International Child Visitation

How can one parent stop the other parent from taking a child to visit a dangerous country?

How can a parent make sure that a child will be returned if the other parent takes the child to visit his or her native country?

Many international parents are justifiably becoming increasingly concerned about the answers to these questions.

I have just written an article - published in the July 2007 issue of The Matrimonial Strategist and now also available on my website - describing "Ten Key Tips for Parents" that I have developed as a result of handling these issues for parents around the world.

You can read it here.

New Jersey Child Relocation to Japan

The Supreme Court of New Jersey has unanimously upheld a decision allowing a Japanese mother to relocate with her six-year old child from their home in New Jersey to Okinawa, Japan over the strong objections of the American husband. The primary concern of the husband was that the provisions for his visitation with his daughter were unenforceable in Japan. MacKinnon v. MacKinnon, Supreme Court of New Jersey, June 11, 2007.  

The ruling should be understood strictly in the context of its specific facts and as being based on the limited evidence with which the courts were presented. The decision does not stand for the (false and extremely dangerous) proposition that Japan recognizes or respects foreign custody orders or rights of visitation.

In particular, it is important to note that the courts below were not presented with any expert evidence concerning Japan’s failure to enforce foreign or domestic custody and visitation orders, or as to its failure to recognize foreign custody orders or even any right of parental visitation.

The father relied primarily on the fact that Japan was not a party to the Hague Convention on the Civil Aspects of International Child Abduction. The Court upheld the ruling of the courts below that simply because a country has not signed the Convention should not automatically bar relocation to that country. The father also submitted a U.S. State Department note to the effect that “foreign parents seeking enforcement of visitation rights are disadvantaged in Japanese courts,” but failed to submit any other evidence concerning Japanese family law.

Instead, the Court placed great reliance – and took great comfort – in the fact that the mother had previously taken the child to Japan for visitation on several occasions, had always returned the child as promised, had genuinely acknowledged to the satisfaction of the trial court that the father loved the child and that she was anxious to maintain the father’s relationship with the child, and had a history of having scrupulously obeyed all court orders in the past.

Thus, the case must be seen as being limited strictly to its specific facts. The Court relied on the evidence of the mother’s good faith rather than upon any determination concerning the Japanese family law system. It is a fact that Japan does not return abducted children and does not enforce foreign rights of visitation. See Jeremy D. Morley, Japanese Family Law - or The Lack Thereof!, http://www.international-divorce.com/d-japan.htm.

In almost every situation, if a Japanese parent chooses to retain a child in Japan against the wishes of a foreign parent and in violation of an American or Japanese court order, he or she will get away with it. Id. If Mrs. MacKinnon were to choose to ignore those provisions in the New Jersey trial court’s order that require her to allow the father to have extensive visitation with their child, the father will be powerless to compel her to do so as long as she stays in Japan. However, such facts were not before the Court.

While the Court in MacKinnon suggested that future international relocation applications should be conditioned on securing mirror orders in the foreign country, or enforceable contracts, this would not work in the case of Japan, which has no concept of a mirror order and which in any event would never enforce its own order or a contract between parents in such a case. Id.

What this case stands for is the proposition, amply emphasized by the New Jersey Supreme Court, that each case must be viewed individually, on its own particular facts, so as to “permit our courts to flexibly and properly address the myriad, nuanced issues created by family ties that cross international boundaries.” Thus, the Court stressed that in the international removal context, “we afford our trial courts the means to adapt to the variety of unique circumstances presented in family law proceedings.” Every case must be determined on its own facts.

South Africa and the Hague Convention

South Africa’s Court of Appeal has blasted the failure of the courts below to order the prompt return of a child, now aged five, who was wrongfully retained in South Africa away from his then habitual residence in the Netherlands by his mother for 3½ years. The Court ordered (June 4, 2007) that the child now be returned immediately to the Netherlands, in compliance with South Africa’s obligations under the Hague Child Abduction Convention.

Judge Belinda van Heerden expressed great concern at the “dismal failure” of South Africa’s courts and its chief family advocate to act expeditiously and to secure the child’s prompt return, stating that proceedings "in the present case were anything but expeditious. Some three and a half years have elapsed from the time of the boy's wrongful retention in SA in December 2003. The boy has spent most of his young life in this country.”

Judge van Heerden also stated that, "The training of South African judicial officers in the principles and procedures underpinning the convention also appears to be less than that required by SA's obligations under the convention. It is to be hoped that these shortcomings will receive the prompt and proper attention of the relevant authorities."

London Program: “International Family Law for the Globetrotting Executive”

The American Bar Association’s Section of International Law will hold its “Fall Meeting” at the Grosvenor House Hotel, Park Lane, London, England from October 3 – 6, 2007.

A session entitled “International Family Law for the Globetrotting Executive” will be held on Thursday, October 4, 2007 from 4:00pm to 5:30pm chaired by Jeremy D. Morley, attorney-at-law in New York City, with presentations from him, Anne-Marie Hutchinson, OBE (Dawson Cornwell, London) and Suzanne Kingston (Dawsons, London).

Description: Complex international family law issues are an occupational hazard for globetrotting executives. International travel is great for business and pleasure but terrible for marital stability. A globetrotter’s legal adviser is expected to have hard data and brilliant strategic advice at the ready but in the real world accurate information and useful “big picture” advice is hard to find. In this fast-moving program, some of the world’s leading experts on international family law will provide practical, useful and straightforward advice concerning:

· International prenuptial agreements;

· Strategic international divorce planning;

· International divorce jurisdiction;

· Which law governs the international divorce?

· International child custody and international child abduction.

· An international family lawyer’s “Top Tips for the Globetrotting Executive.”

All are welcome.

English Court Wants Enforceable Pre-Nuptial Agreements

The English Court of Appeal has dismissed the husband’s widely-publicized appeal in a so-called 'big money case' of an award to his wife of 36% of the matrimonial assets. Charman v Charman, [2007] EWCA Civ 503.

In a special conclusion entitled “Post-Script: Changing the Law,” the Court went out of its way to encourage the Government to change the law so as to provide greater predictability. In particular, the Court focused on the need to clarify the English law concerning prenuptial agreements.

The Court stated that:

“The difficulty of harmonising our law concerning the property consequences of marriage and divorce and the law of the Civilian Member States is exacerbated by the fact that our law has so far given little status to pre-nuptial contracts. If, unlike the rest of Europe, the property consequences of divorce are to be regulated by the principles of needs, compensation and sharing, should not the parties to the marriage, or the projected marriage, have at the least the opportunity to order their own affairs otherwise by a nuptial contract? The White Paper, "Supporting Families", not only proposed specific reforms of section 25 but also to give statutory force to nuptial contracts. The government's subsequent abdication has not been accepted by specialist practitioners. In 2005 Resolution published a well argued report urging the government to give statutory force to nuptial contracts. The report was subsequently fully supported by the Money and Property Sub-Committee of the Family Justice Council.”

Registration of Children Born after Divorce Begins in Japan

A new registration system under which municipalities accept babies born within 300 days after a divorce as the child of the mother's new husband started Monday. The measure, however, requires doctor certification proving conception happened after the divorce.

The Civil Code stipulates a baby born within 300 days of divorce is the former husbands' child without exception. The new system is an exceptional measure based on an instruction by the Justice Ministry. According to the ministry, there had been 20 cases of birth notification being submitted as of Monday in 13 prefectures, including four in Tokyo and three each in Kanagawa and Hiroshima.

In Sumida Ward, Tokyo, a couple with a baby unregistered since the couple's marriage visited the ward registration counter Monday morning and submitted forms to register the baby's birth. The baby was born at the end of last year. The mother, 38, said: "I'm relieved because my son can be registered like most other children. I feel I should apologize to him for keeping him waiting to be registered."

According to the ministry, there are at least 2,800 babies born each year within 300 days following a divorce. But 90 percent of such children are believed to be conceived before divorces are official and are not covered under the new measure.

A lawmaker-initiated legislation studied the issue of conception before divorce, but was passed without the consideration due to moral considerations brought up by the Liberal Democratic Party. The ruling parties currently are discussing other measures to address the issue.

===

Doctor certification hard to get

Some have pointed out that obtaining a doctor's certification under the new system is difficult. A couple in Tokushima Prefecture, who had their eldest son three years ago, had to wait a month to submit divorce papers the woman's former husband had filled out. The child was conceived shortly after the divorce was made official, but the woman said it could be deemed as happening before the divorce because the assumed period of pregnancy in doctor's certification was short. Her husband, 33, said, "I hope the government becomes more flexible on pregnancies following divorces."

A man in Kobe whose situation is not covered by the new system said: "It's too bad we can't still register our baby. I'm waiting for the whole system to change, but this is a start."

The Yomiuri Shimbun (May. 22, 2007)

Ireland - Financial Settlements in Divorce Cases Can be Re-negotiated at any Time

A MOTHER of five has won an extra €2 million in a shock divorce ruling that could force ex-partners to pay their former spouses additional monies if their wealth increases after they split up.

The High Court judgment means financial settlements in divorce cases can be re-negotiated at any time and also means ex-partners are liable for maintenance even after they die.

Last night, legal experts said the ruling creates a new precedent in Irish divorce law, obliging ex-partners to support their former spouses for life, making full and final agreements impossible.

“In the past it was suggested that the opportunity for further provision in a divorce settlement ended with the granting of the decree of divorce,” said family law expert and solicitor Geoffrey Shannon. “This case suggests that this might not necessarily be the position. This means parties in divorce cases can effectively get another bite of the cherry after their divorce and it will send shivers down the spine of those who think their settlements are final.”

The case centres on a pair, who cannot be named for legal reasons, who married in 1979, had five children and divorced in 2000. At the time of their divorce, the court ordered the businessman husband to pay £48,500 a year to his wife and children. The settlement was based on his wealth at the time of the divorce but after the split he sold his business and became richer. The High Court ruled the man must pay his wife a one-off lump sum of €2m to reflect this increase.

Previously, parties in marriage breakdowns could come to a financial settlement at the first stage of splitting up — the decree of judicial separation — or the final step called a decree of divorce. The agreement made at the time of a decree of divorce was thought to be final but the High Court has now said settlements can be re-negotiated as ex-partners have an obligation to support their spouses for life.

Mr Shannon, whose book on 10 years of Irish divorce law comes out this year, said the ruling would benefit ex-wives struggling to support their families. “What you are looking at is divorce Irish-style and it’s different from the reality in other jurisdictions because we have a life-long spousal support obligation,” said Mr Shannon.

Irish Examiner 18 May 2007

Hague Abduction Convention: No Appeal from Denial of Summary Judgment Motion

The First Circuit has ruled that the denial of a petitioner’s motion for summary judgment in a proceeding for an order directing the return of a child pursuant to the Hague Convention on International Child Abduction is not appealable. Rigby v. Damant 5/15/2007. The mere fact that the case ultimately sought injunctive relief did not mean that the denial of a motion for such an injunction decided on anything that touched on the ultimate relief. Nor was mandamus review warranted.

The Court addressed the basic issue that summary judgment motions might help to expedite Hague cases in line with the directive in the Convention that judicial proceedings should be completed if possible within six weeks. The Court stated that Article 11(2) of the Convention provided the appropriate solution for any such delay. However, that provision merely authorizes an applicant or Central Authority to “request a statement of the reasons” for any delay.

The decision highlights the difference between the practice in the United States, in which full hearings are usually required in Hague cases, and that in jurisdictions such as the U.K., where Hague cases are typically decided much faster and primarily on a review of the submitted papers.

Venezuela “Noncompliant” with Hague Child Abduction Convention

The U.S. Department of State, in its 2006 Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction, has declared that Venezuela is “noncompliant” with the terms of the Convention.

The report states that: “Venezuela was not mentioned in the 2005 Convention compliance report because there were no active cases during the time frame covered by the report. For the period covered by the 2006 report, however, serious compliance problems became evident. The Venezuelan Central Authority (VCA) typically failed to be responsive to inquiries by the USCA, U.S. Embassy Caracas, or left-behind parents. The USCA is not aware of any judicial training program for judges or prosecutors. Applications are not handled by the VCA in an expeditious manner nor are any measures being taken to improve processing of applications. Long delays in case proceedings are indicative of larger systemic problems in the Venezuelan court system. For neither of the two outstanding cases during the period of review was a court hearing scheduled. One case, now more than a year old, has never been heard in court, and in another case, a voluntary return was accomplished after ten months (no court hearing was held). With regard to enforcement of return orders, under Venezuelan law, parents can be subject to imprisonment and fines for not complying with court orders. With no cases heard during the rating period, however, there were no return orders issued or enforced. U.S. Embassy Caracas met with officials from the Ministry of Foreign Relations twice during the reporting period to discuss problems with case proceedings, once in May 2005 and again in September 2005, but no substantive information was received as a result of these efforts. As a result the USCA has determined that, during the most recent rating period, Venezuela was “noncompliant” with regard to its duties under the Convention.”

Child relocation to Japan

Custody dispute crossing borders: Mom wants to take daughter to Okinawa

Newark Star-Ledger, May 01, 2007

The state Supreme Court will hear oral arguments today in a Hillsborough child custody case with international implications.

After the breakup of her marriage, Erika MacKinnon wants to return to her homeland, Japan, along with her 7-year-old daughter. A network of relatives and better job prospects should translate into a better life for mother and child, according to her attorney.

Erika's ex-husband, Ronald MacKinnon, challenges that notion. Relocating the child to her mother's hometown on Okinawa could make it difficult, perhaps impossible, for him to visit her, he said.

Unlike North American and European countries, Japan never signed the major treaty on child custody issues, the Hague Convention on the Civil Aspects of Child Abduction.

"Japan will not recognize foreign custody orders or foreign ar rest warrants in child abductions," said Walter Benda, a Virginian who came home 11 years ago to find his ex-wife had taken their two daughters to Japan.

"I don't think there's much you can do ... if the Japanese parent doesn't want to act in good faith," said Benda.

Jeremy Morley, a New York lawyer specializing in international family law, said he is "very frustrated" by the haphazard response of American courts.

"What the court needs to appreciate in this type of case is that if a child goes to Japan, and the custodial parent wishes to keep her there, it could be the last the other parent will ever see of her," Morley said. "Some courts recognize that, some do not."

While there have been high-profile cases elsewhere involving abductions to Japan, Saudi Arabia and Egypt, the issue is a new one for New Jersey.

"The precedent in New Jersey is a case involving a parent who moved to Wisconsin," said Michele D'Onofrio, who represents Ronald MacKinnon. "That doesn't fit the facts of a case where a parent wants to take a child halfway around the world."

For that matter, the idea of "abductions" does not fit this case either, said Christina Reger, Erika MacKinnon's attorney. Rather than bolting for Japan, her client has dutifully gone through the American legal system, prevailing in the lower courts, she said.

"She was only 19 when she came to this country" in 1991, after meeting Ronald MacKinnon when he was stationed on Okinawa with the Marines, Reger said. Erika held a series of low-paying jobs while her husband worked construction, she said.

"She has absolutely no family here, no support group, limited financial prospects," Reger said.

In contrast, Erika MacKinnon's fluency in English opens many opportunities in the Japanese job market, and her mother and sister can help with child care, Reger said.

Moreover, since the girl was born, Erika MacKinnon has taken her to Okinawa for extended stays every year, Reger said. Even when Ronald called her in the middle of one of those trips to say he was leaving her for his high school sweetheart, "they still came back," she said. …

"The court should reconsider reopening the case to take testimony on that point," Morley said, and possibly require a bond be posted to pay for the trips.

Pakistan Law and Violence Against Women

The Council of Islamic Ideology (CII) of Pakistan ruled on March 31, 2007 that a woman who is raped should not be considered guilty of adultery and should be viewed under the law as a victim of rape.

The ruling may reduce the impact of the Hudood Ordinances adopted in Pakistan in 1979 under which in order to prove her case, a woman has to produce four adult Muslim men as witnesses to testify before an Islamic court that they saw the forced sexual act. If the victim fails to produce the witnesses she will be accused of adultery and sent to prison or lapidated. The same rules provide that evidence provided by non Muslims is not admissible before a court. However, the CII is merely an advisory body.

But in an article entitled Violence Against Women and International Law, New York International Law Review, Vol. 20, p.57 (Winter 2007), Rebecca Adams states that in Pakistan:

• “The subordination of women is effectively written into the law. Women have limited or no recourse when they are victimized by domestic violence.”
  

• "Men view their wives as property and in fact, certain interpretations of Islamic law allow husbands to ‘control and physically discipline their wives as necessary.'"
  

• "Evidence suggests that somewhere between 70 and 90% of Pakistani women are victims of domestic violence."
  

• "The Pakistani legal system is comprised of 'tribal codes, Islamic law, Indo-British judicial traditions and customary traditions' that have created an ‘atmosphere of oppression around women, where any advantage or opportunity offered to women by one law, is cancelled out by one or more of the others.'"
  

• Pakistan does not have any specific legislation against domestic violence.
  

• Even egregious crimes such as honor killings, where a man murders his wife for apparent or suspected infidelity, almost always receive minimal punishment.
  

• Women who bring claims of assault often face bias within the justice system from police officers, prosecutors and judges who are more likely to believe that a woman is trying to ‘frame’ a man or that domestic violence is a private matter that is sanctioned by the law and culture.
  

• A woman claiming sexual assault is more likely to be jailed for fornication or adultery than to be successful in her suit.
  

• Marriage is a complete defense to a charge of rape.

Preventing International Child Abduction

The Uniform Child Abduction Prevention Act – which includes some specific provisions designed to prevent international child abduction – was signed into law in Kansas on April 6, 2007. Kansas is the fourth state to enact it, along with Nevada, Nebraska and South Dakota. Bills to adopt the new law have been introduced in at least five other legislatures -- Colorado, Connecticut, Kansas, South Carolina, Utah, and the U.S. Virgin Islands.

Governor Kathleen Sebelius said, "Children aren't just abducted by strangers. Sometimes, abductions take place during custody disputes. We want to identify situations where a child is potentially at risk for abduction and provide ways to prevent that abduction from taking place."

The American Bar Association’s House of Delegates at its Midyear Meeting in Miami in February approved the Uniform Act.

The Act authorizes a proceeding in a court between contestants in a child custody dispute during which the court considers the probability that a contestant will abduct a child to another state or foreign jurisdiction. Upon a finding that an abduction is highly probable, the court may issue orders as necessary to prevent that abduction. The court hears evidence respecting the risk of abduction, based upon statutorily provided risk factors: previous abductions or attempts to abduct; threats by a contestant respecting abduction; abuse of the child; domestic violence; negligence; or, refusal to obey an existing child-custody order.

There are further risk factors if the anticipated abduction is to a foreign country, especially if the country is not a party to the Hague Convention on International Child Abduction. Standing to bring such a proceeding broadly includes the court itself, a contestant in a child-custody proceeding, a prosecutor or a public attorney. UCAPA relies upon the jurisdictional rules of the Uniform Child Custody Jurisdiction and Enforcement Act.

Conflict between Child Custody Laws of China and the United States

A recently-decided case in Massachusetts sheds light on the growing problem of international couples and competing divorce jurisdictions. Qiuyue Shao v. Yue Ma.

It also illustrates a serious problem that exists with Section 105 of the Uniform Child Custody Jurisdiction and Enforcement Act.

Chinese-born married parents – characterized by the appellate court as “unusually mobile,” “financially successful”, “highly educated, international entrepreneurs, whose businesses and property were located in both the United States and China” – started competing divorce and child custody cases in Massachusetts and China.

They apparently agreed during the course of their marriage that their younger child, who was born in the U.S., would receive her elementary school education in China and then be further educated in the United States. That child was going to boarding school in China, spending time out of boarding school during the term with her father in China and spending vacations with her mother in the U.S.

The mother, residing in Massachusetts, brought simultaneous actions in Massachusetts and China against the husband, who lived in China. In the Massachusetts case she sought custody of the girl and a division of the couple’s marital assets. In the case in China she also sought custody and a division of the assets in China.

The Massachusetts court granted temporary custody to the mother. The father then moved to vacate that temporary order. Meanwhile the Chinese court issued a judgment granting the parties a divorce, dividing their property in China, and awarding custody to the husband with no provisions for visitation by the wife. The wife appealed the Chinese custody ruling, thereby staying the judgment.

A judge in Massachusetts then vacated the temporary custody order and dismissed the Massachusetts divorce case for lack of jurisdiction. He concluded that the local court did not have jurisdiction to issue the temporary order because the child “had not been domiciled in the Commonwealth of Massachusetts for six months preceding the filing” of the divorce complaint. He also found that dismissal of the complaint was warranted because the mother had submitted to the jurisdiction of the Beijing court, where a judgment had been entered. Accordingly the judge ordered that the child be returned to her father in China.

On appeal, the Massachusetts Appeals Court remanded the case to the original court to take additional evidence to determine whether it had authority to decide the custody issue and, if so, whether it should have exercised its jurisdiction or deferred to the Beijing court. One of the issues to be considered, the appellate court said, is whether China’s child custody laws are “reasonably comparable” to those in Massachusetts, which “treat the welfare of the minor child as the paramount consideration in determining custody issues.” Apparently, the wife’s attorney intends to introduce evidence to show that the courts in China are “controlled politically” and that men “are given complete favoritism” in divorce cases.

(The Appeal Court also ruled that the court below had incorrectly dismissed the complaint’s request for division of marital property wherever in the world it was located).

The decision on the custody issue case illustrates the superiority of the Massachusetts Child Custody Jurisdiction Act over the UCCJEA when it comes to foreign custody orders.

Section 14 of the Massachusetts law compels a judge to 'grant due recognition' to custody determinations rendered by a court of a foreign country 'if those determinations have been rendered in substantial conformity with G. L. c. 209B.'" The "substantial conformity" test requires, among other things, that the foreign court based its order on the "best interests of the child." That provision gives the Massachusetts court the flexibility to take a careful look at the Chinese custody decision.

By contrast the UCCJEA limits the analysis to a determination of whether the foreign “child custody law violates fundamental principles of human rights.”

There is an enormous difference between the two standards -- one that this author submits leads to discrimination against American-resident parents.

Jeremy Morley

For richer and poorer

The current issue of The Economist has an interesting article on international divorce law, the introduction to which is as follows:

MARRIAGE may be about love, but divorce is a business. For global couples—born in different countries, married in a third, now working somewhere else and with children, pensions and other assets sprinkled over the world—a contested divorce is bliss for lawyers and a nightmare for others.

Divorce laws vary wildly, from countries (such as Malta) that still forbid it to Islamic states where—for the husband, at least—it may be obtained in minutes. Rules on the division of property and future financial obligations vary hugely too. France expects the poorer party, usually the wife, to start fending for herself almost immediately; England and some American states insist on lifelong support. Some systems look only at the “acquest” (assets built during the marriage); others count the lot. A few, like Austria, still link cash to blame (eg, for adultery). Japan offers a temptingly quick cheap break, but—for foreigners—little or no enforceable contact with the kids thereafter, notes Jeremy Morley, a New York-based “international divorce strategist”. Other places may be mum-friendly when it comes to money but dad-friendly on child custody.

The Grave Risk of Harm Defense in Hague Child Abduction Cases

A major debate is under way as to the future of the “grave risk of harm defense” in Hague Convention international child abduction cases. The move is spearheaded by those who believe that the Hague Convention discriminates against expatriate mothers who are victims of domestic violence and who return to their countries of origin with their children. It is a reaction to a long line of cases that have given the grave risk of harm defense an extremely narrow interpretation, and to the notion that the integrity of the Convention as a whole requires that the well-being of individual children in hard cases must be sacrificed for the greater good of maintaining the integrity of the Hague Convention process.

Thus far, the high water mark of the new approach has been the decisions of the Third and Seventh Circuits in Van de Sande v. Van de Sande, 431 F.3d 567 (7th Cir. 2005), In re Application of Adan, 437 F.3d 381 (3d Cir. 2006) and Koch v. Koch, 450 F.3d 703 (7th Cir. 2006).

The outcome of the debate will significantly affect most Hague Convention cases brought in the U.S. because a broader defense will provide much greater scope for issues concerning a child’s physical and psychological well-being to be raised in Hague cases.

See our article on this topic at http://www.international-divorce.com/grave_risk_harm_defense.htm

Lawsuits against airlines who allow international child abduction

The abduction of children from the United States is facilitated by the lack of exit controls at U.S. borders. A lawsuit just filed in Massachusetts against Continental Airlines may help shift at least some of the responsibility onto the airlines.

The plaintiff claims that Continental should not have allowed his ex-wife to fly to Mexico with their 3-year-old daughter without his permission. He contends that Continental's policies and Mexican law both require a single parent traveling with a minor child to present a notarized letter from the absent parent authorizing travel into Mexico.

In 2005, a Connecticut jury returned a $27 million verdict against a charter airline company in favor of a mother for negligently failing to maintain adequate safeguards agsinst abductions when it accepted $160,000 to fly a father and his three children to Egypt and then to Cuba.

This opens the door to what may prove to be a useful way to encourage the airlines to act more diligently to prevent international child abduction.

New article on Japan and International Child Abduction

The current issue of Metropolis Tokyo has an update on Japan's practices that favor international child abduction. The article is based in significant part on my input.

Part of the article reads as follows:

"As we reported 12 months ago, no Japanese court has ever caused a child abducted to Japan by a Japanese parent to be returned to the child’s habitual residence outside Japan. Part of the problem is that Japan is not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which works to ensure the prompt return of abducted children to their country of habitual residence.

There is no reason to hope for change any time soon: Japan’s Ministry of Foreign Affairs says it is still studying the document, more than 25 years after its inception. “Japan continues to be a haven for international child abduction, and I see no sign of any improvement,” says Jeremy D. Morley, a New York attorney who specializes in international child custody cases. The problem, he says, goes much deeper than simply the ratification of a document.

“The Hague Convention requires that each signatory country have effective courts that can issue prompt, fair and non-discriminatory orders that are then promptly enforced,” Morley explains. “For this reason, Japan would likely be in default of the convention shortly after its effective date.”

In addition, Japanese custody laws differ substantially from those of other developed countries—another reason that consideration of the document is taking so long, according to the Ministry of Foreign Affairs.

“In custody matters, the Japanese system merely rubberstamps the status quo,” Morley says. That means the parent that has physical possession of the children is guaranteed legal custody, and since parental child abduction is not a crime in Japan, the result is a system that indirectly encourages abduction. “It is ‘finders keepers, losers weepers’ in its rawest and most cruel form,” Morley says."


For the full article go to http://www.international-divorce.com/japan_children.htm

Equitable Tolling, Concealment and the One-Year, Well-Settled Provision in Article 12 of the Hague Child Abduction Convention

The Southern District of Texas has clarified the issue of whether a parent’s concealment of a child should affect the judicial application of the one-year provision in Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction. Driessche v. Ohio-Esezeoboh, 2006 Lexis 92943 (S.D.Tex. Dec. 2006).

The United States has developed a uniquely American approach to this issue. Indeed, it is an approach that an English appellate court has criticized as being far too crude. Cannon v Cannon [2004] EWCA CIV 1330.

Article 12 of the Hague Convention mandates the return of children who have been wrongfully taken or retained away from their habitual residence without the consent of a person with rights of custody, if less than one year has elapsed from the wrongful taking or retention to the commencement date of the return proceedings. If the proceedings are commenced after the expiration of the one-year period, the children must be returned unless they are now settled in their new environment.

The one-year period is extremely significant because it is relatively easy for an abducting parent to show that a child who has spent more than a year in the new location has been well settled in that location, especially because in most cases the abducting parent has returned to her native country.

The problem of concealment of a child was recognized upon the adoption of the treaty. The Department of State’s analysis of the Hague Convention prior to the approval of the treaty stated on the issue of the one-year period that: “The reason for the passage of time, which may have made it possible for the child to form ties to the new country is also relevant to the ultimate disposition for the return petition. If the alleged wrongdoer concealed the child's whereabouts from the custodian necessitating a long search for the child and thereby delayed the commencement of a return proceeding by the applicant, it is highly questionable whether the respondent should be permitted to benefit from such conduct absent strong countervailing considerations.” 51 Fed. Reg. at 10,494.

Equitable tolling is a rule applied generally in the U.S. to statutes of limitations. The Supreme Court has ruled that, “It is hornbook law that limitations periods are customarily subject to equitable tolling, unless tolling would be inconsistent with the text of the relevant statute.” Young v. U.S., 535 U.S. 43 (2002).

The Eleventh Circuit has applied that principle of domestic federal law to Article 12 of the Hague Convention. In Furnes v Reeves, 362 F.3d 702 (11th Cir. 2004) it held that the one year period may be “equitably tolled” until the date that the left-behind parent discovers the new residence of a child whose whereabouts have been concealed by the other parent. A child’s father in Norway allowed the mother to take the child from her habitual residence in Norway to spend the Summer in the USA. The child did not return as agreed. The father was then unable to locate either daughter or mother. He filed a return petition in the District Court in Atlanta, Georgia more than one year after the wrongful retention. Father testified as to his fruitless efforts to locate the child and a police report summarized such efforts. Tolling of the one-year period was allowed.

In Driessche v. Ohio-Esezeoboh, 2006 Lexis 92943 (S.D.Tex. 2006), the court refused to apply the tolling doctrine in such a way as would require the return a 6-year old child brought to Texas from Belgium. The court did allow some equitable tolling but it held that it could certainly not extend it a day longer than when it was proven that the father knew where the child was located. The purpose of equitable tolling is to ensure that a person who takes intentional and significant steps to conceal a child for more than one year will not be rewarded for that misconduct and “In those circumstances … the one-year limitation has been tolled until the parent seeking the child has located him.”

Other cases in which equitable tolling has been applied include the following district court cases:

Mendez Lynch v. Mendez Lynch, 220 F. Supp.2d 1347,1362-63 (M.D.Fla. 2002). Equitable tolling applied to ICARA petitions because otherwise “a parent who abducts and conceals children for more than one year will be rewarded for the misconduct by creating eligibility for an affirmative defense not otherwise available.”

Bocquet v. Ouzid, 225 F.Supp.2d 1337 (S.D. Fla. 2002). The one-year limitation period did not begin until the date petitioner confirmed the child’s residence in the United States. In this case a child had been abducted from France to Algeria and subsequently to Florida. The district court held that the one-year period was tolled while the child was in Algeria because not only was she concealed there but in any event Algeria was not a party to the Hague Convention, so that the mother could not have commenced a Hague proceeding until the child first came to Florida.

Antunez-Femandes v. Connors-Fernandes, 259 F. Supp. 2d 800 (N.D.Iowa 2003). An abducting parent should not benefit from the effects of her actions and the barriers another parent faced in initiating a Hague petition.

In re Cabrera, 323 F. Supp. 2d 1303 (S.D.Fla. 2004). The father had given the mother permission to take their child from Argentina to the United States for one year. After one year, the father realized that the mother was not returning the child and he began Hague proceedings. The court found that Article 12’s statute of limitations should be equitably tolled to the time when the left-behind parent becomes aware of the taking parent’s intent to remove or retain the child, providing the child is not settled in its new environment.

Giampolo v. Erneta, 90 F.Supp.2d 1269 (N.D. Ga. 2004). Although the left-behind father knew that the child had been brought to the United States, the abducting mother refused to inform him of the child’s precise location and changed residences several times. The court tolled the one-year period.

Other countries have not applied equitable tolling, preferring in many cases (Australia being an exception; see Director-General v. M and C (1998) FLC 92-829)) to consider concealment as part of the court’s exercise of a general discretion to refuse to return a child in appropriate cases.

Thus, in Cannon v Cannon [2004] EWCA CIV 1330 the English Court of Appeal rejected a tolling rule as being “too crude” an approach that risked producing results which would offend what the purposes of the Convention. Instead, the Court held that trial judges should look critically at any alleged settlement which was built on concealment and deceit, especially if the defendant was a fugitive from criminal justice.

In AC v PC [2004] HKMP 1238, a Hong Kong court refused to allow equitable tolling for concealment. In that case the father had taken the children in August 1999 from their habitual residence in Australia to Hong Kong and then to mainland China where they were placed under the care of the paternal grandmother. The mother promptly submitted a return application to the Australian Central Authority but the children were not detected until April 2004 in Hong Kong. The mother promptly commenced return proceedings in Hong Kong. The Hong Kong court refused to order the children’s return since they were now settled in their new environment.

Foreigner in U.S. on Visitor’s Visa Does Not Fulfill Nevada’s Divorce Residency Requirement

A Canadian wife who had lived in Nevada for 3½ years on a visitor’s visa could not get divorced in Nevada. So held the Nevada Supreme Court (Rozsnyai v. Svacek, 272 Neb. 567 (Nov. 2006)).

Nevada law requires that either spouse have at least one year’s genuine residency instate in order for Nevada to have divorce jurisdiction. The Court ruled that where both parties were Canadian citizens and the only party to have resided in Nebraska did so by reason of a visitor's visa, the normal inference that residency for more than one year residency was with the requisite intention to make Nebraska a permanent home, absent a showing that the residency was a sham and not bona fide, was negated and specific proof of intention was required.

Neb. Rev. Stat. § 42-349 (Reissue 2004) provides that in order to maintain an action for divorce in Nebraska, one of the parties must have had "actual residence in this state with a bona fide intention of making this state his or her permanent home for at least one year prior to the filing of the complaint." The plaintiff testified that she had lived in Nebraska for 3½ years at the time of trial. However, “A nonimmigrant alien authorized to reside in this country on a visitor's visa does so on a temporary basis and on the condition that he or she is not abandoning his or her foreign residence. 8 U.S.C. § 1101(a)(15)(B); 8 C.F.R. § 214.2(b) (2006). The residency restrictions placed on a nonimmigrant alien residing on a visitor's visa negates the inference that a nonimmigrant alien intends to reside in Nebraska on a permanent basis merely because he or she has resided in this state for more than 1 year. Thus, in the instant case, the inference created by Rozsnyai's testimony that she has lived in Nebraska since 2001 was negated by the fact that she has done so on a visitor's visa.” The Court dismissed the case.

The Court did, however, point out that there might be instances where a nonimmigrant alien is able to establish an intention to reside in a state permanently by offering proof of that intent apart from his or her presence in that state. See, e.g., Alves v. Alves, 262 A.2d 111 (D.C. App. 1970) (holding husband established domicile for purposes of obtaining divorce in that jurisdiction, despite immigration status); Weber v. Weber, 929 So. 2d 1165 (Fla. App. 2006) (holding nonimmigration status does not bar individual's right to establish residency for purposes of obtaining dissolution of marriage in that state and citing Perez v. Perez, 164 So. 2d 561 (Fla. App. 1964), for proposition that alien's nonpermanent immigration status is factor in determining issue of domiciliary intent); Bustamante v. Bustamante, 645 P.2d 40 (Utah 1982) (noting nonimmigrating aliens may form requisite intent to establish permanent residence for purpose of divorce).

Australia - Child Relocation

Reviewing Australia’s Family Law Amendment (Shared Parental Responsibility) Act 2006 leads to great concern that international (and domestic) relocation cases in Australia might become extremely difficult to win.

The Act creates a presumption that it is in a child's best interests for each parent to have equal shared parental responsibility. It requires the presumption to be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence.

The statutory preference for shared parental responsibility will often conflict with the reasonable desire of a parent whose marriage is over to “go home” to her country of origin or to make a fresh start.

Assume that Australian Jack and American Jill meet on vacation in Fiji. Jack persuades Jill to join him in his place on the beach in Queensland. Jill has a child there but Jack doesn’t come home much and Jill desperately misses her family and friends back home in the States. She gets a job but it does not pay much while Jack goes on unemployment.

Jill’s Australian lawyer advises her that Jack has full rights to shared parental responsibility over the baby. Jill says that if she goes home to the U.S. she will be able to get a better job and will have the support of family and friends. Her lawyer explains that the fact Jack is not working actually helps his case because he has plenty of time to spend with the baby. While an Australian court has the power to decide that it is in the best interests of the child that her mother be allowed to relocate with her to the U.S., the statutory presumption in favor of joint parental responsibility could well tip the balance in favor of blocking relocation except in extreme cases.

Has the Australian legislation gone too far?

Will the Australian courts redress the balance?

In B & B [2006] FamCA 1207 (15 November 2006) the Full Court of the Family Court of Australia in Brisbane may have started that process. It upheld a decision allowing a mother to relocate with her children from one part of Queensland to another, over the strong opposition of the father. In its decision, the Court stressed that in relocation cases regard should be had not only to the best interests of the child but also to the right to freedom of movement of a parent. It described the relationship between the two concepts as “a delicate interplay of concepts.”

How that interplay works itself out in Australian relocation cases remains to be seen.