Thursday, September 30, 2021

Informal Notes on Habitual Residence in U.S. Courts in Hague Abduction Convention Cases

by Jeremy D. Morley

I had the pleasure this week of participating in a panel discussion organized by the Singapore Bar Association with three brilliant international family lawyers, Yap Teong Liang of Singapore, Kiran Dhaliwal of Kuala Lumpur, Malaysia, and Keturah Sageman of Sydney, Australia. The topic was Relocation v Abduction – Fight or Flight: Is Abduction a Hindrance to Return? We used a case study primarily drafted by T.L. Yap. 

Here are some of my extremely informal notes on the issue of habitual residence in a U.S. Hague Abduction Convention case. For more on the topic see my book.

If the habitual residence issue were heard in a U.S. court the outcome would definitely be uncertain. Last year, the U.S. adopted a new test of habitual residence in the U.S. Supreme Court’s Monasky case. The good news is that the test has now been clearly and simply stated. The bad news is that the test has now been clearly and simply stated. The test is simply that of the “totality of the circumstances,” but no one really knows what that means, since it is almost completely fact-based.

What is clear is that the old rule adopted by several U.S. circuits, of a primary focus on the last shared intention of the parents, has mostly been abandoned and that it has been replaced by looking far more at the situation through the eyes of the child. Where did the child think was her “home”?

In the case in the excellent case study, we were given some of the relevant circumstances, but we would need many more details in order to be able to make a prediction as to how a U.S. court would rule.

In support of Australia being the habitual residence is the child’s one-half year in Sydney plus her attending school in Sydney during that time. In support of the habitual residence still being in the U.S. is that she lived there for the first 8 years of her life, her father kept the family apartment in New York and the family retained Sophia’s school place in New York and that the parties’ original intention was to return to New York. The parents’ citizenships cancel each other out and in any event are probably not significant to a 9-year-old child. Among the facts that we still need to know are the following:

·       Where are Sophia's friends?

·       Is Sophia close to family in Sydney or more with family in New York?

·       Where is their family’s “stuff”? Where is Sophia’s stuff in particular?

·       Did they buy new furniture in Sydney? Did they buy cheap furniture from IKEA or expensive designer furniture from a high-end store?

·       Has Sophia settled well into school in Sydney or was she doing better in school in New York?

·       And with respect to the parents’ agreement to return to New York if things didn’t work out in Australia, was a return to New York implicitly contingent on Sergio's good behavior? Was there an implied term that he would do better and that he would work on repairing the relationships? Since he is the one who apparently sabotaged the agreement by hitting Sophia, isn’t it wrong to reward him for his own misconduct?

I should note that, unlike the affidavit-based focus in Singapore, the presentation concerning these issues in U.S. courts will primarily by means of witness testimony, which may include intense cross-examination. In addition, even in an expedited Hague case, pre-trial discovery is often ordered, and this may include pre-trial depositions as well as extensive document production.

My final point on habitual residence is that the Supreme Court ruled in Monasky that these issues are to be decided by the trial court and should not normally be reviewed on appeal because they are so intensely fact-based, which is the province of a trial court, not an appeal court.

 


Wednesday, September 22, 2021

Date of Wrongful Abduction Governs Hague Convention Habitual Residence Determinations

 

by Jeremy D. Morley

In any Hague Abduction Convention case, the court must determine the date of the alleged wrongful removal or retention of the child before determining the child's habitual residence. A decision on the applicable date may well resolve the entire case.

Yesterday, the Sixth Circuit in Douglas v. Douglas (6th Cir.9/21/21, Case No. 21-2335), in which I had an advisory role, affirmed an award of summary judgment dismissing a Hague petition on the ground that the child was habitually resident in the United States, rather than Australia, where she was born and lived for four months until her mother took her to Michigan, to live there permanently (mother’s claim) or for a mere visit (father’s claim).

It is most unusual to succeed on a motion for summary judgment in a case about habitual residence, because the Supreme Court’s test of “totality of the circumstances,” established in Monasky v. Taglieri, 140 S. Ct. 719, 723 (2020), is factual and open-ended. See: Jeremy D. Morley, The Hague Abduction Convention: Practical Issues and Procedures (3d ed).


But here the petitioner had alleged in his original petition that the wrongful retention had not occurred until 7½ months after the infant child was taken to Michigan. This allowed the trial judge to grant summary judgment in respondent’s favor, since the infant had consensually spent so much time in Michigan before the date of the alleged wrongful retention.

The Sixth Circuit affirmed that ruling, stating that, after 7½ months in Michigan (which followed only four months in Australia, during which the parents had separated and the mother had planned to return to the United States), the child was “at home” in Michigan on the relevant date.

Critically, although the petitioner had sought to amend his pleadings to allege that an earlier wrongful retention date should be used, that application had been denied, and that determination had not been appealed.

Wednesday, September 15, 2021

U.S. Diplomatic Protest – Ecuador & International Child Abduction

 

Jeremy D. Morley

In May 2021, the U.S. Embassy in Quito, Ecuador delivered a formal diplomatic protest known as a “demarche” to members of President-elect Guillermo Lasso’s transition team. The Department noted that Ecuador has been cited for demonstrating a pattern of noncompliance in the 2021 Annual Report on International Child Abduction during 2020, specifically for judicial delays.


Specifically, the State Department has determined that the Ecuadorian judicial authorities failed to regularly implement and comply with the Hague Convention on the Civil Aspects of International Child Abduction.

As a result of this failure, 17 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 one year and three months.

Ecuador was previously cited for demonstrating a pattern of noncompliance in the 2015-2020 Annual Reports.

 

Monday, September 13, 2021

U.S. Diplomatic Protest – Costa Rica & International Child Abduction


Jeremy D. Morley

In May 2021, U.S. Embassy San Jose delivered a formal diplomatic protest known as a “demarche” to the Ministry of Foreign Affairs of Costa Rica concerning Costa Rica’s citation for demonstrating a pattern of noncompliance in the 2021 Annual Report on International Child Abduction for demonstrating a pattern of noncompliance during 2020.


Department officials raised continuing concerns with the Government of Costa Rica about the Costa Rican judiciary’s persistent failure to regularly implement and comply with the Hague Convention on the Civil Aspects of International Child Abduction.

Specifically, the Department raised concerns with delays in the judicial process and Costa Rica’s compliance with the Convention.

 

 

Tuesday, September 07, 2021

U.S. Diplomatic Protest - Brazil & International Child Abduction

 

 Jeremy D. Morley


In June 2021, the Deputy Chief of Mission at U.S. Embassy Brasilia delivered a formal diplomatic protest known as a “demarche” to the Brazilian Ministry of Foreign Affairs, notifying Brazilian officials that the Department again cited Brazil in the 2021 Annual Report on International Child Abduction for demonstrating a pattern of noncompliance during 2020.


The demarche expressed concern about Brazil's continued failure to comply with its obligations under the Hague Convention on the Civil Aspects of International Child Abduction.


In particular, the demarche noted U.S. concerns with excessive delays within Brazil's judiciary and language in more than one judicial decision that was clearly noncompliant with the Convention.


The State Department has reported that the Brazilian judicial authorities failed to regularly implement and comply with the provisions of the Convention and failed to take appropriate steps to locate children in an abduction case, contributing to Brazil's persistent failure to implement and abide by the provisions of the Convention.


As a result of these persistent failures, 75 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 three years and eight months.


Brazil was previously cited for demonstrating a pattern of noncompliance in the 2006-2020 Annual Reports.

 

 

Friday, September 03, 2021

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.

Thursday, September 02, 2021

U.S. Diplomatic Protest - Argentina & International Child Abduction

 

Jeremy D. Morley

In June 2021, the U.S. Embassy in Buenos Aires delivered a formal diplomatic protest known as a “demarche” to the Argentine Ministry of Foreign Affairs and Worship, notifying Argentine officials that the Department cited Argentina in the 2021 Annual Report on International Child Abduction for demonstrating a pattern of noncompliance during 2020.


The demarche expressed concern about Argentina’s continued failure to comply with its obligations under the Hague Convention on the Civil Aspects of International Child Abduction.

In particular, the demarche noted U.S. concerns with excessive delays within Argentina’s legal system, which allows multiple appeals both on the merits of the decision and on the manner in which decisions are enforced.

The State Department has reported that, in 2020, the Argentine judicial authorities failed to regularly implement and comply with the provisions of the Convention. As a result of this failure, 67 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. Argentina was previously cited for demonstrating a pattern of noncompliance in the 2015-2020 Annual Reports.

Wednesday, September 01, 2021

BANGLADESH, THE HAGUE ABDUCTION CONVENTION, AND AN ABDUCTION FROM JAPAN

 by attorney Jeremy D. Morley, www.international-divorce.com

A terrifically interesting issue is pending before the courts of Bangladesh. My client is a Japanese doctor in Tokyo. Her estranged husband abducted the children from Tokyo to Dhaka, Bangladesh. The Family Court in Tokyo has ordered their return, but the father has failed to comply with the order. The matter is now before the courts in Bangladesh. However, Bangladesh has not signed the Hague Abduction Convention. See e.g. this article.


In my opinion, at its core, the fundamental issue in the Bangladesh courts in is whether Bangladesh is a safe haven for international child abduction and, indeed, an international outlaw.


One theory that may be pursued is that, since more than 100 countries have adopted the Hague Convention and since the Hague Abduction Convention is the most important international treaty in all of family law (possibly subject to the U.N. Convention on the Rights of the Child 1989), the provisions of the Convention have become part of customary international law and should therefore be applied by the courts in Bangladesh.


This theory is consistent with the decision of the High Court Division of the Supreme Court of Bangladesh in 2017 in considering the relevance of the principle of non-refoulement in relation to a Rohingya refugee being held in detention long after completing a formal prison sentence. Although Bangladesh was not a party to the 1951 United Nations Convention relating to the Status of Refugees, the Supreme Court determined that it was nevertheless applicable in Bangladesh since the treaty had “become a part of customary international law which is binding upon all the countries of the world, irrespective of whether a particular country has formally signed, acceded to or ratified the Convention or not.” Refugee and Migratory Movements Research Unit (RMMRU) v Government of Bangladesh, Writ petition no. 10504 of 2016, Bangladesh: Supreme Court, 31 May 2017 www.refworld.org/cases,BAN_SC,5d7f623e4.html


There is a strong argument that the same position should be taken with respect to the fundamental principles of the Hague Abduction Convention that abducted children should normally be returned expeditiously to their habitual residence and that an international child abductor should not be rewarded by being able to transfer child custody jurisdiction to the courts in the country to which he has abducted a child.  


It remains to be seen whether the courts in Bangladesh will require the matter to proceed by means of a length plenary custody case, in violation of the Japanese courts’ jurisdiction and in violation of the Hague principles, or whether they will respect the comity of nations and return the abducted children forthwith to Japan.