Mature Child’s Objections in Hague Cases

Jeremy D. Morley

The mature child’s objection exception to the Hague Abduction Convention employs very loose language that provides a trial court with great discretion.

In a hotly-contested case that I won in the U. S. District Court for the Eastern District of New York on Friday the trial judge found that a child who had just turned twelve was of sufficient age and maturity for his views to be considered and then ruled that his objections to being returned to Greece were objectively valid reasons.

In sharp contrast, a New Jersey federal judge ruled last month that the exception would not apply to two children, aged 15 and 12, both of whom stated that they would prefer to remain in the United States. De La Vera v. Holguin, 2014 WL 4979854 (D.N.J. 2014).

The difference was that the in the New York case the child was found to be an “unusually mature child” while in the New Jersey case only one child provided any specific reasons for her preference o remain in the United States.

Moreover, in the New York case we proffered expert testimony from a psychologist with unusually solid credentials in child development to refute claims that the child’s views were unduly influenced by his mother, whereas apparently no expert was called in the New Jersey case.

Finally the New Jersey court was greatly concerned about the fact that, by the time of trial, the children had already been in the United States for almost two years, stating that, “It is understandable and predictable that they have a far closer connection with their mother, with whom they have lived for this extended period, than with their father. But all of this is, at least in significant part, a direct result of their wrongful retention here by Respondent.” In contrast, in my New York case we adduced evidence that the child had expressed his wishes to remain in the United States as soon as he arrived here.

International Prenuptial Agreements: Necessary But Dangerous

Lawyers representing international clients who plan to marry and who want the protection of a prenuptial agreement should always consider the international ramifications of any proposed agreement. While conventional domestic prenuptial agreements raise grave malpractice concerns for family lawyers, the concerns become a hazardous minefield when the issues are multi-jurisdictional.

In many ways the world is rapidly shrinking and “globalizing”. “The World is Flat” is not only the catchy title of a bestselling book, but it also highlights the fact that international borders matter far less to most aspects of life than was the case a couple of decades ago. In sharp contrast, however, divorce laws remain local and parochial. Not only do divorce requirements and procedures vary from country to country, but so do the substantive laws concerning the division of assets and spousal and child support. Moreover, the laws about prenuptial agreements and marriage contracts vary considerably around the world and – just as important – the attitudes of courts to such contracts diverge considerably, significantly and in many different ways from country to country. Outside of the European Union there is generally no international law that governs the application of local law to international personal relationships.

Certainly it would be foolish to assume that a "prenup" that is currently valid in the place of the marriage or the place of current residency will be equally valid in other places which might have divorce jurisdiction in the future. 

International People

International issues concerning prenuptial agreements are obviously of critical importance for people of different countries of origin or for people from a country other than the place where they currently reside. But there are far more clients who may require international support concerning prenuptial agreement matters. Many clients have significant contacts with numerous countries or believe that they may in the future. Take the example of an international symphony conductor who may have ongoing appointments with many orchestras and festivals around the world, teaching positions with universities and conservatories in other parts of the world, and personal connections and assets in yet more parts of the world. What if his fiancée is an international business consultant? Or an international movie star? In such circumstances, where does the lawyer start? And where does the process end?

We recently represented an American business executive living in country A in Europe who was planning to marry a woman in the same city who was from country B. We knew that residency in country A created red flags as to the future enforceability of the proposed prenuptial agreement there. We elicited the fact that the parties might temporarily relocate to States C, D or E in the United States or to countries F or G in Europe.  We further ascertained that they could potentially move to any of a host of countries in the future but that countries H, I and J were more likely than the others. Accordingly, we drafted a prenuptial agreement and certain other documents in close collaboration with attorneys in jurisdictions A, B, C, D, E, F, G, H, I and J.

While such precautions are time-consuming and expensive, it would often be “penny wise and pound foolish” (as the old British saying goes) to skimp on the prenup and leave it all to courts to resolve if and when things go wrong.

The need for extreme care and self-preservation in such circumstances hardly needs emphasizing.

Potential Jurisdictions

Lawyers representing international clients are now more frequently recognizing that a prenuptial agreement must often be drafted with a view to its potential enforceability in an array of potential jurisdictions. These might include any of the following:

·         The state of current residence of the husband.

·         The state of current residence of the wife.

·         The state of domicile of either of them.

·         The state of the nationality of each of them.

·         The states to which they might relocate together in the future.

·         The states to which just one of them might relocate.

Selection of the Governing Law

A critical element of any international prenuptial agreement is the choice of the jurisdiction under whose law the agreement will be drafted. Obviously lawyers should not be wedded to their own jurisdiction as the “home” of the agreement. It must also be recognized that silence as to the choice of law is in many respects equivalent to the express selection of that jurisdiction.

The decision as to the best choice of law provision cannot be made without being adequately informed as to the applicable laws and practices of the various competing jurisdictions and as to the potential effect of the foreign law in any of the potential jurisdictions. The decision should also be made upon the advice of counsel who has substantial experience in such matters, who is independent in thinking, and who has consulted or will consult with appropriate local counsel in other relevant jurisdictions. It is likewise important to be aware that choice of law clauses may or may not be valid in other jurisdictions.

A choice of law clause should usually be drafted broadly. In one case a court in Oregon applied the law chosen by the prenuptial agreement -- California law -- only as to the construction of the agreement, but did not apply California property law because the choice of law clause was limited to construction issues. In re Marriage of Proctor, 203 Or. App. 499, 125 P.3d 801 (2005), opinion adhered to as modified on reconsideration, 204 Or. App. 250, 129 P.3d 186 (2006). Choice of law clauses should provide for both the application of both substantive and procedural law of the foreign jurisdiction to be effective.

Basic Principles

The following are some basic principles that the author has developed from handling many such agreements throughout the world over a number of years:

1. This is a very highly specialized area. There is much more risk for the family law practitioner who agrees to handle an international agreement than is the case with a conventional prenuptial agreement. These matters are tricky and they require great care. Do not handle international prenuptial agreements unless you have experience or are collaborating with an international family lawyer who handles international prenuptial agreements regularly.

2. Ensure that only one lawyer is in charge of the entire process, is the chief coordinator among the various lawyers in different jurisdictions that work on the prenuptial project and is the primary (or sometimes the sole) liaison with the client. If one lawyer is not clearly in charge there may well be great confusion, lawyers will be tempted to jostle for a larger role than might be appropriate, the client will receive conflicting advice and important issues might never be addressed.

3. Do not take on the process of drafting an international prenuptial agreement unless you are prepared to work with foreign counsel, to understand foreign law, to become familiar with different legal concepts that may apply to your client's circumstances and to work in an environment in which there are no clear-cut rules or procedures in which you may often feel compelled to consult your malpractice policy.

4. Make it clear to the client that you are admitted to practice only in Jurisdiction A (or perhaps A and B); that while you may have a little familiarity with Jurisdiction C, you are not admitted to practice there; that anything that you might say about the law of that jurisdiction is strictly subject to the client's confirmation with local counsel; that you have no familiarity with the laws of Jurisdictions D, E, and F; and that you will endeavor to find out what you can about the laws in those jurisdictions but you will need to rely on local counsel and that it is local counsel's advice upon whom the client will ultimately be relying. Back this up with a letter to the client and notes to your file.

5. Obtain clear authority from the client to engage the services of local family lawyers in other jurisdictions for the purposes of advising as to the laws and procedures of their own jurisdictions.

6. Be clear on client confidentiality when you hire a foreign lawyer. The rules vary considerably.

7. Obtain funding to cover all of the anticipated legal charges. It is critical to know that you may be responsible for the legal fees of lawyers you ask for help in foreign jurisdictions. See the International Bar Association's International Code of Ethics, Rule 19, which provides, in part, that, “Lawyers who engage a foreign colleague to advise on a case or to cooperate in handling it, are responsible for the payment of the latter's charges except express agreement to the contrary.” Find out what fees each lawyer charges and how the lawyer expects to be paid. In some countries, fees are fixed by local law. You should establish a workable billing schedule. Foreign lawyers may not be accustomed to including a description of work performed in connection with billing. Some foreign attorneys may expect to be paid in advance. Others may demand payment periodically and refuse to continue until they are paid. Request an estimate of the total hours and costs of doing the work. Be clear who will be involved in the work and the fees charged by each participant.

8. When reviewing foreign law, be careful to understand the terms that the foreign local lawyers use. For example, foreign terms might be translated into English as “marital property”, “custody”,  “ownership” and “commingled” but the terms might well have completely or even subtly different meanings in the foreign jurisdiction which could seriously impact the way that a contract is interpreted. Become familiar not only with the law as it is written in the foreign jurisdiction but the law as it is actually applied and as it might apply to your particular client if the prenuptial agreement were brought before the courts in that jurisdiction. In this regard, it is critical to determine how much discretion is afforded to a judge in the foreign jurisdiction to rewrite specific provisions or to take any action other than strictly applying the law concerning prenuptial agreements.

9. Check out the conflict of laws issues. Be alert to the fact that a contract executed in one jurisdiction might in any particular jurisdiction be governed by another jurisdiction's law. You may even need to consider renvoi rules (perhaps for the first time since cramming in law school for a Conflicts exam) insofar as another court that applies its own law to a prenuptial agreement might include its laws on the conflict of laws, which might require the court to apply the laws of another jurisdiction.

10. Inform the client that you do not know where the client and his or her spouse might reside in the future, where their children, if any, might be located and where either or both of them may in the future have assets or do business. All of these factors may have an enormously significant bearing on the enforceability of their prenuptial agreement.

11. Some jurisdictions still do not enforce prenuptial agreements. Other jurisdictions have rules that make it easy for a court to invalidate a prenuptial agreement. In some such situations, it is also good practice to consider whether the parties should sign so-called “mirror agreements” that contain essentially the same terms as the primary agreement but are executed in accordance with the local law and are to come into effect only if the primary agreement is not recognized by a local court. It is sometimes good practice to have the parties execute a simple regime selection document at the time of their marriage in a civil law country such as France or Italy while at the same time having a far more complete agreement entered into in a common law jurisdiction such as New York or California that cross-references the civil law selection.  If there is to be more than one agreement it is important to decide how to prioritize between them and to avoid unnecessary confusion by having multiple agreements that cover the same topic.

12. It may well be prudent to insist that there be compliance with both the procedural and substantive requirements of the toughest potential jurisdiction, or even that each and every hurdle to overcome for enforceability in any of a list of jurisdictions should be fully complied with.  This may mean that counsel should ensure compliance with all of the execution requirements of every potential jurisdiction.

13. One must be alert to the fact that the way that the courts of a particular country apply foreign law may vary considerably. Thus, in a totally different context, the author worked on a custody case in Japan in which a Japanese court ruled that the provisions of California law requiring that both parents be permitted to be substantially involved in the lives of their children meant that a (good) foreign father could visit his child once a month for a few hours under supervision!

14. One must also be alert to varying rules in other jurisdictions as to validity of execution; requirements for independent representation; disclosure of assets; fairness; and unconscionability. One example is that of disclosure. It may suffice in one jurisdiction to attach an appendix that lists in summary form a party's assets and liabilities. However, in California it is the practice for the attorneys for each party to deliver a “disclosure packet” to the other party containing the last three years' personal tax returns as a well as a schedule of assets and liabilities and if the party owns a business to also deliver three years of business tax returns and a profit and loss statement.

15. Make it clear to the client that you are not an oracle and that you cannot predict the future. Therefore you do not know what the law will be in any particular jurisdiction, even including your own, in the future and how it might be applied by the courts in any such jurisdiction. Consequently, you are unable to guarantee that the prenuptial agreement will be enforceable at the time in the future when a court in your own jurisdiction or in a foreign jurisdiction might look at it.

Conclusion

International prenuptial agreements are traps for the unwary or unknowing. They are extremely important to clients but must be handled with great care by family law counsel.

Relocation of Children Under New York Law

In what circumstances may a custodial parent relocate to another state (or country) and take the children? What law applies and how will the Court make this decision? 

"In reality, cases in which a custodial parent's desire to relocate conflicts with the desire of a noncustodial parent to maximize visitation opportunity are simply too complex to be satisfactorily handled within any mechanical, tiered analysis that prevents or interferes with a simultaneous weighing and comparative analysis of all of the relevant facts and circumstances...

We hold that each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the bests interests of the child."

From the New York Court of Appeals, Tropea v. Tropea.

The courts in New York regulate such moves carefully. The factors that the courts consider are numerous and unlimited. They include:

-The reasons for the proposed move (economic, health, remarriage, "fresh start," other family members, etc.

-The effect of the proposed move on parental visitation.

-Whether visitation can be suitably revised.

-Any provisions in a separation agreement concerning relocation.

-The disruption of relationships in the event of a move.

-The involvement of each parent and others in the child's life.

-The distance and required travel arrangements involved in the move.

-The living conditions and the educational, recreational, medical and other facilities available in the new location.

-The results of any home studies regarding the parties' current circumstances and the proposed new location.

-The likely psychiatric impact upon the parties and the child if there is a move or change in custody.

-Any violation of prior court orders.

-The impact of the relocation on the noncustodial parent.

-The possibility of transferring custody to the noncustodial parent in order to allow the custodial parent to move.

-The feasibility of a parallel move by the noncustodial parent.

-The good faith of the parent requesting the move.

-The child's attachments to each parent.

-The lifestyle of the child in each location, including emotional, educational, and economic factors.

-The effect of hostility between the parents in each location.

-The effect on grandparent and other extended family relationships.

-The safety of the child and the safety of either parent from physical abuse by the other parent.

-The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.

-The needs of the child.

-The stability of the home environment offered.

-The quality and continuity of the child's education.

-The fitness of the parents.

-The geographical proximity of the parents' homes.

-The extent and quality of the time spent with the child prior to or subsequent to the separation.

-The parents' employment responsibilities.

There are Two Ways to Prepare for an International Divorce

Are you someone who always runs at the last minute to catch a plane? Or do you prefer to arrive at the airport ten minutes early and relax?

This is a question that ‘marketing guru’ Seth Godin asks so as to illustrate the benefits of sensible planning in business.

In my area -- international family law -- it raises these questions:

• Do you think it’s better to wait until you’re served with divorce papers before running to a lawyer in a panic?

• Or would be better to plan in advance?

• If you and/or your spouse are internationally connected, would it be best to wait until your relationship has exploded to find out whether your case can and should be brought in another jurisdiction?

• Or would it better to know the international choices that you have at a time when you can still influence the results?

The answers to the questions are pretty obvious.

It’s better to get regular dental check-ups than waiting for a toothache and then having nasty root canal work.

And it’s better to ask an international family lawyer to do some Strategic International Divorce Planning than to wait for the last minute when it may be too late for you to change course.

It’s the doing that’s tougher than the agreeing. In our case we’ll do most of it for you. But you have to get things started.

GPSOLO Magazine Article: Parental-Tug-Of-War

International family law is expanding as people travel more and spend time with people from different countries. International personal relationships produce an abundance of conflict and litigation. It is hard enough for people to live together when they share a similar background, but it is far harder when they are from different countries, cultures, religions, ethnicities, educational experiences, languages, traditions, and family structures. The resulting pressures may become especially acute when international couples have children and disagree about such matters as child-rearing methods, the role of in-laws, proper education, religious issues, and ultimately the desire of one of them to take the children “back home” to his or her country of origin.

When international personal relationships dissolve, the legal work is often extremely challenging. I have focused on such work for many years and have found it a great way to leverage my international know-how and experience gained as an Anglo-American national with a Japanese wife and children of various citizenships, who has lived, worked, studied, and run businesses around the world and who has taught law on three continents.

The financial aspects of international family law disputes are often complex and difficult to resolve. But when children are the subject of such disputes, the challenges are often greater and the emotions generally run far higher. Simply put, money can be divided but children cannot. Divorcing parents who stay in the same town can often make sensible arrangements to share the parenting of their children, and if they cannot, a local court can issue appropriate orders and also enforce them as needed. But when the parents cannot even agree on which country to live in, all bets are off.

I represent many parents who live in desperate fear that the other parent will abduct their child to another country and that they will never see the child again. I also represent many parents who desperately want to “go home” with their child to their country of origin.

What Law Governs?

When an international client asks as basic a question as, “What law governs our case?” the answer may well be far from clear. We must often advise that it will depend overwhelmingly on which court--or courts--will have jurisdiction over the case. Although the courts in the state in which the child is currently located have exclusive custody jurisdiction from their own perspective, if the child is taken to visit another country, the courts there will often have jurisdiction under the local law of that country to determine what is best for the child. In addition, these cases often have a strong international law component: More than 80 countries, including the United States and most developed countries, have adopted the Hague Convention on the Civil Aspects of International Child Abduction, which requires that children who have been “wrongfully taken” or “wrongfully retained” overseas should normally be returned promptly to their country of habitual residence.

In practice, international child custody cases often yield complex and messy conflicts between the laws and courts of different countries, demonstrating serious clashes of societal views about culture, religion, gender roles, parental rights, and children's rights, as well as of the role of the legal system in intervening in disputes about children.

Prevention of Abduction

An increasing number of cases involve the prevention of international child abduction. Let's assume that you receive a frantic call from a client somewhere in the United States, who tells you, “I'm sure my spouse is about to take our child to [India/Japan/China/Colombia/England/Germany] and they will never come back. Please help!” What do you do?

Your initial advice may well be purely practical. It will be designed to prevent the immediate threat. Some issues to cover are:

• You must discuss the passport issue. Most likely you should talk about how to secure the child's passport. You might discuss the location of the other parent's passports (recognizing that it is that person's property). You will need to alert the client to the fact that control over passports does not create complete security because many foreign consulates issue renewal passports or other travel documents to their own nationals, without requiring the consent of the other parent and frequently even in the face of a U.S. court order. You should discuss how the U.S. State Department's Office of Children's Issues might help ensure that no new U.S. passports are issued.

• You should talk about how to track the child's whereabouts. Who can watch the child? Should you alert school authorities? What about placing a GPS tracking device in the child's clothing or cell phone? What about alerting the police or hiring a private investigator?

• Perhaps your client should contact the airlines to discover if the other parent has bought airline tickets for the child. Perhaps you should write to the airlines to demand that they prevent the child from boarding.

• You should discuss whether your client should contact other family members about the issue and what to say to them.

• You should advise your client how to instruct the child as to what to do in case of an emergency.

• You should advise your client about collecting and securing evidence for a potential court hearing.

You may well want to secure an emergency restraining order very promptly from the family court. An initial temporary order should be easy to secure, but it will be far more difficult to keep such an order in place over the long term or to ensure that it has sufficient teeth to be effective. The United States has no exit controls, with certain exceptions, and a mere court order will not trigger the kind of effective checks that other countries have in place to prevent children from being taken out of the country by one parent or family member. Ideally the short-term solution should be to give sole custody to your client and to require that any access by the other parent be strictly supervised.

Burden of Proof

The long-term burden will be strongly on your client to present compelling evidence sufficient to justify what the court will likely see as extraordinary relief. That evidence must be of two distinct types. First, you must establish that the other parent represents a serious risk of being an international child abductor. Second, you must show, if appropriate, that the foreign country's legal system will not return an abducted child at all or will do so only after great delay and expense. There will be a significant interplay between these two factors. The more that you establish a strong likelihood that the other parent will abduct the child, the less evidence you should need that the country in question presents a high degree of risk. So if the potential country is one such as England or New Zealand, which have strong and effective laws and systems in place to return abducted children, you will likely need very strong evidence of an anticipated abduction. Conversely, if the country presents an obviously greater risk of not returning an abducted child (think Japan or Venezuela), much less evidence of the likelihood that the particular parent will be an abductor should be required.

Your evidence concerning the specific parent should focus on establishing as many of the so-called risk factors as possible. These factors are well established and have been codified in the Uniform Child Abduction Prevention Act (UCAPA). The most compelling evidence would be clear proof of a threat to abduct. Surprisingly, some parents make explicit threats in emails. More typically you will need to build a circumstantial case based on such factors as the parent having moved money overseas, vacated a residence, made international job inquiries, retained few ties to the United States, or kept strong connections to the foreign country and community, or being disdainful of the United States.

In order to show that the foreign country's legal system will not return an abducted child at all or will do so only after great delay and expense, you will start with the Hague Convention. It will be highly significant if the country has not signed the Convention or if the United States has not accepted its accession. However, just because a country has signed the Convention does not mean that it will enforce it. As a signatory, Mexico is obliged to return abducted children promptly; in reality, it does not do so, as the U.S. State Department has repeatedly reported.

Likewise, just because a country has not signed the Convention does not necessarily mean that it will not return abducted children. For example, Singapore has not yet acceded, but its courts follow the spirit of the Convention.

Frequently you will need to ask the court to consider and evaluate the real facts as to a country's legal system. Generally speaking, U.S. judges are extremely uncomfortable evaluating another country's legal system and predicting the results that may be expected of a case overseas. Although such reluctance is perfectly understandable, it must be overcome. It is absolutely essential in this area that judges should not shirk from their responsibility to judge whether or not a child is likely to be returned from abroad if a parent or others in his or her family decides to keep the child in that country.

How do you prove that a foreign country's legal system in international child custody cases is ineffective, corrupt, or slow? How do you establish the extent to which the courts in another country will recognize and enforce foreign--and especially U.S.--judgments, particularly in the family law area? Or the extent to which discrimination--sexual, religious, ethnic, or national-- might impact the issue in the courts of that country?

And how do you convince a court that it is both appropriate and necessary for it to act as a judge of the legal systems in place in other countries?

Expert testimony is the key. For example, in a recent case in Ontario, Canada, a mother sought to prevent the child's father from taking the child to visit his family in India. Counsel for the mother presented my expert affidavit as to India's law and practice concerning international child abduction to that country. Based on my experience with similar cases and my research on India, I opined that if the child were kept in India, the authorities there would be most unlikely to secure his return. The court ultimately decided to prevent the proposed visit, relying primarily on my expert opinion, which, it said, “unequivocally outlined the many challenges, frustrations--and indeed roadblocks--which the Applicant would face in attempting to secure [the child's] return if the Respondent elected not to return the child from India.”

The Court of Public Opinion

Publicity may sometimes be helpful. In 2009 my client's children were abducted from Tennessee to Japan. The Tennessee court then gave sole custody to my client, who went to Japan and tried to bring the children home to America. Instead, he was jailed in Japan. We quickly launched a high-profile campaign to secure his release and to highlight the fact that Japan is a haven for international child abduction. The client was then freed. While he has not seen his children again, at least the world now knows of the problem. The U.S. House of Representatives has now condemned Japan in extremely strong terms, and the Office of the Secretary of State has now joined with a host of other countries in demanding that Japan change its laws and sign the Hague Convention. One extremely constructive result of the campaign is that judges are now far more aware of the dangers of allowing children to be taken to particular countries if there is a real reason to suspect that the child may not be returned--and are aware of the firestorm of publicity that such cases can elicit. In subsequent cases concerning Japan, this has enabled me to be far more successful than before in persuading courts to prevent children's visits to that country.

Representing the Other Parent

What if you are representing the other side in these cases? Perhaps your client genuinely wants to take the child for a limited family visit to his or her country of origin. Or perhaps your client came recently to the United States from another country with an American spouse, and now that the relationship is over wants to “return home” with the child.

In any such case you will need to explain how the U.S. legal system works in the area of child custody. Often you will need to encourage the client to use the system and to explain the grave dangers of disrespecting that system. The client will often say, “It's my child. I'm the one who looks after him. The other parent is never around. Why on earth should I have to go to court to ask for permission?”

You may well need to discuss with the client that acting unilaterally might lead to a criminal as well as civil difficulty. For example, the International Parental Kidnapping Crime Act of 1993 makes it a federal felony to remove a child from the United States with intent to obstruct the lawful exercise of parental rights. Once a federal warrant is issued, Interpol may issue a “red notice” seeking the person's arrest wherever found.

If a client tells you that he or she intends to covertly take and retain a child overseas, you need to exercise great care--you may have a duty to report the planned felony to the police, notwithstanding the attorney-client privilege.

In presenting an application to a court for a temporary visit with a child overseas, you will present those facts and those arguments that show that the client is unlikely to abduct and that the country in question is one that respects U.S. custody orders and returns abducted children. In a case for an Italian client living in New York, I offered testimony that Italy was in full compliance with the Hague Convention and that its performance was significantly better than that of the United States. The court accepted my expert testimony and authorized the visit.

If the request is for relocation, the burden of proof on the applicant is far higher. Domestic child relocation cases are generally difficult to win, and international relocation cases are much more so. They often require lawyers to present evidence as to the legal, social, cultural, political, economic, religious, and educational environment of a foreign country and, in particular, as to whether a U.S. custody order will be recognized and enforced in that country. It is generally a major mistake for a lawyer to present any such case without having worked intensely with the client to prepare an attractive relocation package. The plan should demonstrate the serious steps that the parent has taken to secure optimal conditions for the child and the client in the proposed new location. Equally important, it should establish that the taking parent will not merely permit the left-behind parent to participate in the child's life but will actively encourage and genuinely promote such ongoing contact.

Conclusion

In this article I have been able to provide no more than a brief introduction to a fascinating area of the law. International child custody cases are always stimulating and sometimes extremely frustrating. But when a client e-mails to say, “Thanks to you, my children are safe” or “Blessings, thanks to you, I got the kids back,” they can be the most rewarding cases of all.

 Jeremy D. Morley is a New York lawyer and the author of International Family Law Practice. His firm handles family law cases in New York and New Jersey. He consults with clients and lawyers globally on International family law matters, working with local counsel as appropriate. He frequently acts as an expert witness on International family law. He may be reached atwww.international-divorce.com.

Notes on Algeria and International Child Custody

Jeremy D. Morley

Algeria is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.

A well-publicized 2012 case of an abduction from New Zealand to Algeria demonstrated the difficulties of securing the return of children from Algeria.

Although Article 29 of the Algerian constitution states that, “All citizens are equal before the law. No discrimination shall prevail because of birth, race, sex, opinion, or any other personal or social condition or circumstance,” Article 2 of the constitution provides that Islam is the religion of the state.

The United Nations “Special Rapporteur on adequate housing as a component of the right to an adequate standard of living” made an official visit to Algeria in 2011 and reported that:

-Despite legal improvements, in particular the 2005 reform of the Family Code, Algerian women still do not have the same status as men within the family and continue to be victims of de jure discrimination in access to housing. According to Algerian law (articles 142 and 144 of the Family Code), women cannot claim the same part of an inheritance as men, since they have the right to only half of what men are entitled to.

-Article 72 of the Family Code provides that, if a couple has children and the woman is granted custody upon a divorce, the father must ensure that she has decent housing or else must pay her rent. Moreover, a woman who has custody has the right to remain in the matrimonial home until the father implements the judicial decision.

-However, Article 72 does not guarantee that a woman who has child custody can stay in the matrimonial home; this is not ensured until the father implements the judicial decision concerning housing.

-In cases in which women are granted child custody, it is the judge who decides case by case and may rule that the wife must continue to live with her children in the matrimonial home or that the husband must pay his former spouse an amount deemed to be sufficient to pay her rent. However, the amount set by the judge is based on official rental prices, whereas actual market prices are much higher. Moreover, it is reported that judges do not always rule on the question of housing. In both those cases, women do not have the means to pay the rent, and often their only alternative is either to become homeless or to remain in the home of their former spouses, where they are often victims of violence.

Article 64 of the Family Code vests custody in the first instance in the mother, then in the father and then in the closest relatives. The Algerian Government reported to the United Nations’ Committee on the Elimination of Discrimination against Women that, “Amendments to this part of the Family Code conform to the principle of the overriding importance of the child’s interests. Accordingly, the father is now in second place, after the mother, in the order of persons to whom custody may be awarded.”

Under the earlier version of the Family Code (Art. 52), only in cases in which the wife obtained custody of the children and she did not have a guardian who agreed to take her in did she and her children have the right to her own housing, in keeping with the husband’s possibilities. However, the matrimonial home was excluded from that decision if it was the sole housing.

In 2005, the position of divorced women with children was strengthened by giving them the right to stay in their former conjugal homes, forced arranged marriages were outlawed, and polygamy constrained by requiring consent of the first or second wife and validation by a local court. Furthermore, women were no longer legally required to be obedient to their husbands. http://www.gloria-center.org/2009/03/gray-2009-03-05/

However, the concept of wali, guardian, was affirmed. This law stipulates that an adult woman remains under the lifelong tutelage of a guardian–the legal reform merely allowed a woman to choose her guardian. A guardian’s approval is required if a woman wants to marry and–though based on social custom and not the law—banks, for instance, routinely require signed consent by a guardian if a woman wants to open a bank account. http://www.gloria-center.org/2009/03/gray-2009-03-05/

The Family Code continues to treat men and women differently in the case of divorce. Men have the right to divorce without any justification, although the court may place conditions on the divorce. By contrast, women can obtain a divorce only under certain conditions (e.g. abandonment), or the practice of khula, whereby a woman can divorce her husband unilaterally if she pays him a sum of money.

Under the 2005 Family Code, the conditions under which a wife can seek a divorce have been broadened, and include ‘inconsolable differences’ and failure to observe conditions included in the marriage contract.

When a mother has been granted custody of her children, she obtains parental authority over them. If a woman remarries, she loses custody of her children.

The U.S. Department of State urges U.S. citizens who travel to Algeria to evaluate carefully the risks posed to their personal safety.  There is a high threat of terrorism and kidnappings in Algeria.

Manga and the Hague Abduction Convention

Jeremy D. Morley

The Japanese Ministry of Foreign Affairs has prepared a manga-style booklet explaining the Hague Abduction Convention, which it has sent to Japanese embassies and consulates.

Much of the booklet is actually well done. However, some have claimed that the booklet is racist. The cover appears to show a Western-looking man beating an Asian-featured child; the same Western man removing a child; and a Japanese woman with no money worrying about her daughter. 

Mother's Arrest at D/FW Airport Shows Difficulties of International Custody Disputes

By JULIETA CHIQUILLO

14 September 2014

Like many divorces, Padmashini and Dean Drees’ breakup in 2004 was bitter.

There were mutual allegations of abuse, suspicions of infidelity and a nasty fight over custody of the couple’s toddler son, Drew.

But when Padmashini Drees traveled with Drew to India seven years ago and didn’t return, the family’s problems reached the U.S. State Department and the FBI.

Though custody battles tend to be messy, international cases like the one involving the Dreeses can drag on for years. The U.S. Supreme Court has wrestled with at least two disputes since 2012. Clashing legal systems become hurdles for the parents.

The parent left behind has little recourse if a U.S. court order is not recognized in another country. The parent who takes the child abroad in violation of a custody order could face criminal prosecution should he or she ever return to U.S. soil.

The North Texas case appeared to have a movie-script ending July 9, when Dean Drees reunited with Drew, who is now 10. A McKinney police photo showed a smiling father embracing his son.

Officers arrested Padmashini Drees when her flight landed at Dallas/Fort Worth International Airport. They accused her of abducting her son and put her in jail.

The case is not settled.

Padmashini Drees was released from the Collin County Jail on Sept. 2. Her felony charge of interference with child custody is pending. If convicted, she faces up to two years in state jail.

“Today, Padma has the option of making a comfortable life anywhere in the world,” said her attorney, Scott Mackenzie, in a written statement. “She has chosen to stay in the United States to fight for her son and get the justice that she truly deserves.”

Neither Padmashini Drees nor Dean Drees would speak with a reporter except through their lawyers.

The mother

Padmashini Drees’ life in the U.S. began in the early 2000s as her first marriage, an arranged union, crumbled, her attorney said.

Trained as an architect, she enrolled in a computer-aided design class where she met Dean Drees. The couple married in August 2003 and started a family in a middle-class neighborhood in McKinney.

Dean Drees filed for divorce in October 2004, nine months after Drew’s birth.

In 2006, a court in Collin County granted Padmashini and Dean Drees joint custody of Drew. It also set the boy’s primary residence with his father and ordered his mother to pay child support.

Mackenzie said Padmashini Drees, a green-card holder, lived under her husband’s constant threats of deportation.

“In light of that, I can understand why she felt the need to run,” Mackenzie said.

Dean Drees’ attorney, Tiffany Haertling, denied the allegations. She lamented that Padmashini Drees “would choose to continue to inflict hurt and grief on an already unfortunate situation.”

Drew was about 3 years old when his mother took him overseas. They lived in India and also traveled to England, France, Switzerland, Italy, Indonesia and Thailand, according to a court document.

The father

Dean Drees told a Collin County court that he made “continuous efforts” to get his son back for the seven years he was away. He hired private investigator Danny Russell to track down Drew. Russell worked with federal agencies and others to locate the boy.

Dean Drees missed Drew “immensely” and was desperate to find him, Russell said.

“He was a very polite father who was fearful of the worst because he didn’t know what had happened to his son,” Russell said. “He had no contact.”

India is a haven for parental child abductions, said Jeremy Morley, a New York attorney and former co-chairman of the International Family Law Committee of the American Bar Association.

The Asian nation hasn’t signed the Hague Abduction Convention, a treaty that encourages the safe return of children taken from their home countries.

“There is no consistency in the approaches of the Indian courts in these cases,” Morley said, “and the Indian legal system is extremely slow and can be corrupt.”

The U.S. State Department reported 702 parental child abductions from the U.S. to another country in 2013. India accounted for 28 cases, trailing only Mexico and Canada.

Coming home

In December, Padmashini Drees restored Drew’s contact with Dean Drees through video chats. Dean Drees asked his ex-wife to come back with Drew so they could both parent the boy, Mackenzie said.

“Despite the warnings given to her by Indian authorities and other people … she kind of hoped Dean would have mercy on her and try to work with her,” the attorney said.

On July 16, a Collin County court suspended Padmashini Drees’ access to her son as part of the civil custody case.

Her legal team wants to resolve the felony case before pursuing visitation with Drew, Mackenzie said. Padmashini Drees has no intention of taking her son back to India, the attorney said.

Parents should seek proper legal advice instead of trying to resolve custody issues themselves, said Morley, the New York attorney.

“She took the law into her own hands,” he said of Padmashini Drees. “Now she’s paying the price.”

http://www.dallasnews.com/news/crime/headlines/20140914-mother-s-arrest-at-dfw-airport-shows-difficulties-of-international-custody-disputes.ece

Malaysia Child Custody: Next Step in 5+ Year-old Case

Court strikes out appeal by Muslim husband in interfaith custody case

BY V. ANBALAGAN, ASSISTANT NEWS EDITOR

Published: 10 September 2014

http://www.themalaysianinsider.com/malaysia/article/court-strikes-out-appeal-by-muslim-husband-in-interfaith-custody-case

The Court of Appeal today struck out an appeal by Muslim convert Muhammad Ridzuan Abdullah who was found in contempt of court for his refusal to hand over his daughter to the mother in a unilateral conversion case.

A three-man bench led by Datuk Balia Yusof Wahi said it was trite law that the court could not hear an applicant who has yet to purge his contempt.

"Public interest demands that respect for the law be maintained," he said in allowing M. Indira Gandhi's application to strike out her ex-husband's appeal against the May 30 High Court ruling, which found him guilty of contempt.

Following this, applications by the Attorney-General and the Inspector-General of Police to intervene in the case as well as Ridzuan's motion for an extension of time, were also struck out.

Ridzuan had filed an application for extension of time to file his record of appeal to state his grounds on why High Court judge Lee Swee Seng was wrong in finding him guilty of contempt of court.

Indira then filed an application to the Court of Appeal to strike out Ridzuan’s appeal based on a Federal Court ruling that the court would not hear an applicant who had yet to purge his contempt.

On June 26, A-G Tan Sri Abdul Gani Patail and IGP Tan Sri Khalid Abu Bakar applied to the Court of Appeal to be made parties in custody battles between two Hindu mothers – Indira, as well as S. Deepa – and their ex-husbands who had converted to Islam.

Gani and Khalid said the High Courts in Seremban and Ipoh had exceeded their authority in issuing recovery orders to the police to locate the children of Deepa and Indira from their fathers.

Like Indira, Deepa is also embroiled in a custody battle over her two children following their unilateral conversion to Islam by her ex-husband Izwan Abdullah.

Gani and Khalid said if their applications to be interveners were allowed, they wanted the Court of Appeal to stay the High Court orders compelling police to locate Ridzuan and Izwan.

Khalid said police were in a quandary because there were two custody orders, from the High Court and the Shariah High Court, and executing one would mean showing disrespect to the other.

The shariah courts had granted both fathers custody of the children.

Gani and Khalid said a stay of the orders was vital or else their attempts to appeal would be futile as the status of the High Court and Shariah Court under Article 121(1A) of the Federal Constitution had to be determined.

In Indira's case, Ridzuan refused to hand over their youngest daughter Prasana Diksa despite a 2010 Ipoh High Court order awarding her custody of their three children.

Ridzuan has held on to Prasana Diksa since April 2009 when she was 11 months old.

The Shariah High Court in Ipoh had in 2009 given Ridzuan custody of the three children after he unilaterally converted them to Islam.

But in July last year, the Ipoh High Court quashed the certificates of conversion of the three children and ruled that the certificates were null and void because they were unconstitutional.

In Deepa's case, the Seremban High Court on April 7 granted her custody of Sharmila and Mithran, both of whom had been converted to Islam by Izwan last year without their mother's knowledge.

Judge Datuk Zabariah Mohd Yusof said the court had the power to dissolve Deepa's civil marriage with Izwan and provide reliefs, including custody.

Two days later, Izwan abducted Mithran, saying it was for the child's "protection".

Deepa then obtained a recovery order from the High Court on May 21 to get police to search for Izwan and Mithran.

Lawyer Aston Paiva, who appeared for Indira and Deepa, had earlier conceded to the A-G and IGP becoming interveners in Deepa's matter due to different circumstances.

He said there was no conclusive finding of contempt against Izwan by the High Court, and the Shariah High Court in Seremban had made a specific direction to the police to locate his children.

Joanne Leong, who appeared with Aston, said Izwan's appeal against custody order and recovery order would be heard by the Court of Appeal on December 4. – September 10, 2014.

Read more about Malaysia here:

http://www.internationalfamilylawfirm.com/2014/06/malaysia-childs-best-interests.html