INTERNATIONAL CHILD RELOCATION FROM CANADA

 by Jeremy D. Morley

With effect from March 1, 2021, the Divorce Act of Canada has made significant changes to the Canadian law concerning child relocation, including international relocation. However, while the legislation contains a helpful clarification concerning the applicable burden of proof, it includes a list of factors that should be considered in relocation cases that are plainly deficient in respect of international child relocation cases.

Burden of Proof  

The new law provides that the burden of proof in a relocation application will shift depending on whether or not the parties are to share custodial time equally.

If the parties substantially comply with an order that provides that the child spends “substantially equal time” with each parent, the party intending to relocate has the burden of proving that the relocation would be in the best interests of the child.

But if the parties substantially comply with an order that provides that their child “spends the vast majority of their time” with the party who intends to relocate, the other party has the burden of proving that the relocation would not be in the best interest of the child. (Sections 16.93(1) and (2) of the Divorce Act).

For “in-between” situations, where the child is spending unequal time with the parents but less than the vast majority of time with one, “each parent must demonstrate why the proposed relocation is or is not in the best interest of the child.” (Section 16.93(3) of the Divorce Act).

Statutory Factors to Consider

In deciding whether a relocation is in the best interest of a child, the new law requires that, in addition to considering the usual factors to be considered in any custody case, the court should also consider certain specific additional factors relating to relocation. These factors are:

1. The reason for the relocation;
2. The impact of the relocation on the child;
3. The parenting time and involvement that each person has with the child;
4. Whether the person planning the relocation has given the proper notice;
5. Whether there is a court order and agreement that says a child is supposed to live in a certain place;
6. Whether the proposal to change the parenting arrangement is reasonable; and
7. Whether the people involved have been following their courts under an agreement.

A Serious Omission

The list of factors set forth in the Divorce Act to be considered does not include a group of special factors that are of the most extreme significance in any international relocation application. These factors are:

1. a) Whether the courts and legal system in the foreign country will recognize and effectively enforce the relocation provisions of the Canadian court;
2. b) Whether the foreign court will have the power to modify the Canadian order;
3. c) The criteria that the foreign court will adopt when considering a modification application; and
4. d) Whether even the domestic custody orders issued in the foreign country will be effectively enforced

Consider the case of an application to relocate a child from Canada to Japan. If the Canadian court is not provided with admissible and reliable evidence as to the laws and procedures of Japan -- concerning such matters as the recognition in Japan of foreign custody orders, the jurisdiction of a Japanese court to issue custody orders once a child has been relocated to Japan, the substantive laws of Japan concerning child custody and child visitation, and the extent to which Japanese custody orders are actually enforced in Japan -- the Canadian court may well act under the assumption that Japanese law and procedure are similar to the Canadian law and procedure. But that assumption would be totally mistaken and could prove extremely damaging to a relocated child and to a left-behind parent.

In fact, (a) the courts in Japan will not recognize the Canadian custody order, (b) the courts in Japan will have unfettered child custody jurisdiction once a child is living there, (c) the Civil Code of Japan precludes any sharing of custody, (d) there is no reported case of international child visitation ever having been awarded by a Japanese court, and (e) visitation orders are unlikely to be enforced in Japan.

Thus, expert evidence concerning Japanese family law would be an essential element of any considered evaluation of an application in Canada for relocation of a child to Japan. The same applies to relocation to any other foreign destination.

It is essential in any contested case in which a request is made to move a child overseas that the court is provided with reliable advice concerning the effect of domestic courts order in the foreign country. It is surprising and unfortunate that the new Canadian law does not contain an explicit requirement that such information must be s

Jeremy D. Morley, a New York lawyer who concentrates exclusively in international family law, and formerly an Asst. Professor of Law at the Faculty of Law, University of New Brunswick, has written, lectured and testified extensively in Canada and many other jurisdictions as an expert on Japanese family law and the family laws of numerous other countries. His website in www.international-divorce.com

Informal Notes on Habitual Residence in U.S. Courts in Hague Abduction Convention Cases

by Jeremy D. Morley

I had the pleasure this week of participating in a panel discussion organized by the Singapore Bar Association with three brilliant international family lawyers, Yap Teong Liang of Singapore, Kiran Dhaliwal of Kuala Lumpur, Malaysia, and Keturah Sageman of Sydney, Australia. The topic was Relocation v Abduction – Fight or Flight: Is Abduction a Hindrance to Return? We used a case study primarily drafted by T.L. Yap. 

Here are some of my extremely informal notes on the issue of habitual residence in a U.S. Hague Abduction Convention case. For more on the topic see my book.

If the habitual residence issue were heard in a U.S. court the outcome would definitely be uncertain. Last year, the U.S. adopted a new test of habitual residence in the U.S. Supreme Court’s Monasky case. The good news is that the test has now been clearly and simply stated. The bad news is that the test has now been clearly and simply stated. The test is simply that of the “totality of the circumstances,” but no one really knows what that means, since it is almost completely fact-based.

What is clear is that the old rule adopted by several U.S. circuits, of a primary focus on the last shared intention of the parents, has mostly been abandoned and that it has been replaced by looking far more at the situation through the eyes of the child. Where did the child think was her “home”?

In the case in the excellent case study, we were given some of the relevant circumstances, but we would need many more details in order to be able to make a prediction as to how a U.S. court would rule.

In support of Australia being the habitual residence is the child’s one-half year in Sydney plus her attending school in Sydney during that time. In support of the habitual residence still being in the U.S. is that she lived there for the first 8 years of her life, her father kept the family apartment in New York and the family retained Sophia’s school place in New York and that the parties’ original intention was to return to New York. The parents’ citizenships cancel each other out and in any event are probably not significant to a 9-year-old child. Among the facts that we still need to know are the following:

·       Where are Sophia's friends?

·       Is Sophia close to family in Sydney or more with family in New York?

·       Where is their family’s “stuff”? Where is Sophia’s stuff in particular?

·       Did they buy new furniture in Sydney? Did they buy cheap furniture from IKEA or expensive designer furniture from a high-end store?

·       Has Sophia settled well into school in Sydney or was she doing better in school in New York?

·       And with respect to the parents’ agreement to return to New York if things didn’t work out in Australia, was a return to New York implicitly contingent on Sergio's good behavior? Was there an implied term that he would do better and that he would work on repairing the relationships? Since he is the one who apparently sabotaged the agreement by hitting Sophia, isn’t it wrong to reward him for his own misconduct?

I should note that, unlike the affidavit-based focus in Singapore, the presentation concerning these issues in U.S. courts will primarily by means of witness testimony, which may include intense cross-examination. In addition, even in an expedited Hague case, pre-trial discovery is often ordered, and this may include pre-trial depositions as well as extensive document production.

My final point on habitual residence is that the Supreme Court ruled in Monasky that these issues are to be decided by the trial court and should not normally be reviewed on appeal because they are so intensely fact-based, which is the province of a trial court, not an appeal court.

 

Date of Wrongful Abduction Governs Hague Convention Habitual Residence Determinations

 

by Jeremy D. Morley

In any Hague Abduction Convention case, the court must determine the date of the alleged wrongful removal or retention of the child before determining the child's habitual residence. A decision on the applicable date may well resolve the entire case.

Yesterday, the Sixth Circuit in Douglas v. Douglas (6th Cir.9/21/21, Case No. 21-2335), in which I had an advisory role, affirmed an award of summary judgment dismissing a Hague petition on the ground that the child was habitually resident in the United States, rather than Australia, where she was born and lived for four months until her mother took her to Michigan, to live there permanently (mother’s claim) or for a mere visit (father’s claim).

It is most unusual to succeed on a motion for summary judgment in a case about habitual residence, because the Supreme Court’s test of “totality of the circumstances,” established in Monasky v. Taglieri, 140 S. Ct. 719, 723 (2020), is factual and open-ended. See: Jeremy D. Morley, The Hague Abduction Convention: Practical Issues and Procedures (3d ed).

But here the petitioner had alleged in his original petition that the wrongful retention had not occurred until 7½ months after the infant child was taken to Michigan. This allowed the trial judge to grant summary judgment in respondent’s favor, since the infant had consensually spent so much time in Michigan before the date of the alleged wrongful retention.

The Sixth Circuit affirmed that ruling, stating that, after 7½ months in Michigan (which followed only four months in Australia, during which the parents had separated and the mother had planned to return to the United States), the child was “at home” in Michigan on the relevant date.

Critically, although the petitioner had sought to amend his pleadings to allege that an earlier wrongful retention date should be used, that application had been denied, and that determination had not been appealed.

U.S. Diplomatic Protest – Ecuador & International Child Abduction

 

Jeremy D. Morley

In May 2021, the U.S. Embassy in Quito, Ecuador delivered a formal diplomatic protest known as a “demarche” to members of President-elect Guillermo Lasso’s transition team. The Department noted that Ecuador has been cited for demonstrating a pattern of noncompliance in the 2021 Annual Report on International Child Abduction during 2020, specifically for judicial delays.

Specifically, the State Department has determined that the Ecuadorian judicial authorities failed to regularly implement and comply with the Hague Convention on the Civil Aspects of International Child Abduction.

As a result of this failure, 17 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average, these cases were unresolved for one year and three months.

Ecuador was previously cited for demonstrating a pattern of noncompliance in the 2015-2020 Annual Reports.

 

U.S. Diplomatic Protest – Costa Rica & International Child Abduction

Jeremy D. Morley

In May 2021, U.S. Embassy San Jose delivered a formal diplomatic protest known as a “demarche” to the Ministry of Foreign Affairs of Costa Rica concerning Costa Rica’s citation for demonstrating a pattern of noncompliance in the 2021 Annual Report on International Child Abduction for demonstrating a pattern of noncompliance during 2020.

Department officials raised continuing concerns with the Government of Costa Rica about the Costa Rican judiciary’s persistent failure to regularly implement and comply with the Hague Convention on the Civil Aspects of International Child Abduction.

Specifically, the Department raised concerns with delays in the judicial process and Costa Rica’s compliance with the Convention.

 

 

U.S. Diplomatic Protest - Brazil & International Child Abduction

 

 Jeremy D. Morley

In June 2021, the Deputy Chief of Mission at U.S. Embassy Brasilia delivered a formal diplomatic protest known as a “demarche” to the Brazilian Ministry of Foreign Affairs, notifying Brazilian officials that the Department again cited Brazil in the 2021 Annual Report on International Child Abduction for demonstrating a pattern of noncompliance during 2020.

The demarche expressed concern about Brazil's continued failure to comply with its obligations under the Hague Convention on the Civil Aspects of International Child Abduction.

In particular, the demarche noted U.S. concerns with excessive delays within Brazil's judiciary and language in more than one judicial decision that was clearly noncompliant with the Convention.

The State Department has reported that the Brazilian judicial authorities failed to regularly implement and comply with the provisions of the Convention and failed to take appropriate steps to locate children in an abduction case, contributing to Brazil's persistent failure to implement and abide by the provisions of the Convention.

As a result of these persistent failures, 75 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average, these cases were unresolved for three years and eight months.

Brazil was previously cited for demonstrating a pattern of noncompliance in the 2006-2020 Annual Reports.

 

 

HOW TO WIN A HAGUE CONVENTION CHILD ABDUCTION CASE

 

by Jeremy D. Morley Author of The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers, published by the American Bar Association. Here are some tips for attorneys and clients faced with instituting or defending child abduction proceedings under the Hague Convention on the Civil Aspects of International Child Abduction, whether in the United States or internationally.

U.S. Diplomatic Protest - Argentina & International Child Abduction

 

Jeremy D. Morley

In June 2021, the U.S. Embassy in Buenos Aires delivered a formal diplomatic protest known as a “demarche” to the Argentine Ministry of Foreign Affairs and Worship, notifying Argentine officials that the Department cited Argentina in the 2021 Annual Report on International Child Abduction for demonstrating a pattern of noncompliance during 2020.

The demarche expressed concern about Argentina’s continued failure to comply with its obligations under the Hague Convention on the Civil Aspects of International Child Abduction.

In particular, the demarche noted U.S. concerns with excessive delays within Argentina’s legal system, which allows multiple appeals both on the merits of the decision and on the manner in which decisions are enforced.

The State Department has reported that, in 2020, the Argentine judicial authorities failed to regularly implement and comply with the provisions of the Convention. As a result of this failure, 67 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average, these cases were unresolved for six years. Argentina was previously cited for demonstrating a pattern of noncompliance in the 2015-2020 Annual Reports.

BANGLADESH, THE HAGUE ABDUCTION CONVENTION, AND AN ABDUCTION FROM JAPAN

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

A terrifically interesting issue is pending before the courts of Bangladesh. My client is a Japanese doctor in Tokyo. Her estranged husband abducted the children from Tokyo to Dhaka, Bangladesh. The Family Court in Tokyo has ordered their return, but the father has failed to comply with the order. The matter is now before the courts in Bangladesh. However, Bangladesh has not signed the Hague Abduction Convention. See e.g. this article.

In my opinion, at its core, the fundamental issue in the Bangladesh courts in is whether Bangladesh is a safe haven for international child abduction and, indeed, an international outlaw.

One theory that may be pursued is that, since more than 100 countries have adopted the Hague Convention and since the Hague Abduction Convention is the most important international treaty in all of family law (possibly subject to the U.N. Convention on the Rights of the Child 1989), the provisions of the Convention have become part of customary international law and should therefore be applied by the courts in Bangladesh.

This theory is consistent with the decision of the High Court Division of the Supreme Court of Bangladesh in 2017 in considering the relevance of the principle of non-refoulement in relation to a Rohingya refugee being held in detention long after completing a formal prison sentence. Although Bangladesh was not a party to the 1951 United Nations Convention relating to the Status of Refugees, the Supreme Court determined that it was nevertheless applicable in Bangladesh since the treaty had “become a part of customary international law which is binding upon all the countries of the world, irrespective of whether a particular country has formally signed, acceded to or ratified the Convention or not.” Refugee and Migratory Movements Research Unit (RMMRU) v Government of Bangladesh, Writ petition no. 10504 of 2016, Bangladesh: Supreme Court, 31 May 2017 www.refworld.org/cases,BAN_SC,5d7f623e4.html

There is a strong argument that the same position should be taken with respect to the fundamental principles of the Hague Abduction Convention that abducted children should normally be returned expeditiously to their habitual residence and that an international child abductor should not be rewarded by being able to transfer child custody jurisdiction to the courts in the country to which he has abducted a child.  

It remains to be seen whether the courts in Bangladesh will require the matter to proceed by means of a length plenary custody case, in violation of the Japanese courts’ jurisdiction and in violation of the Hague principles, or whether they will respect the comity of nations and return the abducted children forthwith to Japan.

 

BANGLADESH: THE DOWRY PROHIBITION ACT OF 2018

by Jeremy D. Morley

 

The Dowry Prohibition Act of 2018 (the "Act") of Bangladesh prohibits the giving or receiving of a dowry.  The primary purpose of the Act is to end the custom whereby the bride’s family makes a financial payment to the groom’s family upon a marriage. The system is now seen to be a “social curse,” which frequently leads to disputes between the families and the harassment of innocent parties.

Section 3 of the Act criminalizes the act of directly or indirectly demanding a dowry, punishable by imprisonment of up to five years and/or a significant fine Section 4 of the Act makes it an offense to give or receive a dowry, or to abet such actions, which is likewise punishable by a fine or imprisonment. Section 2 provides that the parties who may be prosecuted for such actions may include the bride, the groom, their parents or legal guardians, “or any other person directly involved in the marriage” from the side of the bride or the groom.

The term “dowry” is defined as "money or any other asset" demanded by a party as the consideration for a marriage. However, it does not include a dower or mahr, in those cases in which the Muslim Personal Law (Shariat) applies to the parties. Nor does it apply to wedding gifts.

Section 5 of the Act provides that any agreement for giving or taking of a dowry is void.

In an attempt to limit the number of false cases and harassment of an innocent party, Section 6 of the Act criminalizes filing a false complaint or causing a false complaint to be filed.

Finally, the offenses committed under the Act are “cognizable, non-bailable, and compoundable.” This means that, as a “cognizable” offense, the police may arrest the accused without a warrant; as a “non-bailable” offense an accused does not have an automatic right to be released on bail; and as a “compoundable” offense the parties are allowed to settle the issue outside of court.

It should also be noted that there are additional remedies available in Bangladesh for dowry-related violence, including the “Nari-O-Shishu-Nirjatan-Daman-Ain, 2000” law, which provides severe penalties for any dowry-related offense which causes hurt, grievous hurt or death, and the Protection of Women from Domestic Violence Act, 2005, which defines "domestic violence" as any conduct which harasses, harms, injures, or endangers an aggrieved person, including any act done with a purpose to coerce an aggrieved person to meet any unlawful demand for a dowry.

 

Fee Award in Hague Abduction Convention Case

by Jeremy D. Morley

It is gratifying that, in its award of legal fees to my client, whose child was successfully returned from New York to Spain pursuant to the Hague Abduction Convention, the U.S. district court’s calculation was based in part on my status as “one of the leading experts” on the Convention, who has lectured, written and testified as an expert on the Hague Convention and international family law. Grano v. Martin, 2021 WL 350016 (S.D.N.Y., Aug. 9, 2021). 

The fee award was granted even though there was some evidence of abuse by the petitioner. The district court ruled that this case, which was almost entirely about psychological as opposed to physical abuse, and in which both sides were less than candid, did not rise to the level of those cases justifying complete denial of an award. Further, an award of at least some fees serves the statutory purpose of deterring future child abductions. 

The Second Circuit’s affirmance of the original return order (Grano v. Martin, 821 F. App'x 26 (2d Cir. 2020)) is an important application of the new U.S. interpretation of the key term of “habitual residence” that was established by the Supreme Court in Monasky v. Taglieri, 140 S. Ct. 719, 722 (2020).  

For a full discussion of the Monasky case, see Jeremy D. Morley, The Hague Abduction Convention: Practical issues and Procedures for Family Lawyers, (Third Edition, 2021, published by the American Bar Association), available here.

JAPANESE LAW ABOUT MARRIED NAMES

by Jeremy D Morley

 

Japanese law requires that married couples share the same surname, which can be that of either the husband or the wife. There appears to be no country other than Japan that requires married couples to adopt the same surname. The Supreme Court of Japan recently ruled that this requirement does not violate the Japanese Constitution.

Human Rights Watch has explained that, “The single-surname system is a legacy of Japan’s traditional patriarchal family system, which placed men at the top of the family hierarchy and viewed women as entering the man’s family upon marriage.” Although the post-World War II Constitution recognized equality between men and women, and abolished much of the traditional family system, the single-surname rule remained. The United Nations Committee on the Elimination of Discrimination against Women (CEDAW) has repeatedly called on the Japanese government to repeal it.

Article 750 of Japan’s Civil Code provides that, “a husband and wife shall adopt the surname of the husband or wife in accordance with that which is decided at the time of marriage.” Likewise, while Japan’s Family Register Act allows divorced spouses to adopt separate surnames, it contains no such provision in case of a marriage. Accordingly, a Japanese couple must decide on their shared last name in order to have their marriage registration accepted.

In recent years, as the Japanese government has encouraged women to play a greater role in Japanese society, there has been a growing demand that married couples should not be required to share the same surname. In 96% of cases, wives take their husband's surname, and it is asserted that this result contravenes the equal rights of husband and wife guaranteed in Article 24 of the Japanese Constitution.

In 2015, the Supreme Court, in a split ten-to-five decision, ruled that the law was not unconstitutional. The basis of the ruling was that, "As a way to refer to families, the bedrock of society, it is logical to have one surname." Several justices suggested at that time that the Japanese Diet should consider amending the law, and the issue was considered, but the ruling Liberal Democratic Party is sharply divided on this issue.

Somewhat surprisingly, the very same issue of the constitutionality of the surname law was heard again by the Supreme Court earlier this year, although the issues were framed a little differently. Even more surprising is that, although in June 2021 the Supreme Court again upheld the law, it did not simply repeat its prior ruling but it was split once again on the very issue that it had decided just a few years earlier. Some of the judges, albeit in the minority, endorsed the position that the Court had a broad right to make public policy decisions when deciding the constitutionality of Japanese statutes. It will be fascinating to see how that idea plays out in future cases.

It should also be noted that a slight liberalization about married names was put in place fairly recently. The maiden name of a Japanese national can now be placed in parenthetical form on a married persons Japanese passport, in addition to the married name.

Iran Child Abduction; Iran Child Custody; Expert Evidence

 Jeremy Morley

I was accepted yesterday by both sides in a case in North Carolina as an expert in international child custody law and international child abduction law, and the laws and procedures of the same, and as these matters apply to Iran.

I have previously provided expert evidence as to international child custody issues concerning Iran in cases in Australia, Canada and California.

Malaysian Family Law: Single Expert Appointment

 

The Family Court of Western Australia appointed Jeremy D Morley as a single expert to report on the law and legal process by which the Malaysian courts make arrangements following the breakdown of a marriage with respect to the custody and guardianship of children, financial support and maintenance for spouses and children, division and adjustment of property (including matters concerning foreign real estate) and the division and dissolution of marriage.

Hague Abduction Case Reliance on Morley Treatise

In a Hague Abduction Convention case in the United States District Court in Savannah, Georgia, the Court relied on the opinions that I expressed in the 2020 edition of my treatise on International Family Law Practice that (a) international travel authorizations should normally be afforded only limited significance as evidence of consent to indefinite relocation and (b) a relocation of a petitioning parent to a country other than the child's habitual residence does not prevent the return of that child to the petitioner at the petitioner's current place of residence. Rishmawy v. Vergara, 2021 WL 1760303 (S,D, Ga., May 4, 2021).

Costa Rica: State Department's Annual Report on International Child Abduction, 2021

Country Summary: The Convention has been in force between the United States and Costa Rica since 2008. In 2020, Costa Rica continued to demonstrate a pattern of noncompliance. Specifically, the judicial authorities failed to regularly implement and comply with the provisions of the Convention. As a result of this failure, 29 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. The Department is unaware of any judicially ordered returns of children to the United States in 2020. On average, these cases were unresolved for one year and nine months. Costa Rica was previously cited for demonstrating a pattern of noncompliance in the 2011- 2016, and 2020 Annual Reports. 

Initial Inquiries: In 2020, the Department received two initial inquiries from parents regarding a possible abduction to Costa Rica for which no completed applications were submitted to the Department.

Significant developments: Costa Rica’s Supreme Court, with the support of the Department, successfully hosted a series of virtual seminars from November 2020 through February 2021 on Hague Abduction Convention best practices. The seminars brought together Costa Rican Supreme Court judges, Department representatives, as well as legal experts and judges from Costa Rica, Uruguay, Argentina, Mexico, Spain, Canada, and the United States. 

Central Authority: The U.S. and the Costa Rican Central Authorities have a productive relationship that facilitates the resolution of abduction cases under the Convention.

Voluntary Resolution: The Convention states that central authorities “shall take all appropriate measures to secure the voluntary return of the child or to bring about an amicable resolution of the issues.” In 2020, one abduction case was resolved through voluntary means. 

Location: The competent authorities regularly took appropriate steps to locate children after a Convention application was filed. On average, it took less than one month to locate a child. As of December 31, 2020, there were no open cases where the Costa Rican authorities remained unable to locate a child. 

Judicial Authorities: There were significant delays by the Costa Rican judicial authorities in deciding Convention cases. As a result of these delays, cases may be pending with the judiciary for over one year, contributing to a pattern of noncompliance. Additionally, judicial authorities rendered one decision that was not compliant with the Convention. Another case remained unresolved for one year and three months. 

Enforcement: The United States is not aware of any abduction cases in which a judicial order relating to international parental child abduction needed to be enforced by the Costa Rican authorities. Department Recommendations: The Department will continue intense engagement with the Costa Rican authorities to address issues of concern.

The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers, Third Edition

By Jeremy D. Morley

In a practice that increasingly involves cross-border issues, a growing number of clients fear their children may be abducted, are concerned about overseas travel, or are considering international marriage or divorce. Written to help family lawyers best represent clients and their children, this updated edition explains all aspect of how the Hague Convention works in the United States.

Every family lawyer should understand the workings of the Hague Convention on the Civil Aspects of International Child Abduction. This updated third edition of The Hague Abduction Convention explains for family lawyers how this critical treaty works in the United States, both in theory and in practice. The renowned author, Jeremy D. Morley, has enormous experience counseling clients and fellow practitioners as to international family law matters globally, as well as lecturing on international child custody law to audiences around the world.

Click here for further details.

Enforcement of Child Custody Orders in Japan

 by Jeremy D Morley

 

An amendment to Japan's Civil Procedure Law enters into force on June 1, 2021, intended to promote enforcement of Japanese civil custody orders. Although the new law may be helpful it will provide no benefit to non-custodial parents seeking to enforce their visitation rights.

Japanese law continues to provide that only one parent may have custody after a divorce, even if it established that both parents are ideal care providers. There is mounting pressure in Japan to change the law but that has not yet occurred. Accordingly, the only right that a non-custodial may enjoy in Japan is visitation. Even here, however, the visitation rights of a non-custodial parent are generally limited in the extreme.

Traditionally, Japanese court orders in family matters have been entirely unenforceable. That has changed slightly in recent years. The new law is intended to assist in such enforcement. However, it will benefit only the custodial parent. It simply allows for “direct enforcement” of the custodial parent’s right to secure the return of a child who has been removed or retained from that parent’s custody. Since custody after a divorce is usually given to the parent who has previously had the child in his or her possession, the law will now enhance the parent’s ability to enforce sole custody rights.

It is unfortunate that the new legislation provides no assistance to the non-custodial parent’s rights of visitation.

Japanese courts generally limit visitation to a couple of hours once a month in the daytime, in the area where the child is living, unless the parties agree otherwise. To make matters even worse, custodial parents can usually rely successfully on a multiplicity of acceptable excuses for non-compliance with visitation orders. The only way to seek enforcement of these rights is to seek some kind of financial sanction, which is often described as equivalent to a parking ticket. There is no contempt of court for the violation of court orders concerning family law matters in Japan and the only available remedy is the limited financial claim, which is generally difficult to secure and ineffective.

At least the new law might make it a little more likely that custodial parents will agree to allow a little more visitation, since they will now have the availability of a potential remedy if the child is not returned. I have repeatedly explained that in Japan possession is 99% of the law and it may be that the new legislation may lead to a modest change in that regard.

Yesterday I testified on such issues as an expert witness in a case in California concerning a Japanese mother's application to relocate the children from California to Japan. It is most unfortunate that the relocation applications of Japanese parents who wish to move with their children back to Japan must normally be denied because of the failure of the Japanese courts to enforce the provisions of foreign custody orders concerning the sharing of custody between the parents and concerning the rights of a non-residential parents to have liberal access to their children in Japan and in the country where the non-residential parent is living.

Brazil: 2021 State Department's Annual Report on International Child Abduction

Country Summary: The Convention has been in force between the United States and Brazil since 2003. In 2020, Brazil continued to demonstrate a pattern of noncompliance. Specifically, the Brazilian judicial authorities failed to regularly implement and comply with the provisions of the Convention. Additionally, the competent authorities failed to take appropriate steps to locate a child in an abduction case, contributing to Brazil’s persistent failure to implement and abide by the provisions of the Convention. As a result of these persistent failures, 75 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average, these cases were unresolved for three years and eight months. Brazil was previously cited for demonstrating a pattern of noncompliance in the 2006-2020 Annual Reports. 

Initial Inquiries: In 2020, the Department received three initial inquiries from parents regarding possible abductions to Brazil for which no completed applications were submitted to the Department.

In a majority of cases open at the end of calendar year 2020 in which there are judicial delays, the Brazilian Central Authority reported that Brazil’s Federal Public Ministry (MPF) was involved at some point. In some instances, it appeared that MPF intervention impacted cases. In other instances, actions by the MPF appeared to lengthen judicial proceedings in Brazil. 

Central Authority: The U.S. and Brazilian Central Authorities have a strong and productive relationship.

Voluntary Resolution: The Convention states that central authorities “shall take all appropriate measures to secure the voluntary return of the child or to bring about an amicable resolution of the issues.” In 2020, one abduction case was resolved through voluntary means before the case was filed with the Brazilian Central Authority, and the child returned to the United States. 

Brazil demonstrated a pattern of noncompliance with the Convention as a result of failure by the competent authorities to take appropriate steps to locate children after a Convention application was filed. As a result, there is one case (accounting for 11 percent of the unresolved cases) that has been pending for more than 12 months where law enforcement has failed to locate the children, leading to significant delays in initiating the legal proceedings. The average time to locate a child was 37 days.

 Judicial Authorities: There were serious delays by the Brazilian judicial authorities in deciding Convention cases. As a result of these delays, cases may be pending with the judiciary for over one year, contributing to a pattern of noncompliance. In 2020, the Department was again unaware of any Brazilian efforts to address judicial delays, despite repeated engagement during the year by the Ambassador, senior Mission personnel, and the Department with counterparts Brazil, continued 32 in the Brazilian government. This failure to improve Convention implementation continues in the form of delays at the first-instance, the appellate, and the enforcement stages. As a result, the Department remains deeply concerned with the Brazilian judiciary’s repeated failure to regularly implement and comply with the provisions of the Hague Abduction Convention. Moreover, the U.S. Central Authority is deeply concerned by language that was clearly non-compliant with the Convention in more than one judicial decision. In these decisions, the courts used inaccurate definitions for a defense to a return claim. 

Enforcement: While courts in Brazil ordered returns under the Convention, Brazilian authorities were not able to enforce these orders. In one notable case, after 11 years of litigation at all levels of the Brazilian judiciary, the Brazilian Central Authority reported that the Brazilian court still failed to enforce its own judiciary’s order for return. Moreover, judicial decisions in Convention cases in Brazil were generally not enforced by the judiciary, which contributed to a pattern of noncompliance. 

Access: In 2020, the U.S. Central Authority acted on a total of two open access cases under the Convention in Brazil. Both of these cases were opened prior to 2020. Both cases had been filed with the Brazilian Central Authority. By December 31, 2020, both of these cases had been resolved. Department 

Recommendations: The Department will continue intense engagement with Brazilian authorities to address issues of concern and will consider actions to prompt better Brazilian compliance with the Convention.

UCCJEA in International Cases: Home State, Temporary Absence Overseas & Human Rights Issues.

by Jeremy D. Morley

Difficult issues arise under the Uniform Child Custody Jurisdiction and Enforcement Act when children are taken overseas for visits and do not return. A recent New York case illustrates some of the issues.

In Kassim v. Al-Maliki, 2021 WL 1774145 (NY App. Div. 2d. Dept. May 5, 2021), the Appellate Division, Second Department reviewed a Family Court order dismissing a petition for habeas corpus and custody of children who were taken from New York City to Yemen in 2016 where they have since remained. The father claimed that he and his wife consensually relocated to Yemen with the children. The mother claimed that they went to Yemen for a visit and that after they arrived there the father confiscated her and the children’s passports. She further explained that it was only after she signed a divorce agreement under duress that she was given her own passport and that she had then returned alone to the United States. Once she was back in New York, she had commenced a case against the father for habeas corpus and child custody. 

The Family Court dismissed the case without a hearing for lack of subject matter jurisdiction since the children had long been in Yemen, and the mother appealed.

The appeal court overturned the dismissal of the case. It ruled that the trial court “erred in concluding that it lacked subject matter jurisdiction to determine the mother’s petition without conducting a hearing” as to the issue of whether New York or Yemen was the child’s home state, since “there are disputed issues of fact regarding the circumstances under which the parties moved from New York to Yemen.” 

In substantial part, the issue in the case concerns the provisions of section 102(7) of the UCCJEA that a “period of temporary absence” from a state counts as part of the required period six consecutive months of residency in the state before the commencement of a child custody proceeding. On this issue, see Jeremy D. Morley, International Family Law Practice, Sec. 7:6. (Westlaw INTFLP § 7:6).

Courts have developed three distinct tests to determine whether absences are temporary or permanent:

1. Duration. Some courts focus solely on the length of the absence, holding that the child's physical location must be the central issue. 

2. Intent. Some courts consider the intent of the parties, and specifically whether the parties intended to be away for a limited amount of time and which state they viewed as their place of permanent domicile. 

3. Totality of Circumstances. Finally, some courts require an examination of all the circumstances surrounding the absence, including the duration of the absence, whether the parties intended the absence to be permanent or temporary, and any additional relevant circumstances. The decision of the U.S. Supreme Court in Monasky v. Taglieri, 140 S. Ct. 719 (2020), applying a totality of circumstances test to the interpretation of the key term of “habitual residence” in the Hague Abduction Convention, may well encourage the use of the same test for interpreting “temporary absence” in the UCCJEA. 

A separate issue, not addressed by the Appellate Division decision but likely to arise on the remand of the case to the Family Court, is whether the child custody law of Yemen falls within the scope of the “escape clause” contained in UCCJEA Section 105(c), as expanded in New York pursuant to Section 75- d (c) of the Domestic Relation law.

The UCCJEA Model Act provides (UCCJEA § 105(a)) that a court “shall treat a foreign country as if it were a state of the United States for the purpose of applying” the statute, but in Section 105(c) that this need not apply “if the child custody law of [the] foreign country violates fundamental principles of human rights.”  The language is extremely narrow. It extends only to a “child custody law” that “violates fundamental principles of human rights” and appears on its face to be limited to the law as written in a foreign statute. 

However, New York has expanded the scope of the escape clause significantly. The New York legislature added the words, “or as applied” to the provision, so that it reads, “(c) A court of this state need not apply this article if the child custody law of a foreign country as written or as applied violates fundamental principles of human rights.” (Domestic Relations Law, Sec. 75-d(c)). On these issues, see Jeremy D. Morley, International Family Law Practice. §§ 7:23 – 7:28 (Westlaw INTFLP § 7:23 et seq.).

This will presumably allow a court in New York to consider both Yemen’s laws concerning child custody as they are written in the Personal Status Law of Yemen, which contains arbitrary provisions based on age, gender and religion, and also how those laws are actually applied in practice. 

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