Tuesday, November 21, 2017

Court Bars a Child’s Visit to India

The Federal Circuit Court of Australia has dismissed the application by an Australian mother of Indian origin to take her child to visit India.  She stated that she wished her young daughter to be present in India, where she planned to marry an Australian man who is also of Indian origin, and then return to Australia.
The Circuit Court relied on expert evidence concerning India’s laws and practices in child custody matters regarding international cases.  In this regard the Court ruled that:
“Although it is a matter for conclusive determination at the final hearing, for the purposes of this interlocutory application I place weight on the expertise of Mr. Morley in the field of international child abduction and his opinion that given the complexities of the Indian family law system the father is likely to face considerable difficulties and expense in locating [the child] and ensuring her safe return, should her mother retain her in India…
It is impossible to predict how an India court may navigate the facts of this case or how much weight an Indian court might give orders of this court.  Mr. Morley’s comment that there is a ‘substantial likelihood’ that the Indian courts would not return the child should the mother fail to return to Australia is sufficient to demonstrate that significant uncertainty exists regarding the degree of deference an Indian court is likely to pay an Australian parenting order. As such, the child’s return to Australia should the mother fail to comply with an order of this Court cannot be guaranteed by the commencement of proceedings by the father in India…
Mr. Morley opines that Courts outside India should be extremely wary about allowing a parent to take a child for a temporary visit to India over objection of the other parents where the mother is of Indian origin and the child is female. In his view there is a substantial likelihood that if the child is not returned voluntarily the Indian court will not return her to her home of habitual residence. Proceedings to recover the child (if necessary) are likely to be extremely slow and expensive process. He contends that [the child] ‘being a girl child, the guardianship of the Mother is of utmost significance. Ordinarily the custody of a girl child who is around 7 years of age must ideally be with her Mother unless there are circumstances to indicate it would be harmful...’”

Friday, November 17, 2017

Habitual Residence in the Hague Abduction Convention: European Common Sense v. American Confusion

Jeremy D. Morley

The Court of Justice of the European Union has issued a fascinating opinion (ECLI:EU:C:2017:436)  concerning the definition of the term “habitual residence” as employed in both the Hague Abduction Convention and the governing European Union regulations. The contrast between the European approach to interpretation of this key term, and the various conflicting and confusing approaches taken by courts in the United States, could hardly be stronger. 
The case concerned an Italian father and a Greek mother who lived together in Italy until the wife, while pregnant and with the father’s agreement, went to Greece to give birth to their child. Their plan was that she would return to Italy with the baby after some undefined period of time with her family in Greece. Five months after the baby’s birth, and upon the mother’s refusal to return to Italy, the father brought a case in Italy for divorce and custody and a case in Greece for the return of the allegedly abducted child. 
The Greek court then asked the E.U. Court of Justice for an urgent preliminary ruling on whether the child was habitually resident in Greece. 
The E.U. Court ruled as follows:
1.                  The concept of habitual residence is an autonomous one of EU law.
2.                  Its meaning must be uniform. 
3.                  The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment. 
4.                  The child’s presence should not in any way be temporary or intermittent. 
5.                   The relevant factors to consider include the duration, regularity, conditions and reasons for the child’s stay in the country and the child’s nationality.
6.                  If the child is an infant, its environment is essentially a family environment, and it necessarily shares the social and family environment of the person(s) who care for the child.  
7.                  The intention of the parents to settle permanently with the child in a country can also be taken into account, if shown by certain tangible steps such as the purchase or lease of a residence.
8.                  Parental intention cannot as a general rule by itself be crucial to the determination of the habitual residence. It is only an ‘indicator’ that can complement other consistent evidence. A general and abstract rule that the initial shared parental intention is decisive would “transcend the concept” of habitual residence, would contravene the structure, effectiveness and the objectives of the return procedure, and “would be detrimental to the effectiveness of the return procedure and to legal certainty.”
9.                  A return procedure is, inherently, an expedited procedure, since its aim is to ensure the prompt return of the child. The EU legislature has given concrete expression to that imperative, in Article 11(3) of Regulation No 2201/2003, by requiring courts seized of applications for return to issue their judgments, save in exceptional circumstances, no later than six weeks after the application is lodged.
10.              An application for return must therefore be based on information that is quickly and readily verifiable and, so far as possible, unequivocal. 
11.              Yet, it may be difficult, if not impossible, in a case such as the pending case, to establish beyond all reasonable doubt, for example, the date initially envisaged by the parents for the mother’s return, and whether her decision not to do so is the cause or, on the contrary, the consequence of the father’s divorce proceedings.
12.              To interpret, in such a context, the concept of habitual residence in such a way that the initial intention of the parents as to the place which ‘ought to have been’ the place of that residence would constitute the fundamental factor, would be likely to compel the national courts either to gather a substantial quantity of evidence and testimony in order to determine with certainty that intention, which would be difficult to reconcile with the requirement that a return procedure should be expeditious, or to issue their judgments while not in possession of all the relevant information, which would result in legal uncertainty.
13.              The aim of the return procedure is to put the child back in the environment with which the child is most familiar and, thereby, to restore the continuity of the child’s living conditions and the conditions in which the child can develop.
14.              However, the alleged wrongful conduct of one parent cannot in itself justify ordering the removal of the child from the country where the child was born and has lawfully and continuously lived to a country with which the child is not familiar.
15.              Consequently, when a child has been born and has lived continuously with her mother for several months, in accordance with the joint wishes of her parents, in a country other than that where those parents were habitually resident before her birth, the initial intention of the parents with respect to the return of the mother, together with the child, to the latter country cannot allow the conclusion that that child was “habitually resident” there, within the meaning of that regulation.
16.              The child was habitually resident in Greece. Accordingly, the child should not be returned to Italy under the Hague Convention (as brought into European Union) and the Greek court should determine matters concerning the child’s custody.
In extremely sharp contrast, the courts in most U.S. federal circuits have elevated the last shared intention of the parents to a dominant position in the interpretation of habitual residence. Making matters worse, some courts adopt an interpretation that is closer to the European approach, some courts adopt a middle ground between the two extremes, and many courts follow shifting principles concerning such issues as whether the intentional abandonment of a prior habitual residence must be established before a new habitual residence can be acquired, and whether and when so-called “acclimatization” trumps intent. 
Moreover, except for giving calendar priority to Hague cases, U.S. courts have failed to address the need to tailor judicial procedures in such cases to reflect the need for expeditious resolution. 
As a result, when the issue of habitual evidence is contested, they generally allow – and, indeed, encourage – the presentation of voluminous evidence at trial concerning the last shared intention of the parents, which requires proof of the intimate details of such matters as shipping of specific kinds of clothing and other items, the substance of speeches at alleged farewell parties, the meaning of text message phrases of farewell or bon voyage, the passing remarks made to real estate agents, and an unlimited stream of other information addressing in any way the issue of exactly what was in the minds of each parent as they drove to the airport. 
Furthermore, while the courts in most countries rely primarily on written submissions in Hague cases, courts in the United States usually require evidence in the form of live testimony and they often authorize extensive pretrial sworn depositions and other discovery. 
The result is that Hague Convention cases in the United States, especially in those circuits that have followed the majority interpretation of habitual residence, can consume weeks and months of attorneys’ preparation time, and weeks of trial time, leading to transcripts of thousands of pages of testimony, extraordinary delays in securing initial decisions and cases that may languish on appeal for months and even years. 
Adding insult to injury is the uniquely American rule that a losing respondent in a Hague case – but not a losing petitioner – must normally be ordered to pay all of the legal fees and related expenses of the petitioner (including the often extraordinary attorneys’ fees of petitioner’s pro bono counsel calculated at their full hourly rates). While it may be appropriate to sanction a brazen international child abductor, the issues in Hague cases are often close and unpredictable and they are rendered much more so in the United States by virtue of the contradictory case law concerning such loose terms as “last shared parental intention” and “grave risk of harm.”  
Indeed, it is simply shocking that the United States Supreme Court has refused numerous applications for certiorari to address the issue of the interpretation of habitual residence, despite (a) the existence of a clear split among the federal circuits, (b) the express treaty requirement of uniform international interpretation, as well as prompt results, (c) the clear divergence between the majority U.S. approach interpretation and that which has been adopted by most other countries, (d)  the extraordinary waste of judicial and attorneys’ effort that results from confusion concerning the interpretation of the term, and from the interpretation of the majority of the circuits that focuses on the mindsets of the parents, and (e) the resulting fantastically high legal fees incurred by parents on both sides of these cases who are often simply trying to do the best to protect and nurture their children.  
The Old World still has a few things to teach us, I submit.

Monday, October 30, 2017

Argentina’s Hague Abduction Noncompliance Continues

In June 2017, the U.S. Acting Principal Deputy Assistant Secretary for Consular Affairs delivered another demarche to the Argentine Ministry of Foreign Affairs, notifying the Argentine authorities that the U.S. State Department had again cited Argentina in the 2017 Annual Report for demonstrating patterns of noncompliance during 2016. Parents should be alert to the fact that if a child travels to Argentina with one parent, and if that parent or his family then retain the child in Argentina, it is likely to be extremely difficult or impossible to secure the child’s return.

Wednesday, October 25, 2017

Lawline: International Child Custody & Abduction

My lecture on International Child Custody & Abduction is available at www.lawline.com/course-center/international-child-custody-abduction

Some reviews:
·  Extremely interesting. Presenter had very effective style.
·  Excellent course. One of the best presenters I’ve seen.
·  superb lecture by Jeremy - thanks
·  Thoroughly enjoyed. Fascinating area.
·  Good information on a complicated subject.

Wednesday, October 18, 2017

Notes on Egypt and International Child Abduction

Updated October 2017
Jeremy D. Morley
1.     The U.S. State Department has determined - and has reported to Congress - that Egypt has demonstrated a persistent failure to work with the U.S. Central Authority to resolve cases of international parental child abduction.
2.     The Superior Court of Washington for King County ruled in 2015 - based on the expert evidence of international family lawyer Jeremy D. Morley and another expert - that there is "clear and convincing evidence that Egyptian child custody laws violate fundamental principles of human rights." Therefore, Washington State should not treat Egypt as a "state" for purposes of the Uniform Child Custody & Jurisdiction Act.
3.     The Washington court found, inter alia, that Egyptian family courts apply specific Sharia law rules to child custody cases, under which a Muslim mother is disqualified from custody if she does not raise the child as a Muslim and / or if she does not comply with Muslim religious requirements or if she remarries or moves away from the father's domicile.
4.     It also found that Sharia child custody law in Egypt does not adequately take into account acts of domestic violence perpetrated by the husband against his wife and that a husband is entitled there to use physical force against a "disobedient" wife. For this reason the Washington court found that the Egyptian courts had no child custody jurisdiction, even though the parties and their son had lived in Egypt at all relevant times until the mother, without the husband's consent, left for the United States with the child, and even though the husband filed a case for custody in Egypt within six months thereafter.
5.     Egypt has not signed Hague Convention on the Civil Aspects of International Child Abduction.
6.     The removal of a child by the non-custodial parent to or within Egypt is not a crime in Egypt unless the child is subject to Egyptian court-ordered travel restrictions. 
7.     A left-behind parent must work within the Egyptian court system in order to obtain legal custody of the child in Egypt.
8.     Egyptian mothers of children born to a non-Egyptian father may request an Egyptian passport for the child from any Egyptian consulate.
9.     Foreign custody orders are not generally recognized in Egypt, and will not be given any weight unless they are in compliance with Sharia law.
10.     Egypt’s Personal Status Law primarily favors the mother. Mothers are most commonly considered to be the appropriate custodians of children up to age 15.  Normally, if custody disputes arise between parents, Egyptian courts uphold presumptive custody. A mother may lose her presumptive custody if she remarries or is otherwise deemed unfit, in which case the Egyptian courts recognize an order of preference of alternate adult custodians. For this purpose, the law categorizes women according to their priority of taking care of children: “The mother, then the grandmother from the mother’s side; then the grandmother from the father’s side, then sisters from the mother’s side; then sisters from the father’s side; then niece from the mother’s side; then niece from the father’s side, etc. Only then will the right come to the men side.”
11.     Egyptian law contains no provision for equal shared parental responsibility.
12.     While father’s automatically have guardianship rights, those rights are curtailed substantially as compared to other Islamic countries. 
13.     The provisions of the Personal Status Law apply likewise to Christians in Egypt as to Muslims.
14.     If the mother loses her presumptive custody the courts recognize an order of preference of alternate adult custodians with priority given to the mother's family in the following order:  maternal grandmother or great-grandmother; paternal grandmother or great-grandmother; maternal aunt; paternal aunt; maternal niece; paternal niece.  Only if these relatives do not exist, will the right of custody shift to a male.
15.     The Family Courts generally permit a non-custodial father to have visitation with his children for only three hours a week in a public place during the daytime, unless the parties agree otherwise 
16.     In 2003, the U.S. and Egypt signed a Memorandum of Understanding that purportedly confirms both countries' commitment to facilitating parental access to children in the other country. A similar memorandum was signed between Egypt and Australia. However the Memoranda do not address international child abduction, have no teeth and are relatively meaningless.
17.     In May 2015, the U.S. Embassy in Cairo delivered a demarche to the Egyptian government "noting the country's citation in the 2015 Annual Report on International Parental Child Abduction as demonstrating patterns of noncompliance." The Embassy had previously delivered a similar demarche to the Egyptian Government in 2014. 

Friday, September 29, 2017

Expert Testimony as to Potential International Child Abduction to Colombia

In an order issued on September 25, 2017, the Chancery Division – Family Part of the Superior Court of Union County, New Jersey, held that Jeremy D. Morley “was qualified by the Court, without objection, as an expert in the area of International Family Law and International Abduction cases. Mr. Morley was an extremely knowledgeable and impressive witness."
The Court further held that Mr. Morley’s testimony “clearly indicates that, while Colombia is a Hague signatory, its non-compliance and spotty enforcement record indicates that any parent would be justified in having a concern about their child being held in Colombia by a Colombian born parent.”  

Thursday, September 21, 2017

Unenforceability of Japanese Custody and Hague Abduction Convention Orders

Jeremy D. Morley*

Child custody orders are not enforced in Japan. There is merely a provision for a fine, but it is usually de minimis and rarely employed.  It does not impede a parent with physical possession of a child from denying the other parent access to the child. This is one reason (among several) why child custody is not shared in Japan and why visitation provisions are usually limited to short, periodic and often supervised meetings, unless the parents are genuinely agree to provide otherwise. There is no court-ordered international visitation in Japan and overnight visits are rarely ordered unless the parent who possesses the child willingly agrees otherwise.
In July 2017, the Supreme Court of Japan issued a ruling in a custody case between two Japanese parents living in Japan. It overturned a most unusual and provocative lower court ruling that had provided for extensive visitation time for the father. Indeed, the Supreme Court ordered sole custody for the mother and adopted her proposal to permit the father to meet the daughter only once a month, since that was frequent enough for an elementary school student and more time with her father would be unduly burdensome on a child. The case was commenced seven years earlier, during which the mother had allowed the father to meet the child only six times. The decision to permit visitation of not more than once a month, and then only for a meeting, not for an overnight visit, is normal and typical in Japan.
When Japan agreed to adopt the Hague Abduction Convention, which provides for the court-ordered return of internationally-abducted children, the Government was required t o make provision for the first time for enforcement of such orders. Accordingly, certain Japanese family lawyers worked extremely hard to draft enforcement measures that would, for the first time, lead to the enforcement of the terms of a Family Court order concerning children. However, their initial proposals were significantly diluted, and while the Diet ultimately adopted an extraordinarily lengthy enabling act bringing the Hague Abduction Convention into Japanese law, its provisions concerning the enforcement of Hague Convention return orders have proven to be unworkable.
Thus, in a case in Osaka in which the Osaka High Court ruled that four children, whose Japanese mother had abducted them from the United States, must be returned to their American father in the U.S. The father ultimately prevailed on so-called “enforcement officers” from the Nara District Court to make some efforts to enforce the return order, but when the mother refused to cooperate they declared that enforcement was not possible.  Early this year, the Osaka court reversed its original return order and authorized the mother to retain the abducted children in her sole custody in Japan.
Just a few days ago, an advisory panel to the Japanese Justice Ministry proposed that some enforcement measures beyond mere fines should be enacted in order to enforce orders in domestic custody cases, and it suggested that, after public comments, the matters could be submitted to the Japanese Diet “as early as 2018.” Whether any such law will ever be enacted is entirely uncertain. And whether any enforcement measures that are enacted will themselves be enforced in practice is even more uncertain.
In the meantime, the basic approach continues, whereby Japanese child custody cases merely “rubberstamp” the principle that whichever parent has physical possession of a child may in practice decide whether or not to allow the other parent to see their child.  And since physical possession means everything, parents who do not fully trust the other parent to return the child are necessarily reluctant to part with possession for even a day, which explains why visitation in Japan is generally limited to intermittent short supervised daytime meetings in a secure location.

* Jeremy D. Morley, an international family lawyer in New York, who works with family lawyers throughout the world. He is the author of two leading treatises on international family law, International Family Law Practice and The Hague Abduction Convention.  He frequently testifies as an expert witness on the child custody law and legal system of Japan and other countries around the world.

Monday, September 11, 2017

Chinese Recognition of Foreign Divorce Judgments

Jeremy D. Morley
It has been reported that on 30 June 2017, “for the first time in history,” a Chinese court recognized and enforced a U.S. commercial monetary judgment. Dr. Jie (Jeanne) Huang, Chinese Court Unprecedentedly Recognized and Enforced a U.S. Commercial Monetary Judgment.

The case is Liu Li v. Tao Li and Tong Wu decided by the Intermediate People’s Court of Wuhan City, in which that court found reciprocity by U.S. courts and duly enforced a default money judgment from California.

The Civil Procedure Law of China authorizes Chinese courts to enforce foreign judgments if there is a reciprocal enforcement treaty with the foreign country in question or if the courts of the foreign country in fact provide reciprocity, but always subject to a broad exception on the basis of undefined public policy. There is no relevant treaty between China and the US, Now, apparently for the first time, a court in China has found reciprocity to exist in fact with the U.S., at least in a commercial matter in which there was a fixed money judgment.
However, that does not mean that foreign divorce or custody orders will be recognized in China. A research article previously reported on two efforts to enforce U.S. divorce judgments in Chinas, neither of which was successful.  Donald C. Clarke, The Enforcement Of United States Court Judgments In China: A Research Note  Mr. Clarke reported there that, “In 1967, the Yantai Municipal People's Court rejected an application to recognize and enforce a divorce judgment from a U.S. court. In 1985, the Supreme People's Court issued a directive to the Shanghai Higher-Level People's Court (one level below the Supreme People's Court) instructing it not to recognize a U.S. divorce judgment, but instead to consider the case anew.”

Thursday, August 31, 2017

A decade later, Santa Ana dad still fights for his son’s return from Japan

By SUSAN CHRISTIAN GOULDING | sgoulding@scng.com | Orange County Register

In an alternate life, Keisuke Collins would have started high school last week as a freshman at Foothill High. But in reality, Keisuke lives an ocean away from Orange County and from the father who misses him.

In the wake of a bitter divorce, Collins’ ex-wife, Reiko, spirited their then-5-year-old to her native Japan. Officials there have made “zero attempt” to reunite father and son, he said.
Randy Collins, 56, has not spoken with the boy throughout his school career. “Not a day goes by that he isn’t on my mind,” said the Santa Ana resident.
Collins and dozens of other parents in similar situations around the country have bonded over their common cause. They share a passion for testifying before congressional hearings and for imploring politicians to take action. They share a national organization, Bring Abducted Children Home – which counts about 400 children living in Japan without access to their American parents. Mostly, however, they share heartache.
Collins’ ex-wife could not be reached for comment. The Orange County attorney who represented her in the divorce did not return requests for comment.
The last time Collins saw Keisuke was June 2008, when they spent a jam-packed Father’s Day together. They attended church, visited the Discovery Cube, grabbed a bite for lunch and played at the beach. Then Collins took the child back to his mom, expecting to see him again the following night.
But she phoned the next afternoon and said Keisuke was under the weather. Little did Collins realize she had placed the call from the Seattle airport on her way to Japan, ignoring a court order that forbade her from leaving the country with their child, he said.
“She was already gone,” said Collins, who works in mortgage lending. Thus began an expensive and fruitless legal effort to get Keisuke back.
That mission included a 2015 trip to Japan with his best friend since Westminster High School, Ta’alolo Puni Pa’u.
“My passport was flagged at the airport,” Collins said. “Police notified Reiko and kept tabs on me.”
Nine days later, he decamped without so much as a glimpse of his son.
“I was bawling my eyes out,” Collins said.
“He started out so hopeful that he at least would get to see Keisuke, but left in utter despair,” said Pa’u, a hotel executive in Dallas.
New York attorney Jeremy Morley, an expert in international family law, has represented numerous parents in Collins’ shoes. Japan, he said, takes a hands-off approach in custody disputes even when both parents are Japanese.
“Left-behind American parents have every reason to be mad at Japan,” Morley said. “Yet it’s a reflection of serious cultural differences, not malice. Japanese society regards the law as an instrument that should not interfere with the privacy of family life.”
U.S. Navy Captain Paul Toland, 50, knows too well that anger, frustration and pain.
Toland met his wife, Etsuko, while stationed in Japan. The couple welcomed daughter, Erika, in 2002.
Etsuko experienced postpartum depression and went with the baby to her mom’s home for what Toland assumed would be a brief visit. Instead, his wife cut off communication with him. Japanese courts offered no assistance, he said.
“If I’d had even an inkling that a U.S. ally could actually separate an American father from his child, I would never have let Erika out of my sight,” Toland said.
Etsuko committed suicide in 2007. Even after her death, Toland could not gain custody of his daughter. A court granted guardianship to Erika’s grandmother, who continued to block contact.
“Japan’s entire family law system is broken,” Toland said. “In a divorce, there is no joint custody. One parent — whoever happens to have possession of the child at that time — gets 100 percent parental rights. So in a sense, my daughter was orphaned when her mother died.”
Children usually stay with the mother after a divorce, Morley said, and the father has little involvement.
“A father who demands custody rights is viewed as someone disturbing family peace,” he said.
In 2014, Japan belatedly signed the 1980 Hague treaty on international child abduction. Although a positive step, Toland said, Japan continues to grant full rights to one parent regardless.
“For anything to change, Japan’s laws must change,” said Toland, now stationed in Hawaii. “Yes, there have been voluntary returns. But not one child has ever been returned from Japan through legal channels.”
U.S. Congressman Chris Smith of New Jersey champions the issue of cross-border child abduction, which he calls “child abuse.” He argues that the United States should be more assertive with Japan, “a flagrant violator.”
“When is enough, enough?” Smith said in an email. “What we need is a change in the culture of the U.S. State Department, which too often rewards its foreign service officers for appeasing countries in the name of maintaining ‘harmonious’ relations. The U.S. must show it means business when it comes to the return of our abducted children.”
The longtime congressman, who for years has worked with Bring Abducted Children Home, praises Collins as “an inspiration.”
“He is tireless and will never stop fighting,” Smith said.
Indeed, Collins promised, he “will never give up.”
“Keisuke is my son, my only child,” he said.

Tuesday, August 22, 2017

Judicial Reliance on Morley’s Expert Report on Risks of Child Visit to China

We are pleased to report that the Superior Court in Orange County, California has expressly relied upon my expert report on Chinese family law. The Court ruled that a father who was relocating to China should not be permitted to take his child for a visit to that country, in the face of opposition by the child’s mother, because of the potential grave difficulty of securing the return of an abducted child from China.

Friday, July 28, 2017

Don't Rely on the Hague Convention for Overseas Visits

When considering whether to be concerned that the other parent plans to take a child on an overseas visit - which is normally a great benefit to a child and should generally be encouraged - it can be a huge mistake to rely merely on the foreign country's accession to The Hague Abduction Convention. 

The Convention does not operate automatically and a country's accession to the treaty does not guarantee the prompt - or even eventual- return of an abducted child. For example, one must consider the potential defenses (exceptions really) that an abducting parent might raise in a case brought under the Convention in the foreign country. Thus, if a child is 10 years old or older, one should be alert to the possibility that the child, perhaps under family pressure, will object to being sent back to the habitual residence. The Convention expressly authorizes courts to refuse to return abducted children if they are of sufficient age and maturity and independently object to being returned.

International child abduction is child abuse and prevention is far better than attempting to recover an abducted child after the fact. 

Thursday, July 13, 2017

Monaco’s New Law on International Private Law

Jeremy D. Morley

On June 28, 2017 Monaco adopted a new Law on Private International Law. It sets forth the rules concerning divorce jurisdiction, authorizes spousal selection of the law to govern marital regimes, and provides rules concerning the applicable law concerning maintenance.

An informal translation of such provisions is as follows:

No. 1448 - Law on Private International Law

Section 1 - Formation of marriage
Article 32: The form of marriage celebrated before the Monegasque authorities is governed by Monegasque law.
Article 33 Subject to the provisions of Article 27, the substantive conditions of the marriage celebrated in Monaco shall be governed by the law of the State of which he is a national at the time of the marriage.
Article 34: Marriage concluded abroad in accordance with the law of the State of celebration shall be recognized as such 4/13 in the Principality, unless it is contrary to Monegasque public policy, or if it has been celebrated abroad with the clear intention of evading the provisions of Monegasque law.
Section II - The respective rights and duties of spouses
Article 35: The respective rights and duties of spouses shall be governed:
          1. by the law of the State in whose territory the spouses are domiciled or jointly separated;
          2. in the absence of domicile of the spouses in the territory of the same State by the law of the State in whose territory the spouses had their last common domicile;
          3. and, failing that, by Monegasque law. Notwithstanding the provisions of the preceding paragraph, third parties who have treated in good faith in the Principality with a spouse domiciled there may avail themselves of the provisions of Monegasque law concerning the rights and duties of spouses.
In all cases, the provisions of Monegasque law ensuring the protection of the family home and of the furnishings furnishing it are applicable when this housing is located in the Principality.
Section III - Matrimonial regime
Article 36: The matrimonial regime is governed by the law chosen by the spouses. Spouses may choose the law of the State in which they establish their domicile after the marriage, the law of a State of which one of them has the nationality at the time of the choice, the State in whose territory one of them has his domicile at the time of the election or the law of the State in which the marriage is celebrated.
The duty so designated applies to all of their property.
The provisions of this article do not derogate from the provisions of articles 141 and 1235 of the Civil Code.
Article 37: The designation of the applicable law must be written and signed by both spouses. It shall take the form provided for in the marriage contract by the designated right or by the State in whose territory the act is drafted.
This designation must be express or result from the provisions of a marriage contract in one of the forms thus provided.
The designation of the applicable law may be made or amended at any time. If it is subsequent to the celebration of the marriage, it has effect only for the future. The spouses may dispose of it otherwise, without prejudice to the rights of third parties.
The existence and validity of consent in respect of such designation shall be governed by the designated right.
The provisions of this article do not derogate from the provisions of article 1243 of the Civil Code or those of article 141 of the Civil Code.
Article 38: In the absence of an election of right, the matrimonial regime shall be governed:
          1. by the law of the State in whose territory the spouses establish their domicile after marriage;
          2. in the absence of domicile in the territory of the same State by the law of the State of which both spouses are nationals at the time of the marriage;
          3. in the absence of residence in the territory of the same State or of a common nationality, or in the case of a plurality of common nationalities, by Monegasque law.
Article 39: The effects of the matrimonial regime on a legal relationship between a spouse and a third party are governed by the law applicable to the regime.
However, if the law of a State provides for publication or registration of the matrimonial property regime and these formalities have not been complied with, the law applicable to the matrimonial property regime may not be invoked by a spouse to a third party of the spouses or the third person has his habitual residence in that State.
Similarly, if the law of a State in which immovable property is situated provides for the formalities of publication or registration of the matrimonial property regime and the formalities have not been complied with, the law applicable to the matrimonial property regime cannot be A spouse to a third party for the legal relationship between a spouse and a third party in respect of that immovable.
The provisions of the second and third paragraphs shall not apply if the third party knew or ought to have known the law applicable to the matrimonial property regime.
Section IV - Divorce and legal separation
Article 40: Monegasque courts shall have jurisdiction to deal with divorce and legal separation:
          1. where the domicile of the spouses is in the territory of the Principality;
          2. where the last domicile of the spouses was in the territory of the Principality and one of the spouses still resides there;
          3. where the defendant spouse is domiciled in the Principality;
          4. if one of the spouses is of Monegasque nationality.
The Monegasque courts are also competent to pronounce the conversion of the legal separation into divorce when the separation of body was pronounced in Monaco.
Article 41: The law applicable to divorce or legal separation before the Monegasque courts is Monegasque law, unless the spouses request the application of the law of the State of which they have shared nationality.
The spouses may also agree before the celebration of the marriage of the application of the law of a State of which either of them has the nationality or of the law of the State in whose territory they have their common domicile.
Section I. - Affiliation
Article 42: In addition to the cases provided for in the general provisions of this Code, Monegasque courts shall have jurisdiction in relation to the establishment or dispute of filiation where the child or that of his parents whose paternity or maternity is sought or In the territory of the Principality or has Monegasque nationality.
Article 43: The establishment and challenge of filiation shall be governed by the law of the State of which the child is a national. The nationality of the child shall be assessed on the day of his birth or, in the event of judicial finding or dispute, on the day on which the application is lodged.
Article 44 Voluntary recognition of paternity or maternity is valid if its validity is admitted in a State of which the child or the person who made the recognition has the nationality or his domicile on the date of the latter.
Article 45: The law which governs the filiation of a child, when it arises outright of the law, determines the effect on this filiation of an act of recognition.
The law governing the first recognition of a child determines the effect on the child of subsequent recognition.
Article 52: In addition to the cases provided for in the general provisions of the present Code, courts of the Principality are competent to hear all claims concerning maintenance obligations where the creditor or maintenance debtor is domiciled in the Principality or is a national of Monaco.
The Monegasque court that is competent to hear an action relating to the status of persons is also competent to hear an application relating to a maintenance obligation ancillary to that action.
Article 53: The maintenance obligation between ascendants and descendants shall be governed by the law of the State in whose territory the maintenance creditor is domiciled.
However, Monegasque law applies where the creditor cannot obtain support from the debtor under the right referred to in the preceding paragraph.
Article 54: The maintenance obligation between spouses is governed by the law governing the respective rights and duties of the spouses.
Financial measures intended to compensate for the prejudice created by the dissolution of marriage shall be governed by the law under which divorce is pronounced.
Article 55: The right of a public body to claim reimbursement of the benefit provided to the creditor in lieu of the maintenance debtor is subject to the law governing that body.

Tuesday, July 11, 2017

India’s Chief Justice and India’s Status as a Safe Haven for International Child Abduction

by Jeremy D. Morley
On July 8, 2017 the Chief Justice of India, Hon’ble Shri Jagdish Singh Khehar, addressed the issue of India’s failure to sign the Hague Convention on the Civil Aspects of International Child Abduction, in a speech at an All India Seminar of the International Law Association.
The Chief Justice sought to explain, and apparently to justify, India’s position by stating that it would be “disadvantageous to Indian women” for India to adopt the Convention because “there are far more cases of Indian women escaping bad marriages abroad, and returning to the safety of their homes in India; than non-Indian women who are married to Indian men, leaving India with their children.”

The Chief Justice further endorsed recent decisions by the Supreme Court of India determining that courts in India should entertain full (and obviously extremely lengthy) analyses of the “best interests” of children abducted to India, which as he explained had deviated from “the earlier approach of the Supreme Court, wherein the minor child was returned to the country of habitual residence, or from where he was removed, leaving the matter to the Court of the parent country.”

It is most unfortunate that his speech underscores -- and purports to justify -- India’s well-deserved reputation as a safe haven for international child abduction.

The portion of his speech addressing the Hague Convention was as follows:
  • “In India, the idea that a parent can abduct his or her own child, seems culturally unacceptable. Further, to bring the criminal law of kidnapping or abduction into family fights, is to accelerate a hostile situation, which would directly impact the welfare of the concerned child.  A violent marriage, an abusive marriage, a marriage causing a sense of deep hurt… entail differing degrees of distrust and suspicion, these impact even the sense and sensibility of the child.  Courts are put in a difficult situation, while deciding custody issues, between different levels of distrust and finding a safe haven, for a child with the singular option… to develop hatred towards one of the parents within the boundaries of the custodial parents’ place of residence.
  • The Hague Convention, which at present has 95 signatories, aims to protect children from the harmful effects of international abduction by a parent, by encouraging the prompt return of the abducted child, to the country of habitual residence.  And to organize or secure, the effective rights of access to the child.  Custody and visitation matters, it is felt, should generally be decided by the proper court, in the country of the child’s habitual residence.
  • The Convention on the Rights of the Child of 1989, also reflects the need to come together for protection of the child, and for every aspect related to children’s welfare. Though, this Convention has not delved into the details pertaining to child custody, as have been dealt by the Hague Convention of 1980, it weaves an overall matrix with regard to child rights, proposing cooperation at the global level. The Convention recognises the right of the child, to live with his or her parents, and the need for judicial determination – in case of separation of parents.  The issues’ sensitivity requires States to be obligated, to maintain personal and direct relations with both parents, and thereby, protect and honour the rights of children. The Convention on the rights of the child, calls upon States to promote conclusion of bi-lateral and multi-lateral agreements, and to take measures for combating illicit transfer of children – to locations beyond a child’s habitual residence.  The Convention also requires the States to make arrangements, for the return of children to the country of the child’s habitual residence.
  • After India became a party to the Convention on the Rights of the Child, concerted efforts have been made in India, to deal with various aspects of child welfare. Positive outcome can be witnessed in legislations like the Juvenile Justice Act (2015), the Protection of Children from Sexual Offences Act (2012), the Prohibition of Child Marriage Act (2006), the Commissions for Protection of Child Rights Act (2005)… and so on.  But in terms of existing laws in the area of child custody, the legislative activity has been limited to the domestic sphere like the Hindu Marriage Act, 1955; the Hindu Minority and Guardianship Act,1956 and the Guardians and Wards Act, 1890.
  • India has not ratified the Hague Convention for multiple reasons – including the prime one, that it is disadvantageous to Indian women, as there are far more cases of Indian women escaping bad marriages abroad, and returning to the safety of their homes in India; than non-Indian women who are married to Indian men, leaving India with their children.  In 2009, the Law Commission of India, headed by former Supreme Court Judge, had submitted a report recommending, that the government ratify the Hague Convention.  In February 2016, the Punjab and Haryana High Court while dealing with a child custody issue, asked the Law Commission of India, to resubmit its recommendations to the Government, with its recommendation to sign the Hague Convention. Based on these recommendations, the Women and Child Development Ministry in June 2016 issued a draft of the Civil Aspects of International Child Abduction Bill, 2016 (and a notice on the bill, No. CW-I-31/59/2016-CW-I of June 22, 2016) which reflected the provisions of the Hague Convention, and would pave the way for India’s accession to it.
  • The Law Commission of India has also recently proposed some modifications in the above-mentioned Bill, and re-named as – “The Protection of Children (Intercountry Removal and Retention) Bill, 2016”. This Bill seeks to address the violation of custody, or access rights by providing for a full-fledged framework.  This Bill also provides for constitution of a Central Authority, which will have a major role in discovering the whereabouts of the removed/retained child, and in securing the return of the child, and also, in provisioning for legal aid.  It also proposes to empower the High Court to determine the issue of return of the child, despite lapse of sufficient time.  At the same time, on certain grounds – like objection by the child, or exposure of child to grave risk etc. the return of the child can be denied. 
  • As of now the void is being taken care of by the Indian judiciary. The Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare of the child, and not the rights of the parents under a statute.’ In 1998 in Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, the Supreme Court held, that since India was not a signatory to the Hague Convention, it could decide the question of child custody on the merits of the case keeping in view the principle of best interest of the child.  This judgment was a departure from the earlier approach of the Supreme Court, wherein the minor child was returned to the country of habitual residence, or from where he was removed, leaving the matter to the Court of the parent country. The Supreme Court in Mausami Moitra Ganguli vs. Jayanti Ganguli AIR 2008 SC 2262 held, that ‘no statute on the subject can ignore, eschew or obliterate the vital factor of the welfare of the minor’.  Recently in Surya Vadanan v. State of Tamil Nadu AIR 2015 SC 2243 the Supreme Court again pronounced the principles that needed to be kept in mind while dealing with inter-country removal and return. These involved the recognition of the principle of ‘comity of courts and nations’ along with the principle of ‘best interest and welfare of the child’.  Though governmental efforts have gained momentum in the recent past to fully realize the obligations laid under Article 11 of the UN Convention on the Rights of the Child, the courts in India are consistently trying to guard the best interests of the child.        
  • It has been claimed that if India becomes a signatory State to the Hague Convention, it will lead to a less complicated and a more efficient process… in addressing the issue of wrongful removal or retention of children.”

Wednesday, July 05, 2017

Country Report: Mexico

The U.S. State Department has just issued its 2017 Annual Report on International Parental Child Abduction under the International Child Abduction Prevention and Return Act (ICAPRA). The following is the Country Summary and related information for Mexico:
Country Summary: The United States and Mexico have been partners under the Hague Abduction Convention since 1991, and the United States has by far more abduction cases annually with Mexico than with any other country. Consequently, more cases have been resolved than with any other partner. In 2016, the Department noted serious concerns with a lack of communication from the Mexican Central Authority and identified shortcomings with respect to location efforts.

Central Authority: The Mexican Central Authority communication with the U.S. Central Authority decreased significantly in 2016. Due to this lack of communication, left-behind parents were not always updated on the status of their applications in a timely manner. In light of the concerns about communication, both central authorities agreed to improve information exchanges in 2017.
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 2016, 25 abduction cases were resolved through voluntary means.
Location: In 2016, Mexican law enforcement improved on its efforts to locate missing children. In some cases, however, the competent authorities did not take swift action to locate a child after filing a Convention application. The inability to locate the children was the root cause of most unresolved applications. The average time to locate a child was 15 months and ten days. As of December 31, 2016, there are 41 cases where the Mexican authorities were seeking to locate abducted children.
Judicial Authorities: First-instance courts generally decided Convention cases in a manner that was timely and consistent with the Convention. Delays were often related to the amparo, a constitutionally-based injunction that suspends the effects of a lower court’s decision.
Enforcement: Decisions in Convention cases in Mexico were generally enforced in a timely manner. However, two cases were pending for more than 12 months and law enforcement was unable to execute the return orders. In total, there were eight cases that were unresolved for more than 12 months (accounting for seven percent of the total cases filed with the FCA) and law enforcement failed to locate a child or enforce a return order.
Access: In 2016, the U.S. Central Authority acted on 21 open access cases under the Convention in Mexico. Of these, 12 cases were opened in 2016. Ten access cases were filed with the Mexican Central Authority, including four that were filed initially in 2016. By December 31, 2016, five cases (24 percent) were resolved and seven cases were closed for other reasons. By December 31, 2016, nine access cases remained open. No cases were pending with the Mexican authorities for more than 12 months.
Department Recommendations: The Department will intensify engagement with the Mexican authorities to address issues of concern. The Department also recommends an emphasis on preventing abductions.

Thursday, June 29, 2017

Country Report: Egypt

The U.S. State Department has just issued its 2017 Annual Report on International Parental Child Abduction under the International Child Abduction Prevention and Return Act (ICAPRA). The following is the Country Summary and related information for Egypt:
Country Summary: Egypt does not adhere to any protocols with respect to international parental child abduction, and left-behind parents of children abducted to Egypt have limited options to resolve their cases. Voluntary Agreements are the primary means for obtaining the return of children from Egypt. In 2003, the United States and Egypt signed a Memorandum of Understanding (MOU) to encourage voluntary resolution of abduction cases and facilitate consular access to abducted children. While Egypt was cited for non-compliance in the 2016 report, last year Egypt expanded its engagement with the United States under the existing MOU, and worked with the Department of State to resolve more abduction cases. During 2016, resolutions increased to four times the number of the previous year reflecting a pattern of improvement.

Significant Developments: During 2016, Egyptian authorities engaged extensively with the United States to review methods for resolving cases, and expressed interest in expanding cooperation between our two countries. Egypt's Ministry of Foreign Affairs was an active interlocutor regarding abduction issues and pressed for creation of a new inter-ministerial committee to consider Egypt’s possible ratification of the Hague Abduction Convention. Officials from the Ministry of Foreign Affairs and the Justice Ministry met frequently with U.S. Embassy staff in Cairo to discuss individual abduction cases. Egyptian authorities successfully mediated in one case to facilitate a U.S. father’s access to his sons in Egypt.
Central Authority: In 2016, the competent authorities in Egypt worked closely with the United States to discuss improvements to the resolution of pending abduction cases. However, the options for resolving these cases under Egyptian law are limited. Successful mediation by a subcommittee of the Ministry of Justice resulted in voluntary agreements in some cases. We believe this subcommittee has the capacity to expand its role in this regard and could play a greater role in providing left-behind parents with information regarding possible legal remedies in Egypt.
Voluntary Resolution: In 2016, four abduction cases were resolved through voluntary means.
Location: The Department of State did not request assistance with location from the Egyptian authorities.
Judicial Authorities: While some abduction cases were resolved by the Egyptian courts, the lack of clear legal procedures for addressing international parental child abduction cases under Egyptian law made it very difficult for Egypt to address these cases.
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 continue to encourage Egypt to join the Convention and expand public diplomacy activities related to the Convention. The Department also recommends an emphasis on preventing abductions.