Repost: The New Divorce by Mutual Consent in France...

We're reposting this article here since it's just recently been published in the NYSBA Family Law Review, Fall 2017, Vol. 49, No. 2:

The New Divorce by Mutual Consent in France: Recognition and Risks of Post-Divorce Litigation in Common-Law Countries: The Examples of England and the United States

Delphine Eskenazi, admitted to the Paris and New York bars, LIBRA Avocats, Carmel Brown, Solicitor in England, Irwin Mitchell and Jeremy D. Morley, admitted to the New York bar, Law Firm of Jeremy D. Morley consider the new divorce by Mutual Consent in France and its wider implications for other countries.

Since 1st January 2017, French divorce law has been the subject of an historic reform: in the event of a global settlement between the spouses, their divorce agreement is no longer reviewed and approved in Court by a French judge. 

The agreement is merely recorded in a private contract, signed by the spouses and their respective lawyers. Such agreement is subsequently registered by a French notaire, which allows the divorce agreement to be an enforceable document under French law. From a judicial divorce, the French divorce, in the event of an agreement between the spouses, has become a purely administrative divorce. 

The implications and consequences of this reform in an international environment were deliberately ignored by the French legislature, with a blatant disregard for the high proportion of divorces with an international component in France. 

In particular, the most important risk of this reform is that the French divorce by mutual consent may not be recognized or enforced in many foreign countries, in particular common law countries, thus significantly multiplying the risks of post-divorce litigation. From an amicable divorce to an acrimonious post-divorce, the possibilities to re-litigate have increased significantly with this new French administrative divorce. 

Carmel Brown, a solicitor practising in England, and Jeremy Morley, a lawyer practising in the United States, consider these issues of recognition and post-divorce litigation, following a French administrative divorce, in their respective countries of practice. Delphine Eskenazi, a lawyer practising in France (also admitted to practise in New York), presents first the main provisions of this new French administrative divorce by mutual consent. 

I. What is the New French Divorce by Mutual Consent? 

A. The Lack of Control or Involvement of the French Courts

In accordance with the new article 229 of the French Civil Code, spouses who agree on the principle of the dissolution of their marriage as well as on all the consequences of such dissolution, may record their agreement in a contract, without the need to obtain the review or approval by the French courts. 

The process is simple: a draft agreement is written by the parties' counsel and signed by the spouses and their attorneys together. After the expiration of a mandatory 15 days reflection period, the agreement is sent by the most diligent party to a notaire, who will register it and keep an official record. The Court will be seized by the parties to review the agreement only as an exception, in very limited circumstances if a minor child requests to be heard by the judge. 

In the absence of a review by the Courts, there is no requirement for the spouses to have any connection with France to be able to use this new method of divorce, the consequence being that certain authors consider, rightfully, that 'France will become the new Las Vegas of the divorce 1'. 

The other consequence of this purely French administrative divorce is that no independent third party will ensure that the spouses have freely consented to the agreement or, that this agreement is fair and strikes the right balance between both parties' interests (in particular as regards the provisions relating to the children). 

The only requirement intended to ensure the existence of the spouses' free will is the obligation for each party to have his or her own lawyer, which assumes that the lawyer will be committed to the defence of his or her client's best interests. 

The lack of control by a neutral and independent third party could nevertheless allow the possibility of agreements where one party will accept a completely unfavorable agreement, even after having received proper advice from his or her lawyer, for the sake of efficiency for instance (given how long divorce litigation can be otherwise in France).  

B. The Lack of Financial Disclosure

The issue of spousal support, also called "compensatory maintenance" (prestation compensatoire) is also a symptomatic example of the difficulties raised by this reform. 

Before this reform, when the divorce agreement was reviewed and approved by the Courts, and the parties had agreed that one of the parties was awarded an amount for "compensatory maintenance", there was an obligation to provide to the Court a financial disclosure through a statement of net worth (declaration sur l'honneur), prepared and signed by each party.

The new law does not provide for an obligation to exchange or attach such statement to the divorce agreement. The circulaire (which is a document published by the French Ministry of Justice to explain how the new law should be applied in practice) provides that it is recommended for the parties to exchange such statement of net worth. This recommendation does not mean however that there is a strict legal requirement, sanctioned by the Courts. Therefore, the spouses could simply proceed with the divorce agreement, without any form of financial disclosure. 

C. The Lack of European Certificates 

Finally, the legislator has explicitly recognized that the only certificate which will be issued by the notaire is the one provided by Article 39 of the Regulation Brussels II bis. The certificate of Article 41 of the same Regulation will not be issued. The certificates provided by the new European Regulation on Maintenance obligations will not be issued either, which means that the maintenance creditor will not be able to benefit from the facilitated form recognition provided by this regulation.  

One can understand from this summary that the possibility for one of the spouses to attempt to re-open the litigation in other countries such as England or the United States, in the hope of  obtaining an additional amount for asset division or spousal support or better arrangements as regards the provisions relating to custody are significant. 

Carmel Brown and Jeremy Morley detail and explain below the reasons for which such possibility could indeed exist in their respective countries of practice. 

II. Will the French Divorce by Mutual Consent be Recognised in England and Wales?

A divorce granted within the European Union will almost always be automatically recognised in England and Wales, provided that it was granted in accordance with the laws of that particular member state.  Accordingly, given that the divorce by mutual consent would be prepared in accordance with the law - by a deed, signed by both parties and countersigned by the independent lawyer and a notary, it should be recognised in England and Wales.  However, it would need to be accompanied with a certified translation in the usual way.  It is fundamental however that the divorce is not a "transnational divorce", and instead, must have started and finished in France.

It is a worry that, given that a Judge will play no active role in the divorce by mutual consent, that there will be no control over the validity of the divorce agreements and this is likely to increase litigation and post-divorce disputes in France and open up the possibility of secondary litigation in England and Wales, by way of "top-ups".

If the French courts have not triggered their jurisdiction, owing to the fact that the divorce by consent is just a contract, then there is surely still the ability for another country to seize jurisdiction. 

A. Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984) 

England is often referred to in the media as the divorce capital of the world. It is widely known to be one of the more generous jurisdictions to wives in the world. Not only this, but the English court can, in some circumstances, order a divorce settlement even where a couple have already divorced (and received financial provision) in another country.

Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984) provides the English court with a discretion to step in and make financial orders upon divorce, provided certain jurisdictional requirements are met. 

Essentially, once jurisdiction is accepted, the English court is able to make the same orders as if the divorce had been granted in England, which may include orders for maintenance, lump sum orders, property adjustment orders and pension sharing orders. Accordingly, if a party has entered into a divorce by mutual consent in France, and is genuinely dissatisfied with the settlement, possibly in circumstances where they have not had proper independent legal advice with full financial disclosure, they may seek to make an application in the English courts. This is particularly likely given that there will be no judicial control or guidance.  

The leading authority is the case of Agbaje v Akinnoye-Agbaje, [2010] UKSC 13 which held that the purpose of a Part III application was "the alleviation of the adverse consequences of no, or no adequate, financial provision being made by a foreign court in a situation where there were substantial connections with England".[71]

The range of outcomes is wide and will depend on the circumstances of the case – but we may see one party after a French divorce by mutual consent seeking to re-open their financial claims in England (provided there is the requisite connection to England), notwithstanding that there has already been financial provision in a foreign jurisdiction.  

Until now, it has been significantly harder to run a successful Part III claim in England and Wales after a foreign divorce in a western country, and particularly the EU, given that Part III applications often arise after settlements in more traditional cultures i.e. those that may still treat women differently, therefore making inadequate provision. 

However, that may all change given that French settlements will not be subject to judicial scrutiny and many may sign up to imbalanced and unreasonable settlements, failing to meet both the parties' and the children's needs. Practically speaking, this will clog up our court system given that the proceedings are complex, lengthy and expensive.

The English court will however be unwilling to entertain an application if it considers the French applicant is simply trying to get a "second bite of the cherry" after a financial award in France by mutual consent.

There is another unresolved relevant issue, which is whether a matrimonial award with an element of maintenance in another EU state, automatically precludes the courts of England and Wales from making a Part III maintenance order.  

Given that the European Union's Maintenance Regulation is designed to enable a maintenance creditor to easily obtain an Order that is automatically enforceable in another member state without further formalities, it seems reasonable for Part III to remain unaffected by the Maintenance Regulation. 

However, the question is whether the recognition of the decisions of the other Member States merely means "recognising" that actual decision and the payer's liability or whether it allows a determination of the liability under the laws of England and Wales. The preamble states at s25 "Recognition in a Member State of a decision relating to maintenance obligations has its only object to allow the recovery of the maintenance claim determined in the decision." (Section 25 of Part III of the Matrimonial and Family Proceedings Act 1984). That said, it does appear reasonably clear, that the purpose is not to protect the payer from a Part III claim.

Although a maintenance award made in another EU state will have significant weight on whether leave is granted under Part III and in relation to the substantive application, in practice, it is likely that a prior maintenance award in another EU country would not prevent financial provision outside of the scope of the Regulation. Accordingly if a party has already obtained a maintenance award in France, a Part III application dealing with all financial matters and including maintenance, may still be on the table.

B. Children Matters and Contact

The new French legislation has unfortunately failed to deal with cases with international issues and elements and there is no method for obtaining the Certificates provided in the European Regulations (apart from Article 39 of the Brussels II bis), and a notary may not issue such certificates.  

Accordingly, the implications are vast and we lose the ability for French Orders complying with the conditions set out in Articles 20 and 40-42, to be directly recognised and enforceable in England and Wales.

The English Courts would consider it unsatisfactory for there to be conflicting Orders in existence in different states affecting children, yet this is the problem we will be faced with in circumstances where we will lose the benefits of the European Regulations. 

III. Will the French divorce by mutual consent be recognized in the United States?

The extent to which courts in the United States will recognize French administrative divorces is uncertain and raises a host of interesting questions.  The issues are rendered particularly complex because of the unusual features of the divorce recognition principles that apply in the U.S., including the American concept of "divisible divorce," the imprecise nature of U.S. comity rules, the unique impact of the due process clause in the U.S. Constitution, the different statutory provisions in the 50 U.S. states, variations in judicial interpretations from state to state, and the particular jurisdictional rules as to child custody jurisdiction.

A. Recognition of the "Bare" Divorce

American courts will normally recognize foreign court divorce judgments under the doctrine of comity if one spouse was domiciled in the foreign country when the case was commenced, meaning that it was the place of the spouse's true, fixed, permanent home and principal establishment, and to which, during any absence, the person intends to return. But recognition may nonetheless be refused if the foreign legal system was partial or unfair or if the judgment was procured by duress or fraud. 

There are very few reported cases in the U.S. concerning non-judicial divorces. It is likely that U.S. courts will follow the general principle that a divorce regularly obtained according to the laws of the country where at least one spouse is domiciled will usually be recognized as effectively dissolving the marriage. In a case in Hawaii, a decision to recognize a Taiwanese administrative divorce was recently upheld on appeal, and foreign administrative divorces were likewise recognized in some immigration cases.

However, the new French procedures authorize administrative divorces even if neither spouse is domiciled in France or even connected to France. Therefore, it is submitted that there is a great likelihood that a French administrative divorce of spouses who were both not domiciled in France will generally not be recognized in the United States. 

An exception to this principle may well apply in New York, whose courts have long recognized foreign "bilateral" consent divorces, such as Dominican judicial divorces where one spouses flies there for a weekend with a power of attorney signed by the other party, even though neither was domiciled there. However, courts elsewhere in the U.S. have refused to follow the New York rule. 

Another exception will be likely to apply to prevent a spouse from contesting a divorce if he or she has relied on the divorce in order to obtain any kind of benefit or advantage. However, that would not preclude a third party, such as the U.S. immigration authority, from refusing to recognize the divorce

B. Recognition of the Financial Consequences of the French  Divorce

In order for a U.S. court to recognize the financial component of a foreign divorce decree, each party must have had a significant connection to the foreign country, or have been served with process in that country or have submitted to the foreign court's jurisdiction. This element will presumably be satisfied in the case of French administrative divorces since the consent of both parties is required for the divorce. 

However, subsequent and serious problems may well arise if a party has second thoughts about the financial terms, and seeks to have them set aside in a court in the United States.  Any such effort will benefit from the fact that the French procedures do not require in an compulsory way any prior financial disclosure.

Courts in the U.S. will normally not reopen the financial issues that have been determined in a foreign divorce case unless there is clear proof of fraud or duress, as long as the foreign court had jurisdiction over the marriage and personal jurisdiction over the defendant. A U.S. court will normally not even allow a party to make claims about assets that were not considered by the foreign court unless it is clearly established that the foreign court had no power to consider those assets.

However, administrative divorces may well be treated differently, since they are based on the mere agreement of the parties and they require no judicial oversight. U.S. courts will likely apply to such divorces the more flexible and liberal principles that they have developed concerning the avoidance of spousal settlement agreements leading to a judicial divorce. In general, U.S. courts may set aside a financial settlement agreement at the request of a spouse who establishes that his or her consent was procured by undue influence or in some jurisdictions merely because the result is unfair. 

In reviewing the financial provisions of a French administrative divorce the relevant factors will certainly include whether or not, before entering into the French agreement, the complaining spouse had adequate knowledge of the relevant financial facts, received full and frank financial disclosure, adequately understanding what was being agreed to and the consequences of entering into the agreement, and had separate and independent legal representation. The attitudes of courts in different U.S. states to such claims will vary from state to state, based on the specific case law that has been developed in each such state concerning the avoidance of divorce settlement agreements, the specific provisions of any governing local legislation and the attitudes of local judges.

C. Recognition of the Child Custody Elements of the French Divorce

American courts will certainly not recognize any portion of a French administrative divorce that deals with the custody of children except to the extent that the statutory jurisdictional rules of the local U.S. state are satisfied. 

Each U.S. state has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (the "UCCJEA"), except Massachusetts which has adopted a prior but similar statute. In very broad terms, it provides that a child's "home state" – meaning the state or foreign country where the child has lived for the past six months - has exclusive jurisdiction to issue an initial child custody order and has continuing exclusive jurisdiction neither the child not either parent lives in that state or country.

This means that if, for example, a French administrative divorce were to purportedly settle custody issues concerning a child who does not live or has not lived in France, the custody terms would almost certainly be unenforceable in the United States.  

D. Support Provisions

Significant problems will arise in the U.S. concerning the enforcement of the child support and spousal support provisions of a French administrative divorce. The Uniform Interstate Family Support Act, adopted throughout the U.S., provides measures to enforce "support orders" issued by other U.S. states or by most foreign countries. However, the term "support order" is defined as "a judgment, decree, or order, or directive" that has been "issued by a tribunal," meaning "a court, administrative agency, or quasi-judicial entity." Since the support terms of a French administrative divorce will not be in the form of a judgment, order or the like issued by a "tribunal," it may well be especially difficult to enforce such provisions in the U.S.  

Conclusion

The enforceability of French administrative divorces in the United States and in England will raise a host of complex and interesting legal issues. Full disclosure of such issues to parties who have a connection to a common-law country is strongly recommended. 

In summary, these changes in France are likely to have various and quite large-scale implications in other countries, in particular in countries such as the United States and England and Wales, which are based on a very different legal culture. 

We are hopeful that the comments of practitioners are noted and the necessary and appropriate changes are made.

11.5.17

_________

1. See Alexandre Boiché, in the French family law Journal, AJ Famille, January 2017.

Court Bars a Child’s Visit to India

The Federal Circuit Court of Australia has dismissed the application by an Australian mother of Indian origin to take her child to visit India.  She stated that she wished her young daughter to be present in India, where she planned to marry an Australian man who is also of Indian origin, and then return to Australia.

The Circuit Court relied on expert evidence concerning India’s laws and practices in child custody matters regarding international cases.  In this regard the Court ruled that:

“Although it is a matter for conclusive determination at the final hearing, for the purposes of this interlocutory application I place weight on the expertise of Mr. Morley in the field of international child abduction and his opinion that given the complexities of the Indian family law system the father is likely to face considerable difficulties and expense in locating [the child] and ensuring her safe return, should her mother retain her in India…

It is impossible to predict how an India court may navigate the facts of this case or how much weight an Indian court might give orders of this court.  Mr. Morley’s comment that there is a ‘substantial likelihood’ that the Indian courts would not return the child should the mother fail to return to Australia is sufficient to demonstrate that significant uncertainty exists regarding the degree of deference an Indian court is likely to pay an Australian parenting order. As such, the child’s return to Australia should the mother fail to comply with an order of this Court cannot be guaranteed by the commencement of proceedings by the father in India…

Mr. Morley opines that Courts outside India should be extremely wary about allowing a parent to take a child for a temporary visit to India over objection of the other parents where the mother is of Indian origin and the child is female. In his view there is a substantial likelihood that if the child is not returned voluntarily the Indian court will not return her to her home of habitual residence. Proceedings to recover the child (if necessary) are likely to be extremely slow and expensive process. He contends that [the child] ‘being a girl child, the guardianship of the Mother is of utmost significance. Ordinarily the custody of a girl child who is around 7 years of age must ideally be with her Mother unless there are circumstances to indicate it would be harmful...’”

Habitual Residence in the Hague Abduction Convention: European Common Sense v. American Confusion

Jeremy D. Morley

                                                    www.international-divorce.com

The Court of Justice of the European Union has issued a fascinating opinion (ECLI:EU:C:2017:436)  concerning the definition of the term “habitual residence” as employed in both the Hague Abduction Convention and the governing European Union regulations. The contrast between the European approach to interpretation of this key term, and the various conflicting and confusing approaches taken by courts in the United States, could hardly be stronger. 

The case concerned an Italian father and a Greek mother who lived together in Italy until the wife, while pregnant and with the father’s agreement, went to Greece to give birth to their child. Their plan was that she would return to Italy with the baby after some undefined period of time with her family in Greece. Five months after the baby’s birth, and upon the mother’s refusal to return to Italy, the father brought a case in Italy for divorce and custody and a case in Greece for the return of the allegedly abducted child. 

The Greek court then asked the E.U. Court of Justice for an urgent preliminary ruling on whether the child was habitually resident in Greece. 

The E.U. Court ruled as follows:

1.                  The concept of habitual residence is an autonomous one of EU law.

2.                  Its meaning must be uniform. 

3.                  The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment. 

4.                  The child’s presence should not in any way be temporary or intermittent. 

5.                   The relevant factors to consider include the duration, regularity, conditions and reasons for the child’s stay in the country and the child’s nationality.

6.                  If the child is an infant, its environment is essentially a family environment, and it necessarily shares the social and family environment of the person(s) who care for the child.  

7.                  The intention of the parents to settle permanently with the child in a country can also be taken into account, if shown by certain tangible steps such as the purchase or lease of a residence.

8.                  Parental intention cannot as a general rule by itself be crucial to the determination of the habitual residence. It is only an ‘indicator’ that can complement other consistent evidence. A general and abstract rule that the initial shared parental intention is decisive would “transcend the concept” of habitual residence, would contravene the structure, effectiveness and the objectives of the return procedure, and “would be detrimental to the effectiveness of the return procedure and to legal certainty.”

9.                  A return procedure is, inherently, an expedited procedure, since its aim is to ensure the prompt return of the child. The EU legislature has given concrete expression to that imperative, in Article 11(3) of Regulation No 2201/2003, by requiring courts seized of applications for return to issue their judgments, save in exceptional circumstances, no later than six weeks after the application is lodged.

10.              An application for return must therefore be based on information that is quickly and readily verifiable and, so far as possible, unequivocal. 

11.              Yet, it may be difficult, if not impossible, in a case such as the pending case, to establish beyond all reasonable doubt, for example, the date initially envisaged by the parents for the mother’s return, and whether her decision not to do so is the cause or, on the contrary, the consequence of the father’s divorce proceedings.

12.              To interpret, in such a context, the concept of habitual residence in such a way that the initial intention of the parents as to the place which ‘ought to have been’ the place of that residence would constitute the fundamental factor, would be likely to compel the national courts either to gather a substantial quantity of evidence and testimony in order to determine with certainty that intention, which would be difficult to reconcile with the requirement that a return procedure should be expeditious, or to issue their judgments while not in possession of all the relevant information, which would result in legal uncertainty.

13.              The aim of the return procedure is to put the child back in the environment with which the child is most familiar and, thereby, to restore the continuity of the child’s living conditions and the conditions in which the child can develop.

14.              However, the alleged wrongful conduct of one parent cannot in itself justify ordering the removal of the child from the country where the child was born and has lawfully and continuously lived to a country with which the child is not familiar.

15.              Consequently, when a child has been born and has lived continuously with her mother for several months, in accordance with the joint wishes of her parents, in a country other than that where those parents were habitually resident before her birth, the initial intention of the parents with respect to the return of the mother, together with the child, to the latter country cannot allow the conclusion that that child was “habitually resident” there, within the meaning of that regulation.

16.              The child was habitually resident in Greece. Accordingly, the child should not be returned to Italy under the Hague Convention (as brought into European Union) and the Greek court should determine matters concerning the child’s custody.

In extremely sharp contrast, the courts in most U.S. federal circuits have elevated the last shared intention of the parents to a dominant position in the interpretation of habitual residence. Making matters worse, some courts adopt an interpretation that is closer to the European approach, some courts adopt a middle ground between the two extremes, and many courts follow shifting principles concerning such issues as whether the intentional abandonment of a prior habitual residence must be established before a new habitual residence can be acquired, and whether and when so-called “acclimatization” trumps intent. 

Moreover, except for giving calendar priority to Hague cases, U.S. courts have failed to address the need to tailor judicial procedures in such cases to reflect the need for expeditious resolution. 

As a result, when the issue of habitual evidence is contested, they generally allow – and, indeed, encourage – the presentation of voluminous evidence at trial concerning the last shared intention of the parents, which requires proof of the intimate details of such matters as shipping of specific kinds of clothing and other items, the substance of speeches at alleged farewell parties, the meaning of text message phrases of farewell or bon voyage, the passing remarks made to real estate agents, and an unlimited stream of other information addressing in any way the issue of exactly what was in the minds of each parent as they drove to the airport. 

Furthermore, while the courts in most countries rely primarily on written submissions in Hague cases, courts in the United States usually require evidence in the form of live testimony and they often authorize extensive pretrial sworn depositions and other discovery. 

The result is that Hague Convention cases in the United States, especially in those circuits that have followed the majority interpretation of habitual residence, can consume weeks and months of attorneys’ preparation time, and weeks of trial time, leading to transcripts of thousands of pages of testimony, extraordinary delays in securing initial decisions and cases that may languish on appeal for months and even years. 

Adding insult to injury is the uniquely American rule that a losing respondent in a Hague case – but not a losing petitioner – must normally be ordered to pay all of the legal fees and related expenses of the petitioner (including the often extraordinary attorneys’ fees of petitioner’s pro bono counsel calculated at their full hourly rates). While it may be appropriate to sanction a brazen international child abductor, the issues in Hague cases are often close and unpredictable and they are rendered much more so in the United States by virtue of the contradictory case law concerning such loose terms as “last shared parental intention” and “grave risk of harm.”  

Indeed, it is simply shocking that the United States Supreme Court has refused numerous applications for certiorari to address the issue of the interpretation of habitual residence, despite (a) the existence of a clear split among the federal circuits, (b) the express treaty requirement of uniform international interpretation, as well as prompt results, (c) the clear divergence between the majority U.S. approach interpretation and that which has been adopted by most other countries, (d)  the extraordinary waste of judicial and attorneys’ effort that results from confusion concerning the interpretation of the term, and from the interpretation of the majority of the circuits that focuses on the mindsets of the parents, and (e) the resulting fantastically high legal fees incurred by parents on both sides of these cases who are often simply trying to do the best to protect and nurture their children.  

The Old World still has a few things to teach us, I submit.

Argentina’s Hague Abduction Noncompliance Continues

In June 2017, the U.S. Acting Principal Deputy Assistant Secretary for Consular Affairs delivered another demarche to the Argentine Ministry of Foreign Affairs, notifying the Argentine authorities that the U.S. State Department had again cited Argentina in the 2017 Annual Report for demonstrating patterns of noncompliance during 2016. Parents should be alert to the fact that if a child travels to Argentina with one parent, and if that parent or his family then retain the child in Argentina, it is likely to be extremely difficult or impossible to secure the child’s return.

Lawline: International Child Custody & Abduction

My lecture on International Child Custody & Abduction is available at www.lawline.com/course-center/international-child-custody-abduction

Some reviews:

·  Extremely interesting. Presenter had very effective style.

·  Excellent course. One of the best presenters I’ve seen.

·  superb lecture by Jeremy - thanks

·  Thoroughly enjoyed. Fascinating area.

·  Good information on a complicated subject.

Notes on Egypt and International Child Abduction

Updated October 2017

Jeremy D. Morley

1.     The U.S. State Department has determined - and has reported to Congress - that Egypt has demonstrated a persistent failure to work with the U.S. Central Authority to resolve cases of international parental child abduction.

2.     The Superior Court of Washington for King County ruled in 2015 - based on the expert evidence of international family lawyer Jeremy D. Morley and another expert - that there is "clear and convincing evidence that Egyptian child custody laws violate fundamental principles of human rights." Therefore, Washington State should not treat Egypt as a "state" for purposes of the Uniform Child Custody & Jurisdiction Act.

3.     The Washington court found, inter alia, that Egyptian family courts apply specific Sharia law rules to child custody cases, under which a Muslim mother is disqualified from custody if she does not raise the child as a Muslim and / or if she does not comply with Muslim religious requirements or if she remarries or moves away from the father's domicile.

4.     It also found that Sharia child custody law in Egypt does not adequately take into account acts of domestic violence perpetrated by the husband against his wife and that a husband is entitled there to use physical force against a "disobedient" wife. For this reason the Washington court found that the Egyptian courts had no child custody jurisdiction, even though the parties and their son had lived in Egypt at all relevant times until the mother, without the husband's consent, left for the United States with the child, and even though the husband filed a case for custody in Egypt within six months thereafter.

5.     Egypt has not signed Hague Convention on the Civil Aspects of International Child Abduction.

6.     The removal of a child by the non-custodial parent to or within Egypt is not a crime in Egypt unless the child is subject to Egyptian court-ordered travel restrictions. 

7.     A left-behind parent must work within the Egyptian court system in order to obtain legal custody of the child in Egypt.

8.     Egyptian mothers of children born to a non-Egyptian father may request an Egyptian passport for the child from any Egyptian consulate.

9.     Foreign custody orders are not generally recognized in Egypt, and will not be given any weight unless they are in compliance with Sharia law.

10.     Egypt’s Personal Status Law primarily favors the mother. Mothers are most commonly considered to be the appropriate custodians of children up to age 15.  Normally, if custody disputes arise between parents, Egyptian courts uphold presumptive custody. A mother may lose her presumptive custody if she remarries or is otherwise deemed unfit, in which case the Egyptian courts recognize an order of preference of alternate adult custodians. For this purpose, the law categorizes women according to their priority of taking care of children: “The mother, then the grandmother from the mother’s side; then the grandmother from the father’s side, then sisters from the mother’s side; then sisters from the father’s side; then niece from the mother’s side; then niece from the father’s side, etc. Only then will the right come to the men side.”

11.     Egyptian law contains no provision for equal shared parental responsibility.

12.     While father’s automatically have guardianship rights, those rights are curtailed substantially as compared to other Islamic countries. 

13.     The provisions of the Personal Status Law apply likewise to Christians in Egypt as to Muslims.

14.     If the mother loses her presumptive custody the courts recognize an order of preference of alternate adult custodians with priority given to the mother's family in the following order:  maternal grandmother or great-grandmother; paternal grandmother or great-grandmother; maternal aunt; paternal aunt; maternal niece; paternal niece.  Only if these relatives do not exist, will the right of custody shift to a male.

15.     The Family Courts generally permit a non-custodial father to have visitation with his children for only three hours a week in a public place during the daytime, unless the parties agree otherwise 

16.     In 2003, the U.S. and Egypt signed a Memorandum of Understanding that purportedly confirms both countries' commitment to facilitating parental access to children in the other country. A similar memorandum was signed between Egypt and Australia. However the Memoranda do not address international child abduction, have no teeth and are relatively meaningless.

17.     In May 2015, the U.S. Embassy in Cairo delivered a demarche to the Egyptian government "noting the country's citation in the 2015 Annual Report on International Parental Child Abduction as demonstrating patterns of noncompliance." The Embassy had previously delivered a similar demarche to the Egyptian Government in 2014. 

Expert Testimony as to Potential International Child Abduction to Colombia

In an order issued on September 25, 2017, the Chancery Division – Family Part of the Superior Court of Union County, New Jersey, held that Jeremy D. Morley “was qualified by the Court, without objection, as an expert in the area of International Family Law and International Abduction cases. Mr. Morley was an extremely knowledgeable and impressive witness."

The Court further held that Mr. Morley’s testimony “clearly indicates that, while Colombia is a Hague signatory, its non-compliance and spotty enforcement record indicates that any parent would be justified in having a concern about their child being held in Colombia by a Colombian born parent.”  

Unenforceability of Japanese Custody and Hague Abduction Convention Orders

Jeremy D. Morley*

Child custody orders are not enforced in Japan. There is merely a provision for a fine, but it is usually de minimis and rarely employed.  It does not impede a parent with physical possession of a child from denying the other parent access to the child. This is one reason (among several) why child custody is not shared in Japan and why visitation provisions are usually limited to short, periodic and often supervised meetings, unless the parents are genuinely agree to provide otherwise. There is no court-ordered international visitation in Japan and overnight visits are rarely ordered unless the parent who possesses the child willingly agrees otherwise.

In July 2017, the Supreme Court of Japan issued a ruling in a custody case between two Japanese parents living in Japan. It overturned a most unusual and provocative lower court ruling that had provided for extensive visitation time for the father. Indeed, the Supreme Court ordered sole custody for the mother and adopted her proposal to permit the father to meet the daughter only once a month, since that was frequent enough for an elementary school student and more time with her father would be unduly burdensome on a child. The case was commenced seven years earlier, during which the mother had allowed the father to meet the child only six times. The decision to permit visitation of not more than once a month, and then only for a meeting, not for an overnight visit, is normal and typical in Japan.

When Japan agreed to adopt the Hague Abduction Convention, which provides for the court-ordered return of internationally-abducted children, the Government was required t o make provision for the first time for enforcement of such orders. Accordingly, certain Japanese family lawyers worked extremely hard to draft enforcement measures that would, for the first time, lead to the enforcement of the terms of a Family Court order concerning children. However, their initial proposals were significantly diluted, and while the Diet ultimately adopted an extraordinarily lengthy enabling act bringing the Hague Abduction Convention into Japanese law, its provisions concerning the enforcement of Hague Convention return orders have proven to be unworkable.

Thus, in a case in Osaka in which the Osaka High Court ruled that four children, whose Japanese mother had abducted them from the United States, must be returned to their American father in the U.S. The father ultimately prevailed on so-called “enforcement officers” from the Nara District Court to make some efforts to enforce the return order, but when the mother refused to cooperate they declared that enforcement was not possible.  Early this year, the Osaka court reversed its original return order and authorized the mother to retain the abducted children in her sole custody in Japan.

Just a few days ago, an advisory panel to the Japanese Justice Ministry proposed that some enforcement measures beyond mere fines should be enacted in order to enforce orders in domestic custody cases, and it suggested that, after public comments, the matters could be submitted to the Japanese Diet “as early as 2018.” Whether any such law will ever be enacted is entirely uncertain. And whether any enforcement measures that are enacted will themselves be enforced in practice is even more uncertain.

In the meantime, the basic approach continues, whereby Japanese child custody cases merely “rubberstamp” the principle that whichever parent has physical possession of a child may in practice decide whether or not to allow the other parent to see their child.  And since physical possession means everything, parents who do not fully trust the other parent to return the child are necessarily reluctant to part with possession for even a day, which explains why visitation in Japan is generally limited to intermittent short supervised daytime meetings in a secure location.

* Jeremy D. Morley, an international family lawyer in New York, who works with family lawyers throughout the world. He is the author of two leading treatises on international family law, International Family Law Practice and The Hague Abduction Convention.  He frequently testifies as an expert witness on the child custody law and legal system of Japan and other countries around the world.

Chinese Recognition of Foreign Divorce Judgments

Jeremy D. Morley

It has been reported that on 30 June 2017, “for the first time in history,” a Chinese court recognized and enforced a U.S. commercial monetary judgment. Dr. Jie (Jeanne) Huang, Chinese Court Unprecedentedly Recognized and Enforced a U.S. Commercial Monetary Judgment.

The case is Liu Li v. Tao Li and Tong Wu decided by the Intermediate People’s Court of Wuhan City, in which that court found reciprocity by U.S. courts and duly enforced a default money judgment from California.

The Civil Procedure Law of China authorizes Chinese courts to enforce foreign judgments if there is a reciprocal enforcement treaty with the foreign country in question or if the courts of the foreign country in fact provide reciprocity, but always subject to a broad exception on the basis of undefined public policy. There is no relevant treaty between China and the US, Now, apparently for the first time, a court in China has found reciprocity to exist in fact with the U.S., at least in a commercial matter in which there was a fixed money judgment.

However, that does not mean that foreign divorce or custody orders will be recognized in China. A research article previously reported on two efforts to enforce U.S. divorce judgments in Chinas, neither of which was successful.  Donald C. Clarke, The Enforcement Of United States Court Judgments In China: A Research Note  Mr. Clarke reported there that, “In 1967, the Yantai Municipal People's Court rejected an application to recognize and enforce a divorce judgment from a U.S. court. In 1985, the Supreme People's Court issued a directive to the Shanghai Higher-Level People's Court (one level below the Supreme People's Court) instructing it not to recognize a U.S. divorce judgment, but instead to consider the case anew.”

A decade later, Santa Ana dad still fights for his son’s return from Japan

http://www.ocregister.com/2017/08/29/a-decade-later-santa-ana-dad-still-fights-for-his-sons-return-from-japan/

By SUSAN CHRISTIAN GOULDING | sgoulding@scng.com | Orange County Register
8/29/17

In an alternate life, Keisuke Collins would have started high school last week as a freshman at Foothill High. But in reality, Keisuke lives an ocean away from Orange County and from the father who misses him.

In the wake of a bitter divorce, Collins’ ex-wife, Reiko, spirited their then-5-year-old to her native Japan. Officials there have made “zero attempt” to reunite father and son, he said.

Randy Collins, 56, has not spoken with the boy throughout his school career. “Not a day goes by that he isn’t on my mind,” said the Santa Ana resident.

Collins and dozens of other parents in similar situations around the country have bonded over their common cause. They share a passion for testifying before congressional hearings and for imploring politicians to take action. They share a national organization, Bring Abducted Children Home – which counts about 400 children living in Japan without access to their American parents. Mostly, however, they share heartache.

Collins’ ex-wife could not be reached for comment. The Orange County attorney who represented her in the divorce did not return requests for comment.

The last time Collins saw Keisuke was June 2008, when they spent a jam-packed Father’s Day together. They attended church, visited the Discovery Cube, grabbed a bite for lunch and played at the beach. Then Collins took the child back to his mom, expecting to see him again the following night.

But she phoned the next afternoon and said Keisuke was under the weather. Little did Collins realize she had placed the call from the Seattle airport on her way to Japan, ignoring a court order that forbade her from leaving the country with their child, he said.

“She was already gone,” said Collins, who works in mortgage lending. Thus began an expensive and fruitless legal effort to get Keisuke back.

That mission included a 2015 trip to Japan with his best friend since Westminster High School, Ta’alolo Puni Pa’u.

“My passport was flagged at the airport,” Collins said. “Police notified Reiko and kept tabs on me.”

Nine days later, he decamped without so much as a glimpse of his son.

“I was bawling my eyes out,” Collins said.

“He started out so hopeful that he at least would get to see Keisuke, but left in utter despair,” said Pa’u, a hotel executive in Dallas.

New York attorney Jeremy Morley, an expert in international family law, has represented numerous parents in Collins’ shoes. Japan, he said, takes a hands-off approach in custody disputes even when both parents are Japanese.

“Left-behind American parents have every reason to be mad at Japan,” Morley said. “Yet it’s a reflection of serious cultural differences, not malice. Japanese society regards the law as an instrument that should not interfere with the privacy of family life.”

U.S. Navy Captain Paul Toland, 50, knows too well that anger, frustration and pain.

Toland met his wife, Etsuko, while stationed in Japan. The couple welcomed daughter, Erika, in 2002.

Etsuko experienced postpartum depression and went with the baby to her mom’s home for what Toland assumed would be a brief visit. Instead, his wife cut off communication with him. Japanese courts offered no assistance, he said.

“If I’d had even an inkling that a U.S. ally could actually separate an American father from his child, I would never have let Erika out of my sight,” Toland said.

Etsuko committed suicide in 2007. Even after her death, Toland could not gain custody of his daughter. A court granted guardianship to Erika’s grandmother, who continued to block contact.

“Japan’s entire family law system is broken,” Toland said. “In a divorce, there is no joint custody. One parent — whoever happens to have possession of the child at that time — gets 100 percent parental rights. So in a sense, my daughter was orphaned when her mother died.”

Children usually stay with the mother after a divorce, Morley said, and the father has little involvement.

“A father who demands custody rights is viewed as someone disturbing family peace,” he said.

In 2014, Japan belatedly signed the 1980 Hague treaty on international child abduction. Although a positive step, Toland said, Japan continues to grant full rights to one parent regardless.

“For anything to change, Japan’s laws must change,” said Toland, now stationed in Hawaii. “Yes, there have been voluntary returns. But not one child has ever been returned from Japan through legal channels.”

U.S. Congressman Chris Smith of New Jersey champions the issue of cross-border child abduction, which he calls “child abuse.” He argues that the United States should be more assertive with Japan, “a flagrant violator.”

“When is enough, enough?” Smith said in an email. “What we need is a change in the culture of the U.S. State Department, which too often rewards its foreign service officers for appeasing countries in the name of maintaining ‘harmonious’ relations. The U.S. must show it means business when it comes to the return of our abducted children.”

The longtime congressman, who for years has worked with Bring Abducted Children Home, praises Collins as “an inspiration.”

“He is tireless and will never stop fighting,” Smith said.

Indeed, Collins promised, he “will never give up.”
“Keisuke is my son, my only child,” he said.

Judicial Reliance on Morley’s Expert Report on Risks of Child Visit to China

We are pleased to report that the Superior Court in Orange County, California has expressly relied upon my expert report on Chinese family law. The Court ruled that a father who was relocating to China should not be permitted to take his child for a visit to that country, in the face of opposition by the child’s mother, because of the potential grave difficulty of securing the return of an abducted child from China.