Korea Okays Sex During Divorce

Korea's top court has ruled that sexual relations outside marriage committed during consensual divorce proceedings was not a criminal act.

Under current Korean law, adulterous relations are considered a criminal act and those found guilty can receive jail sentences of up to two years. The Supreme Court overruled a lower court's conviction of a 57-year-old married man identified as Chung, who was indicted without physical detention on charges of having an extramarital affair with a barmaid in April 2007, returning the case to an appellate court for retrial.

This ruling indicates that married people undergoing divorce have no legal obstacle to having sexual relations with others. The court ruling stated: ``If it is clear that the couple had no intention of continuing their married life, having sex with another person does not violate the Adultery Law since their decision can be translated into a tacit agreement for both sides to have sex with new partners.''

Chung filed a divorce lawsuit in early 2007 to end his 25-year-long marriage. Prior to the legal step, Chung and his wife reached an agreement on divorce but decided to live separately for a while to resolve pending disputes over division of property and monetary assets. Chung's wife laid charges against him after learning he had sexual intercourse with a female bar worker. Chung and the hostess were sentenced to six months in prison suspended for two years by a provincial court, a ruling upheld by an appellate court.

In the meantime, the Constitutional Court is now reviewing whether the Adultery Law is constitutional or not. In February, a famous actress, Ok So-ri, asked the court to rule the law unconstitutional, alleging it infringes upon people's rights to have sex with whom they want to. The nine-member court said it would rule on the case in the near future. The court has already ruled three times in favor of the law, the last time in 2001. Each year, more than 1,200 people are indicted under the law. In 2006 alone, 11,244 couples here fought over divorce in court because of infidelity. In 39.7 percent of those cases, it was the husband accusing the wife, up 3.5 percentage points from 1999.

Korea Times

Israeli court: Husband who refused divorce must pay damages

The Jerusalem Family Court (Judge Ben Zion Greenberger) has reportedly ordered a husband who refused to give his wife a divorce for nine years to pay damages of approximately $160,000. In an unprecedented ruling, the judge said that even if a husband is not required by the court to give his wife a divorce, he will still compensate her for his refusal on the matter.

The plaintiff is an ultra-Orthodox woman who began the proceedings towards a divorce in 1998. She claimed that she had been physically abused by her husband and forced to flee her home with three children. The case went to the High Rabbinical Court, which ruled that the husband must give her a divorce. The husband did not do so and the woman appealed to the Family Court, demanding compensation for the distress her husband had caused her over the years, and for the denial of her right to marry again and continue with her life. Previously, courts had ruled that damages should be paid from the time the divorce is finalized.

The new ruling allows the wife to sue for damages for all the years in which her husband refused to give her a divorce, including the years her lawsuit is pending in court. The woman’s lawyer hailed the ruling: "It would seem that the civil courts have finally begun to realize that the rabbinical courts take too long in enforcing divorces, and have decided to treat the women justly."

Credit crunch raises divorce rate for America's superwealthy

London Times article citing me and other N.Y. lawyers:

The Times, July 11, 2008 Tom Bawden in New York

America's credit crunch is putting the squeeze on the marriages of New York's superwealthy as a record number of couples with $10 million or more in assets sue for divorce. The New York lawyer Raoul Felder, who works exclusively with the very rich — he represented Larry Fortensky in his divorce from Elizabeth Taylor — told The Times that his company's caseload had soared from 250 to 300 in the past year. This is the biggest jump since 1980, when New York state law was changed to add four new grounds for divorce to the sole existing one — adultery.

The impact of the credit crunch has slashed what were once multimillion-dollar bonuses to virtually nothing for many Wall Street executives, hedge fund managers and property developers, while thousands of others have lost their jobs in the property crash.

One New York divorce lawyer said one client was worried that his wife would leave him if she found out that his net worth had fallen from $20 million (£10 million) to $8 million after he suffered huge losses on property and other investments. To keep his wife he was trying to mask his declining fortune by borrowing to pay for her clothes and holidays.

Kenneth Mueller, a pyschotherapist in the East Village area of New York, who works with many Wall Street bankers and property magnates, said: “The credit crunch is starting to become a really big issue — especially for the moneyed classes. Once you can't act out with money you start fighting.

“It's like drinking, or gambling, or sexing your way out of feelings, but with a fabulous family vacation or great clothes or wonderful meals — money can become an addiction that masks the reality. When that goes, reality has to be faced and accusations start flying.” Nancy Chemtob, another New York divorce lawyer, said that since November she has been receiving a couple of inquiries a week relating to divorce cases motivated by the credit crunch, compared with virtually none before. The sudden rise in Mr Felder's caseload, which forced him to hire an extra lawyer in May, is not confined to New York.

Jeremy Morley, a family lawyer representing wealthy people in the US and abroad, said that the number of inquiries from potential clients had increased by nearly 40 per cent in the past year.

He puts much of the new business down to the economic downturn, which, he says, “makes people nervous and more inclined to change their lives”.

Lisa Thomas, a family therapist, based in Denver, Colorado, has also noticed how love among the rich can ebb when the money falls short. “If you don't have a pony show going on 24-7 you have to look at the relationship and that can be very scary. The toys were a distraction, but now they may be running out and, though once we used to love each other, I'm not sure if we do anymore,” Ms Thomas said.

Not that anyone would admit their divorce is motivated by money, probably not even to themselves. Mr Felder, who represented Rudolph Giuliani, the former Mayor of New York in his recent divorce, and Mike Tyson's former wife, Robin Given, in hers, said: “Money's really all that it's about, the husbands know it, but the wives will never say it. I've been doing this for years. I know, the judge knows, though you can't prove it. “One giveaway is when the wife has no specific grounds for divorce. If the husband suddenly starts hitting her, then that's totally understandable. But if they are vague about their complaint and just say things like 'it's not working out' then you know,” Mr Felder added.

Under the revised New York law, couples can sue for divorce on the grounds of cruel and inhuman treatment, abandonment, prison for three or more years and separation for at least one year. Lack of money is not yet deemed to be a legitimate reason.

Number crunching

$240m annual wage of Manhattan's top hedge fund managers in 2006

$200,000 average Wall Street bonus last year

11 per cent average amount of bonuses spent on watches and jewellery, according to survey last year

40,000 estimated number of positions lost at financial companies since the onset of the credit crunch

International Child Visitation to Colombia

We represented the mother in successfully defeating the Hague International Child Abduction Convention portion of this case in North Carolina.

International child-custody case settled

A boy, 12, will live in the U.S. with his mother. His father can visit but can't take the boy to visit Colombia against his will

A custody tug-of-war spanning two continents was settled Monday in Durham County court [North Carolina], ending a protracted dispute embodying international treaties and questions of travel safety.
Alejandro Ramirez Polania, a 12-year-old in Durham, will live in the United States with his mother, a judge ruled. His father, who lives in Colombia, may visit, according to the settlement agreement, but the boy will not be forced against his will to visit a country where his mother fears he might be a target of kidnappers. The case resulted in at least one complaint to the Judicial Standards Commission about Judge Craig Brown, who since has stepped down from the bench. Alejandro's mother, Claudia Krehbiel, also filed a federal lawsuit against the state attorney general because of her dissatisfaction with Brown's finding in August that Colombia was safe enough for her son to visit. During a four-day hearing in July and August, experts debated the safety of Bogota in a Durham courtroom. A former FBI agent and a Colombian colonel testified to dangers lurking in the capital. The father presented reports showing a decline in crime.

Judge removes self
After the complaint to the judicial standards commission, a grievance that was never publicly investigated, Brown removed himself from the case. When Brown stepped down from the bench in May, he did not reveal his reasons for the sudden departure. As the family waited for a hearing in front of a different judge, mother, son and stepfather tried to enlist a global audience in their battle. The Web site savealejandro.com shows a picture of Alejandro, his arms crossed, standing by an American flag. "My life, my story. ... please help keep me safe!" the banner reads. Alejandro moved to the United States with his mother when he was 6. His parents, both native Colombians, never married. But both wanted to play a role in his life. The judge ordered regular communication via e-mail and other computer technologies. He ordered the family to take down the Web site and said the visitation issue could be revisited only through a court order.

The News & Observer, Jun 24, 2008, Anne Blythe, Staff Writer

Australian Child Relocation & Abduction Problems

There seems to be a rash of child abductions out of Australia -- although perhaps this is simply because many Australian cases are coming my way.

My theory is that it is partly a result of the recent changes in Australian child custody law.

The main and eminently laudable objective of the 2006 amendments to Australia's Family Law Act was to ensure that the best interests of children are met by ensuring they have the benefit of both of their parents having a meaningful involvement in their lives, "to the maximum extent consistent with the best interests of the child.” Section 60B(1)(b) Family Law Amendment (Shared Parental Responsibility) Act 2006.

A consequence of the new law is that child relocation is now extremely difficult in Australia, leading to desperate measures.

Consider a typical scenario of an American, British or Canadian woman marrying her gorgeous Aussie guy and discovering after she has moved over there and had a baby that he is not the man she thought he was.

He may be violent, or he may have lost his job, or he may be a womanizer, or he may not help her with child care -- or all of the above. They may live in a remote town or distant suburb. She will likely have no family or social support. They break up and she is suddenly alone, a single parent who is scared, broke and lonely. She desperately wants to "go home," to the community where her parents, extended family and lifelong friends live and where she is qualified to get a reasonable job.

A similar fact scenario if brought to court in a U.S., Canadian or U.K. court might very well lead to a relocation order in favor of the mother, provided she allows substantial contact with the father.

However, the result in Australia may well be completely different. Her relocation application will likely be denied if her husband objects and makes some effort to see the child.

At that point Australia becomes a prison for her and she may be tempted to run home regardless of the law. Given the power of the Hague Convention she will then after a heartbreaking trial be forced to return her child to Australia, which means that she will have little choice but to go back also, but now she is branded a child kidnapper and she faces a judgment for the father's legal fees and expenses on top of having already prevailed on her family to have invested their life savings in the effort to keep her and the baby home in the States.

Something needs to change.

Canada: Divorced Couples Must Share Marital Debt

Just as divorced couples sometimes share future assets, they also should have to share future debts tied to the marriage, the Supreme Court of Canada ruled yesterday.

The 6-1 decision puts a Vancouver woman on the hook for part of her former husband's unascertainable tax liability arising from tax shelters he bought during their marriage.

"It seems self-evident that, generally speaking, both assets and debts need to be considered in order to ensure fairness upon the breakdown of a marriage," Justice Michel Bastarache wrote for the majority.

"In my view, the fact that it is not feasible to precisely value an asset or debt at the time of separation does not alter the principle that the complete financial situation of both spouses needs to be considered in order to ensure a just result."

The decision, which overturns the British Columbia Court of Appeal, was the high court's first look at the post-divorce division of contingent debts related to the marriage.

The court sided with Wayne Stein, who was married to Malka Stein for 12 years before they separated in 2003 and divided $1.7 million in family assets. Wayne Stein, part owner of a family lumber business, purchased four tax shelters in motion picture limited partnerships during the final years of marriage. The shelters, which brought the couple tax breaks, carried with them contingent future income tax debt.

Nothing in the B.C.'s Family Relations Act precludes the division of contingent liabilities after divorce, concluded the judge. He also noted there are already rulings on the books that allow for the division of future assets that are "inchoate, contingent, immature, or not vested" -- and that there's no reason the concept shouldn't apply to debt. "However, in the event that the impact of the future liability on one of the parties results in an unfairness, that individual may have to apply to the court for adjustments," he wrote.

Ottawa Citizen, June 13, 2008

English Law Commission Looking At Prenuptial Agreements

From Times Online

June 11, 2008

Pre-nuptial agreements between couples planning to marry could become legally binding under a review of the law being carried out by the Government's law reform body.

The inquiry announced today by the Law Commission is part of its latest programme of law reform, which is also looking at the law on intestacy, the laws governing residential care and level crossings.

At present pre-nuptial agreements are persuasive in the courts but not strictly legally binding.

But the Law Commission has ruled out looking at the law on the splitting of a couple's assets on divorce, despite calls by some judges that they should do so.

Sir Terence Etherton, a High Court judge and the chairman of the Law Commission, said: "There is a recognition that the division of assets is an issue of considerable social importance and there is wide dissatisfaction with the current law.

“But we recognise that the issue is increasingly politicised and controversial."

Instead the Law Commission will examine in what circumstances courts should uphold the increasingly popular pre-nuptial contracts with the aim of drawing up a draft parliamentary Bill by 2012.

Sir Terence also predicted that existing proposals by the Law Commission which give greater legal rights to cohabiting couples would become law in the not too distance future.

"We are lagging behind Australia, New Zealand, Canada and Scotland. There will be legislation because we are clearly so far behind other countries."

Post-marital agreements, entered into by couples after marriage to determine the division of their assets after divorce, would also be examined, the Law Commission said.

Lawyers welcomed the plans to look at pre-nuptial contacts but expressed concern that the plans could also be left on the shelf.

Israeli Divorce Based on 'Get' Not Recognized in New York

A state judge has declined to recognize an Israeli divorce judgment that was based on a "get," or decree of divorce, issued by a Brooklyn rabbi.

"If this court were to sanction the utilization of a 'Get' to circumvent the constitutional requirement that only the Supreme Court can grant a civil divorce, then a party who obtains a 'Get' in New York could register it in a foreign jurisdiction and potentially, later on, rely on the 'Get' to obtain a civil divorce in New York thereby rendering New York State's Constitutional scheme as to a civil divorce ineffectual," Supreme Court Justice Jeffrey S. Sunshine of Brooklyn (See Profile) ruled in Tsirlin v. Tsirlin, 20542/06.

"It would have the practical effect of amending the Domestic Relations Law section 170 to provide a new grounds for divorce," he said.

Justice Sunshine allowed the plaintiff-husband's Brooklyn divorce proceedings to go forward, denying the wife's motion to dismiss on the grounds of comity and judicial estoppel.

Jeremy D. Morley, an expert in international family law who is not involved in the case, called the decision surprising.

"Usually we would grant comity to a foreign divorce decree so long as at least one of the parties was domiciled in the foreign country," said Mr. Morley. "It's most unusual for a domestic court to look at the reasons behind a foreign divorce decree."

"It'll be interesting to see how the decision not to give comity plays out in other situations. How would it apply when you have an administrative divorce from Japan, which is alien to our system, or a divorce from a country that allows divorce for grounds that we find unusual?"

Alla and Alexander Tsirlin married in Jerusalem in September 1995. Less than six months later, Ms. Tsirlin gave birth to a son, Jonathan. Ms. Tsirlin works in a medical office; Mr. Tsirlin is a bus driver.The family moved from Israel to the United States in October 2003, though Mr. Tsirlin soon returned to Israel a month later due to passport problems.

In December 2003, the couple appeared before a Brooklyn rabbinate, which issued a "get," or religious divorce, according to Mr. Tsirlin.

Two years later, Israel's Rabbinical Court, Jerusalem District, issued a divorce judgment based on the 2003 Brooklyn decree.

In July 2006, Mr. Tsirlin initiated the present divorce action, in which he also sought joint custody and child support.Ms. Tsirlin contested the action on comity and judicial estoppel grounds, citing the Israeli divorce decree.

In a decision last week, Justice Sunshine rejected Ms. Tsirlin's motion. He found that allowing a U.S.-based get to serve as the basis of a valid divorce would provide an end-run around the state's divorce laws.

Justice Sunshine relied on the 1924 Appellate Division, First Department, decision Chertok v. Chertok, 208 App.Div. 161, in which the court found that a get acquired in New York and "consummated" in Russia was not binding in the United States."[A]pplying the holding of Chertok to the facts of this case, although the Israeli government may recognize the divorce granted in New York City, it is void in its inception under our law," Justice Sunshine held.

By Mark Fass
New York Law Journal, May 19, 2008

Japan to Sign Hague Child Abduction Convention

Yes!!!!05/10/2008
BY MIAKO ICHIKAWA
THE ASAHI SHIMBUN

Japan will sign a treaty obliging the government to return to the rightful parent children of broken international marriages who are wrongfully taken and kept in Japan, sources said Friday.

The Justice Ministry will begin work to review current laws with an eye on meeting requirements under the 1980 Hague Convention on Civil Aspects of International Child Abduction, the sources said. The government plans to conclude the treaty as early as in 2010.
The decision was reached amid criticism against Japan over unauthorized transfer and retention cases involving children. The governments of Canada and the United States have raised the issue with Japan and cited a number of incidents involving their nationals, blasting such acts as tantamount to abductions.

In one case, a Japanese woman who divorced her Canadian husband took their children to Japan for what she said would be a short visit to let the kids see an ailing grandparent. But the woman and her children never returned to Canada.

Once parents return to their home countries with their children, their former spouses are often unable to find their children. In Japan, court rulings and custody orders issued in foreign countries are not recognized.

Under the convention, signatory parties are obliged to set up a "central authority" within their government. The authority works two ways.

It can demand other governments return children unlawfully transferred and retained. But it is also obliged to find the location within its own country of a child unlawfully taken and retained, take measures to prevent the child from being moved out of the country, and support legal procedures to return the child to the rightful parent.

Sources said the Japanese government will likely set up a central authority within the Justice Ministry, which oversees immigration and family registry records. The ministry has decided to work on a new law that will detail the procedures for the children's return.

In 2006, there were about 44,700 marriages between Japanese and foreign nationals in Japan, about 1.5 times the number in 1996. Divorces involving such couples more than doubled from about 8,000 in 1996 to 17,000 in 2006.(IHT/Asahi: May 10,2008)

Preventing International Child Abduction: Texas Case

When should a court take steps to prevent possible international child abduction by a foreign national parent?

This issue is critical to many parents but many courts -- and even many family law lawyers -- do not give the issue the serious consideration that it must be given.

The consequences of international parental child abduction are frequently so severe that when a parent raises concerns there is an obligation to consider them long and hard. The challenge for judges is that the evidence that is proffered by worried parents is invariably speculative.

To require a parent who wishes to prevent abduction to produce clear proof of an actual threat to abduct imposes an often-impossible burden on a concerned parent.

Recently a Texas Court of Appeals was asked to consider whether a trial court had improperly found a potential risk of abduction of a child by her Bulgarian father. Karenev v.Kareneva, No. 2-06-269-CV (Tex. App.3/20/2008) (Tex. App., 2008).

Fortunately for the mother and child, Texas has been relatively forward-thinking in having enacted legislation expressly designed to prevent international child abduction (Texas Statutes Sec. 153.50 et seq).

The legislation instructs the courts that in determining whether there is a risk of the international abduction of a child by a parent of the child, “the court shall consider evidence that the parent:

(1) has taken, enticed away, kept, withheld, or concealed a child in violation of another person's right of possession of or access to the child, unless the parent presents evidence that the parent believed in good faith that the parent's conduct was necessary to avoid imminent harm to the child;

(2) has previously threatened to take, entice away, keep, withhold, or conceal a child in violation of another person's right of possession of or access to the child;

(3) lacks financial reason to stay in the United States, including evidence that the parent is financially independent, is able to work outside of the United States, or is unemployed;

(4) has recently engaged in planning activities that could facilitate the removal of the child from the United States by the parent, including:

(A) quitting a job;

(B) selling a primary residence;

(C) terminating a lease;

(D) closing bank accounts;

(E) liquidating other assets;

(F) hiding or destroying documents;

(G) applying for a passport or visa for the parent or the child; or

(H) applying to obtain the child's birth certificate or school or medical records;

(5) has a history of domestic violence that the court is required to consider under Section 153.004; or

(6) has a criminal history or a history of violating court orders.”

If, based on the above factors, the trial court finds that there is "credible evidence of a risk of abduction of the child," the statute requires the court to also consider the following factors in order to evaluate that risk:

(1) Whether the parent has strong familial, emotional, or cultural ties to another country, particularly a country that is not a signatory to or compliant with the Hague Convention on the Civil Aspects of International Child Abduction; and

(2) whether the parent lacks strong ties to the United States, regardless of whether the parent is a citizen or permanent resident of the United States.

The evidence at trial showed that the husband had once enrolled the child in school in Texas without the wife's knowledge and had listed his first ex-wife as the emergency contact; that the wife was afraid husband would kidnap the child and return to Bulgaria, where both parties were born; that the wife claimed that her husband was a millionaire in Bulgaria; that he had traveled to Bulgaria three times in the preceding two years; that the husband had a history of threats, harassment, and domestic violence and had been convicted of harassment; that he claimed income far less than his expenses; and that he had not paid child support.

There was no evidence of any actual threat to take the child to Bulgaria.

Nonetheless the appellate court concluded that “there is sufficient evidence to support the trial court's finding of a potential risk of international abduction of the child by husband, and, therefore, the trial court did not abuse its discretion.”

Australia Child Custody & Relocation Problems

Australian child custody law presumes that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. (Australia’s Family Law Amendment (Shared Parental Responsibility) Act 2006).

This presumption has reportedly created significant damage.

Judge Graham Mullane has reported to the Association of Family and Conciliation Courts that recent research by the Institute of Family Studies has shown that shared parenting has increased substantially in Australia but that the effect of many of these arrangements has been to subject infants or very young children to a pattern of separation from their primary care giver that may be seriously damaging to the child.

Many of the parents’ relationships are poor and they have no capacity to co-parent. For many children, the arrangement involves a high level of inconsistency and instability, and repeated exposure to parental conflict.

Moreover I can certainly attest to the fact that the 2006 law has made child relocation cases very much harder to win in Australia -- or, depending on your point of view, much easier to defeat -- which has caused devastating results in some cases.

Korean Adultery Law

Adultery is a crime in Korea punishable by up to two years in jail. Now Ok So-Ri, a famous Korean actress who has been indicted for adultery, has petitioned Korea’s Constitutional Court to invalidate the 1953 law that criminalizes such conduct.

In her complaint, her attorneys have argued that, "The adultery law constitutes a serious breach of the individual's rights to make decisions concerning sex and privacy under the constitution. Adultery cases must be handled in civil courts, not in criminal courts."

However, although the legislation has been challenged before -- complaints were filed in 1990, 1993 and 2001 – the Constitutional Court has rejected all prior petitions on the grounds that social morality would be weakened.

Today, it is rare for people to be jailed but that does not stop thousands of angry spouses from filing criminal complaints each year.The danger that the law creates is illustrated by Ok So-Ri’s own case.
The issue began when her business partner – not her husband – accused her in the course of a business dispute of having committed adultery with a famous chef. She then went into hiding and when she emerged she denied the affair with the chef but admitted an affair with another man. Her husband then charged her with adultery.

Let us hope that the Constitutional Court corrects the problem.

International parental child abduction from the U.S. to India

March 28, 2008, News-India Times

By Jeremy D. Morley

There has been a rash of cases concerning parents who remove a child from the United States to India without the consent of the other parent and then refuse to return the child to this country.

Parents often have a grave misunderstanding of the serious nature of such parental child abduction. Many believe that simply because India is not yet a party to the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) the legal system can neither prevent nor cure a parent’s unauthorized removal of a child from the United States to India. Such views are totally mistaken.

U.S. federal law makes kidnapping a crime even when it is committed by one of the child’s parents. The International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C. 1204, makes it a federal felony to remove a child under the age of 16 from the United States, or to retain a child outside the United States with the intent to obstruct the lawful exercise of parental rights. In addition, every state recognizes that the abduction of a child by his or her parent is a serious crime, subject to penalties in excess of one year in prison.

The International Parental Kidnapping Law has been used against Indian parents on many occasions. For example, Dr. Fazal Raheman, who was convicted of the crime in the following circumstances: He had married his wife in India and moved with her to Massachusetts. They had two children. After a few years he apparently became concerned that his wife was becoming too “independent” and he “made threats” against her. He then took the children without her consent to his former home in Nagpur, India and refused to return them.

His wife obtained an emergency custody order from a court in Massachusetts while the husband obtained a custody order in his favor from the Nagpur Family Court. The mother traveled to India to try to find her children and bring them home but her husband filed criminal charges against her in India and she fled to the United States without her children.

Dr. Raheman was then charged with the crime of international parental kidnapping. He was also charged with wire tapping since he had illegally tapped his wife’s telephone and videotaped her. He was captured during a return trip to the United States and after trial he was convicted of both charges and was sentenced to three years' imprisonment, followed by three years of supervised release. He was ultimately released from prison on condition that he effect the return of his two children - then 12 and 8 years of age - to their mother in the United States.

However, Dr. Raheman then proceeded to provide false information to the Nagpur Family Court, which was found to have inhibited the likelihood that the children would be returned to the United States. As a result he was sentenced to a further year and a day in prison. The Nagpur court transferred custody of the children to Raheman’s elderly mother in Nagpur and the mother had no contact with them except for sporadic visits. Imposing the second sentence, Judge Patti B. Saris harshly criticized Raheman for stealing the children from their home in the U.S., and noted that Raheman had betrayed the trust of the country which had given him great benefits while he lived here.

Dr. Raheman appealed but a federal appellate court held that the International Parental Kidnapping Act was applicable to a father who took his children from the United States to India even though the pre-decree abduction was not illegal under state law. United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40 (1st Cir. 2004).

In a second case, Sanjay Sardana, a father of Indian descent, was convicted after a jury trial of taking his three-year old daughter to India with the intent to obstruct the lawful exercise of parental rights by the child's mother, his estranged wife, in violation of the International Parental Kidnapping Crime Act. The defendant appealed unsuccessfully to the United States Court of Appeals for the Second Circuit. Details of the case are at U.S. v. Sardana, 101 Fed. Appx. 851 (2d Cir. 2004).

Another recent case of great significance concerned a Syrian national who abducted his child to Syria. In that case the Tenth Circuit Court of Appeals upheld the imposition of the maximum sentence of 36 months against the abductor even though the sentence significantly exceeded the sentencing guidelines for the crime. The reason for the harsh sentence was that the father refused to bring his children back from Syria. USA v. Riadh Abdul Rahman Dallah, 192 Fed. Appx. 725 (10th Cir. 2006).

Some other relevant laws are:
§ The Extradition Treaties Interpretation Act of 1998, 18 U.S.C. 3181, which authorizes the United States to interpret extradition treaties that list "kidnapping" as including the offense of parental kidnapping;
§ The Fugitive Felon Act, 18 U.S.C. 1073, which enhances the ability of states to pursue abductors beyond state and national borders; permits the FBI to investigate cases that would otherwise be under state jurisdiction; and authorizes the use of Unlawful Flight to Avoid Prosecution (UFAP) warrants in family abduction cases; and
§ The Alien Exclusion Act, 8 U.S.C. (A)(9)(C)(I), which provides that any alien who, in violation of a custody order issued by a court in the United States, takes or retains a child out of the United States, may be excluded from the United States.

On many occasions parents of Indian origin have taken a child to India and have immediately sought favorable custody orders from the Indian courts. Usually such efforts will not be recognized in the United States and they may well be counterproductive. A U.S. court will not permit parents to evade U.S. jurisdiction by the subterfuge of a parent taking the child to another jurisdiction.

A recent example is the California case of In re Marriage of Sareen, 153 Cal.App.4th 371, 62 Cal.Rptr.3d 687 (Cal. App. Dist.3 06/21/2007). The parents were married in New Delhi and then moved to New York, where their daughter was born. They later went on vacation to Switzerland but when changing planes in Germany the husband insisted that they fly to India. Three days later the husband filed for divorce and custody in India, took his wife’s and the child’s passports, left his wife and child in India and flew back to New York. Eventually the wife was able to return to the United States with her child and settle in California. The California court ultimately ruled that it had jurisdiction of the case, not India, because the husband had taken the child to India by means of a subterfuge.

Nonetheless, for many reasons India is generally a safe haven for child abductors who stay in India and do not leave. This is firstly because India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction and because no Indian legislation sets forth helpful law on this issue. Furthermore, the court system in India is extremely slow so that an abductor has ample time to create “facts on the ground” in terms of getting the child sufficiently settled into life in India as to justify an Indian court in ultimately deeming that it is best to keep the child in India.

The law in India was previously settled that foreign children taken by a parent to India without the consent of the other parent would normally be returned to their country of residence or nationality. However recent decisions of courts in India have changed that rule and have held that foreign custody orders are merely items to consider as part of an overall custody review. Thus in a decision dated March 3, 2006 the Bombay High Court at Goa refused to issue a writ of habeas corpus on behalf of a British mother from Ireland whose eight-year-old daughter had allegedly been abducted to Goa by the child’s American father. The High Court dismissed the mother’s application on the ground that normal custody hearings should be undertaken and completed in Goa. One case where a fair result was ultimately obtained was Gahun v. Gahun, the High Court of Delhi at New Delhi ruled in 2006 that it would not accept jurisdiction of an application for custody by a mother of Indian descent who had lived with her husband in Canada for 12 years, had then taken their daughter for a vacation in India and had refused to return her to Canada. As a consequence, courts outside India should be extremely wary about allowing parents to take children for temporary visits to India over the objections of the other parents since there is a great likelihood that parents who wrongfully retain children in India will get away with their wrongful conduct scot-free in India.

Offshore Trusts and Divorce

The chief justice of the Cayman Islands, Mr Justice Smellie, has launched a staunch defence of trusts and has railed against what he described as the “entirely misguided” criticism of offshore trusts by onshore authorities. So reports legalweek.com.

This fuels expectations that there will be an unprecedented stand-off between offshore and onshore judges over the issue. In the landmark Charman v Charman divorce ruling, the English Court of Appeal ruled last year that assets in offshore trusts created by one spouse may be included in the "matrimonial pot" of assets that an English court in a divorce case should “fairly” divide. In that case the husband had created a discretionary family trust in Jersey for the purpose, he claimed, of benefiting his prospective heirs. He had then moved his business and himself to Bermuda, changed the jurisdiction of the trust from Jersey to Bermuda and appointed a Bermudan trust company trustee.

Ms. Charman now has an action pending in Bermuda to enforce the English judgment and compel the delivery to her of a portion of the trust assets.

In a number of similar cases involving Jersey trusts, Jersey’s Royal Court has sided with the English courts. But Justice Smellie’s speech has raised expectations that Caribbean offshore jurisdictions might now take a tougher line and refuse to follow the English practice.

India - Good News in an International Child Abduction Case

For more than three years, Deepa Topiwalla fell asleep every night wondering where her young son was. She doesn't have to wonder anymore. He sleeps in her bedroom in a small bed next to hers. After a court battle that took her halfway across the world, she has returned home to Cary with her son, and together they look forward to starting a new life.

This year marks a new chapter for them, after a tumultuous struggle that began in 2004 when Topiwalla was granted primary custody of Mihir, then 2, in Wake County Family Court. During a weekend visitation, the boy's father kidnapped him and fled to India.

Topiwalla hired a private detective in India but had no idea where to begin her search. A native of Tanzania, she had only twice visited India, which is about one-third the size of the U.S. and has a population of more than 1 billion. To complicate matters, “I was told that even if I go there, if I find out where my son is, Americans won't be able to do anything because India does not follow American laws,” Topiwalla said. Because India is not a member of the Hague Convention on the Civil Aspects of International Child Abduction, U.S. court orders aren't automatically enforceable there, Chester said.

Last June, on a trip to India to visit her dying father who traveled to India for treatment, Topiwalla began her search again. With help from relatives, she hired an Indian lawyer and issued a public plea for help in the local newspapers and television stations, showing an old photo of Mihir and asking for any information on his whereabouts. That call for help led to a tip -- and authorities were able to track down her son. But her battle wasn't over. Attorneys warned Topiwalla that she could face years of custody litigation, and “based on what we were hearing from the (U.S.) Department of State, the chances of Deepa ever getting the child back were really slim,” Chester said.

She persuaded an Indian court to grant her emergency custody of Mihir. After a hearing, the Indian judge decided to honor the American custody order, and last October, Topiwalla brought her son home to the U.S.

Topiwalla now works at a local day care center -- a job she chose in the wake of her son's abduction. “I thought, 'If I cannot be with my son, I can be with other kids and experience what's going on in their lives every day,' " she said. “Because I was missing all that growing up with my own son, I thought, 'If I do this with another child, I will feel a little bit better.' “

Topiwalla's ex-husband faces federal parental kidnapping charges but has not been arrested, Chester said. To their knowledge, he has not returned to the United States.

Nearly $50,000 in court costs decimated Topiwalla’s savings. But rather than focus on the past, she is determined to look forward. “I hope to have a good future with my son. I want to give him the best education you can have and do everything possible for him, so he can grow up to be a good person," she said. "It's huge for me to get my life back because my son is everything to me.”

© Copyright 2008, The News & Observer Publishing Company. By Cara Bonnett, Correspondent, News Observer

Japan Won't Let Abducted Kids Go

This article from ABC News is based in part on an interview with me.

Notwithstanding the information in the article, there are some things that can be done in case of child abduction to Japan, though rarely using the Japanese "system."

By RUSSELL GOLDMAN, Feb. 26, 2008 —

Kaya Wong's parents never imagined they would be able to have a baby.

Born three years after her mother was diagnosed with cancer, Kaya, now 4 years old, was a miracle.

But for Paul Wong, Kaya's father, the unimaginable soon became the unthinkable. Months after the cancer fatally spread to his wife's brain in 2005, Kaya, he says, was kidnapped by her maternal Japanese grandparents.

Despite being his daughter's sole surviving parent, he has few options available to him as an American in Japan  a historically xenophobic country that does not honor international child custody and kidnapping treaties. It's also a nation that has virtually no established family law and no tradition of dual custody.

He knows where his daughter lives, where she goes to school and how she spends her days, but despite the odd photograph from a family friend, he has not seen his daughter once in the last six months.

Wong is one of hundreds of so-called "left-behind" parents from around the world whose children have been abducted in Japan, the world's only developed nation that has not signed the Hague Convention on the Civil Aspects of International Child Abduction.

'Heartbroken'

There are currently 39 open cases involving 47 American children spirited away to Japan, a key American ally and trading partner, but many more go unreported. Not a single American child kidnapped to Japan has ever been returned to the United States through legal or diplomatic means, according to the State Department.

"This entire experience has left me heartbroken," Wong told ABCNEWS.com. "We always wanted children. My wife and I talked about starting a family for a long time, but because Akemi was sick we kept having to wait. When Kaya was born, I promised my wife that we would move to Japan so that our daughter would know about her Japanese heritage and Akemi, despite her own illness, could care for her elderly parents."

Wong, a 41-year-old lawyer, says he does not regret keeping his promise to his ailing wife, but his pledge set into motion a series of events that have kept him from seeing his only child.

"She's very energetic, outgoing, active, inquisitive innocent little girl. She is simply perfect, and sweet as can be. She is not afraid of anything," he said of his daughter during a phone interview from Japan. "I'm breaking up just thinking about her and talking about her. She loves to laugh and has a smile just like her mother's."

Kaya was born in San Francisco in 2003 and is a dual citizen of the United States and Japan. The young family lived in Hong Kong, with Akemi making occasional trips to California for treatment until she and Kaya moved in with her parents in Kyoto, Japan to rest after a treatment. Shortly thereafter, she passed away.

Abuse Allegations Common

For more than a year after her mother's death in December 2005, Kaya continued to live with her grandparents, with Wong visiting monthly from Hong Kong as he worked to find a job that would allow him to move to Japan.

Once he found a job and was preparing to move, however, things suddenly changed.

"Once I moved to Tokyo last year, the grandparents did everything possible to keep Kaya away from me. When I said I'm taking her back, they filed a lawsuit against me filled with lies and claimed I had sexually assaulted my daughter. There are no facts and the evidence is completely flimsy."

According to Wong, with the exception of one long weekend in September 2007 when he took his daughter to Tokyo Disney, her grandparents were present every time he was with Kaya.

He said that a Japanese court investigator found that the girl was washed and inspected every day after a swimming lesson at her nursery school and her teachers never noticed signs of abuse.

ABCNEWS.com was unable to contact the grandparents Satoru and Sumiko Yokoyama, both in their 70s. State Department officials would not comment on the specifics of this case, but a spokesperson said that allegations of abuse were not uncommon in some abduction cases.

Kaya's grandparents are elderly pensioners. Under a Japanese program to stimulate the birth rate, families with young children receive a monthly stipend from the government, one reason Wong believes the grandparents have chosen to keep Kaya.

Though Wong's case is unique in that most child custody disputes result from divorce not death, his is typical of the legal morass in which many left-behind parents find themselves. He has spent thousands of dollars on legal fees and makes regular appearances for court hearings, but his case, like many others, remains stalled.

American parents quickly learn that the Japanese court system is rather different from that of the United States.

There is no discovery phase  pretrial disclosure of evidence  or cross-examination. Lawyers for each side simply present their cases before a judge.

Furthermore, there is no concept of parental abduction or joint custody. The parent or family member who has physical custody of the children  generally the Japanese mother or her family  is granted legal custody.

"Fundamentally, people believe that Japan must have a legal system available to deal with child custody and similar problems," said Jeremy Morley, an international family lawyer. "In reality, however, there is no such system."

"Family law is very weak in Japan. There is also a cultural perception that a Japanese child is best off in Japan with a Japanese parent. Boiled down, the law is: Whoever has possession has possession and the other parent should mind his own business," Morley said.

Culture Clash

Culturally, there is no concept of dual custody or visitation. Once a couple gets divorced, the children are typically assigned to one parent and never again have contact with the other parent.

After divorcing his then-pregnant wife of four years in 1982, former Prime Minister Junichiro Koizumi retained custody of his two eldest sons, Kotaro and Shinjiro. His ex-wife Kayoko Miyamoto took custody of their unborn son, Yoshinaga Miyamoto. Since the divorce Miyamoto has not seen her two eldest sons, and Koizumi has never met his youngest son, Yoshinaga.

Against this cultural backdrop, American parents seeking custody find themselves in an endlessly revolving door of hearings that go on for years and yield no results.

Paul Toland, a commander in the U.S. Navy, estimates he has spent "well over $100,000 in attorney's fees" for the last five years in an effort to get back his daughter.

Toland's daughter was taken by his ex-wife to live with her parents in Tokyo while he was stationed in the country in 2003 and he has not seen the girl since.

He began fighting for custody of his daughter Erika, 5, when she was just 9 months old. When his wife, Etsuko Futagi, committed suicide in September 2007, Erika's maternal grandmother took posession.

"I feel real frustrated because I'm in a holding pattern," said Toland, 40, who lives in Virginia. "It has been a nightmare trying to get through this."

Possession Is Key

Though Toland is his daughter's sole surviving parent, judges in countless hearings have upheld the cultural imperative that it is in the child's best interest to stay with whomever she is with at that moment.

"Whoever has custody when they walk into court has custody," Toland said. "Judges never want to disrupt the status quo. There is no enforcement of the law because there is no teeth in the system. Police won't intervene because they say it is a family matter. Every judge knows that and rules in favor of the status quo because he would lose face if he ordered something that would never be followed through on."

For now, Toland can only wait and keep trying through the courts.

He said he regularly sends "care packages  big boxes full of presents and videotapes of me reading her children's books." Since he does not know whether those videos ever make it to his daughter, he keeps copies locked in a strong box to give her if and when he finally gets custody.

"Parental abduction is not a crime in Japan, but taking a child out of Japan is a crime. It is legal to abduct my own kid in Japan, but it's a crime to take her back home with me."

His parents have each just turned 80 and have never met their granddaughter.

"It is a crime to keep my parents from knowing and loving Erika," he said.

'Countries Disagree'

With the legal and cultural cards stacked against them, many Americans turn to the State Department and politicians for diplomatic help, but to little avail.

"On most things Japan is an important partner," said Michele Bond, the State Department's deputy assistant secretary for Overseas Citizens Services. "This, however, is one issue where we greatly differ. Left-behind parents often engage in a fruitless campaign to get back their children."

The State Department, she said, regularly raises the issue of international abduction and Japan's refusal to join the Hague Convention, a 1980 international treaty on cross-border abductions.

Other countries, particularly Muslim nations that practice Shariah, also have not joined the treaty, but in many of those cases the United States has worked out agreements, or memoranda of understanding, to allow for the return of children. There is no such memorandum with Japan.

"We engage with the government of Japan at every opportunity and bring it up all the time. We try to raise the visibility of the issue and make them aware that this is not the tradition in other countries. Progress has been slow but we are hopeful to find a solution that respects both cultures and everyone's rights, especially the children," Bond said.

The State Department currently has 1,197 open cases of child abduction involving 1,743 children worldwide.

Bond said many cases of abduction to Japan go unreported because families know there is little the U.S. government can do to help.

Legislative Efforts

"Culturally, the Japanese are not disposed to deal with foreign fathers. The law does not recognize parental child abduction. Criminal extradition is limited because they don't recognize that a crime has taken place," she said.

Despite efforts on behalf of U.S. legislators to contact Japanese diplomatic officials, Wong has received no word of a change in his case.

In April 2007, Sen. Barbara Boxer, D-Calif., sent a letter to President Bush about child abduction on the occasion of the Prime Minister Shinzo Abe's visit to the United States.

"I am very concerned over Japan's lack of assistance in these cases and urge you to insist that Japan cooperate fully with the United States and other countries on international parental child abductions. Furthermore, I hope you will press Prime Minister Abe to support the Hague Convention on the Civil Aspects of International Child Abduction and to implement a formal two-parent signature requirement for obtaining passports for minors," the letter stated.

The Japanese government would not comment on specific cases of child abduction and in an exclusive statement to ABCNEWS.com never used the word "abduction."

"We sympathize with the plight of parents and children who are faced with issues of this kind, which are increasing in number as international exchange between people expands," reads a statement from the Japanese Embassy in Washington, D.C.

The embassy said that the Hague Convention was inconsistent with Japanese law, but that joining the convention was still under review.

"Regarding the possibility of Japan's joining the Hague Convention, we must point out that [the] Japanese legal system related to child custody is quite different from the underlying concept of the Hague Convention. Japanese courts always take into consideration what the best interest of a child is with respect to each individual case, while the Convention provides the relevant judicial or administration authorities in principle [to] order the return of the child, unless the limited exceptions apply."

Few Successes

Left-behind parents are used to hearing similar language from Japanese judges and American diplomats relaying messages from their Japanese counterparts.

"We strongly believe that it is in the best interest of a child to have access to both parents," said the State Department's Bond.

She said a child has never been returned to the United States as a result of diplomatic negotiation or legal wrangling, and knew of only three cases where children were reunited with their American parents  "two in which the parents reconciled and one in which a 15-year-old ran away."

Michael C. Gulbraa of Salt Lake City is the father of that 15-year-old, his now 17-year-old son Christopher. Christopher returned to the United States in 2006, and calling him a runaway undermines years of careful planning by his father to ensure that if his son wanted to get out of Japan he would be able to.

After Gulbraa and his wife divorced in April 1996, she gained custody of Christopher and his older brother Michael K. Gulbraa.

In 1999, when the boys were 8 and 9 years old, Gulbraa learned that his wife's second husband was under investigation for abusing his biological son.

After months of investigation by court-appointed guardians and experts, his ex-wife, Etsuko Tanizaki Allred, feared she would lose custody and took the boys to Japan in 2001.

In 2002, the court gave Gulbraa custody and charged Allred under Utah law with felony custodial interference and a federal international kidnapping statute. Despite the international warrants for Allred, Japanese courts did not require her to return their children to Gulbraa.

"That's how things remained until July 2006. I did everything I could think of. I even petitioned the Vatican to intervene," he said.

In 2006, Christopher contacted him via text message and said he wanted to come back to the United States. Since his sons were kidnapped, Gulbraa had been working on a plan to get the boys emergency passports and onto a plane with whatever help U.S. diplomatic officials could legally provide.

One Who Escaped

When the boy's mother learned of the plan, she took his cash and identification, making the train trip to the consulate and obtaining a passport all the more difficult.

Gulbraa will not disclose quite how his son got the money for the train, but said he had traveled to the Osaka consulate and provided it with photos of the boy and questions only he could answer in order to confirm his identity.

"Chris said he was going for a bike ride and got on a train from Nagoya to Osaka. We had to work through his not having any money or picture I.D. In late August 2006, he got home with the help of every agency of the U.S. government involved. From the consulate in Osaka to the embassy in Tokyo, everyone did everything to get him home without breaking the law."

For Gulbraa being reunited with his son is bittersweet knowing his older son, Michael, remains in Japan.

Today, Gulbraa supports other left-behind parents and continues to petition the U.S. government to ensure kidnapped American children are reunited with their rightful guardians.

"It is mind boggling that we kowtow to an ally because we are worried about trade and beef exports, when people's children are being torn from them. Abduction is abduction and it needs to stop."

Copyright © 2008 ABC News Internet Ventures

NCMEC Not Handling Incoming Child Abduction Cases

The National Center for Missing & Exploited Children has announced that as of April 1, 2008 it will no longer handle any aspect of incoming child abduction cases arising under the Hague Convention on the Civil Aspects of International Child Abduction. As the U.S. Central Authority, the U.S. Department of State has decided to assume all responsibility for managing incoming Hague Convention cases -- that is, for children who have been abducted from a foreign country and taken to the United States.

Saudi Family Law Must Be Revised: U.N.

GENEVA (Reuters) - Saudi Arabia must create laws to protect women from violence and also allow them to play a bigger role in society and the workplace, the United Nations said on Thursday.

"The lack of written laws governing private life constitutes a major obstacle to women's access to justice," said Yakin Erturk, the U.N.'s human rights expert on violence against women.

In a statement she called on Saudi Arabia to create a legal framework based on international human rights standards, including a law criminalizing violence against women.

That would also include a family law on marriage, divorce and minimum age for marriage, said the Turkish sociology professor at the end of a 10-day visit to Saudi Arabia, a key U.S. ally and the world's top oil exporter.

"The need to address women's rights will grow increasingly urgent as the voices of women in Saudi society are heard," she said.

The treatment of women has become an increasing embarrassment for Saudi Arabia. The country drew international criticism after its Supreme Judicial Council condemned a 19-year-old woman to 200 lashes and six months in jail for having been with a man she was not related to when she was attacked and raped by seven other men in 2006.

King Abdullah pardoned the gang-rape victim in December.

Erturk said Saudi Arabia's system of male guardianship for women limits women's freedom of movement and ability to act in a whole range of family and social areas, from marriage, divorce and child custody to inheritance, education and employment.

Saudi Arabia is the only country in the world where women are forbidden to drive. And a Saudi woman faces harassment from religious police if they are not accompanied in public by a male relative acting as her chaperone.

Earlier this month the U.N. Committee on the Elimination of Discrimination against Women called on Saudi Arabia to end the male guardianship system immediately.

Many migrants working as maids in Saudi Arabia are also subject to violence and abuse, Erturk said.

Erturk said access to education had improved for women but their employment opportunities remain restricted and sex segregation operates in the workplace.

Saudi Arabia must also provide training for police, health care providers, community leaders and others to show them that violence against women is both a violation of basic rights and incompatible with Muslim values, she said.

Thu Feb 14, 2008 © Reuters 2008 All rights reserved