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.

If You're Going To Get Married, Please Do It Correctly

This new case from New York stands for the (reasonably obvious?)  proposition that if you scrupulously avoid doing any of those things which would cause you to have a valid marriage, then you're not married, even if you have a big elaborate "wedding",  presided over by an internet-ordained "clergyperson", who also fails to do any of those things.

The take-away, for me, is the Court's observation that  "getting married is a serious decision that has wide ranging and often everlasting consequences."   Those who follow this blog have heard me preach, almost incessantly, that folks getting married should treat the decision just this way.  Certainly those who go out of their way to disregard and sidestep both the civil and religious requirements for the process shouldn't generally be allowed to change their minds about their seriousness, even after the big party is over.

The usual hat tip to Howard Friedman at Religion Clause.

Recovery under the Hague Convention

Christian Nørgaard, a Danish computer science engineer was working in California when he met and married Tammy Zied, a software engineer. They married in Redwood City, California and had two daughters, Mia and Sarah, both born in California. The family moved to Germany then Denmark for Christian’s employment. 

While living in Denmark, the couple separated and in 2012, the Danish courts granted sole custody of both children to Christian. Tammy accused Christian of violence against her and the daughters. Mia began running away from Christian’s home, according to Tammy, to "escape the violence". Last May, Mia arrived in the United States and Sarah was left in Denmark with Christian. It is unclear whether Mia came to the United States with permission of Christian and was never returned, or whether Mia went to the United States without the consent of Christian and against the court order. 

According to an article published in the Copenhagen Post in August 19, 2013, Mia was reported as kidnapped to Interpol after Tammy failed to return her to Christian after an Easter visit. Tammy had told the police that Mia had run away and she didn’t know where she was. Police suspected that Tammy was hiding Mia and held her in custody for five days. When she was released, Tammy disappeared. 
 http://cphpost.dk/news/american-mother-suspected-of-kidnapping-her-daughter.6461.html

Mia and Tammy were living in Laguna Niguel. On January 31, 2014, the local authorities took Mia to a youth facility. Christian returned to California and Mia was returned to him a few days later. It appears that Mia is now with Christian and Sarah in Denmark.

Christian filed a Petition in Orange County under the Hague Convention and received assistance from the United States in the return of Mia to his custody. 

http://www.ocregister.com/articles/mia-604827-denmark-danish.html

Generally, exercising self-help in custody cases is not a good option. If faced with a similar situation or if you don't like the orders that are in place, the remedy would be to petition the court that made the orders, in this case Denmark, for a modification. Orders are binding and disobeying a court order or using self-help will make it more difficult to obtain custody or visitation in the future.

Family Law And Religion, Again

The first defendant has entered a Federal guilty plea in the "extort a divorce"  ("get a get"?) case in New York. David Hellman, a New York personal trainer, succumbed to a Federal sting operation, and traveled across a state line (or more specifically, across the GW bridge) to meet with some co-conspirators, and an FBI undercover agent, posing as the brother of a soon-to-be-ex-wife who needed her soon-to-be-ex-husband "convinced" to grant her a get, a religious divorce. 

A tip o' the kippah to Howard Friedman at Religion Clause.

Decision From SCOTUS Regarding Hague Convention

(yes, the Hague Convention on International Child Abduction, NOT the one about dropping bombs from Zeppelins):   Lozano v. Montoya Alvarez, stating that the one year "statute of limitation" within which the courts of a country to which a child has been abducted  (or, in the language of the statute, "removed") must order a child "returned" to the original place of residence is not extended if the child is concealed.

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.

4000 Answers

I just answered my four thousandth question on Avvo.  Think I'll rest.

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.

SAME-SEX UNIONS: THE STATE IN THE STATES

    A decade ago, my (law) partner* and I worked on writing same-sex “union” contracts from scratch.**   There’s been a sea-change since then, but the wave is still rolling in, and exactly where it is on a given day, and what we’re advising our clients on a given day, is still very fluid.

IN CALIFORNIA

    In 2004, California adopted “new” Registered Domestic Partnerships (NDP’s).  California NDP’s were thereafter to be treated as having the same legal rights and responsibilities as spouses under California law.  

    This was, however, the era of state and Federal “Defense Of Marriage” Acts.   Under Federal law, and under the law of (then most other) states, NDP’s were not recognized as “spouses” for any purpose, notwithstanding whatever California law had to say about the subject.  By a rough count at that time, Federal laws and regulations referred to “spouses” in a couple of thousand places. This meant, among other things, that California NDP’s had no spousal federal tax rights or benefits, had no spousal rights in connection with any employee benefit plan covered by ERISA, could not file a joint bankruptcy, had no spousal or family rights in regard to immigration, and that none of the spousal rights California conferred were necessarily “portable” to any other state. 

    Following years of court battles, California now permits same-sex couples to marry, i.e., they’re “spouses” not just in effect, but by actual label.  The NDP framework however, still remains available and in place.

IN THE REST OF THE COUNTRY: LABELS STILL MATTER

   
    Federal law and Federal practice, in regard to same-sex partnerships, is slowly changing.  Since Congress has not yet acted to make wholesale changes in Federal law, or to explicitly repeal all parts of the Federal DOMA, these changes are still being made on a department-by department basis.  As noted elsewhere on the blog, both the Treasury Department (IRS) and the Labor Department (ERISA) have now stated that they will recognize any couple designated as “spouses” by the law of a state to be “spouses” for purposes of their Federal regulations.      To date, they have indicated that couples labeled as something other than “spouses” by the law of the state or country where they “contracted the relationship” will not be treated as spouses.

    Exactly how and when remaining Federal laws, regulations, and practice will change remains unclear; equally unclear is whether any of the changes will be given any retroactive effect.

    It also seems likely, after the Supreme Court next addressees the issue that states will no longer be able to decline to recognize “marriages” contracted between same-sex couples from other states.  This result too will probably not carry over to “civil unions”, “domestic partnerships” etc., since those states don’t recognize such status for their own citizens.

    So, for the moment, “labels still matter”.

*Not my law partner any more, but still my wife, now a judge...
**or from duct tape and general contract law.  See Gould-Saltman, D. J., and Gould-Saltman, R.F. (2002) "Gay and Lesbian Marriage and Its Alternatives"  2002 Family Law Update, Brown, R. and Morgan, L. eds,  Aspen Law & Business.

When can we come home? International custody issues.

Shauna Hadden from Agawam, Massachusetts divorced her husband, Donizete Machado in 2009. Hadden has full custody of their 6 year old daughter, Ava. Machado moved to Brazil where he is from. On May 21, 2013, Hadden took Ava to Brazil to visit her father and extended family.

While in Brazil, Machado who purchased the tickets, then cancelled the return flight. The police came to Hadden’s door with guns demanding her and Ava’s passport which she gave. Machado filed paperwork in Brazil for custody of Ava. A Judge denied Machado’s request for immediate custody and for someone to bring Ava to him, but granted supervised visitation with Ava. According to Hadden, Machedo has not exercised any visitation. He had until July 5 to exercise visitation under the court order.

In the meantime, Hadden and Ava have been effectively "trapped" in Brazil, unable to leave without resolution of the pending case. Her visa will expire at the end of summer.


International custody issues seem to be more common lately. Even with custody orders, issues can arise. Before taking a child or allowing a child to go to a different country, consider having orders for each particular trip with a remedy if the child is not returned.

When Should the U.S. Return A Child to a Country In Which Sharia Law Might Be Applied?

The Federal Court of Appeals for New York weighs in on whether a U.S. court must order a child returned to a "country of habitual residence" when that country is a signer, with the U.S. of the Hague Convention on child abduction, but which might possibly apply Sharia law to the adjudication of the custody dispute. Thanks and the usual hat tip to Prof.Volokh.

Same-Sex Marriage/Partnerships in Scotland?

There's a bill pending.   Thanks and a tip of the tam o' shanter (or is it a kippeh?) to Howard Friedman at Religion Clause.

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.