State Department's Annual Report on International Child Abduction: Ecuador

The U.S. State Department has recently released their annual report on International Child Abduction. Below is our sixth post in a series here focusing on the twelve countries classified as “demonstrating patterns of noncompliance.”  Today’s country is Ecuador.

Country Summary: The Hague Abduction Convention has been in force between the United States and Ecuador since 1992. In 2017, Ecuador demonstrated a pattern of noncompliance. Specifically, Ecuador’s judicial branch and law enforcement authorities regularly fail to implement and comply with the provisions of the Hague Abduction Convention. As a result of this failure, one case (accounting for 13 percent of requests for the return of abducted children under the Convention) remained unresolved for more than 12 months. More specifically, this case has been unresolved for four years and 11 months. Ecuador has been cited since 2015.

Initial Inquiries: In 2017, the Department received two initial inquiries from parents regarding possible abductions to Ecuador where no completed applications were submitted to the Department.

Significant Developments: The Ecuadorian Central Authority moved from the Ministry of Economic and Social Inclusion to the Ministry of Justice in June 2017, and a new director was appointed in mid-November 2017.

Central Authority: While the United States and the Ecuadorian Central Authorities (ECA) have a cooperative relationship, delays in communication about actions to resolve Convention cases are an area of continuing concern. The Department encounters occasional delays in receiving responses from the ECA. However, we are encouraged by the ECA’s participation in bimonthly video conferences with the Department.

Voluntary Resolution: The Convention states that central authorities "shall take all appropriate measures to secure the voluntary return of the child or to bring about an amicable resolution of the issues." In 2017, two abduction cases were resolved through voluntary means.

Location: Ecuador demonstrated a pattern of noncompliance with the Convention as a result of failure by the competent authorities to take appropriate steps to locate children after a Convention application was filed. As a result, there is one case (accounting for 100 percent of the unresolved cases) that has been pending for more than 12 months where law enforcement has failed to locate the child, leading to significant delays in initiating legal proceedings. The average time to locate a child was 59 days.

Judicial Authorities: The Ecuadorian judicial authorities demonstrated a pattern of noncompliance with the Convention. Specifically, there were delays in judicial authorities deciding cases and some decisions raised concerns.

Enforcement: Decisions in Convention cases in Ecuador were generally enforced in a timely manner. The Department was encouraged when law enforcement promptly enforced the one court-ordered return this year, overseeing the child's departure from Ecuador.

Department Recommendations: The Department will continue intense engagement with the Ecuadorian authorities to address issues of concern and expand public diplomacy activities related to the resolution of cases.

Access: In 2017, the U.S. Central Authority had one open access case under the Convention in Ecuador. This case was opened in 2017. This case has been filed with the Ecuadorian Central Authority. This case was initially filed in 2017. By December 31, 2017, this case remained open. No cases have been pending with the Ecuadorian authorities for more than 12 months.

State Department's Annual Report on International Child Abduction: Dominican Republic

The U.S. State Department has recently released their annual report on International Child Abduction. Below is our fifth post in a series here focusing on the twelve countries classified as “demonstrating patterns of noncompliance.”  Today’s country is the Dominican Republic.

Country Summary: The Hague Abduction Convention has been in force between the United States and the Dominican Republic since 2007. In 2017, the Dominican Republic demonstrated a pattern of noncompliance. Specifically, the Dominican Republic’s judicial branch regularly fails to implement and comply with the provisions of the Convention. As a result of this failure, 20 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average these cases were unresolved for six years and eight months. The Dominican Republic has been cited since 2014.

Initial Inquiries: In 2017, the Department received three initial inquiries from parents regarding possible abductions to the Dominican Republic where no completed applications were submitted to the Department.

Central Authority: The United States and the Dominican Central Authorities have a strong and productive relationship that facilitates the resolution of abduction cases under the Convention.

Voluntary Resolution: The Convention states that central authorities “shall take all appropriate measures to secure the voluntary return of the child or to bring about an amicable resolution of the issues.” In 2017, one abduction case was resolved through voluntary means.

Location: The competent authorities regularly took appropriate steps to locate children after a Convention application was filed. The average time to locate a child was nine days.

Judicial Authorities: Dominican judicial authorities demonstrated a pattern of noncompliance, with serious delays at the appellate level in deciding Convention cases. Cases that are appealed to higher courts have taken more than four years to resolve.

Enforcement: As a result of serious delays by the judicial authorities of the Dominican Republic in deciding Convention cases, the United States is not aware of any instances where law enforcement was asked to enforce a return order in 2017.

Department Recommendations: The Department will continue its engagement with relevant Dominican authorities to address the areas of concern highlighted in this report.

Access: In 2017, the U.S. Central Authority had one open access case under the Convention in the Dominican Republic. This case was opened and initially filed with the Dominican Central Authority in 2017. As of December 31, 2017, this case remained open. No access cases have been pending with the Dominican authorities for more than 12 months.

“Getting” Serious: Religious Divorce in Israel

Jeremy D. Morley

A firestorm has arisen in Israel after a man who has been sanctioned by a rabbinical court in Haifa was allowed to enter the Knesset this week, upon the invitation of a right-wing American-born Israeli politician.

Divorce in Israel is the exclusive province of the religious courts, although both civil courts and religious courts may determine the financial consequences of a divorce as well as child custody issues. 

A Jewish religious divorce requires that the husband choose to provide the wife with a bill of divorce known as a get. If a Jewish wife who is separated from her husband does not receive (and accept) a get, she cannot remarry in a religious ceremony. Indeed, if she legally remarries in a secular ceremony before receiving a get, she is considered an adulteress under Jewish law.

Rabbinical courts in Israel have issued sanctions to seek to compel husbands to deliver a get to their estranged wives. Thus, the Jerusalem Post reports that the Haifa Rabbinical Court issued an order of social ostracism against the husband last year for refusing to give his wife a bill of divorce for two years. Specifically, the court ordered that people should not host the husband in question and should distance themselves from him as far as possible. The court also revoked his driver’s license and banned him from leaving the country. Subsequently, the court ordered that his picture, name and other details be published so as to shame him publicly for refusing to divorce his wife.

Nonetheless, the husband was invited to the Knesset by an Israeli Knesset Member, and his appearance there aroused the ire of other members, two of whom were ejected from the Knesset plenum because of their “loud and vociferous” protestations.

A Knesset legal adviser then advised that the social sanctions used by the rabbinical court due to divorce recalcitrance do not come within the boundaries of the authority granted to the Knesset speaker to prevent the entry of someone for security and public order reason.

The entire issue of the use and abuse of the get system continues to arouse great controversy among in Israel and throughout the worldwide Jewish community. 

June 5th, Washington D.C. Conference: Cross-Border Family Mediation: Dispute Resolution for International Families In Your Community

Join us for our day-long conference, Cross-Border Family Mediation: Dispute Resolution for International Families In Your Community on June 5, 2018 in Washington, D.C., co-hosted by International Social Service-USA (ISS-USA), MK Family Law, The George Washington University School of Law, and Leslie Ellen Shear, Attorney and Counselor at Law. 

This event will bring together leading experts to discuss mediation as a key process to help cross-border families with their complex situations. Scheduled one day prior to the annual AFCC Conference in D.C., conference attendees will have a wealth of resources and excellent networking opportunities at their finger-tips.

Jeremy will be speaking at the event.

State Department's Annual Report on International Child Abduction: China

The U.S. State Department has recently released their annual report on International Child Abduction. Below is our fourth post in a series here focusing on the twelve countries classified as “demonstrating patterns of noncompliance.”  Today’s country is China.

Country Summary: China does not adhere to any protocols with respect to international parental child abduction. In 2017, China demonstrated a pattern of noncompliance. Specifically, the competent authorities in China persistently failed to work with the Department of State to resolve abduction cases. As a result of this failure, 75 percent of requests for the return of abducted children remained unresolved for more than 12 months. On average these cases were unresolved for two years.

Initial Inquiries: In 2017, the Department received two initial inquiries from parents regarding possible abductions to China where no additional assistance was requested.

Central Authority: In 2017, the competent authorities in China demonstrated a pattern of noncompliance by regularly declining to work with the Department of State toward the resolution of pending abduction cases. Moreover, the competent authorities did not address remedies for left-behind parents.

Location: The Department of State did not request assistance with location from the Chinese authorities.

Judicial Authorities: The United States is not aware of any abduction cases brought before the Chinese judiciary in 2017.

Enforcement: The United States is not aware of any abduction cases in which a judicial order relating to international parental child abduction needed to be enforced by the Chinese authorities.

Department Recommendations: The Department will continue to encourage China to accede to the Convention, and expand public diplomacy activities related to the Convention.

State Department's Annual Report on International Child Abduction: Brazil

The U.S. State Department has recently released their annual report on International Child Abduction. Below is our third post in a series here focusing on the twelve countries classified as “demonstrating patterns of noncompliance.”  Today’s country is Brazil.

Country Summary: The Hague Abduction Convention has been in force between the United States and Brazil since 2003. In 2017, Brazil demonstrated a pattern of noncompliance. Specifically, Brazil’s judicial branch regularly fails to implement and comply with the provisions of the Convention. As a result of this failure, 35 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average these cases were unresolved for five years and 11 months. Brazil has been cited as noncompliant since 2006.

Initial Inquiries: In 2017, the Department received two initial inquiries from parents regarding possible abductions to Brazil where no completed applications were submitted to the Department.

Significant Developments: The Brazilian Ministry of Justice, Ministry of External Relations, and judiciary collaborated on two Convention-specific judicial seminars held in November and December 2017. The Ministry of Justice and the judiciary are also working to consolidate the jurisdictions in which Convention cases can be heard. The Brazilians report their goal in consolidating jurisdictions is to help ensure that Convention cases are heard by judges who are familiar with the Convention. These initiatives demonstrate that Brazil is making some efforts to improve Convention compliance in the judiciary.

Central Authority: The United States and the Brazilian Central Authorities have a strong and productive relationship that facilitates the resolution of abduction cases under the Convention.

Voluntary Resolution: The Convention states that central authorities "shall take all appropriate measures to secure the voluntary return of the child or to bring about an amicable resolution of the issues." In 2017, two abduction cases were resolved through voluntary means.

Location: In some cases, the competent authorities delayed taking appropriate steps to locate a child after a Convention application was filed. The average time to locate a child was five months and four days.

Judicial Authorities: Brazilian judicial authorities demonstrated a pattern of noncompliance with the Convention due to serious delays in deciding Convention cases. As a result of these delays, cases may be pending with the judiciary for over one year.

Enforcement: As a result serious delays by the Brazilian judicial authorities in deciding Convention cases, the United States is not aware of any instances where law enforcement was asked to enforce a return order in 2017.

Department Recommendations: The Department will continue intense engagement with the Brazilian authorities to address issues of concern and expand public diplomacy activities related to the resolution of cases

Access: In 2017, the U.S. Central Authority acted on a total of seven open access cases under the Convention in Brazil. Of these, two cases were opened in 2017. A total of six access cases have been filed with the Brazilian Central Authority, including one that was filed initially in 2017. By December 31, 2017, one case (14%) has been resolved and one case has been closed for other reasons. By December 31, 2017, five access cases remained open, including three that have been pending with the Brazilian authorities for more than 12 months.

State Department's Annual Report on International Child Abduction: The Bahamas

The U.S. State Department has recently released their annual report on International Child Abduction. Below is our second post in a series here focusing on the twelve countries classified as “demonstrating patterns of noncompliance.”  Today’s country is The Bahamas.

Country Summary: The Hague Abduction Convention has been in force between the United States and The Bahamas since 1994. In 2017, The Bahamas demonstrated a pattern of noncompliance. Specifically, the Bahamian Central Authority regularly fails to fulfill its responsibilities pursuant to the Convention. Additionally, The Bahamas’ judicial branch regularly fails to implement and comply with the provisions of the Convention. As a result of these failures, 50 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average these cases were unresolved for seven years and two months. The Bahamas has been cited as noncompliant since 2011.

Central Authority: The Bahamian Central Authority demonstrated a pattern of noncompliance with the Convention due to a lack of effective communication with the U.S. Central Authority regarding IPCA cases.

Location: The competent authorities regularly took appropriate steps to locate children after a Convention application was filed. The average time to locate a child was three months and 16 days.

Judicial Authorities: The Bahamian judicial authorities demonstrated a pattern of noncompliance with the Convention due to serious delays in deciding Convention cases. As a result of these delays, cases may be pending with the judiciary for over one year. Bahamian courts cause delays by routinely requesting home study evaluations in all Convention cases, regardless of whether respondents raise defenses to return under the Convention. Additionally, the judicial authorities continue to require apostilles for supporting documents in Convention applications. These extra requirements impeded prompt resolutions.

Enforcement: As a result of serious delays by the Bahamian judicial authorities in deciding Convention cases, the United States is not aware of any instances where law enforcement was asked to enforce a return order in 2017.

Department Recommendations: The Department will continue intense engagement with the Bahamian authorities to address issues of concern and expand public diplomacy activities related to the resolution of cases.

Access: In 2017, the U.S. Central Authority had no open access cases under the Convention in The Bahamas.

State Department's Annual Report on International Child Abduction: Argentina

The Department of State’s Office of Children’s Issues serves as the U.S. Central Authority for the Hague Convention and leads U.S. government efforts to combat international parental child abduction within the State Department and with other U.S. government agencies. Their annual report was just released. 

This report provides Congress with extensive information regarding compliance with the Hague Convention. Countries that did not have an open abduction or access case in 2017 are not listed in the report.

Each country data page includes a country summary, a table containing data on cases open with the Office of Children’s Issues in 2016 and 2017, and an evaluation of the foreign central authority. This Report presents a snapshot of abduction and access cases in a country during calendar year 2017. For 2017, the Report has designated 12 countries as “demonstrating patterns of noncompliance” (as defined in the Sean and David Goldman International Child Abduction Prevention and Return Act of 2014).  We will publish on this blog the relevant info regarding all 12 of these countries, beginning today with Argentina. 

Argentina

Country Summary: The Hague Abduction Convention has been in force between the United States and Argentina since 1991. In 2017, Argentina demonstrated a pattern of noncompliance. Specifically, Argentina’s judicial branch regularly fails to implement and comply with the provisions of the Hague Abduction Convention. As a result of this failure, 40 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average these cases were unresolved for five years and five months. Argentina has been cited as noncompliant since 2014.

Initial Inquiries: In 2017, the Department received three initial inquiries from parents regarding possible abductions to Argentina where no completed applications were submitted to the Department.

Significant Developments: Argentina enforced the return of two children to the United States in one case in 2017, resolving a seven-year-long Convention application. The Argentine Central Authority, together with the broader Ministry of Foreign Affairs and Worship and the Argentine Embassy in Washington, D.C., coordinated with the Department to ensure the safe return of the children. Additionally, Argentina's International Hague Network Judge regularly engages with judicial authority colleagues and the Argentine Congress on the implementation of the Convention in Argentina. In 2017, the Argentine Network Judge collaborated on the text of a draft law seeking to expedite Convention cases and reduce the number of appeals prior to enforcing return orders. The International Centre for Missing and Exploited Children (ICMEC) trained Argentine law enforcement officials on the subject of missing children and collaborated with Argentine interlocutors to prevent and respond to missing children cases.

Central Authority: The United States and the Argentine Central Authorities have a strong and productive relationship that facilitates the resolution of abduction cases under the Convention. The Department has enjoyed a good, working partnership with the Argentine Central Authority in 2017 and has observed a commitment by the executive branch of the Government of Argentina to attempt to improve Convention performance in the country.

Voluntary Resolution: The Convention states that central authorities “shall take all appropriate measures to secure the voluntary return of the child or to bring about an amicable resolution of the issues.” In 2017, one abduction case was resolved through voluntary means.

Location: In some cases, the competent authorities delayed taking appropriate steps to locate a child after a Convention application was filed. The average time to locate a child was 34 days. In one notable case, the Argentine authorities have failed to confirm the child’s location on multiple occasions. As a result, the Convention case has not advanced.

Judicial Authorities: The Argentine judicial authorities demonstrated a pattern of noncompliance with the Convention due to serious delays in deciding Convention cases. As a result, cases may be pending with the judiciary for well over one year. Two open cases have been before the courts for three and eight years, respectively, with final resolution still pending.

Enforcement: While courts in Argentina ordered returns under the Convention, the Argentine authorities did not always enforce these orders, apparently due to conflicts in orders from other Argentine courts. In this reporting period, after significant delays, Argentina enforced the court-ordered return of two children in one case.

Department Recommendations: The Department will continue intense engagement with the Argentine authorities to address issues of concern and expand public diplomacy activities related to the resolution of cases.

Access: In 2017, the U.S. Central Authority had one open access case under the Convention in Argentina. This case has been filed with the Argentine Central Authority. No new cases were filed in 2017. By December 31, 2017, this case (100 percent) had been resolved.

Prenuptial Agreements and “Green Card” Affidavits of Support

Jeremy D. Morley

Will a prenuptial or postnuptial agreement protect a U.S. citizen, who has signed a Form I-864 Affidavit of Support in furtherance of a foreign spouse’s application for a U.S. permanent resident visa, against the subsequent support claims of a foreign spouse upon a divorce?

A person who signs the support affidavit, pursuant to Section 213A of the Immigration and Nationality Act, enters into a legally enforceable contract with the U.S. Government to support the sponsored alien at an annual income at the level of 125% of the Federal poverty line for a period of time that is generally 10 years.

It is well established that the sponsored foreign spouse is a third-party beneficiary of the contract. The form expressly states that, “If you do not provide sufficient support to the person who becomes a lawful permanent resident based on a Form I-864 that you signed, that person may sue you for this support.”

Indeed, it has been held that the foreign spouse has no duty to mitigate the damages by securing or even seeking employment. Wenfang Liu v. Mund, 686 F.3d 418, 421-22 (7th Cir. 2012).

Nor is the obligation terminated upon a divorce. The Form I–864 makes explicitly states that “divorce does not terminate your obligations under this Form I–864.” Toure-Davis v. Davis, 2014 WL 1292228 (D.Md. 2014).

But what if the foreign spouse purports to waive that right in a prenuptial or postnuptial agreement?

Most – but not all – of the cases on point hold that the waiver will not be effective. See Patel, 2015 WL 13116649 (Minn.Dist.Ct.) (“A third party beneficiary is not a party to a contract and any agreement between Plaintiff and Defendants would not modify the Affidavit of Support. The agreement of all parties to the original contract is required for a modification, oral or written. Defendants have presented no evidence that the United States government agreed to a modification of the Affidavit of Support or the Contract.”); Patel v. Patel, 2015 WL 13116649 (Minn.Dist.Ct); Erler v. Erler, 2014 WL 129222 (N.D. Cal. 2013); and Shah v. Shah, 2014 WL 185914 (D. NJ 2014). But see Blain v. Herrell, 2010 WL 2900432, (D. Haw. 2010) (suggesting in dicta that rights under Form I-864 are in the nature of contractual rights and may be waived).

However, in none of the cited cases was there an express waiver of the Form I-864 Affidavit of Support obligation. Nonetheless, in Shah, the court expressly insisted that, “even if the parties' prenuptial agreement did purport to waive claims to support under the I–864, the I–864 is nevertheless enforceable. The immigration regulations set forth five circumstances that terminate a sponsor's support obligations, and a prenuptial agreement or other waiver by the sponsored immigrant does not terminate the obligation. 8 C.F.R. § 213a.2(e)(2).”

Canada Returns Internationally-Abducted Children under Hague Abduction Convention

Jeremy D. Morley

Canada is an excellent Hague Abduction Convention treaty partner. With local counsel in both countries, we have just now secured – promptly and effectively - an order for the return of another child abducted from Canada to the U.S. We have successfully secured the return of numerous children from various provinces in Canada to various states in the U.S.