Thursday, April 27, 2017

Israel: Which Courts Handle Hague Abduction Convention Cases?


From the article by Judge Benzion Greenberger, District Court of Jerusalem, Israel, in the 2014 edition of The Judges’ Newsletter:

“Regarding Hague Convention cases, these are heard in Family Court, and all Family Court judges are qualified to hear them. Thus, while there is no specific concentration vis-à-vis Hague cases, these are heard by a relatively limited number of judges in the country who specialize in family law, and who are therefore better qualified to be involved in this complex area of the law. A recent development worthy of note in this regard is the administrative decision of the Chief Judge of Jerusalem District Court, in which three-judge panels hear appeals from the Jerusalem Family Court, to empanel a specialized three judge panel for Hague Convention appeals specifically, and on which panel will sit the judge representing Israel in the Hague Convention Judges Network. This model has yet to be adopted in other districts in the country, but this promising development is a further indication of the trend toward concentration in Israel to date.”

Tuesday, April 25, 2017

Bahrain’s King Orders Formation of Legislative Committee to Review Unified Family Law


Manama – King of Bahrain Hamad bin Isa Al Khalifa issued on Sunday a Royal Order to form a legislative committee to review the new unified family law expected to be issued in the kingdom.
The Royal Order 24/ 2017 directed that the committee be formed of Supreme Council for Islamic Affairs called Legislative Committee to review the family draft law. Article One stated that the Legislative Committee consists of ten clerics of both Sunni and Shi’ite sects.
It added that the committee will hold its meetings at the headquarters of the Council. Whereas, Article Three specifies that the committee will consider the family draft law, its provisions and to ensure they are in accord with Islamic law.
Article Four states that the Legislation and Legal Opinion Commission will undertake the responsibilities of the committee’s secretariat. In addition, Article Five stipulates that the committee will submit a report to the Royal Court on its findings and recommendations with regard to the draft referred to it, and that the committee’s work ends immediately after the issuance of the family law in conformity with the constitutional procedures.
The Royal Order will take effect from the date of its issuance and its publication in the official gazette.
The bill is composed of 149 articles and governs personal status and family matters such as marriage, divorce and custody and covers the rights of men and women from both the Sunni and Shiite sects, the two main components of the Bahraini society.
The law will contribute to consolidating the stability of the Bahraini family, safeguarding its entity and boosting its significant importance in the diversified community and its pivotal role in sustainable development, according to the ministry of Justice, Islamic Affairs and Endowments.
The ministry began studying the proposal submitted by the Shura Council to the Cabinet to issue a unified family law in the light of studies based on realistic issues and actual needs and in consultation with the Supreme Judicial Council.
The ministry stated that it aspires for cooperation with the legislative branch to move ahead with the unified family law in compliance with the provisions of Article Two of the Constitution that stipulates that “Islam is the State’s religion and Islamic Sharia is the main source of legislation.”
Article Five of the Constitution stipulates that “the family is the basis of the community, formed on the basis of religion, moral ethics and love of the homeland and its legal entity is preserved by law that strengthens its bonds and values under the umbrella of which motherhood and childhood are protected,” the ministry added.
MP Abdul Halim Murad explained that in 2009 a family bill was introduced but rejected by Shi’ites. He believes that the law has been overanalyzed and the objections were political.
Murad added that with the absence of a law that gives women their rights, Bahraini women are treated unfairly.
Dalal al-Zayed, a member of the Arab Parliament and the Shura Council of Bahrain, said that the anticipated law will unite both Sunni and Shi’ite sects. Zayed is one of the MPs who proposed the new law.
She said that in 2009, a draft-law was approved by Sunnis and rejected by the Shi’ites who were represented back then by the now dissolved al-Wefaq Association. Accordingly, courts would apply clear laws and jurisdictions for Sunnis following the Sunni version, and juristic deduction for Shi’ites.
Zayed added that human rights associations and Supreme Council for Women are demanding the establishment of clear and unified family laws.
Five members of both sects of the Shura Council, the upper chamber of the dual parliament, submitted the unified family law bill that aims to improve the legal status of women regardless of their sect.
The bill was referred to the government, which in turn, should review it and present it to the Legislation and Legal Opinion Commission for amending its articles. It will then be referred again to the government which will present it to the parliament, and after that it will be sent once more to the Shura Council. If approved, the family bill will be submitted to the king to issue a decree of the new law.

Thursday, April 06, 2017

Must Foreigners in the U.S. Always Carry Their Passport?


Jeremy D. Morley
Does a foreign visitor or resident need to always carry a passport while in the United States?
The question arises when, for example, a foreign parent wants to visit a child who lives with the other parent in the United States and the custodial parent asks that the visiting parent deposits all passports with an attorney to prevent possible child abduction.
The issue arises because Section of the Immigration and Nationality Act requires that, “Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him ….”
Thus, a visitor needs to carry a record of lawful admission, not a passport. 
The federal regulations, 8 CFR. § 264.1(b), identify the prescribed alien registration documents as including the Form I-94 Arrival-Departure Record, the I-551 “green card” and the I-766 “EAD card.”
The “I-94” is the usual record of admission for a visitor. The problem is that the I-94 is now usually stamped in the passport upon entry, so that it cannot be separately held.
The solution is to print the I-94 from The Customs and Border Protection website.  It then serves as the official record of admission. 
Homeland Security helpfully expressly and clearly states - https://i94.cbp.dhs.gov/I94/#/home - that
"A traveler lawfully admitted (or paroled) into the U.S. may print their lawful record of admission (I-94 form) from this CBP website. If someone requests your admission information, this is the form you would provide."
Accordingly, it can be entirely appropriate for a custodial parent in such circumstances to require that all of the visitors passports be deposited with a court or an attorney prior to child visitation in order to help prevent international child abduction, and to explain that the visitor can comply with the law by printing and maintaining in his or her possession the I-94 printout.

Tuesday, April 04, 2017

How to Win a Hague Convention Child Abduction Case


by Jeremy D. Morley

Author of The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers, published by the American Bar Association.

Here are some tips for attorneys and clients faced with instituting or defending child abduction proceedings under the Hague Convention on the Civil Aspects of International Child Abduction, whether in the United States or internationally.
In a nutshell, a Hague Convention application may be made when a child is taken or retained across an international border, away from his or her habitual residence, without the consent of a parent who has rights of custody under the law of the habitual residence, if the two countries are parties to the Convention. The child must be promptly returned to the habitual residence unless the return will create a grave risk of harm to the child or another limited exception is established.

1. CHOOSE THE RIGHT REMEDY
If a child has been abducted to the United States, it might be preferable to proceed under the Uniform Child Custody Jurisdiction & Enforcement Act (adopted by all U.S. states except Massachusetts, which has adopted a prior uniform law) instead of the Hague Convention. That Act provides remedies that may be far more useful than those provided under the Hague Convention. You may also be able to proceed under one track and if that does not succeed to then proceed under the other track. But it is absolutely critical to consult first with a U.S. lawyer who understands the issues, who has lots of experience handling these matters, who can make sure that critical dates do not lapse and who can recommend the most appropriate strategy.    

2. ACT FAST
An attorney must be ready to file a Hague Convention application and institute or defend a Hague Convention lawsuit on extremely short notice.
Prompt action may be critical. The Convention specifically requires that hearings be conducted expeditiously. Indeed, it is recommended that Hague cases be completely concluded within six weeks. A Hague case can theoretically be instituted more than a year after the abduction but a defense (or, more precisely, an exception) will then arise if the child has become settled in the new environment. In practice, the longer a child is in a new place the more likely it is that a court will be reluctant to send the child away.
Fast action by the left-behind parent is also necessary to help prevent a claim that the parent has acquiesced in the child's relocation, and to help to bolster a claim that the left-behind parent consented to the taking or retention in the first place.
Clients must move quickly to obtain the documents needed to file the initial application and then to collect the documents needed for the hearing. They should normally be asked to prepare a detailed family history and to assist the attorney to develop evidence as rapidly as possible.
Counsel should consider putting the abducting parent on immediate written and formal notice of the dire consequences, civil, criminal and financial, that the abduction will cause to that parent personally, and, possibly to others conspiring with the parent. It may be appropriate to provide an extremely short time for the abducting parent to cure the problem by returning the child. On the other hand, such notice might be counter-productive if there is a suspicion that the taking parent might hide the child.
Counsel must also decide quickly whether to bring suit in state or federal court. The International Child Abduction Remedies Act provides for concurrent jurisdiction. If a state court is chosen the respondent has the absolute right to remove the case to the federal court. Choosing the right court can make all the difference in a Hague case.
Counsel might enlist the support of the U.S. State Department's Office of Children's Issues. Such support may be particularly helpful to locate the child. It might also be useful if the left-behind parent seeks a U.S. visa to enter the United States in order to attend the trial.
Counsel might also suggest that, if there is no custody order in place from a court in the jurisdiction of the habitual residence, the left-behind parent should perhaps institute civil proceedings in those courts for such an order (or perhaps for a modification of the original order). However, this should not be undertaken without U.S. counsel conferring with counsel in the other country.    

3. COMMUNICATE CAUTIOUSLY WITH THE OTHER PARTY
Hague cases can be won or lost in the emails and text messages and other communications between the parties after the abduction has occurred. People often make critical (and perhaps stupid) admissions or threats in the immediate aftermath of the removal or retention of a child, when emotions run high and when they try to intimidate or settle with the other party. Judges often rely far more on the parties’ contemporaneous written statements than their subsequent rehearsed testimony at trial. Clients must be careful! They need to consult first with highly experienced and strategic counsel.

4. CONSIDER INTERIM RELIEF
The International Child Abduction Remedies Act expressly authorizes the state or federal court handling a Hague case to order “provisional remedies” to protect the well-being of the child or to prevent the child's further removal or concealment before the final disposition of the petition.
Such an order should invariably be sought in order to keep the child in the jurisdiction pending the hearing of the Hague petition but a left-behind parent will also want to secure interim access to the child.

5. PREPARE THE FACTUAL PRESENTATION INTENSELY
Hague Convention cases are often extremely fact-intensive, particularly in the United States. They frequently hinge on the ability of one party to convince the court of matters such as the habitual residence of a child (which hinges in large part in most but not all circuits on the last shared intention of the parents); the nature of the left-behind parent’s custody rights under the foreign law (which may require expert evidence as to the terms of the foreign law); the extent to which a parent actually exercised custody rights; whether or not a parent consented to or acquiesced in a new residency; whether such consent or acquiescence was conditional; whether the child has become well settled in the new environment; whether the child was physically or psychologically abused; whether the taking parent was abused in such a way that there was an impact of the child; whether the authorities in the foreign country provided adequate protection to the children and the taking parent in the past or could do so in the future; the age and maturity level of the child, whether and why the child objects to being returned. For a court to resolve these matters it must analyze the relevant facts.
A successful Hague proceeding requires the attorney, working closely with the client, to marshal as much evidence as possible, in as many forms as possible, to support the client's position. Clients are frequently shocked that matters that to them are obvious and indisputable turn out to be disputed and to require them to produce clear and convincing proof. They may well be insulted that their word alone is insufficient to convince the court that they are truthful and that the other parent is lying.
In one case, the parents had moved permanently with their young child from the mother's native country to the U.S. Two years later, the mother took the child back to her country for a vacation and then refused to return to the States. In supporting her claim that the child was never habitually resident in the States she claimed that the original move to America had been only temporary and that she and the father had agreed that they would return to the mother's native country after a year or two. The mother had planned the move well in advance and had amassed -- and even created -- evidence that tended to support her claims. Additionally, she had removed evidence from the parties' home that would have disproved her claims.
To win the case, we interviewed neighbors, friends, family members, schoolteachers, real estate salespeople, fellow office workers and an array of other people who had had some connection with the family. We checked into any and all areas of the mother's life for anything that might indicate her intention to stay in the States. We obtained emails, notes, invoices, and other documents. We searched old household bills for evidence of the purchase of items that inferred a degree of permanency. At the hearing, the mother was shocked that her husband had collected so much written evidence to disprove her claims and undercut her credibility. The courts ultimately -- and with great reluctance, since they were going against a local national -- found in favor of our client.
Since Hague cases are tried quickly, there is usually only one chance to present the case and it needs to be done well at the very outset. An attorney must embark on a quick campaign of collecting mounds of relevant evidence to support the client's positions, and must expect the other parent to lie, cheat, and distort the facts in a desperate attempt to avoid losing the case.
Just as a current military strategy is to employ overwhelming force to create shock and awe, so too in a Hague Convention case it is often advisable to use overwhelming amounts of evidence to win the case. Such a campaign in a Hague proceeding may yield a capitulation by the other parent even before the hearing actually commences.
Hague Convention hearings sometimes take the form of "he said, she said" disputes in which each side makes verbal accusations against the other. Documentary evidence is usually far better than the mere word of one parent. Thus, if you want to claim that a parent applied for an immigration visa, you must be prepared to do more than simply have the parent tell the court that this was done. You should do whatever you can to get hold of the actual application papers that the parent signed in applying for the visa, which may mean contacting the lawyer who handled the immigration matter originally.
Emails and text messages can be invaluable sources of critical evidence, especially concerning the parents’ intentions and agreements.
While it is helpful if documents are supported by sworn statements, it is not essential. Both the Convention and the International Child Abduction Remedies Act provide that authentication of documents is not required in a Convention proceeding.

6. DISCOVERY
Since Hague Convention cases in the United States are often extremely fact-specific, pre-trial discovery can be extremely important and helpful, especially in order to obtain documents to use at trial and to pin down the other side’s positions. Pre-trial discovery is generally permitted in Hague cases in the United States, though rarely in other countries, but its appropriateness must be balanced against the requirement that Hague cases should be concluded quickly. It is essential to decide at the outset of a case whether discovery is really needed because it should normally be requested at the time of the initial appearance before the court or otherwise it might be waived.

7. PREPARE THE LEGAL ARGUMENT INTENSELY
Hague Convention cases raise unusual international law, foreign law and treaty law questions. They involve the courts in matters of a kind that they are usually not used to handling. In many jurisdictions the court may be entirely unfamiliar with Hague cases. Accordingly it is usually essential for the lawyers to help the court to an unusual extent. Certainly a well-reasoned memorandum of law is essential.
The matters in dispute in most Hague cases raise difficult legal issues that must be thoroughly briefed. For example, the Convention requires the left-behind parent to establish that the child was taken from the "habitual residence" and that the parent had "rights of custody" under the law of that jurisdiction. However, neither of those fundamental terms is defined in the Convention and substantial jurisprudence has grown domestically and internationally setting forth often-contradictory determinations concerning their scope and meaning.
Courts have held that, while they must determine under international law whether the left-behind parent possesses Hague Convention "custody rights," they must first examine the law of the child's habitual residence in order to ascertain the extent of the rights that such parent possesses under that law. In this regard, it is often essential to use foreign law experts to establish the existence and scope of such rights.
A Hague Convention attorney may, and often should, cite cases not only from the domestic jurisdiction but also from other jurisdictions if they support the client's position. It has become more usual to cite cases from other jurisdictions in this area of the law than perhaps in any other. Courts around the world recognize that it is best to coordinate their decisions with those of other courts internationally and, for that very reason, the Hague Conference on Private International Law has established a database of significant Hague cases from courts around the world.

8. AVOID BEST INTERESTS ANALYSIS
In representing the left-behind parent in a Hague proceeding, it is necessary to keep the court focused on the narrow issues that the Convention requires an applicant to establish and the narrow defenses that a respondent can assert. Whenever the hearing strays into any areas that might be considered as constituting an analysis of the child's best interests, the other party (usually the petitioner) should vehemently object. This may be especially “foreign” if the Hague case is brought in a state court, since Family Court judges are trained to focus on the best interests of children more than on technical legal arguments.  
However, a party opposing a return should do his or her utmost to assert any and all relevant issues under the rubric of one of the defenses specified in the Convention and should be armed with case law to establish that similar claims were permitted in other cases.

9. BE FLEXIBLE CONCERNING EVIDENCE
In Hague cases evidence rules are usually somewhat relaxed, so evidence should be submitted in any possible format. Live testimony is invariably the best and normally everything should be done to get the left-behind parent into the courtroom. (An exception is if that parent would be a poor witness and his or her presence would create an opportunity for embarrassing cross-examination).
If a witness cannot be brought to the courthouse, consider testimony by video conferencing or otherwise by telephone conference. As a last resort, submit affidavits.    

10. USE AN EXPERIENCED ATTORNEY: IF THAT'S NOT YOU, FIND SOMEONE WHO IS
Hague Convention cases happen too fast, and too much is at stake for the client, for an attorney to learn about this area of law at the last minute. It is extremely important to locate counsel with knowledge and experience in Hague proceedings. It is also frequently valuable for a client whose child has been abducted to retain a lawyer in his or her home country who can coordinate with the Hague counsel in the country to which the child has been taken.
Many experienced Hague lawyers will assist local lawyers in handling Hague cases, and very often such teamwork is the best way forward.

Monday, April 03, 2017

Notes on Grenada Divorce and Child Custody Law


Jeremy D. Morley*

1.                  Grenada is not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

2.                  There are no bilateral agreements in force between Grenada and the United States concerning international parental child abduction.

3.                  The United Kingdom Matrimonial Causes Act 1973, including all subsequent amendments thereto, as well as England’s Family Proceedings Rules, are deemed to apply to Grenada and to be in full force and effect in Grenada by virtue of section 11 of the West Indies Associated States Supreme Court (Grenada) Act.

4.                  If parents are legally married they share the custody of their children. If they are not married, custody has traditionally been granted to the mother unless there are known facts of inappropriate behavior, mental or social problems.

5.                  Custody orders and judgments of foreign courts are not necessarily enforceable in Grenada.

6.                  In cases where one parent has been granted custody of a child, the other parent is usually granted visitation rights. If a custodial parent fails to allow visitation, the non-custodial parent may appeal to the court.

7.                  No exit visas are required to leave Grenada.

8.                  Prenuptial and postnuptial agreements are likely to be enforced in Grenada but only to the somewhat limited extent that they are enforced under English law. In one case, the Eastern Caribbean Supreme Court in the Court of Appeal, citing the seminal cases of MacLeod, [2008] UKPC 64 and Radmacher, [2010] UKSC 42, ruled that a contract executed by the parties as a postnuptial agreement could be enforced like any other contract and due to the court’s multifaceted jurisdiction, its power to review such a document was not confined to the Matrimonial Causes Act.

9.                  The law on the division of assets upon a divorce is based upon the provisions of Sections 24 and 25 of the Matrimonial Causes Act, particularly as interpreted by the U.K. courts in the seminal cases of White, [2001] 1 All ER 1  Miller,[2006] UKHL 24 and Charman, [2007] EWCA Civ 503. In particular the Eastern Caribbean Court has ruled in a Grenada case that the purpose of the court’s discretionary powers in this regard is to achieve “fairness” in the financial arrangements of the parties on or after a divorce, in light of the “equal sharing” and “sharing entitlement” principles of the U.K. authorities, derived from the “basic concept of equality permeating a marriage as understood today” and the “modern, non-discriminatory conclusion” that the proper evaluation of the parties’ different contributions to the welfare of the family should generally lead to an equal  division of their property unless there was good reason for the division to be unequal.”
* Jeremy D. Morley is an international family lawyer in New York who works with family lawyers throughout the United States, the Caribbean and globally. He is the author of two leading treatises on international family law, International Family Law Practice and The Hague Abduction Convention.  He frequently testifies as an expert witness on the child custody law and legal system of countries around the world, including India, Japan, China and Western Europe. He may be reached at jmorley@international-divorce.com.