International Child Custody and Child Abduction: Who Are The "Good Guy" and "Bad Guy" Countries? The Most Recent Hague Convention Report

The most recent State Department Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction shows that even those countries which have signed off on the Convention do not always comply with it.   Even Western Hemisphere countries, including Costa Rica, Guatemala, and Honduras, are inconsistent in their compliance.  If you're in a dispute over the custody of your children, and the other parent proposes to travel out of the U.S., you should consult an experienced custody attorney in advance;  in this situation, an ounce of prevention may be far less expensive, and better than a ton of cure.  A hat tip to international custody guru Jeremy Morley for the pointer.

Enforceable PreNups for the UK? Maybe Only Kinda Sorta...

The UK Law Commission has issued a report recommending legislation  for the determination of  the validity of premarital agreements in the UK.  Reports seem to disagree as to the extent to which courts would be permitted to second guess the agreements if the agreements seek to allocate the obligations of spouses to support each other.

A rainy California hat tip to Jeremy Morley, international custody expert, who discusses the proposal in more detail.

Pre-Marital Planning and Agreements, Around the World

are discussed, briefly, by the BBC.   Thanks, and a tip of the Panama fedora  (it's 65 in Los Angeles) to Randy Kessler and Jeremy Morley, quoted in the article.

Until Death, or Sorcery, Do You Part...

Apparently, traditional marriages contracted in Swaziland cannot be dissolved.  Ever.  Unless the wife is found to have committed adultery, or witchcraft, at which point her husband can return her to her "parental homestead".

Thanks and a hat tip to Jeremy Morley.

Collecting Child Support Internationally?

On June 18, 2013, the House passed H.R. 1896, International Child Support Recovery Improvement Act of 2013. This Bill, in part, amends the Social Security Act, to allow the United States to comply with the Hague Convention for the International Recovery of Child Support and Other Forms of Family Maintenance. This bill will allow child support to be collected when one parent and the child(ren) live in one country and the other parent lives in a different country as long as both countries are members of the Hague Convention.

http://www.gpo.gov/fdsys/pkg/BILLS-113hr1896ih/pdf/BILLS-113hr1896ih.pdf

The next step to ratify the bill is for the Senate to adopt and enact similar legislation for this treaty. The Department of Health and Human Services is already working on moving the legislation forward.

http://www.acf.hhs.gov/programs/css/resource/july-2013-child-support-report

This should make collecting child support easier because, if passed, the custodial parent may be able to receive some assistance and take advantage of some of the collection resources provided by the non-custodial parent’s country of residence in order to collect child support from the non-custodial parent.

SCOTUS To Look At Hague Appeal Issue

The Hague Convention on Civil Aspects of International Child Abduction* is intended to permit speedy resolution of disputes as to which nation is the appropriate place to resolve child custody disputes, by assuring return of the child(ren) to their "habitual residence", except under extraordinary circumstances.  While generally the problem with Hague proceedings is that they are not speedy enough, sometimes they may be too speedy.

Last week, the U.S. Supreme Court heard argument in Chafin v. Chafin, to address the issue.

While it's not as headline-worthy as the DOMA cases, for the increasing number of parents with international, and intercontinental child custody arrangements, it may be more critical.


*I note the full title, because any treaty between nations signed at the Hague will be titled as a "Hague Convention", and simply searching those two words may end you up, for example, at the Hague Convention on the Launching of Explosives From Balloons.

American Court Upholds, Enforces UAE Divorce Decree

...and in so doing, holds a decree to enforce a "mahr"  (dowery) is enforceable under U.S. law, under some circumstances.   Tip o' the Stetson to Prof. Volokh.

Pre-Nuptial Agreements In India

While "pre-nups" are apparently becoming more popular between Indian couples, their validity is still unclear.

Thanks and a tip of the Summertime seagrass fedora to Jeremy Morley's International Family Law.

Pre-Nups Valid in the U.K.

Maybe, says the U.K.'s Supreme Court. Thanks and a big 'ol Texas hat tip to Randy Kessler for the pointer.

Abbott: Supreme Court Decision on International Child Abduction Issues

The SCOTUS has decided, 6-3, in Abbott v. Abbott, a lingering issue in international child custody abduction cases. Only a parent with a "right of custody" can invoke the Hague Convention to compel the return of the child. Lower Federal courts have disagreed as to whether a parent with only "visitation" rights, but with a "ne exeat" order (forbidding the removal of the child from that country) could request return of the child under the Convention. The Supremes (or at least six of them) say that he can.

Divorce, Italian Style?

The New York Times reports Italy's first "divorce trade show". I guess "Divorce, Italian Style" no longer carries quite the significance it once did.

Now Why Didn't I Think Of That?

A divorce gift registry. Those Brits are so far ahead of us in handling matters of etiquette.

Teenagers, the State and Religion: do hard cases make bad law?

Rifqa Bary, who's seventeen, ran away from her parents in Columbus, Ohio, and turned up in Orlando, Florida, under the "care"of a pastor whom she met over the internet. The pastor held a press conference in which Rifqa announced, under the pastor's eye (or more exactly, under his arm) that she had run away because she had converted to Christianity, and that she was afraid that her Muslim parents would either kill her, or "send her back" to Sri Lanka, from where the family had come in the last decade, and that she would be killed there by Dad's family as an "honor killing".

Working only from the newspaper accounts, a number of things immediately struck me as troubling: first, how do you "send" a seventeen-year-old on a series of overseas flights against her will, if you are evidently unable to keep her from walking out of the house, hitchhiking to a bus station, and taking a Greyhound bus to Florida? Rifqa doesn't seem to have been kept in purdah; she apparently attended public school, where she participated in cheer-leading and tumbling, and had a Myspace page. Although she'd apparently converted a while ago, she hadn't reported her fears to anyone she dealt with in Ohio.

Even if she really was legitimately afraid of Dad, why the run across several states? Last time I looked, the city of Columbus, Ohio (where I went to school, and where my son goes to school now) was not an Islamic republic under Sharia law; it's the state Capitol. Thenotable religious fanatics in Columbus are the ones who worship at the altar of Brutus Buckeye..

What dog does Florida have in this fight, and does Florida have enough extra resources in their "social safety net" that they, rather than Ohio, should be dealing with this? (Florida has placed her in foster care in Florida pending more investigation.)

The bigger question, however, is, absent a real plausible showing of danger, what's the state's job in intervening between teenagers and their parents when a minor child, even a 17 year old, says "I've decided X" and one or both parents say "You're a minor, and I'm still supporting you. I say 'Not X, Y!', and as long as you're a minor, you're under my legal control."

Except in unusual cases, the state doesn't intervene in these disputes in intact families. Where the PARENTS disagree, and are going through a divorce, or a custody dispute, the State is much more willing to say that one parent's (or both parents') choices are not in the child's best interest, and is more willing to intervene.

Back in the 1970's, a group of Wisconsin Amish parents objected to the mandatory school attendance laws in effect at the time, and asserted that it interfered with their, and their children's, rights of free exercise of religion. The Supreme Court, in Yoder, agreed. Justice Douglas, always a trouble-maker, raised a thorny question: what's the State to do when a seventeen-year-old, who's clearly a "minor child' for some purposes, but a "person" under the Bill of Rights, says "Here I stand; I cannot do otherwise!" to one or both parents?

Can I say to my child "You'll go to the church [mosque, temple, Kingdom Hall] I say you go to, or you don't get [a driver's license/an I-phone/to go out Friday night/me to pay for college]"? Short of a threat of physical harm, when is it, and when isn't it, the State's business?

Pre-Nups in Britain? Maybe so!

It appears that a sea-change in British family law may happening, and that British courts may begin recognizing some pre-marital agreements as valid.

Child's Immigration Status Does Not = "Wrongful Retention" in the U.S.; 9th Circuit Speaks

The 9th Circuit U.S. Court of Appeals has reversed a Federal trial court and denied an petition under the Hague Convention on the Civil Aspects of International Child Abduction for return of the child to Mexico, pending an actual custody determination. Said the progressive (or, depending on who you talk to, "notoriously liberal") Court, in an opinion by Justice Reinhardt:

[W]e must decide here whether a child of Mexican origin, whose mother wrongfully retained her in the United States, should . . . . . . be returned to Mexico while the proceedings are conducted there. To decide this issue, we must consider . . . . . . whether a court may find that a child is not “settled” for the purposes of Article 12 of the Hague Convention for the reason that she does not have lawful immigration status.

To both of which questions, the answer is apparently, "No".

Divorce Across The Border, or Madness Across The Water

As the world economy (or the world's economies) slumps*, different aspects of law come into sharp focus, while others, momentarily, lose relevance making them worthy of attention. I'm now far more interested than I've been in a couple of decades, in the possible remedies my clients' refinance mortgage-holders may have when the mortgage doesn't get paid**. The formulas by which the parties get to divide up the appreciation on a parcel of real estate, on the other hand, seem at least for the moment like debating the number of angels who can dance on the head of a pin.

As money and employment shift around, so do the people holding them; again, where people have gone, from economic necessity, is affecting whose law governs what happens when someone feels the marriage is over and files something. At all levels, from the user of "free-divorce-advice-on-the-internet" , to the "multinational couple," I'm answering more "I'm here, she's there; can I file here, and what happens if she files first, there?" questions than I've seen in a long time.

These are thorny questions at best, and often the best answer is no more than "It depends, and my best educated guess is..."

* "dives"? "tanks"? "enters a flaming death-spiral"?
** because only one party's living in, and paying for, the house where "wedded bliss used to dwell".