This site tracks developments in international family law from Richard Crouch and John Crouch of Crouch & Crouch in Arlington, Virginia. Our international practice has grown naturally from our location in our native Arlington, where our clients include many military, diplomatic and immigrant families, international organization employees, IT professionals, etc. This blog's purpose is to comment on the ongoing development of the law, and help other lawyers, journalists and the public understand individual cases. These postings do not provide a comprehensive description of the law. In fact, they will surely contain statements that were true at the time but have become less valid as the law continues to develop.
The House Foreign Affairs Committee approved a bill to require the U.S. secretary of state to reach memorandums of understanding with all nations not party to the 1980 Hague Convention, which requires the return of kidnapped children to their habitual country of residence.
The bill would seek to establish a mechanism with each country so that children would be returned within six weeks of a reported abduction. The bill also calls on the president to take one or more counteractions if abduction cases are not resolved 180 days after Washington notifies the country to which a child has been taken.
The suggested presidential actions against “a country with a pattern of noncooperation” include the delay or cancellation of scientific and cultural exchanges as well as working, official and state visits. It further orders government agencies not to approve the export of any goods and technologies to the country involved.
The materials for the International Academy's upcoming fall meeting in Buenos Aires reveal that Virginia has far more Academy "Fellows" than any state its size. Only four states, four countries, and the province of Ontario have more IAML members than Virginia.
Virginia is a leader in international family law because it is home to so many soldiers, sailors, diplomats, immigrants, and international-organization employees. My father and I developed our international family law practice over the past 45 years by helping these people with their everyday legal problems.
Countries, states and province with 10 or more Fellows of the International Academy of Matrimonial Lawyers, from most to least:
It's always exciting to see Greer, SC, home of my uncle Doug Crouch, in the news for something other than an elementary school exam requiring a belief in pure, 4004-BC creationism. In Hirst v. Tiberghien, (USDC S.C., Greenville Division, 5/3/13, sent to me by Melissa Kucinski of Global Family Mediation) the children had a strong preference to live with their father who had brought them there from England, but the federal court in Greenville, South Carolina, said that that was an issue for a custody case, and would be amply addressed in a custody case in England. It distinguished this "preference" from the "particularized objection" of a mature child which might properly be cited as a reason not to return a child in a Hague Convention case. The children talked about Manchester as a "cold", stark, unfriendly place, in contrast with South Carolina. The court said that "The children’s preference for the temperate climate and southern hospitality of Greenville, as well as their affinity for their father’s yard, is not sufficient to invoke Article 13’s narrow exception." The children also had taken sides in a dispute between the parents, believing strongly that their mother had lied to them about the father's relationship with another woman, and the judge felt that that seemed to be their main motivation.
In this case the Olsons and their 13-year-old twin boys lived in Hungary for eight years until last summer, when the Romanian-born mother finished dental school in Hungary and the parents sent the boys to the U.S. to visit their grandparents for a couple months. Then the parents moved from Hungary to Romania, where they rented an apartment and moved in. The father went to the US to get the boys in September. While he was there, he lost his job in Romania, and the mother told him she wanted a divorce. He stayed in Tennessee with the boys and filed for custody.
That much is agreed-on, or at least is not disputed in the briefs.
What the parties disagree on, and what should be the key issue in the case, is whether the mother consented to an indefinite relocation. The father's brief says:
"Mother told Father on September 17, 2012, not to return to Romania with the boys. She told him to remain in Tennessee and enroll the children in school in Tennessee, which he did."
The mother's brief says she "voiced her objection to the wrongful retention vociferously and immediately". This claim is bolstered by the fact that she filed a Hague case within the next two weeks.
I believe the case should turn on whether the father can prove his claim that the mother consented. However, there may also be an issue of whether she consented to a temporary school enrollment while the abduction dispute was being resolved, and if so, whether that constitutes consent. Her brief makes the excellent point that helping "children caught in the parental struggle to have their core needs met (medical care, continued education, etc.) during ... abduction litigation" is not consent nor abandonment.
Parental consent can also change the child's habitual residence to the new country. More about that once we look at the already extremely unusual habitual residence situation in this case.
I believe that the children's habitual residence, at the point in time that is considered relevant in a Hague case, was Romania. However, that should not keep the court from returning the children to the mother, even though she chose to claim Hungary as the habitual residence. Romania has been a party to the Hague Convention for about 20 years. But can it have become the children's habitual residence during a time when they did not physically go there at all? The answer is, and should be, yes. The children's home clearly moved to Romania even though the children themselves were not there. Their parents moved the whole family home to Romania, although they sent them to visit their grandparents while they did not. It is not uncommon for people to do that. Moving from one moderately sized country to the country next door should not create a window for one parent to unilaterally move the children to another continent. And likewise, even if the left-behind parent is not in the country the children were taken from, she should still have a right to object to her children being moved an ocean away.
The mother's brief tries hard to muster all the evidence of Hungary as the habitual residence, but the problem is, all her substantial evidence of that is about where they lived up until they left for their U.S. visit in July. But the relevant time under the treaty is the time of the alleged wrongful removal or retention: i.e., September, when their home and possessions had all been moved to Romania. The mother claims that the children were still enrolled in a Hungarian school at that time, and the father likewise has claims about a Tennessee driver's license and voter registration, but those kinds of "paper" residence claims, "legal fictions", are disregarded in Hague Convention cases. The drafters left the term "habitual residence" without any further formal definition so that courts would look at the reality of where the children were actually living in a permanent manner.
"Mature child's objection" and "child's preference"
The treaty allows, but does not require, a court to decline to return a child who "objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." That is not the same thing as a child merely expressing a preference, the mother points out. Her brief also warns:
"Because of the potential for undue influence of a child by an abducting parent, the child’s preference may be given little, if any, weight if it is a product of undue influence by an abducting parent – including subtle, perhaps even unspoken influence, and a court is not to accede to the child’s preference automatically."
And because the case is not about the ultimate issue of which parent gets custody, "a statement regarding which parent a child prefers to live with" should not be relevant, mother's brief says. "And the Court must be watchful for the children’s use of adult-like phrases."
Children's connections to the U.S. environment
The father cites several ways in which the children were already Americans in terms of langugage and identity, and the new ties they have built up in the many months of living in Tennessee. None of that is relevant under the treaty: being "settled in the new environment" is a defense that can only be used if the plaintiff waits over a year between the Wrongful Removal/Retention and filing the case. However, those things could become relevant if the court believes the father's claim of mutual parental consent, which can also create a new habitual residence. In that case it would look at other circumstances relevant to habitual residence - but, again, only as-of the time of the Retention in September.
But when and where does child custody get decided?
It's tragic that these Hague cases are so lengthy, expensive, and polarizing, and they do not even resolve the real question for the family: where will the children live and how will the parents share time and responsibilities? Child custody jurisdiction is the next question for this family, and is not addressed in the Hague case.
Under that treaty, Romania would have custody jurisdiction if it is found to have been the habitual residence at the time of wrongful retention. The same is true of Hungary. But the treaty has a mechanism for courts to confer and defer jurisdiction to each other.