Successful UCCJEA Return of Child to Germany

by Jeremy D. Morley

jmorley@international-divorce.com

The best way to secure the return of a child who has been abducted to the United States may not be by using the Hague Convention on the Civil Aspects of International Child Abduction. It is often preferable to seek registration and enforcement, in a local Family Court in the county where the child is currently located, of a custody order from a court in the country where the child was living. This was well borne out in a recent case in the Vermont Superior Court, Windsor Unit, Family Division.

The child in question had always lived in Germany, originally with both parents, and then with his father after the mother relocated to Vermont. The parties entered into an agreement stipulating that the mother had access to the child during school vacations. A court in Germany then issued a ruling which approved of the parties' agreement and provided for sanctions for violation of its terms.

This past summer, the child went to Vermont for a scheduled four-week summer vacation with his mother in Vermont. The mother then failed and refused to return the child to Germany, claiming that he was being neglected there.

The father consulted us about initiating a case in the U.S. under the Hague Abduction Convention. We anticipated that in a Convention case the mother would assert the exception contained in Article 13(b) of the treaty of “grave risk of harm” that a return of the child would expose the child to “physical or psychological harm or otherwise place the child in an intolerable situation.”

We were confident that any such claim would ultimately fail, based on the claims already made by the mother in purported justification of her refusal to return the child. But we anticipated that, despite the language in the Convention and in the International Child Abduction Remedies Act requiring the expeditious resolution of any Hague Convention case, a resolution of the grave risk claim would require a battle between opposing medical and psychological experts, testimony by an array of witnesses concerning the child's physical health, emotional and psychological health, social life and educational circumstances, extensive pre-trial discovery, extensive briefing and a lengthy trial, all of which would be extremely expensive and emotionally draining for the client.

Accordingly, we recommended an alternative procedure, that of using the registration of enforcement provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”), which requires a court in the U.S. state in which a child is located to register and enforce a custody order issued by the child's home state, even if the home state is a foreign country. The UCCJEA does not permit the alleged abductor to assert in the U.S. court the exceptions that can be asserted in a Hague case. Once a notice to register a foreign custody order is properly given, the foreign order must be registered unless the respondent establishes that (1) the issuing court had no jurisdiction to enter the child custody determination; or (2) the child custody determination sought to be registered has been vacated, stayed, or modified by a court having proper jurisdiction to modify same; or (3) notice or an opportunity to be heard was not given to the person contesting jurisdiction provided he or she was entitled to receive notice. Once the order is registered, there are no defenses. By contrast, exceptions are invariably claimed in Hague Convention cases and if one exception is upheld, return may be denied.

Since we are not admitted to practice in Vermont, we located local counsel there for the client, the firm of Hershenson, Carter, Scott & McGee, and we then strategized with and collaborated with that firm about the case throughout the proceedings, which they conducted with great care and success. The case was hotly contested by highly experienced counsel, including lead counsel from New York. Nevertheless -- and despite the respondent's cross-petition for temporary emergency jurisdiction, technical objections to registration, requests to delay the hearing, and the introduction of evidence by a clinical and licensed psychologist from New York -- the case was concluded within one month and the child was successfully returned to his home in Germany. We were delighted to help procure such a satisfactory result for a very grateful client.

International Child Abduction Cases in Japan: The Role of Family Court Investigating Officers

by Jeremy D. Morley

jmorley@international-divorce.com

International child abduction cases in Japan, brought pursuant to the Hague Abduction Convention, frequently require the involvement of Family Court Investigating Officers (FCIO). These are court officials who are government employees with training in psychology, sociology and pedagogy, and who are assigned in Family Court matters to investigate allegations of domestic abuse, child access problems and their domestic relation issues. They have broad authority to interview parents and children, to make home visits, to “accurately ascertain the objective facts,” to understand “the emotions that underlie the respective arguments of the parties,” to make predictions as to future outcomes, to encourage the parties to resolve their disputes, and to “make reports to the judge with his /her opinion on the solution.”

In Hague Convention cases, investigations by FCIOs are ordered primarily when a taking parent claims that the child is now “settled in the new environment” and when a taking parent claims that the child objects to being returned. When it is claimed that the child has become “settled in the new environment,”(which can only be relevant if the proceeding is commenced more than one year after the date of the wrongful taking or retention, the FCIO conducts a child interview, does a home study, collects information relating to the child's school and extracurricular activities and then submits a report with his/her opinions. On the other hand, in situations in which the taking parent relies on the purported objections of the child,  the FCIO submits a report by using “age-appropriate interviewing skills on the child to ascertain whether the he/she has attained an age and degree of maturity so that his/her views may or may not be taken into account.” I expect that FCIO's are used also in examining claims that the child will be at grave risk of harm if returned overseas.

I had the pleasure of meeting and interviewing senior Family Court Investigating Officers during a recent visit to Japan as the guest of the Japanese Hague Convention Central Authority. The officers were charming and sincere. However, I question the extent to which they fully understand the custom, laws and child-rearing norms of western countries, and the extent to which, despite their best efforts, they are able to “put themselves in the shoes” of left-behind non-Japanese parents whose children have been taken to and retained in Japan and to understand the circumstances of both Japanese and non-Japanese children who have been raised outside Japan.

Small World, Big Problem: Divorces Involving Dual Citizenship

- Jeff Landers
Contributor, Forbes

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

Child Relocation to Brazil, Mirror Orders and Homologized Orders

 by Jeremy D. Morley

www.international-divorce.com

 A court order rendered outside Brazil, that authorizes the relocation of a child to Brazil from the child's current place of residence subject to certain specified conditions concerning the ongoing custody and access rights of the non-relocating parent, is not normally enforceable in Brazil.  If the court order is not “homologized” in Brazil, the Brazilian courts will at best consider the foreign order as an item to consider in considering the best interests of the child under the principles of Brazilian law. Even if the foreign order is homologized in Brazil there is no guarantee that after the child has moved to Brazil the terms will remain in effect over time or, indeed, that they will actually be enforced.

A “mirror order” is an order that is issued by a court in another jurisdiction which contains the same terms as those that are contained in the order that is being mirrored. Inherent in the mirror order concept is the fact that the foreign court shall have the right -- and more importantly the obligation -- to enforce the terms contained in the order, specifically including the obligation to effectuate the prompt return of the child at the end of a designated period of time. Equally critical is that the foreign court should not be permitted to modify the original order. Mirror orders are unavailable in Brazil.

A “homologized order” is a court order that has been approved or confirmed by another court. In the case of Brazil, such a procedure is available by means of an application to Brazil's Superior Court of Justice (Superior Tribunal de Justiça) through a procedure called “homologação de decisão estrangeira” (known colloquially as “HDE”).

The responsibility to obtain the homologized order should normally be given to the party who seeks to take a child to Brazil and the other party should be required to cooperate fully with the process. The process can take a few months to complete if both parties jointly present it to the Superior Court of Justice, or otherwise it will take far longer.

If the Superior Court court is satisfied that due process was followed in the foreign country and that there was no breach of Brazilian public policy, a Brazilian order will be issued that will recognize the foreign order. However, a foreign order will not be enforced if it is deemed to violate the public policy of Brazil. Article 17 of the Introduction Act to Brazilian Law Rules specifies that:

“Art. 17. The laws, acts and judgments of another country, as well as any declarations of will, will not be effective in Brazil, when they offend national sovereignty, public order and morality.”

The mere fact that a foreign custody order is homologized in Brazil does not guarantee that the order will remain in effect and unchanged over time. Brazilian courts will have jurisdiction to hear an application to modify any such order once the child has relocated to and is resident in Brazil. Under Brazilian law, child custody orders are not final orders and are always subject to modification whenever a court finds that there has been a change in family circumstances.

The normal rule in Brazil is that custody should be joint custody and that there is shared financial responsibility. Such issues can be revisited whenever a parent alleges a change of circumstances. If the Brazilian court determines that such a change has occurred since the date of the foreign court's determination, it is fully authorized to modify the foreign order as it deems appropriate, taking into consideration the child's best interest.

Based on our experience with custody cases in Brazil, and in light of the jurisprudence and practices of the courts in Brazil, it must be anticipated when a parent of Brazilian origin is permitted to relocate a child to Brazil subject to specific rights of continuing access and decision-making for the “left-behind” parent, those rights may well be modified by a Brazilian court  upon the application of the relocating parent. It is obvious that a child's circumstances will be dramatically affected by virtue of the relocation itself and the attendant changes in the child's that will inevitably result.

_____________________________

Jeremy D. Morley, a New York attorney, has provided expert evidence on the child custody laws and procedures of Brazil for courts in Australia, Canada, and the USA (California, Colorado and New Mexico).

He has gained extensive knowledge and experience concerning Brazilian family law matters from handling numerous family law cases concerning Brazil, from numerous consultations with Brazilian family lawyers concerning the laws and practices of Brazil, and from extensive research over many years concerning Brazilian family law. He has consulted with many clients concerning Brazilian family law, most particularly as to international child custody and international child abduction, always acting with and through lawyers in Brazil whenever appropriate. He has represented several clients whose children have been abducted to Brazil. Contact him at info@international-divorce.com

 

Child Visits to China

Change in China's Passport Regulations

By Jeremy D. Morley

We have long raised concerns that China does not recognize foreign child custody orders, is not a party to the Hague Convention on the Civil Aspects of International Child Abduction (except for Hong Kong and Macau), is not a party to any bilateral treaties concerning international parental child abduction, and bars children with Chinese passports, including dual national children, from leaving China without the consent of both parents. https://www.international-divorce.com/d-china.htm

A parent's concerns about potential international child abduction to China must always be taken extremely seriously.

Such concerns are now magnified by reason of a recent and most significant change in the policy of Chinese consulates concerning the issuance of Chinese passports to the children of Chinese nationals.

Previously, both parents of a child were required to be present at a Chinese consulate in order for the consulate to issue a passport for their child. This served to ensure that one parent of a child could not unilaterally and covertly obtain a Chinese passport for the child without the knowledge or consent of the other parent.

However, the Chinese Consulate in Chicago has now stated that, for the purpose of convenience, it will now issue a child's passport to only one parent if that one parent brings the child to the Consulate.

In addition, the Consulate has liberalized the requirements for the renewal of a child's Chinese passport. Previously, both parents had to appear at the Consulate to obtain a renewal of a child's passport and they had to bring the same papers as were required for the initial passport application. Now, a renewal requires only one parent and significantly less paperwork.

It is important for family lawyers to recognize that United States courts have no power to control the issuance of passports and travel documents by other sovereign countries.

The easier that it is for a parent to obtain a foreign passport for a child, the greater the level of concern of possible international child abduction, especially because the United States has no exit controls.

PRENUPTIAL AGREEMENTS: HUNGARY

Prenuptial agreements are enforceable under Hungarian law, as are post-nuptial agreements. 

Hungary

Section 4.63(1)  of the Civil Code of Hungary provides that, “The function of the marriage contract is to permit the parties to the marriage or the spouses to define a property regime - in lieu of marital community of property - with a view to governing their property relationships during the marriage from the time specified in the agreement.  Subsection (2) provides that, “In the marriage contract the parties may define several different property regimes relating to certain specific assets, and they may even deviate from the rules on statutory and optional property regimes, if such deviation is not precluded by this Act.” For the validity of the prenuptial agreement as between the spouses themselves, the only requirement concerning form is that the agreement shall be an “authentic agreement” between the parties. For validity vis-à-vis third parties, the agreement should be recorded in the national register of marriage contracts.
The Hungarian Act on Private International Law (Article 28) authorizes the parties to choose the law that will apply to their matrimonial property rights. They may choose the law of the state of one party's nationality, the law of the state of one party's habitual residence, or the law of the court that will handle a divorce case.
The definition of a matrimonial property contract in the Civil Code does not include provisions concerning spousal support or child support.

STEP-BY-STEP ANALYSIS IN ANY HAGUE ABDUCTION CONVENTION CASE

by Jeremy D. Morley

www.international-divorce.com

The structure of the Hague Convention on the Civil Aspects of International Child Abduction requires a court in any case brought under the Convention to follow a step-by-step process in order to apply it logically and correctly. Those steps are as follows:

1.                  First, the court must determine when the removal or retention took place. It cannot determine the habitual residence of the child without first deciding the relevant date as of which the habitual residence must be determined.

2.                  The court must then determine the child's habitual residence immediately prior to that date.

3.                  It must then ascertain whether the Convention was in force, as of the date of the wrongful removal or retention, between the country of habitual residence and the United States.

4.                  Next, it must determine what rights the petitioner had at that time under the law of the child's habitual residence and whether or not those rights constitute “rights of custody” within the meaning of the Convention.

5.                  The court must then determine whether the petitioner was exercising those custody rights at the time of removal or retention.

6.                  It must determine whether the removal or retention breached those custody rights.

7.                  It must determine whether any exceptions to the Convention have been established.

8.                  If an exception is established, the court must determine whether to exercise its discretion to nonetheless return the child.

9.                  Next, if the child is to be returned to its country of habitual residence it must determine the conditions under which the return shall be made.

10.              Finally, if a petition is granted, it must determine the legal fees and expenses, if any, to be paid by the respondent.

An application under the Hague Abduction Convention may be made when a child is taken or retained across an international border, away from his or her habitual residence, without the consent of a parent who has rights of custody under the law of the habitual residence, if the two countries are parties to the Convention. The child must be promptly returned to the habitual residence unless the return will create a grave risk of harm to the child or another limited exception is established.

An attorney must be ready to file a Hague Convention application and institute or defend a Hague Convention lawsuit on extremely short notice.

Prompt action may be critical. The Convention specifically requires that hearings be conducted expeditiously. Indeed, it is recommended that Hague cases should be completely concluded within six weeks. A Hague case can theoretically be instituted more than a year after the abduction but a defense (or, more precisely, an exception) will then arise if the child has become settled in the new environment. In practice, the longer a child is in a new place the more likely it is that a court will be reluctant to send the child away.

Fast action by the left-behind parent is also necessary to help prevent a claim that the parent has acquiesced in the child's relocation, and to help to bolster a claim that the left-behind parent consented to the taking or retention in the first place.

Clients must move quickly to obtain the documents needed to file the initial application and then to collect the documents needed for the hearing. They should normally be asked to prepare a detailed family history and to assist the attorney to develop evidence as rapidly as possible.

For more tips, see How to Win a Hague Convention Child Abduction Case.

TURKEY’S ONE-PARENT RULE

by Jeremy D. Morley

www.international-divorce.com

The Civil Code of Turkey (Article 336) expressly provides that, when parents divorce, only one parent may be given custody over their child to the complete exclusion of the other parent, either by agreement or by order of the court (Article 819, Turkey Civil Code). Parental authority includes both legal and physical custody.

The decision as to which parent will receive custody is based on a consideration of the best interests of the child, which may include a consideration of the employment, income and lifestyle circumstances of the respective parents. Usually the non-custodial parent will be awarded visitation.

In an important ruling in 2018, the Turkish Court of Cassation ruled (2017 / 2-3117 DECISION 2018/1278) that the views of a child of adequate maturity should be considered in an application to modify custody, in accordance with the terms of the United Nations Convention on the Rights of the Child and the European Convention on the Exercise of Children's Rights.

The one-parent rule violates, I submit, the fundamental human rights of a child to have two parents in his or her life and of a parent to have his or her child in his or her life. It is also plainly contrary to the best interests of a child to be deprived arbitrarily and automatically of his fundamental right to be parented by two parents.

However, in Matter of Yaman, 167 N.H. 82, 105 A.3d 600 (2014), the Supreme Court of New Hampshire ruled that the Turkish sole custody law was not “the type of “egregious” or “utterly shocking” violation” of human rights that would preclude it from enforcing a Turkish custody order under the UCCJEA, especially because in that case the non-custodial parent had access rights..

Nonetheless In contrast, in recent years courts in Turkey have themselves declared that human rights laws require their courts to permit joint custody, at least in certain circumstances. In particular, since Turkey has adopted Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5 of which provides that “Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution,” the 2nd Chamber of the Court of Cassation upheld a joint court order concerning British parents. Whether that ruling had opened the door for joint custody rulings in Turkey remains to be seen.   

HONG KONG DIVORCE: JURISDICTION AND INCONVENIENCE

by Jeremy D. Morley

The courts of Hong Kong deal with large numbers of international divorce cases. Hong Kong has jurisdiction if certain specified conditions are fulfilled but it is important to understand that the courts may decline jurisdiction on the grounds of inconvenience in some cases. Read more...

NOTES ON LEBANON AND CHILD ABDUCTION

Jeremy D. Morley

Return of children abducted to or in Lebanon

• Jeremy Morley has testified as an expert witness with respect to the laws and practices of Lebanon in respect of international child abduction to Lebanon, and his testimony has been accepted and relied upon.

• There are extreme difficulties in returning a child to the United States from Lebanon when retained by a Lebanese parent.
• Lebanon is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.
• There are no extradition treaties between Lebanon and the United States.
• Under Lebanese law, Lebanese nationals may prevent their wives and children (even if they are American citizens) from leaving Lebanon.
• Lebanon does not recognize international parental kidnapping as a crime.
• Issues of child custody and divorce in Lebanon are generally decided in religious courts under religious law. Thus, if the father is a Sunni Muslim and the mother is a Christian the custody of their children will normally be decided by a Sunni Muslim court.
• One might petition a civil court to handle a custody case instead of a religious court. The issue would be whether the religious court has jurisdiction. It could take up to two years to have the civil court assume jurisdiction and a minimum of four to five years to have the case decided.
• For Sunni Muslims, the mother has physical custody of her children until they are 12 years old, and then they are to be in the physical custody of their fathers.
• For Shia Muslims the mother's physical custody generally ends for boys at age 2 and for girls at age 7.
• For Druze, the mother's physical custody generally ends for boys at age 12 and for girls at age 14.
• For Christian Orthodox, mothers have custody of their daughters until the age of 15 and for sons until the age of 14.
• For Protestants, mothers have custody of their daughters until the age of 12 and of sons until the age of 13.  
• The Catholic Personal Status lawdoes not state a specific age but provides that mothers may nurse their babies until they are 2 years old.
• If a father establishes that the mother is unfit or lacking good moral character, she will lose any right to the child. Muslim law requires a child to be raised in the Muslim faith, and if it were proven that a mother tried to raise the child as a Christian, she could be found unfit.
• American/Lebanese dual nationals who carry Lebanese papers will be treated as Lebanese nationals by security authorities.
• A child who is a dual American and Lebanese citizen would be bound by Lebanese law in the eyes of the Lebanese civil courts.
• The U.S. State Department cannot offer any real assistance even if there were a United States court order directing the return of the child from Lebanon.

Japan’s One-Parent Rule

by Jeremy D. Morley
www.international-divorce.com

Japanese law provides only for sole custody. The Civil Code of Japan expressly and unambiguously provides that, when parents divorce, only one parent may be given parental authority over their child to the complete exclusion of the other parent, either by agreement or by order of the court (Article 819, Japan Civil Code). Parental authority includes both legal and physical custody. There is no system in Japan for divorced parents to share parental authority.

The effect of Japan’s one-parent rule is that the parent who does not have custody has no rights whatsoever in Japan to exercise any of the inherent rights of a parent. If both of a child’s parents are good parents but are unable to agree on custodial matters, Japanese law requires that one of the parents must automatically be stripped of all of his or her rights concerning the child (with the very limited exception of an extremely limited visitation right). The courts in Japan have no discretion in this regard. The one-parent rule is mandatory and totally inflexible.

On September 27, 2019 the Japanese Justice Ministry announced that it “will launch a study by the end of this year on whether to introduce a system of joint custody in Japan, where child custody is awarded to one parent after divorce” and that the panel will then spend “more than a year compiling a report.” However, it is far from clear that the necessary changes will be made, since the proposal to modify the law has already generated substantial opposition.

It is alien to Japanese tradition and Japanese law for a child’s parents to have any significant sharing of parental responsibility upon a family break-up. When parents separate in Japan, one parent invariably takes the child and the other parent largely or entirely disappears from the child’s life. It is an extension of the traditional Japanese custom that children belong to a family and can be registered on the official Japanese koseki (family register) of only one family. Thus, the one-parent rule is not merely the mandated law but it is also the societal norm. Indeed, it is considered entirely inappropriate in Japan for the parent who does not have custody of a child to interfere with family peace. and with the child’s best interests, by demanding more than occasional and extremely limited contact with a child. It is also considered to be entirely inappropriate for a Japanese court to interfere with family peace by taking any significant action against the parent who is in possession of a child except for suggesting and encouraging mediation or conciliation in the context of the rule that a child “belongs” to the one parent (and his or her family) that has custody of the child.

A significant reason for the one-parent rule, as well as the concomitant practice of drastically limiting child visitation, is to allow and encourage the custodial parent to establish a new family with a new spouse. It is common in Japan for a custodial parent’s new spouse to adopt a child from a prior marriage. Thus, if the noncustodial father has significant contact with his child, it would significantly hinder the mother’s opportunity to remarry, which would be considered in Japan to be unfair to both the mother and the child.

I have worked with Japanese counsel on several cases in which we tried to create a shared decision-making regime for children living in Japan, even when both parents agreed to continue living in Japan. Unfortunately, all such efforts were entirely unenforceable and unworkable, and all efforts to secure the meaningful intervention of the Japanese courts to enforce the terms of the parents’ prior stipulated orders proved entirely futile. 

Japan’s one-parent rule violates the fundamental human rights of a child to have two parents in his or her life and of a parent to have his or her child in his or her life. It is also plainly contrary to the best interests of a child to be deprived arbitrarily and automatically of his fundamental right to be parented by two parents.

New York Court Upholds Morley Testimony Concerning Japanese Family Law

Jeremy D. Morley

www.international-divorce.com

A New York court today, in a hotly contested case between Japanese parents living in New York, relied entirely on my expert evidence concerning Japanese family law and procedure in dismissing the application of one parent to relocate the parties’ Japanese children to Japan.

The court ruled that there was “overwhelming evidence” and “clear and convincing evidence” that Japanese laws and procedures would enable the taking parent to cut the left-behind parent off from the children.