiction's law chosen but the choice of law is likely to be upheld in a lawsuit in the relevant jurisdictions.

   &b; Failing to provide for execution of a prenuptial agreement in a manner consistent with the particular requirements of those jurisdictions in which the agreement might need to be enforced.

   &b; Failing to ascertain whether the client would likely achieve a better division of assets in a divorce case if the case were brought in another available jurisdiction. (There can be vast discrepancies between the financial awards that courts in different countries will make in divorce cases, with enormous differences as to such factors as whether premarital assets, inheritances, and gifts are part of the pot to be divided between the spouses, whether so-called fault influences the division, whether title determines who receives an asset and whether commingling of separate property determines the outcome.)

   &b; Failing to determine the spousal support and the child support that the client might obtain if the case were brought in another jurisdiction.

   &b; Assuming in a custody case that a foreign country will enforce a U.S. child custody order under a foreign equivalent to the Uniform Child Custody Jurisdiction & Enforcement Act. (In fact, most countries will not enforce U.S. custody orders and the UCCJEA is a peculiarly American model law which is generally without parallel in the rest of the world.)

   &b; Failing to understand that, even if a foreign court will initially recognize a U.S. custody order, if a relocation overseas is granted the foreign court will usually have modification jurisdiction under its own laws once the child is habitually or ordinarily resident in the new country.

   &b; Failing to recognize that foreign countries will frequently not assist U.S. discovery proceedings.

   &b; Failing to warn pregnant clients that if they give birth to their baby overseas and remain in the foreign country for even a short period of time, the child's home state for custody purposes and habitual residence for child abduction purposes will probably be the foreign country.

   &b; Failing to include in separation agreements the language that is needed in the jurisdictions in which assets are located necessary to secure transfers of the assets in the overseas jurisdictions.

Securing advice from an international family lawyer

          Family lawyers who do not handle many cases that have an international component should seek advice and assistance from international family lawyers. It is good practice for a lawyer who is faced with such a case to do so, and it may well be dangerous for a local lawyer not to do so.

          Even those family lawyers who work in the biggest American cities usually do not handle many international cases; and in other locations within the United States it may occur quite rarely.

          When a family law case with an international component comes into the office, a family lawyer will generally have one of four kinds of response.

          One possible response is to simply refuse to take the case. Internationally connected cases raise tough issues that may disturb the comfortable routine of a lawyer's office that handles only conventional and local divorces. The lawyer will be concerned that the office will need to put far more time into the case than can be recovered in legal fees. There will, or should, also be a serious and valid concern that the case will not be handled adequately, which could result in a disgruntled client and even a malpractice case. The result is that the office declines to be retained. This is good for the lawyer's peace of mind but may be bad business. Internationally connected cases are often lucrative cases because of their inherent complexity and because wealthy clients are most likely to have international connections.

          A second response might be to take the case and just wing it. Some lawyers might admit (to themselves or their colleagues) that this is what they are doing. They believe or hope that they can muddle through. They may comfort themselves with the thought that the judge is likely to be just as unsophisticated as they are so perhaps it will make no difference and no one will recognize their lack of knowledge or pick up on their mistakes. More often they will wing it by default. That is, they will not simply recognize the seriousness of the issues that arise from the international component of the case. This approach is obviously extremely risky and very bad practice.

          The third possible response is to simply turn the case over to a firm that has handled many international cases. The problems with this are:

   (a) It's generally not good business to turn business away; and

   (b) There may well be no such experienced firm in town.

          The fourth possible response, which is often the optimal one, is to bring in an international family lawyer to advise and assist on the case. The advantages of this are:

   (a) The local law firm keeps the case;

   (b) The client understands the need to bring in a specialist and appreciates that his lawyer made the suggestion;

   (c) The international family lawyer need not be in the local community and usually does not need to be admitted to practice in the local state as long as the local lawyer takes or shares the leading oar in managing the case. (In most U.S. jurisdictions the international family lawyer in another state may be admitted to appear in the particular case pro hac vice (for this specific case) upon the motion of a local lawyer. Such admission is not required unless the foreign lawyer is to appear in court. Instead the lawyer will generally act as a consultant to the local law firm.);

   (d) The client's chosen lawyer, who generally knows his way around the local courthouse far better than any outsider, will handle the case, but is advised throughout as to any and all internationally connected issues by an international family lawyer with established credentials and experience in that area;

   (e) Since it is often critical in internationally connected cases to have expert testimony as to foreign law, or otherwise to have input from lawyers in other countries, the local lawyer and the client benefit from the international legal relationships that an experienced international family lawyer has developed over the years;

   (f) Since speed is often of the essence in any family law case but most especially in cases with an international dimension (for example, filing first may be especially important in international cases and securing stays as to assets or children may be critical if either might disappear) the local lawyer may immediately tap into and benefit from the international family lawyer's reservoir of experience, knowledge and strategic savvy; and

   (g) The local firm has done the right thing professionally and from the standpoint of potential malpractice liability issues.

Wednesday, April 08, 2015

Child Visitation to Israel

Jeremy D. Morley

A recent case in Iowa illustrates some of the issues that arise when one parent wants to take a child living in the United States to visit Israel.

In Marriage of Stern, 2015 WL 568584 (Table) (Iowa App.,2015), a father who resided in Israel successfully challenged a geographical restriction that limited his visitation with his son to visitation within the United States where the child lived with his mother.
The Iowa Court ruled that, “Our case law also does not recognize any limitation on visitation rights solely because one of the parents resides outside the borders of Iowa or the United States. ‘The world does not end at the borders of Iowa.’… ‘Our hope for justice for our citizens in foreign courts can best be forwarded by our efforts to offer fair and equitable treatment to foreign nationals in our jurisdiction.’”
Visitation in Israel was especially appropriate because the child was born in Israel to Israeli citizens, lived there during the first two years of his life, had many extended family members there, including a half-brother and half-sister, and had a right to build a meaningful relationship with his father and to fully experience his dual heritage.
While the mother asserted that she feared the child might be retained in Israel, “generally, courts have approved out-of-country visitation when the country is a signatory to the Hague Convention and there is insufficient proof of an intention to wrongfully retain the child.”
While the court authorized such visitation, it should be noted that there are particular concerns about visitation to Israel. For example, there is no durational residency requirement for an Israeli court to exercise custody jurisdiction and there is no statutory concept of a "home state" that would require an Israeli court to enforce a U.S. court order or to defer to a U.S. court as the appropriate forum.
In addition, it can be relatively easy for a parent to obtain a “stop” or “stay of exit” order that will prevent the other parent from taking the child out of Israel at least for a period of time. Such orders can be obtained ex-parte and upon issuance are immediately sent immediately to the border police at all airports and crossing points.