“Rights of Custody” under the Hague Convention

In Bader v. Kramer, decided on April 17, 2006, the Fourth Circuit reviewed the meaning of the term “rights of custody,” which is one of the fundamental elements of any application under the Hague Convention on the Civil Aspects of International Child Abduction.

The parties were married, lived in Germany, had a daughter in 1999 and were divorced in 2002. In 2003 the mother petitioned for sole custody and the father promptly counterclaimed for similar relief. On March 20, 2003, the German court ruled on the petitions, setting forth a visitation schedule for the father and granting the mother an award of child support. In April 2003 the mother thereupon took the child to live in the United States, without the father’s permission.

In June 2003 the father filed a second petition in Germany for sole custody, followed by a Hague Convention return application. The German Central Authority sent a letter to the American Central Authority in November 2003 stating that, when Bader and Kramer "were divorced, no decision about the rights of custody was issued. So both still have parental responsibility for the child pursuant to Section 1626 of the German Civil Code (BGB)." In the following month, a German court granted sole custody to the father.

The U.S. district court denied the father’s return application on the ground that he did not have rights of custody. The court determined that, although German law presumptively confers joint custody of a child upon both parents until a competent court enters a contrary order, the German court’s March 20, 2003 order "functioned to alter the presumption of joint custody" by setting forth a visitation schedule.

That determination was overturned on appeal to the Fourth Circuit. The appeal court distinguished Fawcett v. McRoberts, 326 F.3d 491 (4th Cir. 2003), in which a Scottish court had issued a divorce decree modifying a parent's right to custody. The decree had contained a "Residence Order," which gave the father "the exclusive power to determine [the child's] residence, thereby necessarily depriving [the other parent] of that same right." Id.
Although Scottish law prohibited the abducting parent from removing the child from Scotland (equivalent to a so-called ne exeat clause), the Fourth Circuit in Fawcett held that this merely allowed "a parent with access rights to impose a limitation on the custodial parent's right to expatriate his child.” It ruled that “This hardly amounts to a right of custody" within the meaning of the Hague Convention because the divorce decree had deprived the mother of the right to determine the child's place of residence. Id. at 500.

By contrast, in the pending case, the German court order had delineated a schedule of visitation rights that clearly affected the father's rights of access, but it had made no mention of modifying his rights to custody. Since rights of access and rights of custody are not mutually exclusive, the mere fact that the German court had modified the former did not eliminate the latter.

The district court had also relied in part on the fact that the mother was the child’s source for "pecuniary and emotional support" and that the father had exercised his visitation rights to only a limited extent. The Fourth Circuit held that that such matters were entirely irrelevant to the question of whether the German court had issued an order contrary to the presumption of joint custody.

Accordingly, the Fourth Circuit remanded to the district court for an expeditious determination of whether the father was exercising his custody rights and whether any defenses apply under the Hague Convention.

Rabbinic Courts in Israel

Israel's High Court of Justice has ruled that Israel’s rabbinic courts may not resolve divorced couples' property and financial disputes unless they have explicit legal approval to do so. The Court rejected the rabbinic courts' authority to serve as arbitrators in financial disputes, even though both parties had agreed to the proceeding.

The Court held that the rabbinic courts' legal authority was limited by the provisions of the statute governing rabbinic court jurisdiction, and that no court could grant itself authority that it had not been granted by the law, even if the parties agreed. The High Court followed case law, whereby it intervenes in religious court decisions only in "extreme cases" in which the courts exceed their authority, deviate from the law relating to religious courts or impinge upon the principles of natural justice.

The new decision generates many difficulties regarding past rulings by rabbinic court judges who acted as arbitrators. In an editorial, the Haaretz newspaper has called upon Israel’s legislature, the Knesset, to give legislative validity to such prior rulings.

Islamic divorce vs. U.S divorce

Islamic men who are foreign nationals but American residents often seek to divorce their spouses under the Sharia law prevailing in their country of origin rather than the secular law prevailing in the state of their marital domicile. Their intent is (a) to obtain an instant divorce by merely speaking certain words, (b) to take advantage of the Islamic “marriage contract” pursuant to which a wife receives nothing more than a nominal “deferred dower” payment upon divorce, (c) to take advantage of child custody laws that discriminate against women and (d) to have the wife labeled as a “bad Muslim.”

A New Hampshire court ruling (In the Matter of Ramadan, ruling dated 2/14/06) shows just how foolish such tactics can be.

The Ramadans had married in Lebanon and had signed a mahr, an Islamic marriage contract. They subsequently lived in Massachusetts, Texas, Egypt and Lebanon, before ultimately settling in New Hampshire. The husband declared “I divorce you” three times in the wife’s presence in New Hampshire. He then telephoned a lawyer in Lebanon, with two witnesses listening, and declared that he had divorced his wife. He promptly went to Lebanon and secured an order from a religious magistrate that he had done so. Meanwhile the wife instituted an action for divorce and ancillary relief in New Hampshire, serving him upon his return from Lebanon.

The husband retained counsel in New Hampshire who informed the court of the prior Lebanese divorce and declared that the husband would ignore the New Hampshire case, which he proceeded to do. The Family Division ultimately entered a divorce decree which adopted in its entirety the terms proposed by the wife. The husband appealed. The Supreme Court of New Hampshire ruled that the Family Division had jurisdiction to enter a divorce decree since the parties were domiciled in New Hampshire. It refused to recognize the Lebanese decree on two separate grounds.

First, a New Hampshire statute (RSA 459:1 (2004)) provides that “a divorce obtained in another jurisdiction shall be of no force or effect in this state … if both parties to the marriage were domiciled in this state at the time the proceeding for the divorce was commenced.” The court held that this statute applies to overseas divorces.

Second, the court held that in any event the principle of comity, pursuant to which courts generally give recognition to foreign divorces, would not apply if application of the policy would violate “a strong public policy of the forum state.” The Court ruled that recognition of an ex parte foreign divorce obtained in a jurisdiction in which neither party is domiciled would cause hardship and would be in derogation of sound public policy.

The husband then asked the appeal court to vary the trial court’s division of marital property and award of custody. The New Hampshire Supreme Court held that he was too late. He had failed to provide the trial court with any of the information that it needed in order to make a more balanced award. He now had to live with the consequences, unbalanced as they might be.

The simple moral: If you choose to live in this country you are subject to the laws of this country.

English divorce law: Divorced from reality

Today’s (London) Times contains an opinion article from the paper’s former editor, William Rees-Mogg, attacking the English divorce system. The article, entitled “Divorced from the realities,” reflects a rising tide of anger in England that the English divorce laws, as they have been changed drastically but badly by the English judiciary in the past five years, have become an international laughing-stock.

As it now stands, the English divorce law contains no real guidance to divorcing people who have assets as to how their affairs will be handled in the event of a divorce and it refuses to allow the parties to make plans for their future since England still does not recognize prenuptial agreements.

The English “system” makes matters even worse by throwing everything into the pot of marital assets that the courts have power to carve up, including everything that a spouse brought into the marriage and everything that he or she has inherited. And then, to really add insult to injury, the courts seem to be opening the door to allow each party to use the other’s purported misconduct as a significant factor for the court to consider in determining the asset division.

Accordingly, as things now stand, if you are representing spouses in a case involving substantial assets, you (a) can provide the client with no realistic idea of what to expect as the outcome of the case, (b) must advise you client to dig up all possible dirt about the other client, because you must expect that the other side will do the same thing concerning your own client, and (c) must investigate intensely whether, in an international case, an English award will be enforceable in other jurisdictions, or whether it will be rejected overseas on the grounds that the current English divorce law is in derogation of the fundamental public policies prevailing in other jurisdictions.

The present situation is the results of judges having exercised the power to change the law on a case-by-case basis in order to reform an antiquated system but not having the power to create rules that make sense universally. The common law development of legal principles has worked well over the centuries to create useful bodies of law, but it cannot work well in the short term if
judges change prior law overnight and then wait for other cases to make their way through the courts that will eventually lead to a sensible group of tested rules.

Let us hope that the House of Lords provides some further clarification and reform in the two cases that are now pending before it. More significantly, this is a matter that cries out for legislative reform.

Hague Convention: Consent & Acquiescence

The High Court in England seems to have made it far easier for a child-abducting parent to prove the defenses of consent and acquiescence in a Hague Convention child abduction case than has previously been the case.

In CJ v KJ [2005] EWHC 2998 (Fam), Mr. Justice Sumner accepted the evidence of the mother, who had refused to return the parties’ 4-year old daughter to their home in Connecticut after a Christmas visit back to the parties’ original home in Wales, that the father had said that if they were ever to divorce she would get the baby and he would be left with the dog. The judge used that, plus the fact that the mother’s pending application for permanent resident status in the U.S. had not yet been approved, as key evidence to establish that the father had consented to the mother’s taking the child from Connecticut to Wales and keeping her there.

Another factor of great significance was that when the father had arrived in Wales and the mother had told him that the marriage was over, he broke down and became extremely passive. While the mother's parents advised him to fight to save the marriage, he had failed to take action and had returned to Connecticut in a state of great shock and upset. Once back home he had consulted a series of lawyers but they had advised him to attempt to reconcile with his wife rather than threaten litigation. Accordingly he did not aggressively demand the child’s return.

These were the key facts that were led the Court to hold that he had consented to the retention of his child in Wales and subsequently acquiesced in the retention.

In our opinion, the result was extremely harsh, and should be overturned on appeal, but we are admittedly biased since we have provided litigation advice to the father.

Hague Convention – Burden of Proof Case

The U.S. Court of Appeals for the Fourth Circuit has ruled – in Humphrey v. Humphrey, a Hague Convention child abduction case concerning the removal of children from England to Virginia – that a federal district court in Virginia committed a fundamental error when it held that the left-behind father must establish the children’s habitual residence in England "beyond a reasonable doubt."
The International Child Abduction Remedies Act ("ICARA") requires a petitioner seeking return of an abducted child to show "by a preponderance of the evidence" that "the child has been wrongfully removed or retained within the meaning of the Convention." 42 U.S.C. § 11603(e)(1) (emphasis added). The Hague Convention, in turn, requires a petitioner to demonstrate that, among other things, that the children were "habitually resident" in petitioner’s country of residence at the time of their removal.
The Fourth Circuit sent the case back to the district court for a rehearing at which time the correct standard must be applied.

English Divorce Law in Turmoil

England is a forum of choice for spouses with less assets to sue their internationally-connected wealthier spouses for divorce.

Until 2000 the English courts divided a married couple’s assets in a way that would ensure that the “reasonable needs” of the financially weaker party — usually the wife — were met. It meant that the spouse who had more assets in his name than his wife was able to keep most of them.

Everything changed in the famous case of White v. White. England’s top court, the House of Lords, ruled that the lower appeal court, the Court of Appeal, had got it all wrong for 25 years. The House of Lords ruled that it was wrong to limit a wife leaving a long marriage to no more than was needed for her “reasonable needs.” From now on, everything was to be determined by “fairness.” The problem is that “fairness” is an elusive term.

Then a famous soccer star, Ray Parlour, was ordered to pay his wife one-third of his future earnings for at least four years, plus a large lump sum, two valuable mortgage-free houses and a large annual sum for child support.

And in a case that has caused an outcry in England, an (American) woman who earned a good salary before marrying an English multi-millionaire, received a payoff of £5m for less than three years of a childless marriage in her divorce last year. The House of Lords will hear that case, Miller v. Miller, on January 30th.

The surprising situation in England results from several peculiarities of the English system.

The first is that in England the “pot” of assets that is to be divided includes everything that the spouses own, including everything that they each had before they got married. This is in sharp contrast with most legal systems which say that whatever you have on the date of the marriage stays yours unless you take specific steps to give it to the marital partnership.

The second difference is that the English courts place one party’s inherited assets into the marital pot.

Third, the English courts allow fault to govern the fairness issue. This allows each party to assert that the other party was the “wrongdoer” who should be financially punished for breaking up the marriage.

Fourth, England is one of the few places where lifetime spousal maintenance (alimony) payments are routinely ordered by the courts in favor of the spouse with fewer assets or less earning capacity.

Fifth, England uses the concept of the ‘clean break’ as an ideal way to resolve financial matters. It is intended to mean that one ex should not have to continuously chase the other ex for money. It’s a very nice theory, but well nigh impossible to put into practice.

Finally, to make matters even more unpredictable, prenuptial agreements are not legally binding in England, so that it is difficult or even impossible for a wealthy person to provide himself with predictable protection if he is considering marriage.

Now divorce lawyers and wealthy individuals are looking to the House of Lords to provide some clarification and fairness.

Malaysia: Fierce Debate about Polygamy & Divorce

There is quite a furious debate under way in Malaysia over new family legislation on polygamy and divorce. Women's groups are claiming that the new law will make it easier for men to take multiple wives and to claim property after divorce.

The new law will apparently allow a husband to obtain an injunction preventing the disposition of property by a wife or a former wife. The amendment also endorses a man's purported right to polygamy without having to prove his financially capability of treating his wives on equal footing before taking on another. Upon taking a new wife, men can now seize property belonging to existing wives, and they are also given new rights to claim assets after a divorce, as well as less obligation to pay compensation and maintenance.

A women’s activist was quoted as saying that "They are giving more rights to the men whilst taking back the traditional Muslim women's rights." She said "It's not justified under Islam because Islam promotes the principle of equality and justice, and traditionally it guards the rights of Muslim women."

New York -- Divorce and Tort Cases Between Spouses

A New York court has held that a husband and wife are free to sue each for personal injuries for tort in a separate action than an action for divorce. Chen v. Fischer --- N.Y.3d. ---, --- N.Y.S.2d --- (2005 WL 3452221) (2005 N.Y. Slip Op. 09572)(Dec 15, 2005).

The New York Court of Appeals ruled that such actions are best not tried together, since they seek different types of relief and require different types of proof.

The Court said that "Parties are free, of course, to join their interspousal tort claims with the matrimonial action (see CPLR 601[a] ) and the trial court retains discretion to sever the claims in the interest of convenience, if necessary (see CPLR 603). If a separate interspousal tort action is contemplated, however, or has been commenced, the better practice would be to include a reservation of rights in the judgment of divorce. Finally, if fault allegations are actually litigated in a matrimonial action, res judicata or some form of issue preclusion would bar a subsequent action in tort based on the same allegations."

New York’s decision follows similar rulings in other states, including Connecticut (Delahunty v. Mass. Mut. Life Ins. Co., 236 Conn 582, 590-594, 674 A2d 1290, 1295-1297 [1996]); Maine (Henriksen v. Cameron, 622 A2d 1135, 1141-1142 [Me 1993]); and Massachusetts (Heacock v. Heacock, 402 Mass 21, 23-24, 520 NE2d 151, 153 [1988]).

By contrast, New Jersey’s "single controversy" rule requires that an interspousal personal injury claim be brought with the matrimonial action so that the issues between the parties can be decided in one proceeding in order to prevent protracted litigation. Tevis v. Tevis (79 N.J. 422, 400 A.2d 1189 [1979]); but see Brennan v. Orban, 145 NJ 282, 303, 678 A2d 667, 678 [1996] in which the New Jersey Supreme Court acknowledged that litigating an interspousal tort claim prior to the divorce proceeding "may have a negative psychological impact on parties by prolonging the uncertainty of their marital status."

England: London Family Court Delays

A campaign to speed up the listing of family cases involving divorce and vulnerable children at risk of serious harm has been launched by the Law Society.

A survey has found that such cases are commonly being delayed for up to six months. The Central London Family Court is worst affected, with some 70% of respondents saying that they have suffered delays there. The survey blames the hold-ups on insufficient ‘judge hours’ being allocated to family matters and on inadequate staff enrolment and training.

“The intention of the campaign is to bring the delay, and the reasons for it, to the notice of the government and senior judiciary,” says Society chief executive, Janet Paraskeva. “We will be pressing for more judges to undertake family work and for the recruitment of higher numbers of court staff.” Philip Waller, Senior District Judge at the Principle Registry, commented, “We acknowledge the problem and are striving to do everything we can with the limited resources that we have available.”

Scotland: Family law changes approved

The Scottish Parliament has passed the most liberal divorce laws in the United Kingdom.

Sweeping reforms to family law in Scotland have been approved. The new law reduces the time periods for a divorce. Until now, couples seeking to end their marriage where there are no fault grounds - such as adultery or desertion - must have lived apart for at least two years. In contested 'no fault' cases, the minimum separation period is five years. These timescales are now reduced to one year and two years respectively.

The law also gives new parental rights and responsibilities to unmarried fathers jointly registering the child's birth and provides cohabiting couples with some legal safeguards over shared household goods and expenses.

England: Generous Courts; Offshore Trusts

John Charman, the eighth-wealthiest man in the City of London, tried to prevent his wife from gaining access to an offshore trust fund said to be worth 65 million pounds. He failed on Tuesday in his appeal against a High Court order that gives Beverley Charman details of the Bermuda fund and could affect the size of her settlement.

The ruling is the latest to indicate the sympathy of English courts towards wives in the division of wealth. Generous settlements by judges are turning England into the destination of choice for multimillion-pound divorce cases.Divorce lawyers confirmed the prevalence of “forum shopping,” choosing the country in which to obtain the most lucrative alimony. They said that pre-nuptial agreements could become enshrined in law because of recent substantial payouts in English courts.

Charman now lives in Bermuda and owns a home in Florida. The couple’s 27-year marriage ended when Charman, a star of the Lloyd’s insurance market, went to Bermuda in November 2003 and told his wife that he would not be returning to the family home in Sevenoaks, Kent.

Sir Mark Potter, the president of the High Court Family Division and one of three appeal judges who heard the case, said that courts should agree to requests by wives to question the trustees of offshore trusts, to achieve a fair settlement.

Japan - Haven for International Child Abduction

English-language Japanese newspapers have reported on another case of a child being abducted by a Japanese parent to Japan.

Japan refuses to become a party to the Hague Convention on the Civil Aspects of International Child Abduction, in spite of international pressure that it do so. The family courts in Japan do not provide any significant protection to foreign parties seeking custody of their children or even access to their children. As a result, Japan has become a renowned haven for international child abduction. See http://www.international-divorce.com/ca-japan.htm for links to several of my articles on this subject.

In the recent case, a Japanese mother living in Vancouver, Canada took her two children, age 10 and 7, to visit their grandparents in Japan. A Canadian court had awarded custody to the father. Once the children were in Japan, the mother refused to allow them to return. She secured a temporary custody order from the Saitama court and ultimately a permanent order of custody. Japanese courts do not recognize or enforce foreign custody decrees, and in this case they refused to apply the Canadian decree.

If the father seeks visitation with his children he should expect little mercy from the courts. The newspapers also reported on another foreign father in Japan who won the right to have three hours of visitation per year with his children. Astonishingly, although the father appealed, so did the mother claiming that three hours a year is too much.

Prospects for left-behind dads whose children are in Japan are bleak. Japanese law makes no provision for joint custody. Usually the only way to secure results for such fathers is to find other legal ways to impose pressure on the mother.

Certainly it can be a horrible mistake to allow a Japanese parent to take children away from their home in another country for a visit to Japan. In my practice I find that it is a tough job to educate the courts in countries outside Japan as to the severity of the danger that children face if the court will not issue an injunction to prevent the proposed visit.