How to Prepare for an International Divorce

               By Jeremy Morley

Are you someone who always runs at the last minute to catch a plane? Or do you prefer to arrive at the airport ten minutes early and relax?

This is a question that marketing gurus ask so as to illustrate the benefits of sensible planning in business.

In my area -- international family law -- it raises these questions:

• Do you think it’s better to wait until you’re served with divorce papers before running to a lawyer in a panic?

• Or would be better to plan in advance?

• If you and/or your spouse are internationally connected, would it be best to wait until your relationship has exploded to find out whether your case can and should be brought in another jurisdiction?

• Or would it better to know the international choices that you have at a time when you can still influence the results?

The answers to the questions are pretty obvious.

It’s better to ask your international family lawyer to do some Strategic International Divorce Planning than to wait until a crisis erupts.

There are steps that can be taken before divorce papers are served that can make all the difference. Some of those steps cannot be taken on the eve of a lawsuit.

For international people the divorce and child custody issues are usually far more complicated than for people who are rooted in just one location. That means that the opportunities for productive planning can be far more meaningful.

Here is what we do for a motivated client:

1.  Analyze the Family’s Entire Economic Picture.
This is exactly what any divorce lawyer does in a conventional divorce situation but the strategic international lawyer will pay particular attention to any connections that the family has with other countries, to assets that are located overseas and to the possibility of moving assets or family to other jurisdictions.

2.  Consult with the Client as to His or Her Goals.
Divorce lawyers can easily make a bad situation very much worse. They must be extremely sensitive to a client’s real needs and desires. For example, there is no point in advising a client to move his assets into an offshore trust if that will destroy a relationship with his soon-to-be ex or drive an inappropriate wedge between him and other members of his family. Is the client prepared to move lock, stock and barrel to a new country for a few years? Does he believe that his wife will join him there? How about the children?

3.  Provide an Initial Analysis of the Law in Several Different Possibly Appropriate Jurisdictions.
The strategic international lawyer will prepare an initial analysis of the most obvious possible jurisdictions, including jurisdiction of the current residency, the other jurisdictions with which the client or his spouse have substantial connections and any other jurisdictions that the client is interested in, recognizing that if a particular jurisdiction is chosen the client may well need to move there for a substantial period of time and may also be well advised to take others in his family there, as well.

4.  Focus on a few jurisdictions.
We will then usually consult with counsel in those jurisdictions that seem to hold the most promise.

We must analyze, separately for each “target jurisdiction”:

a) The jurisdictional rules.Will the courts in the target jurisdiction accept the anticipated divorce case, including all financial and child custody issues? What “facts on the ground” will need to be accomplished in order to satisfy the conditions?

b) The grounds for a divorce. What will the client need to prove in the target jurisdiction in order to be entitled to a divorce? What evidence must the client secure in order to do so?

c) The nature of the assets that are included in the target jurisdiction as property that is subject to being apportioned between the parties upon a divorce or that can be considered in making an economic apportionment between the spouses.

d) The method of asset division that is used by courts in the target jurisdiction.

e) The relevance of the conduct of the parties to the division of assets in the target jurisdiction.

f) The philosophy of the courts in the target jurisdiction.

g) Spousal maintenance.What are the rules concerning spousal maintenance (alimony). For what period of time might such payments be required? What is the likely amount of the award? Does the jurisdiction require a “clean break” whereby the spouse must receive a large lump-sum sufficient to generate the income needed to meet lifetime maintenance requirements?

h) Enforceability issues.Whether there are any specific factors which make it particularly easy or difficult to enforce an award in the target jurisdiction.

i) Particular issues. Each case raises specific matters that must be analyzed, depending on such matters as whether there are:

-Pre-marital assets. Some jurisdictions allow and even encourage the courts to divide even a party’s premarital assets (England). Others do not (New York).

-Trust assets. Jurisdictions vary considerably in their treatment of assets that a spouse has placed in trust. Some jurisdictions will “pierce” the trust (Colorado). Others will not (Japan).

-Inherited assets. Many jurisdictions do not divide assets that a spouse has received as an inheritance. Others do (Netherlands).

-Gifted assets. Many jurisdictions do not divide assets that a spouse has received as a gift.

-A prenuptial agreement. Some jurisdictions do not recognize  international prenuptial agreements as binding (British Commonwealth countries). Jurisdictions vary significantly in the bases upon which prenuptial agreements may be invalidated or restricted, in the nature of the burden of proof concerning validity and on other critical factors concerning their applicability.

-“Bad conduct.” Some jurisdictions punish adultery, criminally and by a financial award to the “innocent spouse” (Korea). Others allow a divorce for mere incompatibility (California).

5.  Analyze the rules concerning children.

Jurisdictions around the world vary enormously in their treatment of children upon a divorce.

Issues include:

-Sole custody versus joint custody.

-Minimal visitation rights to a noncustodial parent versus liberal visitation rights.

-Male-dominated approaches versus female.

-National biases versus impartiality.

-Religious biases versus impartiality.

-Freedom to relocate versus limited relocation.

-Freedom to take children overseas versus inability to do so.

An analysis of these matters must consider not only the rules on paper but the rules in practice. Enforcement issues may be critical.

6.  Select the jurisdiction.
Having provided the client with the necessary information concerning each such jurisdiction, the client decides on a strategy.

7.  Advise as to the steps now to be taken.
Our advice is frequently required to assist with the implementation of the strategy so as to:

(a) Maximize the likelihood that the jurisdiction in question will indeed be the jurisdiction that actually handles the matter.

(b) Minimize the likelihood that the other spouse will succeed in bringing the case in a less attractive forum or in moving the case from the better forum to a less attractive forum

(c) Maximize the likelihood that the jurisdiction in question will view the facts of the case in as favorable a light as possible.

Violent Threats to Parent Establishes Grave Risk to Child under Hague Abduction Convention

Jeremy D. Morley

(Author, The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers, published by ABA)

In a significant ruling, the Eleventh Circuit has ruled that a pattern of threats and violence directed against a child’s parent but not specifically at a child, posed a grave risk of harm to the child warranting a refusal to order the child’s return under the Hague Abduction Convention. Gomez v. Fuenmayor, 2016 WL 454037 (11th Cir. February 5, 2016).

During a contentious custody battle in Venezuela over their daughter, the child’s mother and her husband made several threats against the child’s father. One death threat occurred in a Venezuelan courtroom. Those threats assumed a new dimension when actual violence began against the father’s family. The father’s girlfriend was shot while driving, minutes after dropping the father and his daughter off. The father’s mother’s car was damaged and vandalized. In addition, on at least two occasions, drugs were planted in the car. Fearing for his and his family’s safety, the father fled Venezuela for the United States, bringing the child with him in violation of a Venezuelan court’s restraining order. Indeed, he forged the mother’s signature on an authorization to leave Venezuela.

The issue was whether threats and violence directed against a parent, but not specifically against the child, could constitute a grave risk to the child within the meaning of the Convention, and whether there was clear and convincing evidence of grave risk to the child if she were returned to Venezuela. 

The Court held that, where violence is directed at a parent that may threaten the well-being of a child, the grave risk exception in Article 13(b) of the Convention may apply. It then upheld the finding of the trial court that the scope and severity of the threats to the father were clearly sufficient to establish a grave risk to his daughter.

The Court held that a child’s proximity to actual or threatened violence may pose a grave risk to the child; and that sufficiently serious threats to a parent can pose a grave risk of harm to a child, The Court stated that, “Ruling to the contrary would artificially and unrealistically ignore the powerful effect that a pattern of serious violence directed at a parent may have on his children.” And it stated that, “Similarly, it requires no stretch of the imagination to conclude that serious, violent domestic abuse repeatedly directed at a parent can easily be turned against a child.”

Unjustifiable Conduct, International Child Custody & the UCCJEA

Jeremy D. Morley

 

Interesting and difficult jurisdictional questions frequently arise when a parent unilaterally removes a child from another country into the United States. How long has the child been absent from the jurisdiction in which the left-behind parent seeks to have the case heard? Was the child "kidnapped" or was the parent within his or her rights in moving the child to another jurisdiction? And what efforts has the left-behind parent made to remedy the situation? These and other questions can become part of the decision maker’s analysis when deciding if a parent’s conduct in taking a child out of country was unjustifiable, and whether this warrants hearing the case in the left-behind parent’s country of residence even though the child is absent from the jurisdiction. 

Sec. 208(a) of the Uniform Child Custody Jurisdiction & Enforcement Act provides that, “if a court … has jurisdiction … because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:

(a)         the parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;

(b)        a court of the state otherwise having jurisdiction under [the UCCJEA] has determined that this state is a more appropriate forum …; or

(c)         no court of any other state would have jurisdiction under [the UCCJEA].”

(emphasis added)

In Sanjuan v. Sanjuan, 68 A.D.3d1093, 892 N.Y.S.2d 146 (2d Dept.2009), the child was born in the Philippines, but then lived in New York for nearly two years after which the father took the child to live in the Philippines, while the mother remained in New York. Thirteen months later the father filed for custody in the Philippines and the mother then started a custody case in New York.

The fundamental issue was whether, by unilaterally talking the child to the Philippines, the father had engaged in “unjustifiable conduct” that created jurisdiction in the Philippines. The New York court determined that the father’s alleged “unjustifiable conduct” was refuted by the following determining factors:

(a)          No custody order was in place at the time that the father had taken the child to the Philippines;

(b)          The mother had learned of the child’s location in the Philippines several days after the child was taken there; and

(c)          Her family had visited the child in the Philippines on several occasions.

For these reasons, the Court concluded that, “Since the mother knew of the child’s whereabouts, and there was no custody order in place preventing the father from taking the child to the Philippines, the father’s conduct was not unjustifiable.”

This was followed in Valji v. Valji, 130 A.D.3d 404, 12 N.Y.S.3d 95 (2d Dept. 2015). There, the family lived in Tanzania but the wife and child then went to Dubai and subsequently moved to New York, while the husband remained in Tanzania. The New York appellate court ruled that, “Plaintiff wife's relocation to New York with the child in March 2014 without obtaining defendant's consent did not constitute “unjustifiable” conduct since there was no custody order preventing her from doing so. We note that defendant, who communicated with the child daily via Skype and was aware of her precise location, did not take any legal action to secure the child's return prior to the commencement of this action. Accordingly, his challenge to plaintiff's assertion of jurisdiction based on the child's home state is unpersuasive.” The author, with team member Anne Glatz, represented the wife.

 

A California case, In re Marriage of Nurie, 176 Cal.App.4th 478, 98 Cal.Rptr.3d 200 (Cal.App. 1st Dist., 2009), also sheds light on the issue. In that case a mother allegedly abducted her child from her home in California to Pakistan. The father initiated a custody case in California within six months thereafter. The mother brought a custody case in Pakistan and the father participated in those proceedings. Some years later he allegedly re-abducted the child to California, apparently with the assistance of armed gunmen who perhaps acted with Pakistani government approval. The litigation in California was then resumed.

The mother claimed that the father’s misconduct in kidnapping the child from Pakistan back to California constituted “unjustifiable conduct” that barred the California court from asserting jurisdiction over the child. The California appeal court disagreed. It held that the UCCJEA does not require it to relinquish jurisdiction properly acquired, but only to decline to accept jurisdiction that was invoked as a result of wrongful conduct. California’s jurisdiction had originated with the residency of the child in California prior to the child’s removal to Pakistan. Even if the father had later engaged in wrongful, even criminal, behavior in getting the child back from Pakistan, California had continuing exclusive jurisdiction which could not be terminated by virtue of the father’s subsequent purported misconduct. The Court expressly stated that: “’Unjustifiable conduct’ requires a court to decline jurisdiction only when the court's jurisdiction is invoked as a result of unclean hands, not when one of the party's hands get dirty after jurisdiction has been properly asserted. This interpretation is not only consistent with the plain language of the statute, but with the intent of the drafters.”

ABA: International Law 2016 Spring Meeting

I will be speaking at the ABA Section of International Law Spring meeting in New York on April 14, 2016 at the session entitled, “Till Death Do Us Part…or not? International Issues in Marriage, Divorce, and Custody.”

Follow this link to see more info and register:

http://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=188482042

No Family Law in Saudi Arabia

By Jeremy Morley* 

One might think that the dangers of marrying Saudi nationals and living in Saudi Arabia would by now have been sufficiently well publicized as to cause Western nationals, especially Western women, to steer clear of living in Saudi Arabia with a Saudi spouse.

Unfortunately many still fail to heed the warnings and they contact international family law counsel only after the fact.

Foreigners who intend to marry Saudi nationals or to live in Saudi Arabia should be warned that their “family law” rights are likely to be extremely limited, especially if they have children and especially if their spouse is a Muslim man.

We have represented numerous clients of various nationalities and faiths who have been in Saudi Arabia.

While we have worked with Saudi counsel it is necessary to report that the level of discrimination against foreigners and non-Muslims in Saudi Arabia at all levels of society, including the highest, is extreme and that it creates great danger for foreigners and most especially for foreigners with children.

Merely by way of example, women in a Saudi household cannot leave the country without the permission of the Saudi male head of their household. This applies to foreign nationals just as much as to Saudi citizens.

A foreign parent cannot take her or his children out of Saudi Arabia if the other parent is a Saudi national even if the foreigner has been granted custody rights.

Foreigners holding Saudi work and/or residency permits require an exit visa to depart Saudi Arabia.

Saudi authorities have confiscated the U.S. passports of U.S. citizens and U.S.-Saudi dual nationals when they have applied for Saudi citizenship or a Saudi passport.

The public display of non-Islamic religious articles such as crosses and Bibles is not permitted.

Women who do not wear a full-length black covering and cover their heads are at greater risk of being confronted by the religious police.

Men and women may not mingle in public unless they are family or close relatives. The religious police may demand proof that a couple is married or related. Women who are arrested for socializing with a man who is not a relative may be charged with prostitution.

Women are not allowed to drive or ride bicycles on public roads in Saudi Arabia.

In substance if “family law” means a law that protects the family, there is no family law in Saudi Arabia.

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* Jeremy D. Morley consults on international family law matters with clients globally, always working with local counsel as appropriate. He has handled hundreds of child custody and abduction cases and has written the leading treatises on international family law. He has acted as an expert witness on Saudi Arabia and international child custody.

Habitual Residence: Implied or Inferred Conditions

Jeremy D. Morley*

Determining the child’s “habitual residence” is a threshold issue in any case brought pursuant to the Hague Convention. It is often outcome-determinative because, if the court concludes that the country from which the child was removed was not the country of the child’s habitual residence, the Convention will not apply and the petition must be dismissed.

The U.S. majority rule as to the interpretation of the term focuses on the “last shared parental intent.” In this regard a joint decision by the parents to relocate can be decisive. However, it is well established that a conditional consent will be insufficient unless and until the condition is fulfilled.   

Some courts have upheld claims that a condition on a relocation may be implied or inferred, sufficient to prevent a child’s habitual residence from being changed.

In Mota v. Castillo, 692 F.3d 108 (2d Cir.2012), the Second Circuit upheld the decision of a district court to infer such a condition from the circumstances even though the parent who thereby benefitted testified that there had been no such agreement. In that case, the parents of a child who habitually resided in Mexico with her mother agreed that the mother and child would join the father in New York in order to reunite their family and live there indefinitely. The mother gave the child to third parties to take her to New York, where she was reunited with her father. However, U.S. border guards prevented the mother from entering the country illegally. She tried a second time but was deported.

 The Second Circuit upheld the finding that the mother's consent to her daughter's relocation was impliedly conditioned upon her own ability to join the family in New York and that the failure of this condition annulled her consent. There was no direct evidence of any agreement between the parents concerning the condition and the mother testified that there was no such agreement. Nonetheless, the Court upheld the district court's finding that such a condition could--and should--be ““reasonably inferred”” from the circumstances, since the mother was a devoted mother who ““more likely than not ... intended for [the child] to live in the United States only if she herself could join the household and continue to raise her child.”

 Thus, Mota reaffirmed the rule that if the parents' agreement to their child's relocation is subject to a condition precedent, there is no shared intent to relocate unless the condition is fulfilled. Mota also established that the existence of a condition to an agreed relocation can be established by inference from the circumstances of the case.

Many couples undergoing marital problems make attempts at reconciliation. In international relationships, this can take the form of an agreement for one spouse to move to the other spouse's country conditionally, to see if their problems can be resolved. If the reconciliation is not successful, the spouse who has moved may attempt to return to his or her home country with their children. However, if they have spent an extended period of time in the country of relocation, notwithstanding parental intentions, the child or children may have acclimatized and could be found to have acquired a settled purpose.

In Hofmann v. Sender, 716 F.3d 282 (2d Cir. 2013)he Second Circuit ruled that Canada was the country of the children's habitual residence even though the mother and children had come to New York with the father's consent and had lived there for 1½ years. The court held that the parties did not have a shared intent at the time the father consented to the move to New York; the father intended for the children to reside habitually in New York only if he was also resident in New York in the same home as his children and his wife, but the wife had served him with divorce papers instead.

In this regard, the key findings – which help to demonstrate the extent to which such cases are fact-sensitive -- were as follows: “On direct examination, Hofmann “testified that he consented to respondent’s travel to New York with the children based on his understanding that he . . . and the children, would stay as a family . . . ‘come what may.’” The court found this statement was consistent with Hofmann’s other actions including his institution of this Hague Convention proceeding immediately after he was served with divorce papers. Similarly, the court found that Sender “testified, both on direct and on cross [examination], that it was her understanding and assumption that she and [Hofmann] were relocating to New York as a family.” Sender admitted on cross examination that “the only reason” Hofmann had allowed her to take the children to New York in 2011 was his belief that he would remain part of the family. She also stated that the parties had agreed to move to New York as a family, and that it was an attempted “rebirth” of their marriage.”

These cases underscore the need for sharp analysis of the facts, case law and issues surrounding habitual residence in any Hague Convention case.

_________________

*Jeremy D. Morley represented the successful petitioner in the Hofmann case.

U.S. Child Custody Jurisdiction: UCCJEA v. The Rest of the World

Jeremy D. Morley*

The courts in most countries have jurisdiction to modify prior child custody orders if the child is now habitually or ordinarily resident there, even if the original order was issued by a foreign court.

The United States follows completely different rules. The Uniform Child Custody Jurisdiction & Enforcement Act (the “UCCJEA”) provides that once a U.S. state has issued an initial child custody order it will normally have continuing exclusive jurisdiction for as long as one parent continues to live there.

These differences can lead to a clash of jurisdictions.

I have written about such issues in my article The Impact of Foreign Law on Child Custody Determinations in the Journal of Child Custody, Vol. 10 (2013).

The issue has come to a head in a case before the Rhode Island Supreme Court. Hogan v. McAndrew, 2016 WL 556297 (Supreme Court of Rhode Island, Feb. 12, 2016) and it remains unresolved.

In this case the children relocated with their mother from Rhode Island (“R.I.”) to Ireland in 2009 pursuant to a R.I. divorce settlement agreement that authorized the relocation, with extensive visitation for the father, but expressly provided for continued exclusive jurisdiction for the Rhode Island court. The father remained living in Rhode Island.

After the children had lived in Ireland for five years the father filed emergency motions in Rhode Island to modify custody. The mother sought to dismiss the motions since the children had long lived in Ireland and she commenced a competing case in the Irish High Court.

Under the UCCJEA the basic rule is that the R.I. courts had continuing exclusive jurisdiction as long as one parent continued to reside there. Under the law of Ireland the Irish courts had jurisdiction over the custody of children who were habitually resident in Ireland.

The mother asked the R.I. court to dismiss the R.I. case on the ground of forum non conveniens. At first instance the justice concluded that Ireland was a more appropriate forum for the dispute to be heard and declined to exercise jurisdiction on the ground of inconvenient forum.

However, on appeal, the R.I. Supreme Court ruled that the trial judge had improperly applied the provision of the UCCJEA that sets forth the factors that must be considered in determining the convenience issue.

The Supreme Court asserted that the language of the UCCJEA is clear that the Family Court, vested with exclusive, continuing jurisdiction over a child-custody matter, must engage in a two-part inquiry before it may decline jurisdiction on the grounds that Rhode Island is an inconvenient forum under the UCCJEA. The Family Court judge must conclude both that the court “is an inconvenient forum under the circumstances and that a court of another state [or a foreign tribunal] is a more appropriate forum.” 

The Supreme Court insisted that, “declining to hear a matter over which the court possesses exclusive, continuing jurisdiction is not a determination that a court should undertake lightly. It should be done only after strict adherence to the statute and careful analysis of the evidence.”

The Court was particularly concerned about the significance of the original forum-selection agreement whereby the parents had agreed that the R.I court was to retain subject matter jurisdiction. The trial judge had stated that such an agreement constituted only one of the eight relevant factors listed in the UCCJEA. But the Supreme Court stated that, “In her decision, the Family Court justice overlooked [the father’s] testimony that the forum-selection clause had been a predominant factor in his agreement to allow the children to move to Ireland with their mother and that the parties had entered into the agreement in anticipation of their relocation. The hearing justice also failed to address the nature of the agreement as a final judgment by consent and the high value that is conferred upon such judgments. We deem these to be material factors deserving significant weight, but which were ignored by the hearing justice.”

The R.I. Supreme Court also stated that it was particularly concerned that “neither party provided the court with a clear understanding about an issue of particular concern to [the father] — whether the courts in Ireland would recognize an American joint—custody arrangement—nor could the parties do so on appeal to this Court.”

Nor was there any evidence as to “whether the wishes of the children entangled in custody disputes are relevant or even considered by the Irish courts.”

The Supreme Court thus concluded that, “The dearth of information before the Family Court prompts us to conclude that the hearing justice improperly determined that the seventh factor weighed equally in favor of Ireland and Rhode Island.”

For these reasons the Supreme Court remanded the matter back to the trial court. The clear impression is that it expects that the trial court will retain jurisdiction.

Such a decision may well be surprising to the courts of Ireland and most of the rest of the world, since it would be far more usual for the courts in the place where children have lived for the past five years to deem it to be their duty as well as their right to decide what is in the best interests of such children. Whether the Irish courts will defer these issues to the courts of Rhode Island, or whether there will be conflicting orders from the two courts, remains to be seen.

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* Jeremy D. Morley consults on international family law matters with clients globally, always working with local counsel as appropriate. He may be reached at +1- 212-372-3425 and through his website, www.international-divorce.com. Jeremy has handled hundreds of child custody and abduction cases and has written the leading treatises on international family law.