CONNECTICUT COURT REFUSES TO ENFORCE UAE CUSTODY ORDER

by Jeremy D. Morley[1]

A Connecticut court has refused to enforce a custody order of the United Arab Emirates on the ground that the order is repugnant to Connecticut public policy. The UAE court awarded custody of two children to their father because they and the father are Muslim while the mother is Christian. Al Namani v. Watson, Superior Court, Hartford, Connecticut, May 31, 2022 (unreported)[2].

Specifically, the UAE court summarized the reasons for its decision as follows:

“As per the documents and papers, daughter …  is 11 years old and son … is 9 years old. The plaintiff is still Christian as per the statement of claim. The Personal Status Law stipulates that the custodial patent’s [sic] religion shall be the same as the child's religion and her custody shall be until the child becomes five years old whether a male or female. Accordingly, the court cancels her right of child custody of [the children], the father shall be the custodial parent and all alimony and child support shall be cancelled effective from the date of granting him the custody.”

 

After judgment was issued, the mother removed the children from the UAE without their father’s consent and brought them to her family home in Connecticut. The father then sought to register and enforce the UAE order in Connecticut pursuant to Connecticut's version of the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”), Connecticut General Statutes, §46b-115 et seq. He argued that, because the children had been living in the UAE for more than six months immediately preceding the commencement of a case in that country for divorce and then a case for custody, the UAE was the children’s home state. He further argued that the UAE courts had continuing and exclusive child custody jurisdiction, since he continued to live there. Accordingly, he asserted that the UCCJEA required the Connecticut courts to register and enforce the UAE custody order, and that they had no right to modify it.

The mother opposed registration pursuant to General Statutes, §46b-115ii. That section provides that a court in Connecticut must treat a foreign child custody determination “as a child custody determination of another state … unless such determination was rendered under child custody law which violates fundamental principles of human rights or unless such determination is repugnant to the public policy of this state.”

Significantly, Connecticut's statutory provision is unique to that state, despite the fact that Connecticut generally adopted the standard version of the UCCJEA that was promulgated by the Uniform Law Commissioners. That version provides that, “A court of this State need not apply this [Act] if the child custody law of a foreign country violates fundamental principles of human rights.” When it adopted the Act, Connecticut chose to expand the so-called “escape clause” by adding a second and distinct basis for a refusal, which is that of repugnance to state public policy of enforcing a foreign custody order.

In his ruling, Judge Daniel J. Klau determined the public policy of Connecticut concerning child custody matters by reviewing the Connecticut statutes and case law on that issue. He cited the statutory provisions (General Statutes §46b-56(b) and (c), which require the application of the “best interests of the child” and extensive caselaw establishing “the clearly defined public policy of our state that family courts must make child custody determinations according to the best interests of the child.”

The judge then reviewed the UAE custody order and ruled that it was repugnant to Connecticut public policy because it expressly stated that its decision was based on the mother’s status as a Christian, whereas the father and the children were Muslims,. The fact that the UAE child custody statute contained a provision which mentioned the best interests of the child was not significant because the judgment, as written, was based solely on religion.

The father’s claim that the mother waved the public policy argument by having initiated a divorce case in the UAE several years prior was held to be unpersuasive because any such waiver by a litigant would not and could not bind the state court, which is “entitled, nay obligated to resist the invitation to become the instrument by which party seeks to enforce a judgment that is repugnant to public policy.”

In several cases in other states that do not have a public policy exception in their state statutes, courts have nonetheless relied on public policy to preclude recognition of foreign country custody rules. Merely by way of example, see: In re Marriage of Donboli, 128 Wash. App. 1039 (2005) (barring recognition of Iranian order that did not consider child's best interest). J.A. v. A.T., 404 N.J. Super. 132, 960 A.2d 795 (App. Div. 2008) (barring recognition of a Greek order that did not properly consider child's best interest); and H.L.K. v. F.A.A., 2015 WL 5971123 (Pa. Super. Ct., 2015) (Saudi order based on age, gender, and religion was inherently violative of Pennsylvania public law).

For more on this issue, see Jeremy D. Morley, International Family Law Practice, § 7.28.

The Connecticut case is also significant for its analysis of the meaning of the “escape clause” provision that a foreign country order must be enforced  “unless such determination was rendered under child custody law which violates fundamental principles of human rights.” Other courts have held that that language limits a court to analyzing the foreign law as it is written, rather than the law as it is applied in the foreign country, even if the law reads well but is applied in a manner violative of fundamental human rights. That position is supported by the official comment to the relevant section of the UCCJEA, which states that “the court's scrutiny should be on the child custody law of the foreign country and not on other aspects of the other legal system.” Indeed, in Matter of Yaman, 105 A.3d 600, 611 (N.H. 2014), the Supreme Court of New Hampshire held that “[t]he comments to the UCCJEA . . . clarify that the analysis is meant to focus on the foreign jurisdiction's substantive law, and not its legal system or how the law is implemented.” 105 A.3d at 611.

However, Judge Klau disagreed. He cited with approval the case of Coulibaly v. Stevance, 85 N.E.3d 911 (Ind. Ct. App. 2017). There, the Indiana Court of Appeals had insisted that, “we do not believe that the UCCJEA limits the courts of this state to considering the foreign jurisdiction's law only on its face, without regard to whether that law was applied in a manner violative of fundamental human rights. One can imagine multiple circumstances in which a foreign jurisdiction's custody law is unobjectionable as written, but applied in a manner that clearly violates a parent's or child's fundamental human rights.” 

Judge Klau concurred with Coulibaly since, “to hold otherwise would make the court a party to the enforcement of a judgment which, on its face, violates public policy or fundamental human rights.” Judge Klau then supported that argument with an appropriate caution. He sensibly opined that courts should “be reticent to make broad judgment about whether a foreign country’s laws violate fundamental principles of human rights or are repugnant to the public policy of the court’s state. It is one thing for a state court to opine on a particular judgment of a foreign court. It is another thing entirely for a state court to opine on a foreign country’s system of law in general.”

In conclusion, the Al Namani v. Watson case demonstrates a sensible application of the use of public policy and common sense to prevent the otherwise-automatic obligation to enforce most foreign country custody orders issued by a home state court that are based on norms that offend human rights or the standards of the forum state.

 

 

 

 

 

 

---

[1] Mr. Morley is a New York lawyer who concentrates on international family law and consults with attorneys and clients globally on international family law matters, always with local counsel as appropriate and necessary. He may be reached at ww.interational-divorce.com

[2] The author provided substantial assistance on the case to defendant’s counsel, Dara P. Goings of West Hartford, Connecticut.

KOREAN NONCOMPLIANCE WITH HAGUE ABDUCTION CONVENTION

Korea has been cited by the U.S. State Department as “noncompliant” with its obligations under the Hague Abduction Convention, and the U.S. Special Advisor for Children’s Issues in the State Department's Bureau of Consular Affairs met with Korea's Ministry of Justice today, December 7, 2022, to address the problem.

In July 2022, the U.S. Embassy in Seoul delivered a diplomatic protest known as a “demarche” to Korea's Deputy Foreign Minister, citing Korea’s failure to comply with its treaty obligations.

The specific cited problem is that 50% of U.S. requests for the return of children abducted from the U.S. remained unresolved for more than 12 months.

A likely unanticipated consequence of Korea’s failure to comply with the Hague Convention is that it will make it significantly more difficult for a Korean parent living in the United States (or, presumably, in any other country) to take a child to visit family in Korea if the non-traveling parent objects. If such issues are brought before a court in the United States, a judge who is presented with expert evidence concerning the difficulties of securing the return of children from Korea will necessarily be most concerned that the child will be retained in Korea and that it will be difficult or impossible to secure the child’s return.

____________

 

Jeremy Morley has provided expert evidence on such issues concerning Korea to courts in the United States.

CHINA, INTERNATIONAL CHILD ABDUCTION, AND EXPERT TESTIMONY

China is a safe haven for international child abduction. I submitted a very detailed expert report to that effect and then testified remotely as an expert witness in a court in the U.S. today.

The other side conceded this essential fact.

DOMINICAN REPUBLIC: EXITING WITH CHILDREN

 Jeremy D. Morley

Children who are either citizens or legal residents of the Dominican Republic cannot be taken outside the Dominican Republic without full compliance with the Dominican Migration Department rules. This applies even for dual citizen children.

Those requirements are as follows:

1.     If the child is traveling with both parents, they merely need to show their passports.

2.     If the child is traveling with only one parent, the parent must have obtained specific prior authorization from the Dominican Migration Office, which requires the properly notarized consent of the non-traveling parent, obtained from the Dominican Attorney General's office, if the party is in the country, or the nearest Dominican Consulate if the party is outside the country. In the latter case, the counselor authorization must be apostilled by the Dominican Ministry of Foreign Affairs. Even if the traveling parent has sole custody of the child, that parent must bring the travel authorization of the other parent, unless the traveling parent has an express travel authorization issued by a Dominican court.

3.     If only the child's mother has parental rights over the child, then it is sufficient for her to produce the child's legalized birth certificate if she is accompanying the child.

These rules apply even if the child has dual nationality. They do not apply if the child has non-Dominican citizenship only.

Japan’s acceptance of child abduction treaty leaves pre-Hague parents in limbo

By 

MATTHEW M. BURKE AND KEISHI KOJA 

STARS AND STRIPES • October 19, 2022

https://www.stripes.com/theaters/asia_pacific/2022-10-19/japan-parental-child-abduction-hague-7740130.html

In the 10 years since Donny Conway’s daughters Christina and Chihiro were taken by their Japanese mother to her home country without his consent, he has kept their bedroom in his California home filled with unopened Christmas presents, handwritten notes and reams of legal documents, he said.

The former Navy petty officer second class is one of hundreds of American parents whose children were abducted by another parent and taken to Japan before April 2014, when it ratified the Hague Convention on the Civil Aspects of International Child Abduction.

Some parents whose children were abducted to Japan after the agreement was signed are finally starting to see some progress in seeking their return, but others, like Conway, remain forgotten.

“There’s only so much you can achieve when it’s pretty much just sanctioned abduction,” he told Stars and Stripes in a series of interviews in September and October. “The numbers aren’t high enough for people to care.”

Japan is known as a “black hole” for parental child abduction, said Jeffery Morehouse, father to an abducted son, Atomu, and founder of Bring Abducted Children Home, a U.S.-based nonprofit. Prior to April 1, 2014, if a Japanese parent living in the United States returned with their child to Japan, there was very little chance the child would be returned, or that the other parent would even be granted visitation, Morehouse said.

Between 1994 and 2014, when the State Department established the Office of Children’s Issues, 416 children were abducted by parents from the U.S. to Japan, according to Bring Abducted Children Home’s website, citing State Department data.

‘Civil legal remedy’

Japan’s western allies began pressuring it to join the treaty, a Ministry of Foreign Affairs spokesman said by phone during the first in a series of interviews beginning Sept. 20. The spokesman declined to say when the first overtures were made.

The Hague Convention provides a “civil legal remedy” for the return of children who are unjustly removed or “retained outside their country of habitual residence” in another signatory country, the U.S. Embassy in Japan website says. The treaty also provides a framework to “protect legal rights of access and visitation.”

Parents like Conway were not afforded the benefits of the Hague Convention because their cases occurred prior to Japan joining the Hague Convention, Morehouse said.

Conway, like the other pre-Hague parents, was able to apply for access to his children through the Hague Convention, Conway said. The State Department facilitated his application with Japan’s Ministry of Foreign Affairs but did little else, he added.

A State Department spokesman declined to comment on the record for this story.

If an application is accepted, the government of Japan connects both parents with an outside mediator and local attorneys, but their involvement stops there, the ministry spokesman said.

Conway was granted Hague access by the ministry on April 21, 2015, he said. He hired a Japanese attorney and traveled to Japan, hoping to at least be able to talk to or see his daughters.

He presented the document from the ministry at city hall in Ebina and Zama in Kanagawa prefecture. To his chagrin, they called his ex-wife, Yumika Arima, and asked her if she would provide access to the children, Conway said. She said no.

‘Unenforceable’

Conway’s case is typical, said attorney Jeremy Morley, an expert in international family law based in New York City. “All of those left-behind parents ... are stuck without a remedy, and the Hague Convention has no relevance to their circumstances,” he said.

Morley said their only potential path is through Japanese civil law, but he called that route“totally minimal and meaningless.” Visitation orders are “essentially unenforceable,” he said.

The ministry spokesman admitted as much. “We do our best to realize the visitation or contact, but we don’t have enforceability,” the ministry spokesman said. It’s customary in Japan for some government spokespeople to speak to the media on condition of anonymity. 

Conway doesn’t know if the girls would choose an American or Japanese life, but he just wants them to know they were abducted, that they have bank accounts in America, resources and a father who never stopped looking for them, he said.

___________________________________________________________________________________

MATTHEW M. BURKE
Matthew M. Burke has been reporting from Okinawa for Stars and Stripes since 2014. The Massachusetts native and UMass Amherst alumnus previously covered Sasebo Naval Base and MarineCorps Air Station Iwakuni, Japan, for the newspaper. His work has also appeared in the Boston Globe, Cape Cod Times, and other publications.

KEISHI KOJA
Keishi Koja is an Okinawa-based reporter/translator who joined Stars and Stripes in August 2022. He studied International Communication at the University of Okinawa and previously worked in education.

Child Custody Jurisdiction in India

Jeremy D Morley

Jurisdiction in India concerning child custody matters is primarily based on the concept of “ordinary residence.” Section 9 (1) of the Guardian and Wards Act 1890 provides that, “If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.” Ordinary residence is not necessarily the same as habitual residence, but it is based on the original meaning of the term in English law. Nonetheless, the courts in India have developed their own jurisprudence concerning its interpretation.

The leading case is the Supreme Court of India’s ruling in Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479, which outlines with the simple proposition that “ordinary residence” means “where the minor ordinarily resides,” but then provides helpful amplification of that concept.  The key provision in the ruling, explaining the fundamental distinction between sufficient and insufficient residence, comes in the Court’s analysis of a prior case, Jagir Kaur and Anr. v. Jaswant Singh, AIR 1963 SC 1521. The Court in Majoo explained as follows:

The Court [in Kaur] noticed a near unanimity of opinion as to what is meant by the use of the word "resides" appearing in the provision and held that "resides" implied something more than a flying visit to, or casual stay at a particular place. The legal position was summed up in the following words:

‘.......Having regard to the object sought to be achieved, the meaning implicit in the words used, and the construction placed by decided cases there on, we would define the word "resides" thus: a person resides in a place if he through choice makes it his abode permanently or even temporarily; whether a person has chosen to make a particular place his abode depends upon the facts of each case.....’ "

Thus, the fundamental distinction is between a mere “flying visit to, or casual stay at a particular place,” which is insufficient to create ordinary residence and residence “through choice” to make a place “his abode permanently or even temporarily,” which may be sufficient. The Court also cited the case of Kuldip Nayar v. Union of India, AIR 2006 SC 3127, in support of the proposition that, “residence is a concept that may also be transitory.”

The Indian courts have further held that an ordinary residence cannot be created by child snatching. A very recent example is the case of Akhilesh Anjana vs Kavita Anjana (14 March, 2022, Madhya Pradesh High Court), holding that a child who was living with his father after the father had unilaterally removed him from the matrimonial home continued to be ordinarily resident in the district in which he had been living before his father had wrongfully removed him. 

In addition to jurisdiction based on ordinary residence, Indian courts also may assert child custody jurisdiction on the basis of parens patriae, based on the traditional duty of the sovereign to protect all who are present in the country, and on the basis of habeas corpus. Such cases are exceptional and are primarily founded on the need to provide urgent protection for a child who is physically present in the district in which the court is located, even if the child is not ordinarily resident there. These issues arise frequently in the case of international child abduction to India. In some cases, courts in India have held that foreign children should be returned to their home country based on the limited and exceptional jurisdiction founded on parens patriae and habeas corpus. Merely by way of example, the Supreme Court of India has most recently ordered the return of an American child to the United States because of the exceptional circumstances of his abduction. Rohith Thammana Gowda vs The State Of Karnataka, 29 July, 2022. However, as I have often reported, it is critical to note that such returns are rare and very much the exception rather than the rule.

 

 

Honduras: 2022 State Department's Annual Report on International Child Abduction

Country Summary: The Convention has been in force between the United States and Honduras

since 1994. In 2021, Honduras demonstrated a pattern of noncompliance. Specifically, the

Honduran Central Authority regularly failed to fulfill its responsibilities pursuant to the

Convention. Additionally, Honduran law enforcement regularly failed to enforce a return order

rendered by the judicial authority in an abduction case. 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. The sole case affected was unresolved for over one year. Honduras was

previously citied for demonstrating a pattern of non-compliance in the 2015 and 2016 Annual

Reports.

Initial Inquiries: In 2021, the Department received three initial inquiries from parents regarding

possible abductions to Honduras for which no completed applications were submitted to the

Department.

Central Authority: There have been delays in the processing of cases by the Honduran Central

Authority, which contributed to a pattern of non-compliance. In the majority of cases pending in

2021, the Honduran Central Authority failed to take all appropriate steps to facilitate the

institution of judicial proceedings in a timely manner, which resulted in significant delays.

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 42 days.

Judicial Authorities: Delays by the Honduran judicial authorities impacted cases during 2021.

Enforcement: Judicial decisions in Convention cases in Honduras were generally not enforced,

which contributed to a pattern of noncompliance. One case (accounting for 100 percent of the

unresolved cases) has been pending for more than 12 months in which law enforcement failed to

enforce a return order.

Access: In 2021, the U.S. Central Authority had one open access case involving one child under

the Convention in Honduras. This case was opened in 2019 and has been filed with the

Honduran Central Authority. No new cases were filed in 2021. By December 31, 2021, this

case had been resolved.

Department Recommendations: The Department will continue intense engagement with

the Honduran authorities to address issues of concern.

Egypt: 2022 State Department's Annual Report on International Child Abduction

Country Summary: Egypt does not adhere to any protocols with respect to international

parental child abduction. In 2003, the United States and Egypt signed a Memorandum of

Understanding to encourage voluntary resolution of abduction cases and facilitate consular

access to abducted children. In 2021, Egypt continued to demonstrate a pattern of

noncompliance. Specifically, the competent authorities in Egypt persistently failed to work with

the Department of State to resolve abduction cases. As a result of this failure, 85 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. Egypt was previously cited for

demonstrating a pattern of noncompliance in the 2015, 2016, 2019, 2020 and 2021 Annual

Reports.

Initial Inquiries: In 2021, the Department received two initial inquiries from parents regarding

a possible abduction to Egypt for which no additional assistance was requested or necessary

documentation was not received as of December 31, 2021.

Central Authority: In 2021, the competent authorities in Egypt worked closely with the United

States to discuss ways to improve the resolution of pending abduction cases. However, the

competent authorities have failed to resolve cases due to a lack of viable legal options, which

contributed to a pattern of noncompliance.

Location: The Department of State did not request assistance with location from the Egyptian

authorities.

Judicial Authorities: There is no clear legal procedure for addressing international parental

child abduction cases from the United States under Egyptian law and parents face difficulties

attempting to resolve custody disputes in the local courts.

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 Egyptian

authorities.

Department Recommendations: The Department will encourage Egypt to ratify the

Convention and create the legal infrastructure needed for effective implementation of the

Convention.

Ecuador: 2022 State Department's Annual Report on International Child Abduction

Country Summary: The Convention has been in force between the United States and Ecuador

since 1992. In 2021, Ecuador continued to demonstrate a pattern of noncompliance.

Specifically, the Ecuadorian authorities persistently failed to take all appropriate measures to

locate children in a timely manner. As a result of this failure, 14 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 two years and three months. Ecuador was

previously cited for demonstrating a pattern of noncompliance in the 2015-2021 Annual Reports.

Significant Developments: On July 28, 2021, the National Court of Justice passed a resolution

requiring Ecuador’s courts to use a summary process for Convention cases. This is Ecuador’s

first concrete action to improve Convention compliance since 2015. Shortly after the passage of

the resolution, the Department received the first court-ordered return from Ecuador since 2018.

Additionally, throughout 2021, the National Assembly Special Commission on Children’s Issues

led a review of Ecuador’s Children’s Code. These Children’s Code reforms presented an

opportunity for Ecuador to legislatively implement its obligations under the Convention;

however, the legislation remains stalled in the National Assembly.

Central Authority: The U.S. and the Ecuadorian Central Authorities have a productive

relationship that facilitates the resolution of abduction cases under the Convention.

Location: The competent authorities of Ecuador failed to take appropriate steps to locate

children after a Convention application was filed, which contributed to a pattern of 

noncompliance. The average time to locate a child was 9 months and 3 days. As of December

31, 2021, there is one case in which the Ecuadorian authorities remain unable to initially locate

a child (accounting for 100% of the unresolved cases).

Judicial Authorities: Delays by the Ecuadorian judicial authorities impacted cases during

2021.

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 Ecuadorian

authorities.

Department Recommendations: The Department will continue intense engagement with the

Ecuadorian authorities to address issues of concern.

Costa Rica: 2022 State Department's Annual Report on International Child Abduction

Country Summary: The Convention has been in force between the United States and Costa

Rica since 2008. In 2021, Costa Rica continued to demonstrate a pattern of noncompliance.

Specifically, the 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. Costa

Rica was previously cited for demonstrating a pattern of noncompliance in the 2011-2016, 2020,

and 2021 Annual Reports.

Initial Inquiries: In 2021, the Department received two initial inquiries from parents regarding

a possible abduction to Costa Rica for which no completed applications were submitted to the

Department.

Significant developments: Costa Rica’s Supreme Court, with the support of the Department

and U.S. Embassy San Jose, successfully hosted a series of virtual seminars on Convention best

practices. The seminars brought together Costa Rican Supreme Court judges, Department

representatives, as well as legal experts and judges from Costa Rica, Uruguay, Argentina,

Mexico, Spain, Canada, and the United States. Presenters offered legal analyses to raise

awareness of the Convention and its core governing principles, and shared best practices for

implementing Convention protocols. In September 2021, the Department organized an

International Visitor Leadership Program (IVLP) for members of Costa Rica’s judicial and legal

community. The IVLP focused on how Convention issues are approached in the U.S. legal

system.

Central Authority: The U.S. and the Costa Rican Central Authorities have a productive

relationship that facilitates the resolution of abduction cases under the Convention.

Location: The competent authorities regularly took appropriate steps to locate children after a

Convention application was filed. On average, it took less than one month to locate a child. As

of December 31, 2021, there was one case in which the Costa Rican authorities remained unable

to locate one child, representing 50 percent of unresolved cases for 2021.

Judicial Authorities: There were serious delays by the Costa Rican judicial authorities in

deciding Convention cases. As a result of these delays, cases have been pending with the

judiciary for over one year, contributing to a pattern of noncompliance.

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 Costa Rican

authorities.

Department Recommendations: The Department will continue intense engagement with Costa

Rican authorities to address issues of concern.

Brazil: 2022 State Department's Annual Report on International Child Abduction

 Country Summary: The Convention has been in force between the United States and Brazil since 2003. In 2021, Brazil continued to demonstrate a pattern of noncompliance. Specifically, judicial authorities continued to fail to regularly implement and comply with the provisions of the Convention. Additionally, the competent authorities continued to fail 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. Brazil was previously cited for demonstrating a pattern of noncompliance in the 2006-2021 Annual Reports.

Initial Inquiries: In 2021, the Department received four initial inquiries from parents regarding possible abductions to Brazil for which no completed applications were submitted to the Department.

Significant Developments: In 2021, Brazil named six new members to the International Hague Network of Judges, expanding from a previous single active Network judge. Additionally, Brazil’s Federal Justice Council published a manual to guide federal judges when hearing Convention cases.

The Department has cited Brazil for demonstrating a pattern of noncompliance with the Convention for 17 consecutive years. However, by the end of 2021, a significant number of abduction cases were resolved, and less than 30 percent of cases remained unresolved for more than 12 months. While these resolutions are encouraging, other cases continue to experience lengthy judicial delays, contributing to Brazil’s persistent failure to implement and abide by the provisions of the Convention. The Department continues to call on Brazil to expedite the resolution of Convention cases.

Central Authority: The U.S. and 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 2021, two abduction cases were resolved through voluntary means.

Location: Brazil demonstrated a pattern of noncompliance with the Convention as a result of

failure by the competent authorities to take appropriate steps to locate children in one case after

a Convention application was filed. During the reporting period the competent authorities

continued to fail to take appropriate steps to locate two children in an abduction case (accounting

for 25 percent of the unresolved cases). During this delay, the Convention ceased to apply to one

of the children because of the child’s age. The average time to locate a child was 11 months and

13 days.

Judicial Authorities: There were serious delays by the Brazilian judicial authorities in

deciding Convention cases. As a result of these delays, cases may be pending with the judiciary

for over one year, contributing to a pattern of noncompliance. Delays at the first instance, the

appellate, and the enforcement stages persisted during the reporting year. As a result, the

Department remains concerned with the Brazilian judiciary’s repeated failure to regularly

implement and comply with the provisions of the Convention. Moreover, the U.S. Central

Authority is concerned by some language that was non-compliant with the Convention in one

judicial decision.

Enforcement: While courts in Brazil ordered returns under the Convention, in some cases the

Brazilian authorities faced challenges with enforcement.

Department Recommendations: The Department will continue intense engagement with

Brazilian authorities to address issues of concern and will consider actions to encourage better

Brazilian compliance with the Convention.

Belize: 2022 State Department's Annual Report on International Child Abduction

Country Summary: The Convention has been in force between the United States and Belize

since 1989. In 2021, Belize demonstrated a pattern of noncompliance. Specifically, the judicial

authorities failed to regularly implement and comply with the provisions of the Convention. As

a result of this, 50 percent of requests for the return of abducted children under the Convention

remained unresolved for more than 12 months.

Central Authority: The United States and the Belizean Central Authorities have a strong and

productive relationship that facilitates the resolution of abduction cases under the Convention.

Location: The competent authorities took appropriate steps to locate children after a

Convention application was filed. The average time to locate a child was 31 days. As of

December 31, 2021, there were no cases where the Belizean authorities remained unable to

initially locate a child.

Judicial Authorities: Delays by the Belizean judicial authorities impacted cases during 2021.

As a result of these delays, one case has been pending with the judiciary for over two years,

contributing to a pattern of noncompliance.

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 Belizean

authorities.

Department Recommendations: The Department will continue intense engagement with the

Belizean authorities to address issues of concern.

Austria: 2022 State Department's Annual Report on International Child Abduction

Country Summary: The Convention has been in force between the United States and Austria

since 1988. In 2021, Austria demonstrated a pattern of noncompliance. Specifically, the judicial

authorities failed to regularly implement and comply with the provisions of the Convention, and

law enforcement regularly failed to enforce return orders rendered by the judicial authority in

abduction cases. As a result of this failure, 33 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 two years and three months.

Central Authority: While the U.S. and the Austrian Central Authorities have a cooperative

relationship, delays in communication about actions to resolve Convention cases are an area of

continuing concern.

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 2021, one abduction case was resolved through voluntary means.

Location: The competent authorities took appropriate steps to locate a child after a Convention

application was filed in 2021. It took eight days to locate this child. The competent authorities of 

Austria failed to take appropriate and expeditious steps to locate another child after an

enforcement order was issued for the return of the child. It took 53 days to locate this child,

which led to delays in the enforcement and return of the child.

Judicial Authorities: Judicial authorities rendered decisions that were not consistently in

accordance with the Convention and there were delays in judicial authorities deciding on a case.

In one case, after multiple appeals, the Austrian Supreme Court ordered a lower court to enforce

a return order; however, the lower court instead dismissed the Convention case and made a

custody decision. While the lower court’s order was eventually overturned, these problems in

the performance of judicial authorities contributed to a pattern of noncompliance.

Enforcement: While the Supreme Court of Austria ordered the enforcement of a Convention

return order in 2021, the lower court and Austrian authorities charged with the enforcement

responsibility declined to enforce the order, which contributed to a pattern of noncompliance.

After the Supreme Court overruled the lower court’s dismissal of its return order, enforcement

actions were initiated in December 2021; the child was returned to the United States in January

2022. There was one case (one hundred percent of the unresolved cases) that was pending for

more than 12 months in which the competent authorities and law enforcement failed to enforce

a return order.

Department Recommendations: The Department will continue engagement with the Austrian

authorities to address issues of concern.

Argentina: 2022 State Department's Annual Report on International Child Abduction

Country Summary: The Convention has been in force between the United States and

Argentina since 1991. In 2021, Argentina continued to demonstrate a pattern of noncompliance.

Specifically, the Argentine judicial authorities failed to regularly implement and comply with the

provisions of the Convention. As a result of this failure, 50 percent of requests for the return of

abducted children under the Convention remained unresolved for more than 12 months. The sole

abduction case still open at the end of 2021 has been unresolved for 11 years and six months.

Argentina was previously cited for demonstrating a pattern of noncompliance in the 2015-2021

Annual Reports.

Significant Developments: Delays persisted within the Argentine judiciary in 2021,

contributing to a pattern of noncompliance. The sole abduction case still open at the end of 2021

has been unresolved in the Argentine judiciary for 11 years and six months, the Department’s

longest-running open unresolved abduction case in the world. The other abduction case open

during 2021 resolved this year, after being unresolved for just under two years, mostly due to

delays in the judiciary. Argentina’s legislature failed to enact national procedural legislation

designed to address Argentina’s judicial delays in early 2021 after interlocutors reported it lost

“parliamentary status,” and officials did not reintroduce a draft bill for the remainder of the year.

Central Authority: The U.S. and Argentine Central Authorities have a productive relationship.

Location: The Department of State did not request assistance with location from the Argentine

authorities.

Judicial Authorities: There were serious delays by the Argentine judicial authorities in

deciding Convention cases. As a result of these delays, cases may be pending with the judiciary

for over one year, contributing to a pattern of noncompliance.

Enforcement: In one case unresolved for almost 12 years, Argentine courts have suspended a

return order. Additionally, Argentina’s legal system allows multiple appeals both on the merits

of the decision and on the manner in which the decisions are enforced, thereby creating

excessive delays which contribute to a pattern of noncompliance.

Access: In 2021, the U.S. Central Authority had one open access case involving one child under

the Convention in Argentina. This was opened in 2018. This case has been filed with the

Argentine Central Authority. No new cases were filed in 2021. By December 31, 2021, this case

remained open. This case has been pending with the Argentine authorities for more than 12

months.

Department Recommendations: The Department will continue intense engagement with

Argentine authorities to address issues of concern.

PREVENTING CHILD ABDUCTION TO LEBANON

 by Jeremy D. Morley

Lebanon is, in my opinion, a proven safe haven for international parental child abduction. I testified to this effect last month in great detail in a case in Texas.

My credentials include extensive research concerning Lebanese family law, consultations with numerous clients, and often with Lebanese counsel, concerning abductions and potential abductions to Lebanon, and my hosting of a meeting about Lebanese family law. in New York with three Lebanese judges (one from a Christian court, one from a Sharia court and one from a civil court) as well as a top Lebanese family lawyer.

Lebanon has failed and refused to adopt the Hague Abduction Convention. It has a religious-based judicial system in the sphere of family law matters. It does not have one civil code regulating personal status matters. There are 15 separate personal status laws for the country’s different recognized religious communities, twelve of which are Christian and four are Muslim, with the remaining courts and laws being for Druze and Jews. Each of these laws are administered by separate religious courts. It is often extremely difficult to enforce custody orders in Lebanon and it is relatively simple for parents to frustrate the process for extended periods of time by moving to other locations in Lebanon or by initiating new civil or criminal proceedings within Lebanon.

Given the current overwhelming challenges that Lebanon faces with terrorism, corruption and a collapsed economy, it is most unlikely that the extreme difficulties faced by left-behind parents in trying to secure the return of children who have been abducted to Lebanon will be ameliorated in the foreseeable future.

INTERIM MAINTENANCE IN HIGH-NET-WORTH CASE IN ENGLAND, DESPITE NEW YORK PRENUPTIAL AGREEMENT

                                                                                                                        By Jeremy D. Morley*

High-net-worth divorce cases in England can be both unpredictable and extremely expensive, even when the parties have signed a well-drafted, thoroughly reviewed and subsequently modified New York prenuptial agreement containing substantial provisions for the lesser wealthy spouse. A case on point is Collardeau-Fuchs v. Fuchs, [2022] EWFC 6 (21 February 2022).

The parties had signed a New York prenuptial agreement, in which the husband had disclosed a net worth of more than £1 billion, and the wife a net worth of about £4 million. They had then signed a modification of the prenuptial agreement during the marriage. Fortunately for the wife, she was able to bring her divorce case in London, where the family owned an extremely valuable home. The family also owned extremely valuable residential properties in New York, France and other locations.

An interim decision in the case was rendered a few days ago, solely on the question of the amount of interim maintenance to be paid by the husband, pending the final resolution of the case. It was only an 8-year marriage, although in England it would be deemed a 12-year relationship since the parties had cohabited for 4 years prior to the marriage (or only for 2 years according to the husband).  The length of the relationship is a factor of far greater significance in England than in New York.

The prenuptial agreement, as modified, provided that the wife would receive a lump-sum payment upon a divorce of £23.5 million plus 18 years of rent-free accommodation at the family home in West London, valued at £30 million.

Under English law, the prenuptial agreement could not modify or limit the duty of the English court to provide for interim maintenance to parties in “need.” New York does not necessarily so provide. The decision of the English court by the Hon. Mr. Justice Mostyn -- an English High Court judge who had himself once achieved fame as a barrister with the nickname of “Mr Payout” because of the enormous sums he had won for divorcees – concerned nothing more than the extremely preliminary issue of interim maintenance.

The English court determined that, during the pendency of the divorce case, the husband must pay to the wife sufficient sums as would meet her “reasonable needs.” It held that English law required that the term “reasonable needs” must be interpreted in light of the standards enjoyed by the parties during the marriage. Since the reality was that “the husband and wife in this case belong to a tiny percentage of the world population who have control and management and entitlement to huge sums of money,” the wife’s “reasonable needs” must be considered “according to the standards of the ultra rich.” The court insisted that it had a duty to “avoid the risk of confining [the needs of the wife] by the application of scales that would seem generous to ordinary people.”

The court found that the portion of the parties’ annual living costs that was attributable to the wife, for the last full year before the parties separated, was approximately £855,000.00 ($1,368,000.00), of which about 55% (£475,000.00) was for (obviously lavish) vacations. This sum did not include the cost of staff for the West London house (two chefs, a house manager, 2 or 3 housekeepers, a launderer, and numerous contractors such as gardeners, pool maintenance builders, plumbers, electricians, and handymen) solely, as well as other “Overheads.”

Accordingly, the court ordered the husband to pay the sum of £855,000.00 a year to the wife on an interim basis until the conclusion of the case, plus £2.78 million a year for staff and overhead, for a grand total of £3.635 million (almost $5 million) per annum.

The court also ordered the husband to pay all of the wife’s legal fees, both past due and those yet to be incurred. Judge Mostyn explained that, although the litigation was only “at a relatively early stage,” the parties had nonetheless already incurred considerable legal costs which amounted to about £917,000.00, with another £288,700.00 anticipated through the end of the next month, for an interim total of £1,205,000.00 ($1.64 million).

Meanwhile, the very much larger issue of the full effect of the prenuptial agreement in England remains to be determined. In this regard, the contrast between New York and English law remains extreme. It is clear the public policy of the New York courts to encourage marrying couples to create certainty about their financial arrangements by entering into prenuptial agreements. The New York courts will enforce the terms of a well-drafted prenuptial agreement upon a divorce absent proof of unconscionability or extreme unfairness or duress, or other unusual circumstances. But courts in England are far more circumspect in their enforcement of such agreements, even when there has been full financial disclosure and independent legal representation. English judges remain particularly protective of the rights of less wealthy spouses and the need to consider “fairness” in determining whether to apply or modify the terms of a prenuptial agreement. The wife in the just-reported case seems to have been extremely fortunate, or extremely wise or strategic, to have been able to bring her case in London, and not in New York.

_____________________

* Jeremy D. Morley is a New York lawyer who collaborates with counsel in England and other jurisdictions in handling international prenuptial agreements. He may be reached at www.international-divorce.com and www.internationalprenuptials.com

 

FINANCIAL RESTITUTION AGAINST INTERNATIONAL PARENTAL CHILD KIDNAPPERS

U.S. law allows a left-behind parent whose child has been abducted to the United States to compel the abducting parent to repay all of the fees and expenses incurred in seeking the child's return. 22 U.S.C. §9007(b)(3). But there is no similar provision that clearly entitles a left-behind parent whose child has been abducted out of the United States to seek reimbursement from the abductor of the fees and expenses incurred in seeking the child's return to the United States.

There is appears to be a split between the Ninth and Tenth Circuits as to whether federal legislation that authorizes an award of restitution to a victim of criminal offense can be used to recoup a left-behind’s parent’s legal expenses in cases of international parental child abduction once the abductor has been found guilty of international parental child kidnapping pursuant to the International Parental Kidnapping Crime Act (the “IPKCA”) 18 U.S.C. §1204.

The Victim and Witness Protection Act of 1982 authorizes a federal district court to sentence a criminal defendant to pay restitution to a victim of the offense to the extent of “expenses related to participation in the investigation or prosecution of the offense.” 18 U.S.C. §3663(b)(4).

In U.S. v. Cummings, 281 F.3d 1046 (9^th Cir. 2002), the defendant father was successfully prosecuted under the IPKCA for having abducted his children from their home in the State of Washington to Germany. The left behind mother brought a return action against the father in Germany under the Hague Abduction Convention and an action in the State of Washington for contempt of court for his violation of a custody order. The father was sentenced to a term in jail and was required to pay the mother’s legal fees and expenses in the two civil actions. The Ninth Circuit upheld the restitution award, holding that the mother’s civil cases were not “wholly separate” from the government’s prosecution of the father. This was supported by the fact that, by initiating a case under the Hague Convention, the mother had followed the procedure specifically described in the IPKCA as the preferred “option of first choice” for a left-behind parent.

More recently, however, the Tenth Circuit held in U.S. v. Mobley, 971 F.3d 1187 (10th Cir. 2020) that it would not follow Cummings. In Mobley, the government prosecuted a mother under the IPKCA for her abduction of her children from their home in Kansas to Russia. Once she was in Russia, she had filed there for divorce and custody in Russia. The left-behind father had then sued for divorce and custody in Kansas. The Russia court had given custody to the mother, and the Kansas Court given custody to the father. The district court found the mother guilty under the IPKCA and ordered restitution to the father of the legal fees and expenses that he had incurred in connection with the two civil cases.

On appeal, the Tenth Circuit overturned the restitution award. It held that §3663 is not satisfied by evidence that the expenses were incurred in proceedings that were merely “related to” the criminal offence. Instead, the expenses must be “related to participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” It held that the terms “investigation”, “prosecution” and “proceedings” are limited to the government's investigation, the government's criminal prosecution, and the criminal proceedings, in accordance with the ruling of the U.S. Supreme Court in Lagos vs. U.S., 138 S. Ct. 1684 (2018). There was no evidence that the government had directed or sanctioned the father’s civil proceedings, and the mother's attempts to secure children’s return “did not assist the government in its investigation or of prosecution of the mother.”

It remains to be seen whether Mobley will, in future cases, be successfully distinguished on its facts. Specifically, it is possible that proof could be elicited that the litigation efforts of a left-behind parent assisted the governor's prosecution of an international parental kidnapping case. In such a case, a restitution award might still be deemed appropriate. Even then, restitution would be restricted to those few cases in which an abductor is prosecuted under the IPKCA. Of course, recovery in any such case would be extremely remote.