Tuesday, February 28, 2017
Jeremy D. Morley
The Osaka High Court has just issued a decision in a case under the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) that provides strong support for the claim that Japan does not comply with the terms of the treaty and that is, indeed, in violation of its treaty obligations.
It has not been possible until now to analyze the decisions of the Japanese courts in cases brought under the Hague Convention since they are unpublished and confidential. Such secrecy has precluded Japanese lawyers from reporting on specific cases, and has frustrated scrutiny of court decisions. However, the author has now obtained a copy of the shocking decision of the Osaka High Court in the case of Arimitsu v. Cook, issued on February 17, 2017.
This author has long asserted that the law by which Japan brought the Convention into Japanese law -- Act No. 48 of June 19, 2013, which is identified as the “Act for Implementation of the Convention on the Civil Aspects of International Child Abduction” (the “Implementing Act”) – contains provisions that inappropriately and excessively expand the so-called “grave risk exception” to the treaty. The author has also long expressed serious concerns that return orders issued by the Japanese courts would not be effectively enforced in Japan.
An analysis of the Arimitsu case indicates that the Hague Convention is unworkable in Japan under current laws and procedures and in light of the prevailing views there concerning child custody. The facts as follows: The U.S. father and Japanese mother were married in Minnesota in 1998. They had four children, all of whom were born and raised in Minnesota. In 2014, their mother took them to Japan and retained them there without the father’s consent. In August 2015, the father commenced a Hague Convention case in Japan for the return of his children to the United States. In October 2015 the Osaka Family Court ordered that only two of the four children should be returned. In January 2016, on appeal by the father, the Osaka High Court ruled that all four children must be returned. However, the return order was never implemented. Ultimately the father filed a petition seeking “direct enforcement” of the return order.
Finally, in September 2016 enforcement officers from the Nara District Court went to the place where the mother and family were living, purportedly in order to enforce the order. They failed to do so. Instead, they reported that the children had “strongly refused” to be returned to the U.S. After consulting with Japan’s Central Authority [i.e. the Ministry of Foreign Affairs of Japan, which is Japan’s designated “Central Authority” under the Convention], they declared that enforcement was not possible. Indeed, I am informed that the father attended the purported enforcement, was required to wait outside and was even then barred from seeing his children.
The mother then petitioned the Osaka High Court to nullify the pending unenforced return order. She claimed that since the prior proceedings the father had lost his home in Minnesota through foreclosure and did not have the financial resources or family support to provide a stable environment for the children in Minnesota. The Osaka court accepted the mother’s argument. It ruled that “these situations fall within the grave risk of harm for the Children under Article 28 -1-4 by harming the Children physically or mentally and by placing the Children in the unbearable situation.”
I am informed that the father’s financial challenges were primarily caused by the enormous costs of the litigation that he had brought in an effort to secure the return of his abducted children, and that the legal fees and travel and related expenses had been greatly enhanced by the deficiencies and obstacles raised by the legal system in Japan, particularly including the requirement that he attend repeated and entirely fruitless mediation sessions in Japan.
The decision of the Osaka High Court to reverse its prior return order on the ground of so-called “grave risk” to the children on the theory that that the father had suffered financial reverses subsequent to the abduction serves merely to highlight the inherent deficiencies in the Japanese system concerning the Hague Convention. All such problems stem from the fact that there is no substantial public support in Japan for the idea that when parents separate they should each have a continuing role in parenting their children.
Japan signed the Convention in 2013 only because of international pressure from the United States and other countries, particularly after Christopher Savoie – one of my many clients whose children were abducted to Japan and never returned – was jailed in Japan when trying to return his children. There was considerable opposition to the treaty within Japan, driven primarily by a substantial concern that Japanese mothers might have to remain in a foreign country with their children after the breakdown of an international marriage, particularly if they had suffered abuse, had no social or governmental support or were in financial difficulty. I witnessed and participated in such debates directly, particularly at a seminar at the Japanese Ministry of Foreign Affairs and subsequently when questioned by Japanese Diet and Consular representatives in New York. Ultimately, a compromise was reached whereby Japan’s implementing legislation contained an extremely significant expansion to the grave risk exception.
Article 13 of the Hague Convention provides that a requested State is not bound to order the return of an abducted child if there is a proven grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” The key elements of Article 13 (b) are that (1) the risk must be “grave;” (2) that it must be a grave risk to the child, rather than to the taking parent; and (3) that even if the grave risk is established it merely gives the court the right, in its discretion – but not the obligation – to choose not to return the child. The authoritative “Perez-Vera” report of the legislative history of the Convention appropriately warns that “a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child's residence, would lead to the collapse of the whole structure of the Convention." Accordingly, courts throughout the world have held that the “grave risk” exception must be interpreted narrowly.
In sharp contrast, Article 28 of Japan’s Implementing Act inappropriately expanded the scope of the grave risk exception in several significant respects. It converted a merely discretionary exception into a mandatory defense. It also required the courts in Japan to consider a series of additional “circumstances” whenever the defense is asserted. The first such circumstance requires the court to consider whether there is “a risk” (but not a grave risk) that the child would be subject to “violence” if returned to the state of habitual residence. The definition of violence includes “words” as well as “deeds” and “physical or psychological harm.” This emphasis on mere risk directly contradicts the treaty language. The second circumstance that a Japanese court must consider is if there is “a risk that the respondent [meaning the taking parent] would be subject to violence etc. by the petitioner in such manner as to cause psychological harm to the child, “in the state of habitual residence.” Again, the term “risk” is used in derogation of the express treaty limitation to a “grave risk” and the second circumstance permits the focus to be on “violence, etc.,” i.e. “words and deeds” used against the respondent if they would cause mere consequential psychological harm to the child. I understand that, most unusually in such cases and notwithstanding the broad definition, the mother testified that there had been no domestic violence by the father,
The third special element that a Japanese court must consider in a Hague case is, “Whether or not there are circumstances that make it difficult for the petitioner or the respondent to provide care for the child in the state of habitual residence.” This “circumstance” is entirely beyond the scope of the Convention. In inviting the consideration of any factors that merely “make it difficult” for her to raise the child in the habitual residence, the Japanese law opened the door for a Japanese mother to complain about the challenges of being away from her home, her family and her friends in a foreign country, without the financial and healthcare support that the Japanese state provides to single mothers, and being required to share access to the child with someone that she does not like or trust. It was upon this circumstance that the Osaka court relied in the Arimitsu case.
A separate and momentous problem with Japanese implementation of the Hague Convention is that there is quite simply no effective enforcement of Hague return orders, as the Arimitsu case firmly establishes. The issue is not particular to Hague Convention orders. The fact is that orders of the Family Courts are generally unenforceable in Japan. The parties are expected to follow such decisions voluntarily but, surprising as it may be to Western ears, there is no effective enforcement mechanism to compel compliance in Japan with Family Court orders. It was for this reason that the Implementing Act contained extensive terms that, for the very first time in Japan in the context of family law, make provisions for potential enforcement of court orders, but only in Hague Convention cases. However, those provisions have proven entirely unworkable. While it appears that there have been one or two actual cases, such as the Arimitsu case, in which a Japanese court actually issued a return order against a Japanese parent, there has not been one reported case in which such a return order was actually enforced after a parent’s refusal to comply.
As a result of such issues, the U.S. Department of State reported in its current 2016 Annual Report on International Parental Abduction -- which was submitted to Congress as required by the U.S. International Child Abduction Prevention and Return Act -- that it had determined that Japan was one of just two “Convention Countries That Have Failed to Comply with One or More of Their Obligations under the Hague Abduction Convention.” The State Department explained that: “In 2015, Japan failed to comply with its obligations under the Hague Abduction Convention in the area of enforcement of return orders. A Japanese court issued the first Convention return order to the United States in early 2015. Authorities attempted, but were unable to effectuate enforcement of the court order by December 31, 2015, exposing what may be a systemic flaw in Japan’s ability to enforce return orders.”
However, in a follow-up “Action Report” the State Department reported in October 2016 that matters had improved because as of July 2016 “a Japanese court compelled the return of four U.S. citizen children to the United States.” That report was absolutely wrong. As discussed, not only was the order never enforced but it was ultimately reversed based on facts that should not have formed the basis of the grave risk exception and which were in any event created as a direct result of the failure of the Japanese system to return the children expeditiously as the Hague Convention mandates.
The fundamental problem in Japan is the cultural, historical and societal context. Family matters have traditionally have been outside the province of the legal system in Japan. Custody is almost always determined by the parties themselves or through self-help. Customarily, when parents separate, only one parent – now usually the mother, although it was once usually the household of the father - has sole custody of the children and the other parent has no significant access to them. Whoever has physical possession of a child generally keeps possession of the child and that, in fact, translates into custody. If one parent takes a child and that parent or that parent’s family has possession and control of the child, the legal and social system will not interfere. Indeed, any demand by a non-custodial parent for extensive visitation with a child is generally seen as being an inappropriate interference with family peace, and is often considered to be abusive. In any event, since Family Court orders are effectively unenforceable, custodial parents are often understandably apprehensive of unsupervised visitation.
There is also a cultural bias in favor of raising Japanese children in Japan. While international marriages have increased, they have primarily been marriages of men to Japanese women. This was the focus of the debate in Japan concerning the Convention. The critical concern there was that Japanese mothers in foreign countries would be abandoned and mistreated by their Western husbands and Western courts, cut off from financial support, and virtually imprisoned in foreign countries away from their Japanese family, friends, language and culture. It was exactly in order to allow Japanese women who return to Japan after the breakdown of an international marriage to stay in Japan with their children that a very substantially-expanded “risk” defense was included in the Implementing Act. Without that protective measure Japan would not have adopted the Convention.
Some of my colleagues in Japan had hoped that Japan’s adoption of the Hague Convention would encourage further discussion there about the benefits of a sharing of parental involvement in the lives of children after the parents separate, and that other changes in the family law would follow. However, while there has been some change, there has not been a general shift in the view that, after a divorce, one parent is better than two. Visitation is now a little more common but it is still primarily dependent on parental agreement and even then is usually only occasional and is often supervised. I have never heard of any case in which any Japanese court has ever ordered visitation outside Japan. In any event, any such order would be unenforceable.
In conclusion, the Arimitsu case should serve as a warning. While the Family Court’s reversal of the return order will perhaps be overturned on appeal, the devastation of family life resulting from the unremedied abduction has already occurred. The children have lived for the last 2 ½ years of their lives away from their birthplace and habitual residence and away from their father. The legal system in Japan has failed them and their father and has rewarded the mother’s abduction and her refusal to follow the orders of a Japanese court. Unfortunately, this was completely predictable. Japanese society has never been committed to the goals of the Convention. The implementing legislation and the lack of meaningful enforcement mean that it remains impossible for a left-behind foreign parent who faces the determined opposition of the Japanese abducting parent to secure the return of his abducted child from Japan.
Jeremy D. Morley is an international family lawyer and the author of “The Hague Abduction Convention.” He handles many international child custody cases that concern Japan. His website is www.international-divorce.com
Monday, February 27, 2017
A court in Marin County, California has ruled in favor of our client in a divorce and custody case, that the legal system in Dubai, UAE does not meet minimum due process standards under the 14th Amendment to the U.S. Constitution, since a principal benchmark of due process is the assurance that individuals will be free of discrimination based on gender or religion.
Wednesday, February 22, 2017
When it comes to divorce and who gets to keep the house and children, it is not easy at all to stay rational and focused. The first gut instinct is to find a divorce lawyer that is on your side to defend your interests. As a Law School student, I understood during International Private Law class that ‘the best court case is the one that will never take place, especially, if you have different nationalities.
Many women have asked me how did I do it, how did I manage to continue a positive connection with my ex-husband and keep the physical custody of our daughter. It has not been an easy road: to the painful process of dealing with a myriad of emotions, social stigma, and uncertain legal consequences, you have to add the legal and practical complications that derive from being an expat with a mobile and international job. My short answer is that you need to always keep the eyes on the key priority: how can we minimize the damage for your child. In legal terms, it would be the equivalent to the principle of ‘the best interest of the child’. The beginning of the roadmap to that goal is the willingness to address the emotional needs and fears linked to the new family situation. After physically separating in 2006 in Washington DC, and consulting a number of divorce lawyers (some of them specialized in children issues), following advice we decided that going to couples’ and family therapy was the best approach for us. In parallel, we jointly drafted the voluntary separation and property settlement agreement. Granted, it was not always a linear process, but we managed to agree on what was fair financially speaking. I was transferred to Nicaragua in March 2008 for work reasons. In April the Superior Court of the District of Columbia awarded the divorce to the plaintiff, my ex-husband, without objections to the voluntary separation agreement. From that moment on, he travelled from the US on a regular basis to spend with our 4 year-old daughter as much time as he could, and keep their bond alive.
In March 2010, I got married with yet another expat who was working in Kenya, after starting a long-distance relationship. At that time, I thought it would be a positive next step for us to join him in Nairobi, which was a family duty station. My daughter could attend a great international school, I could take a break from work to spend more time with her, and we could enjoy family life again. Because of the distance from the US to Kenya, and the security situation, my ex-husband refused to give me permission (which was specified in the separation agreement) to move with her. Again, I had to measure what the critical path would be for the years to come – did I have a right to move to Kenya? And even so should I insist and end up fighting in a court?. Finding great legal advice in that precise moment when you need it the most is a rare and exceptional thing. I consulted Nicaraguan lawyers, but they were not well versed in International Family Law or Child Relocation. I knew Kenya had not ratified the International Convention on International Child Abduction, and I was not at all thinking of breaking unilaterally the terms of our separation agreement. After some research, I found Mr. Morley’s Law Firm and had what I believe to this day was the best money for value advice over the course of a 50-minute phone call. Mr. Morley listened carefully to the specific details of my situation, and asked me key questions about my future plans. Did I intend on living in Kenya for a long time? How strongly was I prepared to fight for it? He gave me a similar example that illustrated the titanic difficulty of convincing a US judge that Kenya was not a dangerous place (as per the US State Department evaluation), given that I would have the burden of the proof. It was in that moment that I realized that the best strategy was to not go to court, spend a fortune in legal fees, and ruin my good cooperation with my ex-husband in the process. Instead, I decided to wait a couple more years until our new family could relocate back to Europe. In 2012 we moved from Nicaragua to Malta to join my second husband, who has supported our daughter in all aspects. Last year brought many changes to our professional lives, and our family had to move again; this time to Brussels. But thanks to a collaborative approach, reinforced by Mr. Morley’s advice, my ex-husband and I keep on working closely together for her happiness and well being to this day.
Tuesday, February 21, 2017
Jeremy D. Morley(1)
“Mirror” orders can be a useful tool in the arsenal of lawyers who handle cases concerning international child travel and the prevention of potential international child abduction.
Increasingly courts are being asked to enjoin parents from taking children overseas because of a parent’s fear that the children will not be returned. Courts must take such applications extremely seriously, especially if a child is likely to be taken to a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, or that does not return children promptly to their habitual residence. On the other hand it is also well-recognized that children have an interest in seeing the world and that children with a foreign parent should be encouraged to learn of their overseas heritage and to get to know their distant family.
A potentially left-behind parent’s application for an injunction is usually supported by: (a) Expert testimony as to the practices and laws concerning international child abduction and international child custody in the country to which the child may be taken (2); (b) Expert testimony as to the "red flags" or "risk factors" that research establishes are the indicia that a particular parent might indeed abduct his or child; and (c) Lay testimony as to any facts that establish the existence of any and all such risk factors.
In such cases, a judge will invariably ask a basic question: "What conditions can I include in my order that will minimize the risk that the child will be returned?" Unfortunately, the true answer is often "None" -- as evidenced by the epidemic of “successful” abductions to countries such as Japan, frequently in flagrant violation of court orders.
However, in many cases, a useful suggestion is that the order should require the taking parent to obtain a "mirror order" from a court in the foreign jurisdiction before being allowed to take the child overseas.
A mirror order is one that is issued by another court which contains the same terms as those that are contained in the order that is being mirrored. Inherent in the mirror order concept is the fact that the foreign court shall have the right -- and more importantly the obligation -- to enforce the terms contained in the order, specifically including the obligation to effectuate the prompt return of the child at the end of a designated period of time. Equally critical is that the foreign court should not be permitted to modify the original order.
The viability of such a requirement varies substantially from country to country. Thus a very recent decision of the Supreme Court of India makes it clear that the courts in India will not allow mirror orders to be entered in child custody matters and that they will always conduct a full plenary review of the child's best interests (which invariably equate to a decision that the child -- who, by the time of the ultimate decision has typically been in India for some years -- should remain in India).(3)
It is also obvious that a court in Japan, even in the utterly unlikely event that it were to issue a mirror order, would not enforce the terms of any such order since its family law system is toothless and its orders are invariably not enforced.(4)
By contrast, a country such as Australia has a custody registration system that operates in a very similar way to the system of registration of foreign custody orders in the Uniform Child Custody Jurisdiction & Enforcement Act. However, Australia is very much the exception rather than the rule. The European Union has a registration system but it applies only to orders issued by an E.U. court and the practice within Europe varies substantially from country to country.
Indeed, foreign lawyers are generally shocked and amazed when they learn of the registration provisions in the UCCJEA. In particular, they are often shocked that a U.S. court will generally have exclusive continuing jurisdiction for many years after a child has left the jurisdiction as long as one parent continues to live there. The issue was recently before the Court of Appeal in England. (5) Since that Court is headed by a judge who is also that country's "Head of International Family Law" its decisions on such issues are far less like to be parochial than similar rulings from some courts in the United States and many other countries.
In the English case, the child was living in Malaysia. A Malaysian court gave custody to the father, an English national, and contact to the mother "at reasonable times". The father then asked an English court for a mirror order so that he could apply for a British passport for the child. However, the English court not only issued a mirror order but it also granted the mother’s application to reopen the entire case. On appeal, the English Court of Appeal ruled that the trial court has been right to issue the mirror order but wrong to claim any broader jurisdiction. It made clear that a litigant who seeks a mirror order does not accept the jurisdiction of the court to do any more than reiterate the provisions of the order issues by the primary jurisdiction. By definition, an application for a mirror order cannot supplant the primary jurisdiction. The Court ruled that if the mother wished to challenge the order or seek specific contact she should apply in Malaysia.
Lawyers bringing applications to enjoin children's foreign travel, and lawyers opposing such applications, need to tailor their presentations and their proposals to the specific laws, procedures, customs and practices concerning international family law, international child custody and international child abduction of the specific country or countries that the child is to visit or may be taken to.(6)
Thus, it is important to understand that merely because an American court conditions an event upon a foreign mirror order, the foreign court might not have jurisdiction to issue any such order. That situation arose in Danaipour v. McLarey (7) in which a district court in Massachusetts acted on the mistaken assumption that a Swedish court would provide a stipulated mirror order but in fact the Swedish court refused to do so.
Another critical factor is that once a child is taken into a foreign country it may be extremely difficult to bring a child home because of the stringent exit controls that many countries have that require the written consent of both parents or a sole custody order to remove a child. This is particularly the case with South American countries. Even if a U.S. court issues the requisite order it may have no effect in a foreign country or, even if ultimately effective, the lack of a local court order might cause significant border delays.
Some examples of issues that have arisen in my office concerning mirror orders are the following:
-A client was legitimately worried that a child would be retained in Bermuda if the father took him to visit his family there. Upon our advice, the client negotiated a strong New York consent order that specified that New York had continuing exclusive jurisdiction, that contained a host of other protective clauses and that permitted a visit to Bermuda only if a mirror order were first obtained. Subsequently, the father asserted that he had been unable to obtain the requisite mirror order from the Bermudan courts. As a result the Family Court authorized a visit without the mirror order. We successfully obtained from the Appellate Division, First Department an emergency order barring the scheduled visit.
-Our client settled an action under the Hague Abduction Convention by agreeing to limited and supervised visitation between the father and the child in Quebec, Canada, conditioned on the child’s prompt return to New York. We insisted that a mirror order be obtained from the Quebec courts before any visit could occur. Again, the father reported difficulty on obtaining the required order, which led to a delay in the scheduled visitation. Only when the mirror order was in place did visitation in Canada successfully occur.
-In many cases I have suggested, as part of my written expert evidence or expert trial testimony, that a mirror agreement would be futile because the family law system of the foreign country could not be relied on to enforce the mirror order. For example, I recently so testified as to China.
-In other cases I have testified that a mirror order might be a good idea because it would provide useful additional security for the prompt return of the child if the parent taking the child for an overseas visit were to keep the child overseas and because the family law system in such country is reliable and effective (e.g. I have so testified as to Italy and Hong Kong).
In conclusion, mirror agreement requirements may be useful depending on the circumstances. But they may also be counter-productive if they induce a false sense of security. They should never be requested or opposed except by counsel having full knowledge and understanding of international family law.--------------------
(1). Jeremy D. Morley concentrates on international family law. He may be reached at 212-372-3425. He is the author of the treatise, International Family Law Practice. His websites are www.international-divorce.com and www.internationalprenuptials.com. His blog is www.international familylawfirm.com.(2). Thus the author has provided such evidence as to many such countries including India, Japan, Colombia, China, Taiwan, Egypt, Italy, Hungary, Saudi Arabia, Mexico, Venezuela, the United Arab Emirates, Jordan and Mexico.
(3). Majoo v. Majoo,  INSC 515.
(5). W v W (Minor) (Mirror Order)  EWCA CIV 703.
(6). An example of a critical factor that is often overlooked is that a visit to one country may permit an easy visit to another country. Thus, once a child is in any European country that is within the "Schengen Zone" the child may be taken to any other such country without passing through any passport control.
(7). 286 F.3d 1 (1st Cir. 2002).
Friday, February 17, 2017
Jeremy D. Morley
It seems appropriate at this time to reiterate the fact that this country has no exit controls, with minimal exceptions.
We try to control who comes in to this country, but we should also control who goes out. Especially if the people who are being taken out are U.S. citizen children who are being abducted overseas.
Below is an article I wrote a few years ago about our successful and lucky work in preventing an international abduction already in progress.
Are the powers-that-be in our country finally ready to secure our borders in ways that will be meaningful to U.S. citizens checking people as they exit the United States?
Wednesday, November 16, 2011
To the overwhelming elation and relief of our client, a terrified and panic-stricken Chinese mother, we succeeded recently in having a baby intercepted at an airport exit gate as his father was about to abduct him from the United States to India.
Mother’s joy at being reunited with her lost child capped our office’s relentless two-week search.
The family – a Chinese mother, her American husband and their dual national child – were living in China. After an argument between the spouses, the father grabbed the child and threatened to take him to the States. The Chinese police and then the Hong Kong police were completely unhelpful. The father then took the baby to an undisclosed location in the United States. That is when the mother called us from China, desperately scared and frantic.
We got word that the father was in California and with the help of local counsel and others there we secured an ex parte temporary custody order and restraining order in favor of our client.
We assisted the mother to obtain an emergency visa allowing her to fly to the States.
We then learned that the father was in Arizona near the Mexican border and we sought emergency police assistance there.
We then received some information that the father was ticketed for a flight to India. We suspected that India had been chosen because, as we have long warned, India is a well-recognized haven for international child abduction.
Just minutes before the plane left we succeeded in having the police at LAX pick up the child at the departure gate for the flight to India.
And just a few minutes later the child was safely in our ecstatic client’s arms.
The successful outcome resulted from enormous emergency effort in working with courts, police forces across the country, the State Department and other agencies.
It was frustrating, expensive and extremely nail-biting, most especially for the distraught mother.
And we were very lucky.
But the entire process was completely unnecessary.
If the United States would check who leaves this country we could prevent international child abductions.
Unlike most other countries the United States has no exit controls (with minimal exceptions). Laws that require the United States to impose such controls have never been effectuated.
The measures that exist in the United States to prevent and deter international child abduction are minimal to nonexistent. Those laws that do exist are extremely hard to implement. Court orders barring cross-border travel are routinely violated. Laws that require dual nationals, including children, to possess a U.S. passport when leaving the U.S. are ignored. Amber alert programs are reserved for the most outrageous death-threat type of cases. Police forces don’t want to handle matters that concern child custody issues.
Even when an abduction is clearly in progress the resources that are available to assist parents are negligible.
We control who enters this country but we leave the doors wide open for any to leave – and to take whoever they wish with them, whether that is a child or anyone else.
Thursday, February 16, 2017
I was recently interviewed in connection with the below article, set to be published in the latest edition of the Economist:
Kate Baggott and her two children live in a tiny converted attic in a village near Frankfurt. Ms Baggott, who is Canadian, has a temporary residence permit and cannot work or receive benefits. The trio arrived in Germany in October, after a Canadian court order gave them a day’s notice to get on the plane. Ms Baggott’s ex-husband, a Canadian living in Germany, had revoked his permission for the children’s move to Canada after they had been there nearly a year, alleging “parental child abduction”. A German court has given Ms Baggott full custody, but she must stay until an appeal is over.
Such ordeals are becoming more common as the number of multi-national and footloose families grows. Across the European Union, for example, one in seven births is to a woman who is a foreign citizen. In London, a whopping two-thirds of newborns in 2015 had at least one parent who was born abroad. In Denmark, Spain and Sweden more than a tenth of divorces end marriages in which at least one partner is a non-citizen.
The first question in a cross-border break-up is which country’s laws apply. When lots of money is at stake there is an incentive to “forum-shop”. Some jurisdictions are friendlier to the richer partner. Germany and Sweden exclude assets owned before the marriage from any settlement. Ongoing financial support of one partner by the other is rare in France and Texas—and ruled out in another American state, Georgia, if the spouse seeking support was adulterous.
Under English law, by contrast, family fortunes are generally split evenly, including anything owned before the marriage. Prenuptial agreements, especially if drawn up by a lawyer representing both spouses, are often ignored. The wife of a Russian oligarch or a Malaysian tycoon can file for divorce in London if she can persuade a judge that she has sufficient links to England. A judge, says David Hodson, a family lawyer in London, might be presented with a list of supporting items, which may be as trivial as which sports team the husband roots for, or where the family poodle gets a trim.
Across the European Union, until recently the rule has been that the courts of the country in which divorce papers are filed first gets to hear the case. Couples often rushed to file rather than attempting to fix marital problems. But in some countries that is changing: last year Estonia became the 17th EU country since 2010 to sign an agreement known as Rome III that specifies how to decide which country’s law applies (usually the couple’s most recent country of residence, unless they agree otherwise). Though the deal brings welcome clarity, one downside is that courts in one country may have to apply another country’s unfamiliar laws. And one spouse may be tricked or bullied into agreeing to a divorce in the country that best suits the other.
The bitterest battles, though, are about children, not money. Approaches to custody vary wildly from place to place. Getting children back if an ex-partner has taken them abroad can be impossible. And when a cross-border marriage ends one partner’s right to stay in the country where the couple lived may end too, if it depended on the other’s nationality or visa.
Treasures of the heart
Under the Hague Abduction Convention, a treaty signed by 95 countries, decisions about custody and relocation fall to courts in the child’s country of “habitual residence”. If one parent takes a child abroad without the other’s consent or a court order, that counts as child abduction. The destination country must arrange the child’s return.
Under the Hague Abduction Convention, a treaty signed by 95 countries, decisions about custody and relocation fall to courts in the child’s country of “habitual residence”. If one parent takes a child abroad without the other’s consent or a court order, that counts as child abduction. The destination country must arrange the child’s return.
But plenty of countries have not signed, including Egypt, India and Nigeria. They can be havens for abducting parents. Around 1,800 children are abducted from EU countries each year. More than 600 were taken from America in 2015; about 500 abductions are reported to American authorities each year the other way round.
Some countries, including Australia and New Zealand, often regard themselves as a child’s “habitual residence” from the moment the child arrives. The EU sets the threshold at three months. America differs from state to state: six months’ residence is usually what counts. GlobalARRK, a British charity that helps parents like Ms Baggott, is campaigning for information on such rules to be included among the documents issued to families for their move abroad. It also lobbies for a standard threshold of one year for habitual residence and advises parents to sign a pre-move contract stating that the child can go home at any time. Though such contracts are not watertight, they would at least alert parents to the issue.
Britain is comparatively helpful to foreign parents who seek a child’s return: it provides help with legal advice and translation. But plenty of countries do little or nothing. Family judges in many places favour their compatriots, though they may dress up their decisions as being in the child’s interests. Parents who can no longer pay their way through foreign courts may never see their children again.
Some parents do not realise they are committing a crime when they abscond with the children, says Alison Shalaby of Reunite, a British charity that supports families involved in cross-border custody disputes. Even the authorities may not know the law. Michael, whose former partner took their children from Britain to France in 2015, was told by police that no crime had been committed. After he arranged for Reunite to brief them, it took more than five months to get a French court order for the children’s return.
Other countries are slower still, often because there are no designated judges familiar with international laws. Over a third of abductions from America to Brazil, for example, drag on for at least 18 months. When a case is eventually heard the children may be well settled, and the judge reluctant to order their return.
A renewed push is under way to cut the number of child abductions, and to resolve cases quickly. The EU is considering setting an 18-week deadline for the completion of all return proceedings and making the process cheaper by abolishing various court fees. And more countries are signing up to the Hague Convention: Pakistan, where about 40 to 50 British children are taken each year, will sign next month. India, one of the main destinations for abducting parents, recently launched a public consultation on whether to sign up too.
But the convention has a big flaw: it makes no mention of domestic violence. Many of the parents it classifies as abductors are women fleeing abusive partners. One eastern European woman who moved to Britain shortly before giving birth and fled her violent fiancé four months later, says she was turned away by women’s shelters and denied benefits because she had lived in Britain for such a short time. For the past year she has lived off friends’ charity. The police have taken her passport to stop her leaving Britain with the baby. Another European woman, living in New Zealand, says she fears being deported without her toddlers when her visa expires in a few months. She fled domestic abuse with the children and a bag of clothes in December, and has been moving from one friend’s house to another ever since.
Child abduction is often a desperate parent’s move of last resort, says GlobalARRK’s founder, Roz Osborne. One parent, who has residence rights, may have been granted sole or joint custody, meaning the children cannot be taken abroad without permission. But the other parent may have entered on a spousal visa which lapses when the marriage ends. Even if permission to remain is granted, it may be without the right to work or receive state benefits. In such cases, the decision of a family court guaranteeing visiting rights or joint custody can be close to meaningless.
Britain’s departure from the EU could mean many more divorcing parents find themselves in this desperate state. Around 3.3m citizens of other EU countries live in Britain, and 1.2m Britons have moved in the opposite direction; so far it is unclear whether they will continue to have the right to stay put and work. And in America, says Jeremy Morley, a lawyer in New York who specialises in international family law, immigration issues are increasingly used as weapons in child-custody cases. Judges in family courts, he says, often pay little attention to immigration issues when ruling on custody, because they know few people are deported solely because their visas have expired. But under Donald Trump, that may change.
Many parents have no idea what they sign up for when they agree to follow a spouse abroad, says Ms Osborne. They may mistakenly believe that if things do not work out, they can simply bring the children back home. Ms Baggott’s move to Germany was supposed to be a five-year adventure, the duration of her husband’s work visa. Instead, she says, she endured “a decade of hell”.
Thursday, February 09, 2017
Jeremy D. Morley
I am pleased that the Appellate Division of the State of New York, Second Department, today affirmed, in my client’s favor, an order of the Family Court, Westchester County dismissing a child custody petition for lack of subject matter jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act. The case was handled by my colleague, Anne Glatz. Matter of Hollander v Weissberg, Feb. 8, 2017.
The ruling explains that the parties lived in California, where they were married in 2005. The parties' son, who has special needs and various significant physical and cognitive disabilities, was born in 2006. A divorce judgment was entered in California in 2011, which incorporated the parties' marital settlement agreement providing for joint custody of the child, with primary physical custody to the mother. An application by the mother to relocate with the child to Israel was granted by a California court order in 2013 (the California order), which also provided the father with a new visitation schedule with the child in the United States. Shortly thereafter, the mother moved to Israel with the child and the father relocated to New York.
The mother then filed a petition in the Israel Family Court seeking to modify the father's visitation with the child, wherein she alleged an inability to obtain travel medical insurance for the child. The Israel Family Court issued a temporary stay with respect to visitation.
The father then commenced a proceeding in the Family Court, Westchester County, to enforce the visitation rights awarded to him in the California order, as well as two related proceedings alleging that the mother had violated that order. By this time, California had relinquished its continuing jurisdiction pertaining to issues of custody and visitation regarding the child.
The mother moved to dismiss the father's petitions pursuant to Domestic Relations Law § 77-f on the ground that a simultaneous proceeding was pending in the child's "home state" of Israel. In the order appealed from, the Family Court granted the mother's motion to dismiss the father's petitions based on lack of subject matter jurisdiction. The Second Department affirmed.
The Appellate Division stated that a New York court may not exercise its jurisdiction if, at the time of the commencement of the proceeding, a proceeding concerning the custody or visitation of the child has been commenced in a court of another state having jurisdiction substantially in conformity with the UCCJEA, which is embodied in New York Domestic Relations Law article 5-A and codified at Domestic Relations Law § 75 et seq., unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum (see Domestic Relations Law § 76-e; Matter of Frankel v Frankel, 127 AD3d 1186). If the court of this state determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with Domestic Relations Law article 5-A, the court of this state shall stay its proceedings and communicate with the court of the other state (see Domestic Relations Law §§ 75-i; 76-e). If the court of the state having jurisdiction substantially in accordance with Domestic Relations Law article 5-A does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding (see Domestic Relations Law § 76-e).
With limited exceptions, a record must be made of the communication between the two courts and the parties must be informed promptly of the communication and granted access to the record (see Domestic Relations Law § 75-i). Furthermore, if the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made (see Domestic Relations Law § 75-i).
Domestic Relations Law § 75-d provides that "[a] court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying this title and title two of this article."
Here, the Family Court properly determined that New York was not the child's "home state" since he lived in Israel for more than six months before the commencement of these proceedings (see Matter of Malik v Fhara, 97 AD3d 583, 584).
The Family Court also properly ascertained that compliance with Domestic Relations Law § 75-i was not feasible, as the laws and procedures to which the Israel Family Court must adhere prevent communication between the two courts.
Further, the Family Court properly determined that Israel is the appropriate forum to rule on whether the child's best interests necessitate modification of the California order because "the child, who is sick and has certain special needs, resides in Israel, as do any necessary contacts, witnesses and service providers, and . . . there are no such contacts in New York," making New York a forum non conveniens.
Accordingly, the Appellate Division held that, under these circumstances, the father's petitions were properly dismissed for lack of jurisdiction (see Matter of Malik v Fhara, 97 AD3d at 584; Matter of Mzimaz v Barik, 89 AD3d 948; Matter of Navarrete v Wyatt, 52 AD3d 836; Matter of Randall v Randall, 305 AD2d 512).