India’s 498a Law – The Abuse Continues

Jeremy D. Morley

In a landmark decision in 2010, Preeti Gupta v. State of Jharkhand, the Supreme Court of India lambasted the prevalent abuse of the infamous Section 498a of the Indian Penal Code law demanded that the legislature should change the law and directed that a copy of its decision be sent to the Law Commission of Indian the hope that the legislation might be amended.

The Law Commission issued a report in August 2012, calling for quite modest changes in the law. However, even those changes have not yet been enacted.

In Gupta the Supreme Court demanded that lower courts intervene to prevent the rampant consequential abuse of process, which has “led to enormous social unrest affecting peace, harmony and happiness of the society”; ruled that “most” 498a cases are filed in the heat of the moment over trivial issues without proper deliberations; asserted that many such cases are not bona fide, that many are filed with an oblique motive, and that many are filled with exaggerated or false claims; explained that these cases “can lead to insurmountable harassment, agony and pain to the accused and to his close relations” and “immense sufferings for all concerned;” and stated further that an ultimate acquittal may “not be able to wipe out the deep scars of suffering of ignominy.”

Meanwhile the abusive conduct continues. The Law Commission reported that in 2010 there were at least 340,555 cases under Section 498-A that were pending trial in various courts towards the end of 2010 and that there were as many as 938,809 people who were implicated in these cases. The reason that there were almost three times as many people accused as there were cases is that the law expressly authorizes a wife (but not a husband) to ask the police to bring charges against all of the relatives of her husband who may have participated in the alleged acts of cruelty.

We have commented previously on this law, that was well-intentioned in its enactment but which is frequently misused in India as a means of blackmailing non-resident Indian husbands. http://www.international-divorce.com/Indias-Notorious-Section-498A.htm.

We have testified on several occasions as an expert witness on the 498a law in courts throughout the United States and Canada.

Japan’s Hague Abduction Convention “Guidelines”

If the article below is accurate one may ask why Japan is even bothering to pretend to comply with the Hague Abduction Convention.

The article states that if a Japanese court orders that an abducted child should be returned to the country of the child’s habitual residence the child will nonetheless not be removed from the abducting parent if that parent refuses.

I sincerely hope that the Mainichi article is inaccurate for otherwise it would mean that a Japanese return order would effectively be totally unenforceable.

June 13, 2013 (Mainichi Japan)

Top court to release guidelines after Japan paves way to join int'l child custody treaty

Japan signed a domestic procedural law on June 12 aimed at joining the Hague Abduction Convention, which establishes protocol regarding the care of children following failed international marriages.

As a result, the country's Supreme Court could release guidelines to regional courts around the country by the end of the month regarding how to approach the matter of removing children from the custody of one of their parents.

The guidelines clearly advocate that such removal pay close consideration to children's physical and emotional well-being. "Children will not be forcibly taken if it is against their will, or if their parent refuses to let them go," the procedures state.

Such ground rules will also go into effect for non-international cases, where parents are involved in disputes over child custody within Japan's borders.

The Hague Convention stipulates, as a rule, that children under age 16 who have been abducted by one parent and taken overseas must be returned to the country where they were living originally. According to the newly passed law, if the parent in Japan has not returned the children in two weeks following the issue of the court order, an enforcement officer is authorized to take the children away.

In order to avoid a negative impact upon children's physical and mental well-being, the high court orders are expected to specify that the parent must be present -- and permission received from the day care or school principal -- in cases where children are removed in a school setting; and that children may also be taken away while sleeping.

The number of domestic cases in Japan where parents do not comply with child custody court orders following divorce is on the increase, with a total of 131 such incidents last year. In such cases, the court enforcement officers have had to remove the children coercively.

While the new law paving the way toward the international Hague treaty makes it clear that the parent must be present when the child is taken away, this has not been the case with respect to disputes within Japan's borders. Here, court enforcement officers have sometimes taken children away while they were at school or traveling between school and home -- thereby causing conflict with parents.

The ground rules were compiled following meetings held in January and February of this year, where some 150 judges and court enforcement officers from around the country exchanged views on the matter. At this time, numerous participants expressed the opinion that children should, as a rule, be taken away within the home setting only. In response, the forthcoming Supreme Court guidelines are poised to include this stipulation.

Successes in Hague Habitual Residence Cases

Yesterday’s decision by the Second Circuit Court of Appeals in Guzzo v. Cristofano cogently restated the rules concerning the definition of the term “habitual residence” in the Hague Abduction Convention. 

My client, Ms. Cristofano, had entered into a “bi-continental marriage” with Mr. Guzzo. Both are lawyers; he in Italy and she in New York.  Their child was born in New York and spent considerable time in both countries, always with his mother. The parties ultimately negotiated and signed a separation agreement, but his signature was not notarized. It stated that the parties would separate and that the mother and child would live primarily in New York, with visitation in Italy and New York. The mother then took the child to the father’s residence in Italy and they stayed in that area for much of the next two years. Indeed the child spent much of those two years in school in Italy. Ultimately the mother and child left Italy for New York and the father promptly initiated a Hague case.

The issue in the case was whether the child was habitually resident in Italy at the time he was brought back to New York. Judge Sullivan at first instance held “No” and he dismissed the petition. Indeed, he ruled in strong language that the father’s testimony concerning a purported reconciliation was not credible.

On appeal the Second Circuit affirmed that ruling and continued the line of cases starting with Gitter that sets forth the Second Circuit rule in that regard. It affirmed that the evidence of the parents’ last shared intention was clear and controlling absent any proof of acclimatization in Italy.

I should also note that the Court relied in part on another very recent case in which one of my clients won a Hague case on the issue of habitual residence, this being the case of Hofmann v. Sender. There, the Second Circuit accepted our argument that a consent to a child’s international relocation that is implicitly or inferentially conditioned on an event that does not occur – here, the establishment of a family home in the new country – does not constitute a sufficient consent for Hague Convention purposes.

Status of Korea’s Accession to the Hague Abduction Convention

As has been recently reported by the U.S. State Department:

·        The Republic of Korea is one of only a handful of East Asian countries that has acceded to the Hague Abduction Convention.

·        The Republic of Korea acceded to the Convention in December 2012, and the Convention went into force for the Republic of Korea on March 1, 2013.

·        The Convention will not enter into force between the Republic of Korea and the United States, however, unless the United States decides to accept the Republic of Korea as a partner.

·        The Department currently is conducting a review of the Republic of Korea’s implementation of the treaty, including its domestic legislation and institutions responsible for executing the country’s responsibilities under the Convention, in order to determine whether the United States should accept the Republic of Korea as a partner under the Convention.

Argentina Not Compliant with Hague Abduction Convention

Argentina has been declared “Not Compliant” with the Hague Abduction Convention in the U.S. State Department’s latest annual report on compliance with the Convention.

In the previous year it was merely listed as a country having “enforcement concerns.”  Indeed the State Department reports that, it “is not aware of any successfully enforced order for return from Argentina to the United States since 2006.”

See the article on our website at:

http://www.international-divorce.com/argentina_2012_state_department_report

This finding does not mean that children should not automatically be barred from traveling to Argentina over a parent’s objections but it does require a very careful evaluation of the risk that the taking parent might retain the child in Argentina versus the benefit of such travel for the child.

Compensation for International Child Abduction Victims

Our client, Moses Garcia, eventually succeeded in securing the return of his daughter to Wisconsin from Japan. He did so despite the rulings of Japanese courts that they would not implement the custody orders of the Wisconsin courts, where the child was living prior to her abduction. The child’s belated return, four years after the abduction, was solely a result of an arrest warrant that was issued in the case in Wisconsin and the mother’s mistake in stepping foot in Hawaii to renew her green card. She ultimately pleaded no contest to interfering with child custody, a felony, under an agreement that she would ultimately be convicted of only a misdemeanor if her daughter was returned to Garcia, who had legal custody.

A few weeks after his daughter's return, Dr. Garcia applied on her behalf to the Crime Victim Compensation Program. The Department of Justice denied payment, saying it wasn't intended for situations involving divorce. The DOJ argued that the program was never meant to compensate the kinds of emotional injuries inflicted all too often on children of divorce. But a state administrative law judge has disagreed. She found that the child’s mother had committed the compensable crime of "causing mental harm to a child," and that it was irrelevant that she was neither charged nor convicted of that specific offense. The judge found the girl's four-year stay in Japan completely cut off from her life in Wisconsin, which was not comparable to the emotional injuries suffered by children in more typical divorces.

Initially the Justice Department declared that it would appeal the ruling but the appeal has subsequently been withdrawn

British Columbia Law Changes: Marriage-Like Relationships & “Family Property”

Effective March 18, 2003, there has been a major change in the marriage laws of British Columbia, Canada. The new Family Law Act is now in full force and effect. It replaces the Family Relations Act.

Couples of the same or opposite gender who are in a “marriage-like” relationship for more than two years are treated as “spouses” for the purposes of the law and are subject to the same property-division rules as married people.

In addition, family property now includes all property owned by one or both spouses at the date of separation unless the asset is excluded, in which case only the increase in the value of the asset during the relationship is divisible. Whether an asset is used for a family purpose is no longer relevant in deciding if it is family property.

Japan’s Potential Ratification of the Hague Convention: An Update

Jeremy D. Morley

Japan has not yet ratified the Hague Abduction Convention. The Japanese Cabinet has today reportedly approved the ratification but the necessary legislation has not yet been passed by the Japanese Diet (Parliament).

The issue of Japan’s joining the Hague Convention is still controversial in Japan. Many members of the Diet are flatly opposed to the treaty on the ground that it will lead to the imposition of “Western thinking” on family relationships in Japan, i.e. that it might lead to the intervention of the courts into the private life of families, to the issuance of judicial orders concerning family matters that can be enforced by the power of the state, and to both parents having meaningful rights to their children after a divorce or separation.

Accordingly, newspaper editorials in Japan have demanded that, when Japanese wives “flee” foreign countries because of alleged domestic violence abroad, they must not be forced to return to the country where such abuse has occurred.

Such concerns have already led to inclusion of a provision in the draft legislation that is most likely to lead to an unnecessarily broad interpretation of the “grave risk” exception in Article 13(b) of the Convention.  Indeed, that is the intended result.

The result of such an exception would be to shield abductors who are able to claim domestic abuse even though:

(a) The legal system in the (American) habitual residence would provide an abuse victim and child with very substantial protection;

(b) No change is being made in Japan to the lack of any meaningful provisions in Japanese law for the other parent to have any access to the child or any decision-making role in the life of the child, so that in reality the foreign left-behind parent would still be without any meaningful rights to the child; and

(c) There is no meaningful system within Japan to effectively determine the merits of such claims of abuse.

In addition, there is a serious concern that petitioning parents will be forced into mediation before being allowed to proceed with or complete their judicial case. There are special provisions in the draft legislation promoting mediation. If the mediation process works similarly to the current Family Court mediation process it will lead to lengthy delays and extreme unfairness to petitioning parents.

Mediation is generally an extremely unhelpful forum for foreigners in family law cases in Japan, since (i) foreign parties must appear in person regardless of their place of residency, (ii) the sessions are usually short and are repeatedly adjourned for lengthy periods of time, necessitating multiple inconvenient and expensive visits to Japan, (iii) the foreigners’ views are generally misunderstood for language and cultural reasons,  and (iv) the foreigners are pressured to accept unfair terms since there is no enforcement of court decisions in family law matters in Japan and because they are told that their refusal to accept the mediators’ recommendations will be held against them in a trial.  

When most other countries have joined the Convention the United States could choose whether or not to accept the accession. If a country has not enacted satisfactory legislation designed to effectively enforce the terms of the Convention other countries need not accept the accession. Such is the case with Thailand, which acceded to the Convention in 2002 but has not yet enacted implementing legislation satisfactory to the United States or several other countries. By contrast, as an original member of the Hague Conference, Japan will not be acceding to the Convention, but will ratify it which will trigger its immediate entry into force without any place for international review.

Meanwhile, the Japanese public is being told that even if Japan signs the Convention, “The return of a child can be denied if the parent seeking it is believed to abuse the child or have difficulties raising him or her.” Daily Yomiuri, Mar. 16, 2013. If that is the gloss that Japan intends to put on the Hague Convention – even though the Convention is expressly designed to secure the expeditious return of all abducted children except in extremely unusual cases – there is little or no point in Japan’s purported ratification of the treaty.

The result of Japan’s ratification of the Convention will likely be to create the appearance of Japan’s compliance with international norms but without any of the substance.

Small World, Big Problem: Divorces Involving Dual Citizenship

By Jeffrey Landers

The world is getting smaller and smaller. We live in a global society fueled by a global economy. International travel has never been easier. And now, thanks to the internet, we’re all connected in new ways and with fewer barriers than ever before. These days, people meet and fall in love across international boundaries every day, and so it’s no surprise that marriages involving dual citizenship are increasingly common

But, as you might suspect, dual citizenship marriages aren’t somehow immune to divorce or its financial implications.

I’ve written plenty about how complicated divorce can be, and how these complications are compounded by different laws in different states (for example, those governing legal separation and those concerning the distinction between separate and marital property). Throw different countries into the mix, and the challenges quickly become even more complex . . . and if children are involved, the situation can become tremendously complicated and emotionally charged. (Case in point: A few months ago, actress Kelly Rutherford’s divorce made headlines when a judge ordered her two American children to move to France because their father – who is a German citizen — was expelled from the United States.)

Jeremy D. Morley, who is a New York lawyer and the author of International Family Law Practice and The Hague Abduction Convention: Practical Issues and Procedures for the Family Lawyer, as well as numerous articles on international family law, summed it up nicely.

“Simply put, money can be divided but children cannot,” he told me recently. “Divorcing parents who stay in the same town can often make sensible arrangements to share the parenting of their children or otherwise a local court can not only issue appropriate orders but can also enforce them as needed. But when the parents cannot even agree on which country to live in, all bets are off.”

If you are a woman who’s part of a dual citizenship marriage and you’re contemplating divorce, or if you’re planning to move overseas with your husband or fiancé –even if just “to try it out” –please proceed with caution. Before you leave, make sure you are familiar with the answers to some common questions about divorce involving dual citizenship and/or regulations from another country:

What exactly is dual citizenship?

The U.S. Department of State acknowledges that a person can be a citizen of two countries at the same time. Sometimes, dual citizenship (or “dual nationality,” as it’s also called) happens automatically. For example, a child born in a foreign country to U.S. citizen parents may be both a U.S. citizen and a citizen of the country of birth.

In other cases, it’s a matter of choice. From the U.S. Department of State website:

A U.S. citizen may acquire foreign citizenship by marriage, or a person naturalized as a U.S. citizen may not lose the citizenship of the country of birth. U.S. law does not mention dual nationality or require a person to choose one citizenship or another. Also, a person who is automatically granted another citizenship does not risk losing U.S. citizenship. However, a person who acquires a foreign citizenship by applying for it may lose U.S. citizenship. In order to lose U.S. citizenship, the law requires that the person must apply for the foreign citizenship voluntarily, by free choice, and with the intention to give up U.S. citizenship. There are laws in some other countries that may confer citizenship there automatically. For example, this can happen if a child is born to American citizens in another country, or through marriage, or if a person does not lose the citizenship of the country of her birth on becoming a naturalized US citizen.

Dual nationals owe allegiance to two countries and are required to obey the laws of both.

My husband has dual nationality, and we’re living abroad. Where do we get divorced?

Even if you’re a U.S. citizen, the court with jurisdiction over your divorce will most likely be the one in the country where you live. If this is a country that doesn’t afford women the same rights as men, it could be very, very difficult to get a divorce, let alone a fair settlement.

If you own home(s) abroad and have flexibility as to the location and timing of your divorce, it is well worth the effort to research what the most favorable venue might be. Countries vary in their legal views of women’s rights, acceptable grounds for divorce, alimony, property distribution, child custody and child support, among other things. You may find wide disparities in how you’ll be treated in different jurisdictions, and as Jeremy points out, the financial consequences of being divorced in one jurisdiction rather than another might be highly significant.

“The difference between getting divorced in London instead of in New York can be staggering,” he explained.

Likewise, the disparity between the practices of divorce courts in Tokyo as compared to those in Sydney, and of the divorce courts in Hong Kong as compared to those in Frankfurt, may be equally vast–or possibly even more so.

As you might expect, international family lawyers are often called upon to advise whether or not a foreign divorce will be fully recognized. Surprisingly, though, providing such advice is often difficult and sometimes fraught with risk.

“It would be reasonable to expect that legislatures and courts would have developed clear ‘cut and dried’ answers to as basic a question as ‘Are we divorced?’” Jeremy said. “However, when that question is asked in the context of a foreign divorce the answer all too often is, ‘It depends.’”

I got divorced over there. Is it legal back here in the U.S.?

If you and your husband lived “there” at the time of your divorce, then probably yes.

Be aware that there is no treaty between the U.S. and any other country ensuring recognition of foreign divorces. However, the State Department notes that divorces obtained in foreign countries are generally legally recognized here, if both parties were living in the country in question when it was issued.

Several states, including California, will not recognize a divorce decree obtained abroad when both spouses were living in their home state. If you’re unsure about the validity of a foreign divorce, you should contact the Attorney General’s office in your state. You will need copies of all the documentation of your marriage and divorce and applicable foreign laws.

How do I begin the divorce process?

I regularly advise women to hire a team of qualified divorce professionals as soon as they know a divorce is in their future. In cases of dual citizenship, this is even more critical. You will need someone on your side who is expert in the divorce and family laws of the other country, as well as an expert divorce financial strategist to help you navigate the financial details of your case.

If you have children, you may want to add an expert in international custody issues to your team. These issues are notoriously complicated, the laws are hard to enforce, and the stakes could not be higher. We’ve all heard horrifying news items about parental kidnapping, in which one parent takes the child(ren) to another country, and the other parent fights for years, at tremendous expense, in hopes of bringing them back to the U.S. – sometimes without success. (For an excellent discussion related to this topic, see the article “The Plight of the Expatriate Spouse” here.)

Being well-prepared, well-informed and well-advised about the divorce process is critical for any divorcing woman, but especially so for those with an international component to their marriage. Unfortunately, a hostile divorce from a spouse with dual citizenship can be a scenario where there’s potentially very little to be optimistic about, and potentially a lot to be concerned –and even alarmed –about.

Still, as our world continues to get smaller and smaller, international and/or dual citizenship divorces are going to become increasingly common. The good news is that as these cases become more routine, more help will become available for women facing the challenges of dual citizenship divorce. Remember: If your relationship spans international borders, make sure your divorce team has the qualifications and experience you require.

“As people travel, set up residences in different countries, and become involved in international business (and personal) affairs, they necessarily expose their personal lives to an array of different legal structures,” concludes Jeremy. “In some quarters, forum-shopping is a dirty term, but in international family law it is often an essential process. In fact, it could even be considered gross negligence if a divorce lawyer were to select the appropriate jurisdiction based on the location of the lawyer’s office rather than on the best interests of the client. If the client has the option of bringing suit in more than one jurisdiction it is absurd to suggest that the lawyer does not have a serious obligation to consider which jurisdiction would likely yield the preferable result.”

http://www.forbes.com/sites/jefflanders/2013/01/10/small-world-big-problem-divorces-involving-dual-citizenship/

Senate Resolution Condemning International Child Abduction

The U.S. Senate has today passed a “Bipartisan Resolution Calls on Countries to Do More to Prevent and Resolve Cases of Children Abducted by Parents Across International Borders.”

The Resolution should be useful when seeking to prevent potential abduction to Japan, India, and Egypt, since those countries are specifically “reprimanded.”

The Resolution also reinforces claims that international child abduction is a form of child abuse.

http://politicalnews.me/?id=19341&pg=2&keys=

Dec 05,2012 - Boxer Praises Senate Passage of Resolution Condemning International Parental Child Abduction

Bipartisan Resolution Calls on Countries to Do More to Prevent and Resolve Cases of Children Abducted by Parents Across International Borders

Washington, D.C. – Senator Barbara Boxer (D-CA) praised the passage of her bipartisan resolution condemning the international abduction of all children. The resolution garnered 28 cosponsors and passed the Senate by voice vote.

"I am so proud that today the Senate took a stand to condemn the tragic and devastating crime of child abduction,” Senator Boxer said. “This resolution is a resounding call to the international community to join together to prevent and resolve abduction cases.”

According to the U.S. Department of State, last year 1,367 American children were reported abducted by a parent from the United States to a foreign country.

The 1980 Hague Convention on the Civil Aspects of International Child Abduction is the principal tool for a parent seeking the return of a child abducted across international borders. The Convention provides a legal framework for securing the return of an abducted child so that judicial authorities can make decisions on issues of custody and the best interests of the child. However, many countries do not participate in the Hague Abduction Convention and the Convention does not apply to abductions that occur before a country joins.

The resolution calls on all countries to join and fully comply with the Hague Abduction Convention and to take other steps to prevent and resolve cases of international parental child abduction.

The full text of the resolution is below.

RESOLUTION

Whereas international parental child abduction is a tragic and common occurrence;

Whereas the abduction of a child by one parent is a heartbreaking loss for the left-behind parent and deprives the child of a relationship with 2 loving parents;

Whereas, according to the Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction of the United States Department of State from April 2010, research shows that abducted children are at risk of significant short- and long-term problems, including “anxiety, eating problems, nightmares, mood swings, sleep disturbances, [and] aggressive behavior”;

Whereas, according to that report, left-behind parents may also experience substantial psychological and emotional issues, including feelings of “betrayal, sadness over the loss of their children or the end of their marriage, anger toward the other parent, anxiety, sleeplessness, and severe depression”, as well as financial strain while fighting for the return of a child;

Whereas, since 1988, the United States, which has a treaty relationship under the Convention on the Civil Aspects of International Child Abduction, done at The Hague October 25, 1980 (TIAS 11670) (referred to in this preamble as the “Hague Abduction Convention’’) with 69 other countries, has agreed with its treaty partners to follow the terms of the Hague Abduction Convention;

Whereas the Hague Abduction Convention provides a legal framework for securing the prompt return of wrongfully removed or retained children to the countries of their habitual residence where competent courts can make decisions on issues of custody and the best interests of the children;

Whereas, according to the United States Department of State, the number of new cases of international child abduction from the United States increased from 579 in 2006 to 941 in 2011;

Whereas, in 2011, those 941 cases involved 1,367 children who were reported abducted from the United States by a parent and taken to a foreign country;

Whereas, in 2011, more than 660 children who were abducted from the United States and taken to a foreign country were returned to the United States;

Whereas 7 of the top 10 countries to which children from the United States were most frequently abducted in 2011 are parties to the Hague Abduction Convention, including Mexico, Canada, the United Kingdom, Germany, Ecuador, Brazil, and Colombia;

Whereas Japan, India, and Egypt are not parties to the Hague Abduction Convention and were also among the top 10 countries to which children in the United States were most frequently abducted in 2011;

Whereas, in many countries, such as Japan and India, international parental child abduction is not considered a crime, and custody rulings made by courts in the United States are not typically recognized by courts in those countries; and

Whereas Japan is the only member of the Group of 7 major industrialized countries that has not yet become a party to the Hague Abduction Convention: Now, therefore, be it

Resolved, That—
(1) the Senate—

(A) condemns the international abduction of all children;

(B) urges countries identified by the United States Department of State as noncompliant or demonstrating patterns of noncompliance with the Convention on the Civil Aspects of International Child Abduction, done at The Hague October 25, 1980 (TIAS 11670) (referred to in this resolution as the “Hague Abduction Convention”) to fulfill their commitment under international law to expeditiously implement the provisions of the Hague Abduction Convention;

(C) calls on all countries to become a party to the Hague Abduction Convention and to promptly institute measures to equitably and transparently address cases of international parental child abduction; and

(D) calls on all countries that have not become a party to the Hague Abduction Convention to develop a mechanism for the resolution of current and future cases of international parental child abduction that occur before those countries become a party to the Hague Abduction Convention in order to facilitate the prompt return of children abducted to those countries to the children’s countries of habitual residence; and

(2) it is the sense of the Senate that the United States should—

(A) vigorously pursue the return of each child abducted by a parent from the United States to another country through all appropriate means, facilitate access by the left-behind parent if the child is not returned, and, where appropriate, seek the extradition of the parent that abducted the child;

(B) take all appropriate measures to ensure that a child abducted to a country that is a party to the Hague Abduction Convention is returned to the country of habitual residence of the child in compliance with the provisions of the Hague Abduction Convention;

(C) continue to use diplomacy to encourage other countries to become a party to the Hague Abduction Convention and to take the necessary steps to effectively fulfill their responsibilities under the Hague Abduction Convention;

(D) use diplomacy to encourage countries that have not become a party to the Hague Abduction Convention to develop an institutionalized mechanism to transparently and expeditiously resolve current and future cases of international child abduction that occur before those countries become a party to the Hague Abduction Convention; and

(E) review the advisory services made available to United States citizens by the United States Department of State, the United States Department of Justice, and other United States Government agencies—

(i) to improve the prevention of international parental child abduction from the United States; and

(ii) to ensure that effective and timely assistance is provided to United States citizens who are parents of children abducted from the United States and taken to foreign countries.

Qatar’s Child Custody Law

Jeremy D. Morley*

Qatar’s law as to child custody is Sharia law and is codified in the Qatari Law of the Family, Law no. 22 of 2006.


All child custody disputes are decided by Qatari courts based on Islamic Sharia law, regardless of the religion of the parents. The precepts of the statutory law are completely subordinated to the religious precepts of Islam. The Qatari courts are required to apply Sharia law even if the parents are not adherents to that religion.

Qatari law applies the Sharia law concept of a sharp division between the physical custody of a child and the legal guardianship of a child. The mother is given an express statutory preference for physical custody, up to a certain age of the children. The father is given an express statutory preference for guardianship. It is extremely rare for that right to be taken away from him. It is deemed the “natural right” of the father to assert such rights to the exclusion of the mother. Guardianship is akin to legal custody. It provides the father with the exclusive right to make decisions concerning the child.

Qatari law expressly states that the mother shall have custody of children up to certain defined ages. It lists 18 individuals or categories of relatives successively entitled to claim custody of a minor child, starting with the mother, as being entitled to custody, so that if the mother loses her primary right to custody – whether by reason of her remarriage, her denial of Islam or otherwise -- the next relative on the list has the primary right to custody.

Qatari law provides for enormous limitations on a mother’s right to custody if she is non-Muslim

Qatari law provides that if a mother remarries she is automatically subject to the loss of her rights to custody of the child (unless she marries the father’s brother or another close relative of the child). (Qatar Family Law, Article 168)).

Qatari law provides that a women's testimony is equal to half of a man's.

Qatari law expressly provides that a mother who is Muslim has far greater custodial rights than a mother who is not a Muslim. The Qatari family law allows a Muslim mother to have custody of a child until the child is 13 (if a boy) or 15 (if a girl) (Qatar Law, Article 173) but it permits a non-Muslim mother to have custody only until the child is 7 (Qatar Law, Article 175) and even then she must raise the children as Muslims in order to retain custody. (Articles 173 and 175 of the Qatari Family Law)).

Qatari law expressly provides for a mother who renounces Islam to lose all rights of custody over her children. (Qatar Family Law, Article 175).

Qatari law expressly provides for a mother to lose all rights of custody over her children if her conduct creates a “fear that the ward is acquiring a different religion.” (Qatar Family Law, Article 175).

Qatari law provides that the Hanbali school of Islam is the residual source of all governing rules, “unless the court decides to apply a different opinion for reasons set out in its ruling.” In the absence of Hanbali text, the court is directed to “another of the four schools” and failing this to the “general principles of the Islamic shari`a.” (Qatar Family Law, Article 3).

______________________
Jeremy D. Morley has previously provided expert evidence as to Qatari child custody law.

Panama – Removal of Children from Panama

Here are the provisions of Panama law concerning taking children out of Panama. As with other Latin American countries Panama has strong and efficient exit controls and in general it bars one parent or anyone else from taking children out of Panama without the express authorization of the other parent or a court order.

PANAMA IMMIGRATION LAW (2008)

(unofficial translation)

TITLE VI

IMMIGRATION CONTROL

CHAPTER 1
ENTRY AND EXIT

Article 38. The immigration control will be exercised by the National Immigration Service, according to the present Law Decree and its regulations, in compliance with the immigration policy as established by the Executive Branch.

Article 39. The nationals in order to exit the country shall present an updated passport or a letter of safe-conduct and comply with the other requirements that the present Law Decree establishes.

The National Immigration Service will carry a registry of immigration control of the underage persons, in which their identities will be included, the country of destination, the identification of the responsible person and the document of authorization.

Article 40. The departure from the national territory of any foreign or Panamanian underage person that is found under any immigration category, will be allowed in the following cases:

*1. If he/she is accompanied by the father or the mother.

*2. If he/she is accompanied by one of their parents, and this one has the written authorization from the other, duly authenticated by a notary public.

*3. If he/she is accompanied by one of their parents, and this one has the written authorization from the judge duly authorized for this purpose, and in the case that one of the parents is deceased, the death certificate of the absent parent shall be attached.

*4. If he/she is accompanied by a third party a written authorization shall be presented from both parents, according to what is established in numerals 2 and 3 by the present Article.

*5. If the underage person travels alone a written authorization from both parents shall be presented, according to what is established in numerals 2 and 3 by the present Article. Paragraph: The foreign non-resident underage persons are excluded from this disposition.

Article 41. The immigration authorities located at the immigration posts shall prevent the entry or exit of foreigners, and the exit of nationals, when there is an order in place issued by a competent authority.

Article 42. The foreigner that has incurred in a infringement or violation of immigration law, may not exit the country without having cancelled the corresponding financial penalties. By not having the financial resources to comply with the imposed penalty, his or her deportation procedures shall proceed.

Article 43. Without prejudice to the current international conventions in the Republic of Panama, in order to enter the national territory, foreigners shall comply with the following requisites:

*1. To enter by land, air or sea immigration posts officially made available.

*2. To present, by petition from the immigration authority, their passport or current travel document and, in case that it is required, the current entry visa.

*3. To allow to be interviewed by the competent authorities at the moment of entry or exit, that their data and biometrics registry to be validated in situ and their luggage and personal documents to be inspected and verified.

*4. To present the Ingress and Egress Card provided by the international transportation company, duly completed, without prejudice of the right from the National Immigration Service to implement other automated mechanisms of collecting the information, according to the international standards.

*5. Not having an impediment to enter.

*6. To have proof of financial solvency to cover their expenses while remaining in Panamanian territory. An exception is made from this disposition when the passenger is in transit who remains within the immigration facility.

*7. To have a return ticket to their country of origin or residence, when required by the immigration category.

*8. To have cancelled all of their obligations with the National Immigration Service.

*9. To comply with health standards as established by the Ministry of Health, as well as any other measures ordered by other competent authorities.

Article 44. The foreigner will have the obligation, at the moment of registration, to present his/her passport or travel document, as well as to provide to the owners or hotel managers or lodging places, the information about their stay and departure. At the same time, the owners or hotel managers or lodging places will have the obligation to send this information to National Immigration Service that will implement automated mechanisms for its collection.

Article 45. Every foreigner that is found within the national territory must carry his/her immigration document of identification and show it to the competent authority, when it is required to do so.

Michigan’s Flawed Proposal to Limit International Child Abduction

by Jeremy D. Morley

Jeremy D. Morley is the author of The Hague Abduction Convention, published by the American Bar Association

A draft law in Michigan, which recently received unanimous approval from the Michigan Senate, would require that all Michigan child custody orders must prohibit a parent from taking a child to a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. In my opinion, the proposed legislation is simplistic and will create a mound of unintended consequences.

Specifically the proposed legislation would provide that, “A parenting time order shall contain a prohibition on exercising parenting time in a country that is not a party to the Hague convention on the civil aspects of international child abduction.”

The language is a well-meaning but unnecessarily crude effort to reduce the chances of international child abduction.

The potential problems or flaws with the proposed legislation include the following, among many others:

• Not every country that is a party to the Hague Convention complies with the terms of the treaty.

• Not every country that is a party to the Convention has been accepted by the United States as a treaty partner.

• Not every country that has failed to sign the treaty will fail to return abducted children.

• If a foreign “trailing spouse” (see my article at http://www.international-divorce.com/The-Plight-of-the-Expatriate-Spouse) who comes to Michigan to marry a Michigan resident is automatically barred from taking her child to visit her home country and her family “back home” serious consequences might result. Thus, even though a country such as India is not a party to the Hague Convention and has a legal system that is most unlikely to return abducted children promptly (if at all), it is possible to envisage a situation where an Indian mother should be permitted to take one child to a family visit to India if her other child is to remain in Michigan.

• It might be possible to secure a “mirror order” (see my article at www.international-divorce.com/irror_Orders_to_Help_Prevent_International_Child_Abduction) from a foreign country’s courts that would provide sufficient protection under that country’s laws and legal system (if the Michigan court is supplied with satisfactory evidence that such an order would be effective) as to justify a child being taken to visit his parent’s country of origin.

• The language would apparently bar the relocation of a child to any non-Hague country. It could therefore absurdly prevent a court from allowing an abandoned and impecunious foreign parent who is a victim of extreme domestic violence to return to her home country with her child.

The problem with simplistic solutions to complex issues of international child custody is that in the real world the circumstances of a child vary so much that a one-size-fits-all law is bound to yield unfair and outrageous results.

Back Home From The UAE

We are thrilled to advise that our client, Stacy Peters, has returned to the United States with her two children.

Her oldest child was the subject of a lengthy and hotly-contested international custody battle.

Our client is overjoyed and very grateful but she now asks for some time alone with her children.

Please follow this link for a recent story on the matter:
http://www.thenational.ae/news/uae-news/missing-dubai-toddler-returns-to-mother

Ugandan Divorce Law: Cabinet approves laws on pre-nuptial contracts, elections funding

By NATION REPORTER

Posted Thursday, November 8 2012 at 17:39

In Summary
-Matrimonial Property Bill provides for equal legal status of men and women in marriage and recognises the capacity of either spouse to acquire separate property during marriage.

Cabinet on Thursday passed into law Campaign Finance Bill, 2012, that will regulate and the amount of money to be used during elections.

Cabinet also approved Matrimonial Property Bill, which provides for the rights and responsibilities of spouses in relation to matrimonial property.

The law provides for equal legal status of men and women in marriage and recognises the capacity of either spouse to acquire separate property during marriage.

It also makes provisions for how persons professing the Islamic faith should be governed by Islamic law in all matters relating to matrimonial property.

Further, the new law provides for how matrimonial property shall be dealt with in cases of polygamous as well as customary marriages.

The law also allows for spouses to enter agreements as to how they will own property either separately or collectively.

It also provides for division of matrimonial property between and among spouses within the context of Customary Law, particularly in polygamous unions.

Cabinet also passed into the Marriage Bill, which brings together in one law Christian, Islamic and Hindu marriages as well as marriages consummated under Civil and African Customary law.

It also provides for the legalising of ‘come-we-stay’ marriages.

Under this law, it is proposed that chiefs will be enabled to consider ‘come-we-stay’ affairs that last more than six months as a marriage and to register them as such.

This law now provides legal protection to all marriages and will facilitate the protection of the rights of children and spouses in all types of marriages in country.

It also makes it possible for customary marriage and ‘come-we-stay’ marriages to have marriage certificates.

It also provides for maintenance of spouses and children in a situation where a marriage has broken down or divorce has occurred.  

http://www.nation.co.ke/News/Cabinet+approves+laws+on+prenuptial+contracts+elections+funding/-/1056/1615210/-/cs37dpz/-/index.html

Testimonials

Testimonials: We receive a constant stream of unsolicited testimonials about our services in international family law, especially concerning international child abduction and international child custody. Please see our Testimonials page at our full site here: 

http://www.international-divorce.com/testimonials.htm

Saudi sharia judges decry Westernizing "stench" of legal reforms

By Angus McDowall
RIYADH
Tue Nov 6, 2012

(Reuters) - Saudi judges who enforce sharia (Islamic law) have condemned what they see as "the stench of Western ideas" in sweeping legal reforms pushed by King Abdullah, underscoring friction between government modernizers and religious hardliners.

In a letter to Justice Minister Mohammed al-Issa seen by Reuters, eight judges complained about foreign trainers who shave their beards contrary to purist Islam, the minister's meetings with diplomats of "infidel" states and plans to let women practice as lawyers.

The authenticity of the letter, which did not directly criticize either the king or Issa, was confirmed by a source in the Justice Ministry who said it was sent late last month.

Saudi lawyers and political analysts say the judicial reforms announced by King Abdullah in 2007 and supported by Issa are needed to make the legal system more efficient and modern.

"The system deters investors, who find the judiciary opaque. Outdated administrative procedures and inadequate judicial training remain problems," the U.S. embassy said in an assessment in 2009 revealed by WikiLeaks.

Since becoming de facto regent while he was crown prince in 1995, Abdullah has pursued cautious reforms aimed at modernizing Saudi Arabia's economy and making it more socially open, but he has often been blocked by powerful religious conservatives.

The world's top oil exporter has no written legal code or system of precedent, and judges determine cases based on their own interpretation of sharia.

Lawyers say this means similar cases often yield starkly different verdicts and sentences. In some cases King Abdullah has stepped in to annul decisions seen as embarrassing to the country, such as the 2007 jailing of a rape victim on charges of consorting with unrelated men.

However, the reforms have made scant progress five years after being announced, according to lawyers and the ministry source, a delay they blamed on conservatives in the Justice Ministry and within the judiciary.

"I think the majority of judges are in favor. They want to see development both as professionals and for society. But there's another 30 percent. They fight (Issa) day and night, trying to slow down what he is doing," said the ministry source.

Saudi society and government remain very religious and socially conservative. Women are barred from driving, only Islam can be practiced in public and morality police patrol the streets to enforce compliance with social and dress codes.
(Editing by Mark Heinrich) http://www.reuters.com/article/2012/11/06/us-saudi-reform-law-idUSBRE8A511020121106

Hague Convention 1996 comes into force in UK on 1st November

From: Family Law Week


Convention strengthens the authority of child’s habitual residence

The Hague Convention 1996 on the International Protection of Children comes into force in the UK from 1 November 2012.

The Convention has uniform rules determining which country's authorities are competent to take the necessary measures of protection. These rules, which avoid the possibility of conflicting decisions, give the primary responsibility to the authorities of the country where the child has his or her habitual residence, but also allow any country where the child is present to take necessary emergency or provisional measures of protection. The Convention determines which country's laws are to be applied, and it provides for the recognition and enforcement of measures taken in one Contracting State in all other Contracting States.

An Outline prepared by the Hague Conference says that the following are some of the areas in which the Convention is particularly helpful –

Parental disputes over custody and contact
The Convention provides a structure for the resolution of issues of custody and contact which may arise when parents are separated and living in different countries. The Convention avoids the problems that may arise if the courts in more than one country are competent to decide these matters. The recognition and enforcement provisions avoid the need for re-litigating custody and contact issues and ensure that decisions taken by the authorities of the country where the child has his or her habitual residence enjoy primacy. The co-operation provisions provide for any necessary exchange of information and offer a structure through which, by mediation or other means, agreed solutions may be found.

Reinforcement of the 1980 Child Abduction Convention
The 1996 Convention reinforces the 1980 Convention by underlining the primary role played by the authorities of the child's habitual residence in deciding upon any measures which may be needed to protect the child in the long term. It also adds to the efficacy of any temporary protective measures ordered by a judge when returning a child to the country from which the child was taken, by making such orders enforceable in that country until such time as the authorities there are able themselves to put in place necessary protections.

Unaccompanied minors
The co-operation procedures within the Convention can be helpful in the increasing number of circumstances in which unaccompanied minors cross borders and find themselves in vulnerable situations in which they may be subject to exploitation and other risks. Whether the unaccompanied minor is a refugee, an asylum seeker, a displaced person or simply a teenage runaway, the Convention assists by providing for co-operation in locating the child, by determining which country's authorities are competent to take any necessary measures of protection, and by providing for co-operation between national authorities in the receiving country and country of origin in exchanging necessary information and in the institution of any necessary protective measures.

Cross-frontier placements of children
The Convention provides for co-operation between States in relation to the growing number of cases in which children are being placed in alternative care across frontiers, for example under fostering or other long-term arrangements falling short of adoption. This includes arrangements made by way of the Islamic law institution of Kafala, which is a functional equivalent of adoption but falls outside the scope of the 1993 Intercountry Adoption Convention.

International Family Law: ABA Conference

Please follow the below link to view my Power Point presentation on International Family Law Issues at the recent ABA Conference in Philadelphia:

International Family Law

Law Panel Wants Anti-Dowry Law Toned Down

Section 498A of the Indian Penal Code creates a real and distinct danger for any non-resident Indian husband who may need to secure the assistance of the Indian authorities in any child custody case. The law provides for the punishment of the husband and his relatives if a married woman is subjected to cruelty which is likely to drive a woman to commit suicide or cause grave physical or mental injury to her, and harassment with a view to coercing her or any of her relatives to meet any unlawful demands of property. Unfortunately, it has unwittingly created an easy way – that is very frequently used -- for a disgruntled Indian wife to use the legal system to keep her husband out of India and to subject him to blackmail and abuse in family law cases. I have testified on these matters on several occasions. Now the Indian Law Commission is recommending some changes to the law, in order to reduce the prevalence of what the Supreme Court of India has described as "legal terrorism."

Law panel wants anti-dowry law toned down

The government’s expert panel on legal issues has recommended a change in the criminal law to prevent the immediate arrest of husbands and their family members against whom police complaints are filed by their wives under the anti-dowry law.

The Law Commission of India, in its latest report, has asked the government to water the anti-dowry law down to allow a woman to withdraw her complaint if a compromise with her husband and his family is possible. The panel also wants to make it a compoundable offence but with a court’s permission.

The Supreme court had asked the law commission to give its findings on whether section 498A of the IPC and enabling laws, which deal with physical and mental cruelty by husbands and their relatives against wives over dowry, require amendments following reports of their misuse.

It has sought an amendment to the Code of Criminal Procedure (CrPC) in a bid to introduce a 30-day “reconciliation” period before police can arrest an accused under the anti-dowry law.

“The need for caution in exercising the drastic power of arrest in the context of cases under section 498A the IPC has been emphasised by courts and parliamentary committees time and again,” states the report.

“We, therefore, suggest that a new clause may be added to the CrPC section 41 to make clear that whenever a complaint of physical and mental cruelty is filed by a married woman, a police officer shall set in motion a process of reconciliation between the two parties before he or she resorts to the power of arrest,” the commission recommended.

This 30-day period, however, will not apply if an investigating officer feels that “facts disclose an aggravated form of cruelty” and the arrest of an accused is necessary, it points out.

It has rejected the demands for either recommending a complete repeal of the anti-dowry law or making it a bailable offence. “Misuse by itself cannot be a ground to take away its teeth … We can’t close our eyes to a large number of cases which go unprosecuted,” the commission stated.

http://www.hindustantimes.com/StoryPage/Print/938950.aspx