Friday, June 19, 2015

Ineffective Access Rights in Japan under Hague Abduction Convention

Jeremy D. Morley

There is great misunderstanding about the ability of a parent outside Japan to obtain access to a child in Japan through the Hague Abduction Convention.
The Hague Convention contains only one provision (Article 21) concerning visitation. That Article states little more than that an application to make arrangements for organizing or securing rights of access may be presented to the Central Authorities of Contracting States.
Japan’s statute implementing the Convention into Japanese law states that an application may be filed under the Convention for visitation only (a) with respect to a child who is located in Japan, (b) who was, immediately before the visitation became unable to be made, a habitual resident of another Hague country, (c) by a person who is entitled to such visitation under the laws of said state other than Japan.
Essentially what all of this means is that no Hague Convention access application can be made in Japan if the child is habitually resident in Japan at the time the alleged right of access has been violated.
This is confirmed by the Japanese Ministry of Foreign Affairs’ own explanation of the visitation provisions of the Convention. This states that an access claim in Japan should be dismissed unless the applicant is entitled to visitation or contact with the child under the laws of the state where the child held his or her habitual residence immediately before the visitation could not be made. 
This means that whenever a child is taken to Japan and becomes habitually resident there within the meaning of Japanese law, no access claim can be made under the Hague Convention.
The parent outside Japan will then have no right to see the child except by bringing a regular custody case in a Family Court in Japan and must expect that,  even if such a claim is ultimately successful , it will (a) almost certainly be limited to visitation in Japan itself (visitation outside Japan has never been ordered by a Japanese court, to my knowledge), (b) will probably be limited to a few hours a month, (c)  will be probably be strictly supervised in a courthouse or other specific location,  and (d) will most likely be unenforceable in Japan.
If a child living outside Japan is lawfully relocated to Japan (whether by court order or parental agreement) the habitual residence of the child will shift to Japan relative quickly after the relocation.
At that point it will be unclear whether the parent outside Japan “is entitled” to visitation under the law of Japan. If there is not even a foreign court order requiring such access there will be no such right in existence. If there was a prior foreign order that purported to make provision for such access, the parent living outside Japan will be entitled to commence a court proceeding in the Family Court in Japan to ask the court to recognize and enforce the foreign custody order.  However, the other parent in Japan will be entitled to ask the Japanese court to assume full custody jurisdiction, since the child will be habitually resident there, and to issue a new custody order that would exclude any provision for contact by the other parent. Alternatively, the parent in Japan will be able to start a new custody case in Japan at any time after the child is settled in Japan and to ask the court there to give unlimited sole custody to such parent.
Accordingly, any expectation that Japan’s accession to the Hague Convention allows parents outside Japan to secure access to their children lawfully living in Japan is quite mistaken.

Wednesday, June 17, 2015

New “Grave Risk” Hague Abduction Case

Jeremy D. Morley
In a just-issued opinion on the “grave risk” exception to the Hague Abduction Convention, the Seventh Circuit has affirmed the denial of a Hague return petition based on the district court’s finding of sexual abuse by the petitioner.  Ortiz v. Martinez, --- F.3d ----, 2015 WL 3650649 (7th Cir. 2015).
The appellate ruling was based entirely on its application of the clear error standard, under which “we will not overturn the district court's factual findings unless, after reviewing all the evidence, we are ‘left with [a] definite and firm conviction that a mistake has been [made].’”
The Court explained that the clear error standard demands even greater deference to a district court's factual findings when those findings are based on determinations regarding the credibility of witnesses.
It held that, as a practical matter, this means that such findings “can virtually never be clear error,” unless premised on testimony that is internally inconsistent, facially implausible, or contradicted by extrinsic evidence. In other words, a district court's credibility findings are “binding on appeal unless the [court] has chosen to credit exceedingly improbable testimony.”
It ruled that discrepancies arising from impeachment, inconsistent prior statements, or the existence of a motive do not render witness testimony legally incredible.

Monday, June 15, 2015

International Child Travel: USA has No Exit Controls

Jeremy D. Morley
When seeking or opposing an order to prevent or limit a child’s international travel outside the United States it is important to understand that the United States has no exit controls (except to the very limited extent of the Prevent Departure Program).

The Secretary of State’s office now expressly and helpfully advises judges that “the United States does not have exit controls.  This means that U.S. citizens may leave the country without interference from or detection by the U.S. government.  Additionally, the Department of State cannot track a child’s ultimate destination through his or her use of a U.S. Passport if the child transits a third country after departing from the United States.  Further, U.S. citizen children may also have another nationality and travel on that country’s passport making it more difficult to determine the child’s whereabouts.”

Other countries, such as most South American countries, do not allow a child to exit the country when accompanied by only one parent without producing evidence of the other parent's consent or a court order authorizing the exit. These rules are significantly effective. Unfortunately, there are no such requirements in the United States. A child may leave the U.S. without anyone checking the child's papers and with no check on the connection between the child and whoever is accompanying the child, except that the airlines will make sure that the child has the papers that are required to enter the foreign country.

Proposals that the United States should impose similar rules are met with the claim that it would be prohibitively expensive to employ the officials that are needed to monitor the system and that it would interfere with freedom of travel. Suggestions that the responsibility should be placed on the airlines to require that anyone traveling alone with a child should produce appropriate documentation are met with the airlines' claims that it would be too heavy a burden on them.

The Department of Homeland Security operates a Prevent Departure Program that was created in the aftermath of 9/11 to stop non-U.S. citizens from leaving the United States. It may be useful to prevent an abduction if the correct court order is in place and if the person to be placed on the list is an alien. Either children or parents can be placed on the list if the necessary conditions are fulfilled.

Although the program was created in order to intercept known or suspected terrorists, criminals and other wanted individuals, the Office of Children's Issues at the U.S. State Department has been successful in extending it to include specific cases of prevention of international child kidnappings.

The program operates through the transportation industry and it provides a single, comprehensive prevent departure lookout database of subjects whose imminent departure can be flagged.

If a named abductor and/or child seek to leave the country by means of a public carrier, the transportation company is required to prevent the departure. Whether law enforcement will arrest the parent will depend on the terms of any arrest warrant or court order.

The requirements of the program are as follows:

   1. The parent whose name is being added to the program must not be a U.S. citizen (this will include a dual national);

   2. A law enforcement agency contact with 24/7 coverage must be included in the nomination;

   3. A court order showing which parent has been awarded custody or showing that the non-citizen parent is restrained from removing the minor child from certain counties, the state or the U.S. must be in place;

   4. The non-citizen parent must be in the U.S.; and

   5. Some likelihood that the non-citizen will attempt to depart in the immediate future must exist.

The Government Accountability Office has asked the Department of Homeland Security to consider creating a program similar to the child abduction component of the Prevent Departure Program that would apply to U.S. citizens. Unfortunately that suggestion has not been acted upon.

Thursday, June 11, 2015

Washington State Ruling: Egyptian Child Custody Law Violates Human Rights

Jeremy D. Morley

There is “clear and convincing evidence that Egyptian child custody laws violate fundamental principles of human rights.” Therefore, Washington State should not treat Egypt as a “state” for purposes of the Uniform Child Custody & Jurisdiction Act.

So ruled the Superior Court of Washington for King County yesterday based on the expert evidence of international family lawyer Jeremy D. Morley and another expert.
The Washington court found, inter alia, that Egyptian family courts apply specific Sharia law rules to child custody cases, under which a Muslim mother is disqualified from custody if she does not raise the child as a Muslim and / or if she does not comply with Muslim religious requirements or if she remarries or moves away from the father’s domicile. It also found that Sharia child custody law in Egypt does not adequately take into account acts of domestic violence perpetrated by the husband against his wife and that a husband is entitled there to use physical force against a “disobedient” wife.

For this reason the Washington court found that the Egyptian courts had no child custody jurisdiction, even though the parties and their son had lived in Egypt at all relevant times until the mother, without the husband’s consent, left for the United States with the child, and even though the husband filed a case for custody in Egypt within six months thereafter.
The so-called “escape clause” in the UCCJEA has not been much used thus far.  A key reason for this is that there has often been a failure to offer effective expert evidence concerning the laws and procedures of the foreign country. The new Washington case demonstrates the value that such evidence may provide.

Wednesday, June 10, 2015

Limiting Foreign Visitation: A Case Study: Moore v. Moore

          The Supreme Court of the State of Alaska has just upheld an order authorizing a father to take the parties 10 year old child to Micronesia even though that country that is not a signatory to the Hague Convention on International Child Abduction (Moore v. Moore 2015 WL 3452474 Alaska). 

          The lower court acknowledged the mother’s desire to avoid “placing the child in any situation where [the father] might take her and keep her and not return her,” but concluded that it had “seen no evidence” and “heard no testimony that [the father] has that intention or desire.”  Although the lower court specifically discussed each of the statutory best interests factors as they relate to custody and visitation, the judge seemed dismissive of the Hague Convention when stating on the record “I don’t care if it’s a Hague Convention country or not. [Travel] is a good thing, in my mind. There are exceptions to that, of course. But in general terms, that’s what I’m finding.” 

          The law in Alaska does not explicitly prohibit child custody visitation to non-Hague Convention countries or otherwise restrict international travel as part of custody visitation.  There are no specific statutorily mandated factors for a trial court to consider with regard to foreign visitation.  Alaska Statute 25.24.150(c) sets out nine enumerated factors for trial courts to consider when making a discretionary best interest determination toward apportioning custody;  (1) the physical, emotional, mental, religious, and social needs of the child;  (2) the capability and desire of each parent to meet these needs; (3) the child’s preference if the child is of sufficient age and capacity to form a preference; (4) the love and affection existing between the child and each parent; (5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; (6) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child, . . . (9) other factors that the court considers pertinent (7 & 8 are irrelevant in this setting as they pertain to domestic violence and substance abuse, both non-factors at trial here). 

          The crux of the mother’s argument to the Supreme Court was that the trial court had abused its discretion by allowing this travel to non-Hague countries.  But there is no bright-line rule concerning travel to a country that is not a party to the Convention.  Accordingly a court must consider of a litany of factors, all taken together with the fact that the proposed country is not a signatory, as in Abouzahr v. Matera-Abouzahr (361 N.J. Super. 135, 824 A.2d 268 (N.J. Super. App. Div. 2003)), in which the court stated:

          “The danger of retention of a child in a country where prospects of retrieving the child and       extraditing the wrongful parent are difficult, if not impossible, is a major factor for a court to weigh in ruling upon an application to permit or to restrain out-of-country visitation. But it is not the only factor. In addition to the laws, practices and policies of the foreign nation, a court may consider, among other things, the domicile and roots of the parent seeking such visitation, the reason for the visit, the safety and security of the child, the age and attitude of the child to the visit, the relationship between the parents, the propriety and practicality of a bond or other security and the character and integrity of the parent seeking out-of-country visitation as gleaned from past comments and conduct.”

          Applying this test the Alaska Supreme Court easily upheld the lower court’s decision. Since there was no evidence of a motivation on the father’s part to abduct the child, no evidence that he was a flight risk, and the mother’s “subjective fear that (the father) might abscond with the child is not, standing alone, enough to suggest that the superior court’s order not limiting foreign visitation was unreasonable or otherwise an abuse of discretion.”  Such a fear by one parent must be “well founded” with a “justifiable basis for a genuine fear."

          As in most of these cases, the moving party failed to adduce significant evidence to meet her burden of proof.  Indeed, it appears that she did not produce an expert international family lawyer to testify as to the risks.  See: Jeremy D. Morley, Preventing International Child Abduction in Divorce: