Tuesday, March 12, 2019
On Tuesday, The New York Times published Vierra's story, whose cousin said she has not been allowed to leave the country with her 4-year-old daughter, Zaina, since divorcing her Saudi husband a year ago. Vierra's cousin declined to comment to INSIDER.
Saudi Arabia's guardianship laws assign a male relative control over every woman. Though she is divorced, Vierra's husband is still her guardian, maintaining control over her ability to travel internationally or get a job.
Her cousin told The Times that Vierra tried to come back to Washington state to spend Christmas with her family, but her ex wouldn't allow it.
Vierra's case is somewhat unique in that she is a foreigner. Usually after a divorce, a Saudi woman's guardianship passes back to her father, or to her closest living male relative. It's possible that Vierra's ex remains her guardian because she has no Saudi male relative for her guardianship to pass to.
Even if Vierra were able to leave the country herself, either through permission from her ex or through petitioning the local courts, there's little hope that she'll ever be able to take her daughter with her because the girl's biological father will remain her guardian until she marries, and the Saudis don't recognize Zaina's dual citizenship.
Legal experts say there's little hope her daughter could get another guardian
While women can sometimes petition to get a new guardian, these situations are usually narrowly tailored to women whose male guardian has grown too old for the responsibility, according to Human Rights Watch.
In the vast majority of cases, a girl's father is her guardian at birth and the only time it transfers is when she marries, and even then her guardian must sign off on her suitor, according to HRW. If her husband dies before her, the woman's guardianship passes to another male relative.
Jeremy Morley, founder of an international family law practice in New York, told INSIDER it's highly unlikely Vierra could get a new guardian for her daughter Zaina.
She would have to show a "heavy burden of proof" that her ex is mentally ill, a criminal, or not fulfilling his guardian responsibilities — and even then Zaina's new guardian would just be another male member of her father's line, Morley said.
Zaina's dual citizenship won't help her, either. Though the girl was born in Saudi Arabia, her mother's American citizenship passed to her at birth. But the Saudi government doesn't recognize dual citizenship, so she'll get no special treatment if her mother finds out a way to leave and tries to take her with her, without the permission of the girl's father.
Furthermore, custody of Zaina will transfer to her father when she turns 7, under Sharia law, according to HRW.
Robert D. Arenstein, a New York-based lawyer who has tried over 400 international child custody cases, called the policy "very chauvinistic."
"Unless she can get out of Saudi Arabia in some way, which is not necessarily going to happen, I would tell her to try and stay with the child and get a lawyer that does Sharia law to help her out," Arenstein told INSIDER.
Saudi Arabia has made it somewhat easier for women to petition for custody of their children in the last year, not requiring them to file lawsuits and go through the court Saudi system like in the past. But Vierra would still have to apply for custody of Zaina.
When couples divorce in the US, state law determines the process for who gets custody of the children. If it's disputed, courts often decide based on the "best interests of the child."
The US probably can't help, either
Morley said Vierra can petition a court in her home state of Washington to take the custody case, but even then there's "no chance whatsoever that the Saudi courts will pay attention to an American ruling."
"She is in desperate trouble," he said. "She can ask for political help. That is all I can see beyond begging for mercy from her husband. Make promises to him that she will treat him in a certain way, or give him something else that he wants."
And if that fails, "she can possibly find a very dangerous way to be smuggled out of the country."
The State Department declined to weigh in on Vierra's case to the Times, citing privacy rules, but the department's deputy spokesman, Robert J. Palladino, did address the issue generally at a press briefing on Tuesday.
Palladino said that anytime an American travels overseas they're "subject to the laws of the country in which they travel," including Saudi Arabia where women require their guardian's permission to leave the country.
"We routinely encourage American citizens to make sure — to read — what we publish and to understand the laws of the countries to which they're visiting," Palladino said.
He added: "We engage with the Saudi government and all nations on [women and girls rights'] issues. It's something that we do routinely in our diplomacy. It's something that we continue to stand up for and something that is part of what we as the diplomatic corps do globally."
Monday, February 11, 2019
I will be lecturing and consulting extensively in Japan, throughout the last week of this month, on “The Hague Abduction Convention in the U.S. and Japan,” at the invitation of the Ministry of Foreign Affairs of Japan.
I will address the issue of Japan’s failure to enforce return orders and the differences between the interpretations and applications of the treaty in the two countries.
However, I will also explain that that the differences between the United States and Japan concerning the Convention run far deeper than these relatively superficial matters, and that they stem from widely divergent views and practices about the appropriate parenting of children and the role of law in private family life.
I will argue that the pending debate about the Hague Convention is a mere sideshow to, and a diversion from, the more fundamental issue of the best interests of children and the fundamental human rights of parents and children after parental separation or divorce.
I will assert that, in the current environment, the Convention cannot adequately protect the competing rights of parents and children in the case of abductions of children from the United States or other countries to Japan. I will further explain that the U.S. State Department’s designation of Japan as “noncompliant” with the Convention, while technically accurate, addresses only the most superficial of issues that are relevant to these matters.
I will also explain how Japan’s adoption of the Hague Convention without addressing the basic issue of the right of both of a child’s parents to have their children in their lives has often proven counter-productive not only to non-Japanese parents who wish to see their own children but also to expat Japanese parents who wish to bring their children to visit Japan or to live in Japan if that is in the children’s best interests.
Wednesday, February 06, 2019
by Jeremy D. Morley*
- If a court in a U.S. state authorizes the relocation of children to Austria, the courts in Austria will not recognize that the U.S. court has continuing and exclusive jurisdiction on any or all matters concerning the custody of the children, and they will have the right to issue such orders concerning the custody of the children and the left-behind parent's access to the children as they might deem appropriate once the children are “habitually resident” in Austria and once there has been a significant change in the circumstances of the children.
- Under the law that applies in Austria and throughout the European Union, the courts in Austria will have jurisdiction over all matters concerning the custody of the children as soon as they are “habitually resident” in Austria. The preeminence of habitual residence as the basis for jurisdiction in such matters is reflected in the fact that Austria is bound by the Brussels II Regulation. Article 8 of the Regulation provides that custody jurisdiction (referred to as “parental responsibility”) is based on the habitual residence of the child.
- Austria has also adopted the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. The United States has signed but not ratified the Convention, and it is therefore not in effect with respect to the two countries.
- Austria has unlimited jurisdiction concerning the custody of children who are habitually resident in Austria. Sections 104 and 109 of the Jurisdiction Act of Austria (the Jurisdiktionsnorm) provide that the district court in the place of the child's normal habitual residence has jurisdiction as to all matters concerning the custody of the child.
- The definition of habitual residence in Austria is fundamentally different from the definition adopted by many courts in the United States. Under Austrian law a child is habitually resident in that country if it is there with “some degree of integration by the child in a social and family environment.” The meaning of the term “habitual residence” in Austria and throughout the European Union has been established by the Court of Justice of the European Union. For example, in one case, the Court ruled that the term “must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment.” Under that test, a change of habitual residence is likely to occur promptly after a child is relocated lawfully to another country, particularly when the child is in school there.
- As soon as relocated children are in school in Austria, or are in any event there for more than a few months, they will be habitually resident in Austria and the Austrian courts will then have full power and authority under to modify any custody order issued by the U.S. court.
- The Supreme Court of Austria has ruled that, once a child has been living in a new country for at least six months, the child is presumed to be habitually resident in Austria even if the custodial parent opposed the relocation, since the new place of residency has objectively become the center of the child's life. 8Ob121/03g, Oberster Gerichtshof.
- Once children are habitually resident in Austria and there has been a significant change in their circumstances, the Austrian courts will then have a duty to reconsider the best interests of the children.
- International child relocation invariably creates a significant change in the circumstances of a child.
- If the parties stipulate in advance that the Austrian courts will not have modification jurisdiction, that will not prevent an Austrian court from assuming modification jurisdiction.
- The courts in the European Union, particularly including Austria, will generally consider the views of all children, including young children, in custody cases.
- If the terms of an order concerning custody issued by a court in the U.S. are violated by the relocating parent, the left-behind parent will have no significant remedy under the Hague Convention on the Civil Aspects of International Child Abduction or any other international treaty. Once a relocation is authorized it is not “wrongful” within the meaning of the Convention.
*Jeremy D. Morley is admitted to practice only in New York, USA. He works closely with colleagues in Austria and throughout the world. See www.international-divorce.com
Tuesday, January 08, 2019
Jeremy D. Morley
Here are some tips from attorney Jeremy D. Morley -- who has worked on hundreds of Hague cases and is the author of the American Bar Association treatise on The Hague Abduction Convention -- for attorneys and clients faced with instituting or defending child abduction proceedings under the Hague Convention on the Civil Aspects of International Child Abduction in the United States.
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. 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 should 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 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.
2. CHOOSE THE RIGHT REMEDY
If a child has been abducted to the United States, proceeding under the Hague Convention might not be the best course of action. All U.S. states have adopted the Uniform Child Custody Jurisdiction & Enforcement Act (except Massachusetts which has adopted a prior uniform law). That Act provides remedies that may be far more useful – and far cheaper -- than those provided under the Hague Convention. You need a lawyer who understands the issues and who can put you on the right track.
3. CHOOSE THE RIGHT COURT
Hague cases in the United States can be brought in federal or state court. The completely different backgrounds of state family court judges and federal judges means that the choice of either the state system or the federal system might have a major impact on the outcome of the case. If a case is brought in a state court it may be removed to the federal court but only if that is accomplished quickly.
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 involved or to prevent the child's further removal or concealment before the final disposition of the petition.
Such an order should invariably be sought 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. 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 on 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.
Discovery is generally permitted in Hague cases but it 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 be requested at the time of the initial meeting with 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. Thus, 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.
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 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. Be aware, also, that there is a trend among some judges to require that the direct evidence of witnesses be provided in affidavit form and that only cross-examination and redirect testimony is allowed in live form.
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, January 07, 2019
By Jeremy D. Morley
U.S. Senators Feinstein and Tillis have written to Secretary of State Mike Pompeo urging him to increase efforts to bring abducted American children back home to the United States by using all of the tools and resources at the State Department’s disposal.
They have specifically criticized the State Department for issuing mere diplomatic protests known as “demarches” against countries who have been identified by the State Department as noncompliant. They directed their comments, in particular, at the failure to take more serious action against Japan.
I have appeared as an expert witness on many occasions concerning Japan’s laws and practices concerning child custody and child abduction, and will discuss these matters in detail during my forthcoming visit to Japan.
Friday, January 04, 2019
Jeremy D. Morley
I am pleased to have been accepted as an expert on international child custody laws and the procedures of Minnesota by an Ontario, Canada court in a Hague Convention abduction case.
Thursday, January 03, 2019
Jeremy D. Morley
I am pleased to announce that, at the invitation of the Ministry of Foreign Affairs of Japan, I will be lecturing on the Hague Abduction Convention in Japan in the last week of February to the Ministry of Foreign Affairs and to invited lawyers’ groups in both Tokyo and Osaka.
The lectures will focus on comparisons of the U.S. and Japanese approaches to the Hague Abduction Convention and of the U.S. and Japanese approaches to child custody.