Tuesday, January 28, 2020
by Jeremy D. Morley
The best way to secure the return of a child who has been abducted to the United States may not be by using the Hague Convention on the Civil Aspects of International Child Abduction. It is often preferable to seek registration and enforcement, in a local Family Court in the county where the child is currently located, of a custody order from a court in the country where the child was living. This was well borne out in a recent case in the Vermont Superior Court, Windsor Unit, Family Division.
The child in question had always lived in Germany, originally with both parents, and then with his father after the mother relocated to Vermont. The parties entered into an agreement stipulating that the mother had access to the child during school vacations. A court in Germany then issued a ruling which approved of the parties' agreement and provided for sanctions for violation of its terms.
This past summer, the child went to Vermont for a scheduled four-week summer vacation with his mother in Vermont. The mother then failed and refused to return the child to Germany, claiming that he was being neglected there.
The father consulted us about initiating a case in the U.S. under the Hague Abduction Convention. We anticipated that in a Convention case the mother would assert the exception contained in Article 13(b) of the treaty of “grave risk of harm” that a return of the child would expose the child to “physical or psychological harm or otherwise place the child in an intolerable situation.”
We were confident that any such claim would ultimately fail, based on the claims already made by the mother in purported justification of her refusal to return the child. But we anticipated that, despite the language in the Convention and in the International Child Abduction Remedies Act requiring the expeditious resolution of any Hague Convention case, a resolution of the grave risk claim would require a battle between opposing medical and psychological experts, testimony by an array of witnesses concerning the child's physical health, emotional and psychological health, social life and educational circumstances, extensive pre-trial discovery, extensive briefing and a lengthy trial, all of which would be extremely expensive and emotionally draining for the client.
Accordingly, we recommended an alternative procedure, that of using the registration of enforcement provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”), which requires a court in the U.S. state in which a child is located to register and enforce a custody order issued by the child's home state, even if the home state is a foreign country. The UCCJEA does not permit the alleged abductor to assert in the U.S. court the exceptions that can be asserted in a Hague case. Once a notice to register a foreign custody order is properly given, the foreign order must be registered unless the respondent establishes that (1) the issuing court had no jurisdiction to enter the child custody determination; or (2) the child custody determination sought to be registered has been vacated, stayed, or modified by a court having proper jurisdiction to modify same; or (3) notice or an opportunity to be heard was not given to the person contesting jurisdiction provided he or she was entitled to receive notice. Once the order is registered, there are no defenses. By contrast, exceptions are invariably claimed in Hague Convention cases and if one exception is upheld, return may be denied.
Since we are not admitted to practice in Vermont, we located local counsel there for the client, the firm of Hershenson, Carter, Scott & McGee, and we then strategized with and collaborated with that firm about the case throughout the proceedings, which they conducted with great care and success. The case was hotly contested by highly experienced counsel, including lead counsel from New York. Nevertheless -- and despite the respondent's cross-petition for temporary emergency jurisdiction, technical objections to registration, requests to delay the hearing, and the introduction of evidence by a clinical and licensed psychologist from New York -- the case was concluded within one month and the child was successfully returned to his home in Germany. We were delighted to help procure such a satisfactory result for a very grateful client.
Monday, January 27, 2020
by Jeremy D. Morley
International child abduction cases in Japan, brought pursuant to the Hague Abduction Convention, frequently require the involvement of Family Court Investigating Officers (FCIO). These are court officials who are government employees with training in psychology, sociology and pedagogy, and who are assigned in Family Court matters to investigate allegations of domestic abuse, child access problems and their domestic relation issues. They have broad authority to interview parents and children, to make home visits, to “accurately ascertain the objective facts,” to understand “the emotions that underlie the respective arguments of the parties,” to make predictions as to future outcomes, to encourage the parties to resolve their disputes, and to “make reports to the judge with his /her opinion on the solution.”
In Hague Convention cases, investigations by FCIOs are ordered primarily when a taking parent claims that the child is now “settled in the new environment” and when a taking parent claims that the child objects to being returned. When it is claimed that the child has become “settled in the new environment,”(which can only be relevant if the proceeding is commenced more than one year after the date of the wrongful taking or retention, the FCIO conducts a child interview, does a home study, collects information relating to the child's school and extracurricular activities and then submits a report with his/her opinions. On the other hand, in situations in which the taking parent relies on the purported objections of the child, the FCIO submits a report by using “age-appropriate interviewing skills on the child to ascertain whether the he/she has attained an age and degree of maturity so that his/her views may or may not be taken into account.” I expect that FCIO's are used also in examining claims that the child will be at grave risk of harm if returned overseas.
I had the pleasure of meeting and interviewing senior Family Court Investigating Officers during a recent visit to Japan as the guest of the Japanese Hague Convention Central Authority. The officers were charming and sincere. However, I question the extent to which they fully understand the custom, laws and child-rearing norms of western countries, and the extent to which, despite their best efforts, they are able to “put themselves in the shoes” of left-behind non-Japanese parents whose children have been taken to and retained in Japan and to understand the circumstances of both Japanese and non-Japanese children who have been raised outside Japan.
Friday, January 24, 2020
- Jeff Landers
The world is getting smaller and smaller. We live in a global society fueled by a global economy. International travel has never been easier. And now, thanks to the internet, we're all connected in new ways and with fewer barriers than ever before. These days, people meet and fall in love across international boundaries every day, and so it's no surprise that marriages involving dual citizenship are increasingly common. Read more...
Sunday, January 19, 2020
by Jeremy D. Morley
A court order rendered outside Brazil, that authorizes the relocation of a child to Brazil from the child's current place of residence subject to certain specified conditions concerning the ongoing custody and access rights of the non-relocating parent, is not normally enforceable in Brazil. If the court order is not “homologized” in Brazil, the Brazilian courts will at best consider the foreign order as an item to consider in considering the best interests of the child under the principles of Brazilian law. Even if the foreign order is homologized in Brazil there is no guarantee that after the child has moved to Brazil the terms will remain in effect over time or, indeed, that they will actually be enforced.
A “mirror order” is an order that is issued by a court in another jurisdiction 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. Mirror orders are unavailable in Brazil.
A “homologized order” is a court order that has been approved or confirmed by another court. In the case of Brazil, such a procedure is available by means of an application to Brazil's Superior Court of Justice (Superior Tribunal de Justiça) through a procedure called “homologação de decisão estrangeira” (known colloquially as “HDE”).
The responsibility to obtain the homologized order should normally be given to the party who seeks to take a child to Brazil and the other party should be required to cooperate fully with the process. The process can take a few months to complete if both parties jointly present it to the Superior Court of Justice, or otherwise it will take far longer.
If the Superior Court court is satisfied that due process was followed in the foreign country and that there was no breach of Brazilian public policy, a Brazilian order will be issued that will recognize the foreign order. However, a foreign order will not be enforced if it is deemed to violate the public policy of Brazil. Article 17 of the Introduction Act to Brazilian Law Rules specifies that:
“Art. 17. The laws, acts and judgments of another country, as well as any declarations of will, will not be effective in Brazil, when they offend national sovereignty, public order and morality.”
The mere fact that a foreign custody order is homologized in Brazil does not guarantee that the order will remain in effect and unchanged over time. Brazilian courts will have jurisdiction to hear an application to modify any such order once the child has relocated to and is resident in Brazil. Under Brazilian law, child custody orders are not final orders and are always subject to modification whenever a court finds that there has been a change in family circumstances.
The normal rule in Brazil is that custody should be joint custody and that there is shared financial responsibility. Such issues can be revisited whenever a parent alleges a change of circumstances. If the Brazilian court determines that such a change has occurred since the date of the foreign court's determination, it is fully authorized to modify the foreign order as it deems appropriate, taking into consideration the child's best interest.
Based on our experience with custody cases in Brazil, and in light of the jurisprudence and practices of the courts in Brazil, it must be anticipated when a parent of Brazilian origin is permitted to relocate a child to Brazil subject to specific rights of continuing access and decision-making for the “left-behind” parent, those rights may well be modified by a Brazilian court upon the application of the relocating parent. It is obvious that a child's circumstances will be dramatically affected by virtue of the relocation itself and the attendant changes in the child's that will inevitably result.
Jeremy D. Morley, a New York attorney, has provided expert evidence on the child custody laws and procedures of Brazil for courts in Australia, Canada, and the USA (California, Colorado and New Mexico).
He has gained extensive knowledge and experience concerning Brazilian family law matters from handling numerous family law cases concerning Brazil, from numerous consultations with Brazilian family lawyers concerning the laws and practices of Brazil, and from extensive research over many years concerning Brazilian family law. He has consulted with many clients concerning Brazilian family law, most particularly as to international child custody and international child abduction, always acting with and through lawyers in Brazil whenever appropriate. He has represented several clients whose children have been abducted to Brazil. Contact him at email@example.com
Tuesday, January 14, 2020
Change in China's Passport Regulations
By Jeremy D. Morley
We have long raised concerns that China does not recognize foreign child custody orders, is not a party to the Hague Convention on the Civil Aspects of International Child Abduction (except for Hong Kong and Macau), is not a party to any bilateral treaties concerning international parental child abduction, and bars children with Chinese passports, including dual national children, from leaving China without the consent of both parents. https://www.international-divorce.com/d-china.htm
A parent's concerns about potential international child abduction to China must always be taken extremely seriously.
Such concerns are now magnified by reason of a recent and most significant change in the policy of Chinese consulates concerning the issuance of Chinese passports to the children of Chinese nationals.
Previously, both parents of a child were required to be present at a Chinese consulate in order for the consulate to issue a passport for their child. This served to ensure that one parent of a child could not unilaterally and covertly obtain a Chinese passport for the child without the knowledge or consent of the other parent.
However, the Chinese Consulate in Chicago has now stated that, for the purpose of convenience, it will now issue a child's passport to only one parent if that one parent brings the child to the Consulate.
In addition, the Consulate has liberalized the requirements for the renewal of a child's Chinese passport. Previously, both parents had to appear at the Consulate to obtain a renewal of a child's passport and they had to bring the same papers as were required for the initial passport application. Now, a renewal requires only one parent and significantly less paperwork.
It is important for family lawyers to recognize that United States courts have no power to control the issuance of passports and travel documents by other sovereign countries.
The easier that it is for a parent to obtain a foreign passport for a child, the greater the level of concern of possible international child abduction, especially because the United States has no exit controls.
Friday, January 10, 2020
Prenuptial agreements are enforceable under Hungarian law, as are post-nuptial agreements.
The Hungarian Act on Private International Law (Article 28) authorizes the parties to choose the law that will apply to their matrimonial property rights. They may choose the law of the state of one party's nationality, the law of the state of one party's habitual residence, or the law of the court that will handle a divorce case.
The definition of a matrimonial property contract in the Civil Code does not include provisions concerning spousal support or child support.