International Family Law News & Analysis

State Dept. Reports on Child Abduction in Hague and Non-Hague Countries

The worst "countries demonstrating a pattern of noncompliance" in 2017:

• Argentina
• Bahamas
• Brazil
• China
• Dominican Republic
• Ecuador
• India
• Japan
• Jordan
• Morocco
• Peru
• United Arab Emirates 

-- Department of State, Annual Report on International Child Abduction, 2018

"The 2018 report said Japan has made “measurable progress” on international parental child abduction, noting that the average number of children reported abducted to the country each year has decreased by 44 percent since 2014.

While noting that “a strong and productive relationship” between the Japanese and U.S. governments has facilitated the resolution of abduction cases, the report said that “there were no effective means” to enforce court return orders.

As a result, 22 percent of requests for the return of abducted children under the treaty remained unresolved for more than one year, the report said, adding the enforcement process is “extremely long.”

A total of 12 countries, also including China, India, Brazil and Argentina, were on the 2018 list of countries showing a pattern of noncompliance.

.. Paul Toland, who hopes to reunite with his daughter in Japan, said, “Japan will need a complete reform of their family law system and will have to change the way they view the rights of a child to know and love both parents after a divorce if they ever want to be compliant with the Hague [treaty].”

"Japan on U.S. list of nations noncompliant with Hague Treaty" -- Japan Times

German Hague order denied return on consent & credibility grounds without finding on other elements; gets comity in later US Hague case

A federal court in a Hague case granted comity to a German court decision in an earlier Hague case between the same parents, which had denied return on the consent issue alone and thus did not make a finding on habitual residence. The 4th Circuit upheld this, contrasting it with a similar case which the foreign court had decided on grounds of non-exercise of custody rights, because "rights of custody" are defined under the law of the place of habitual residence, so they cannot be determined without determining habitual residence. The Convention does not require findings on all elements of the case, if one issue is legally sufficient to deny return, the court held. 

Long after losing his Hague case in Germany, the father had kept the children in the U.S. at the end of a visit there. At that time they had lived in Germany for two years and acclimated there, but to establish that Germany was the habitual residence, the mother asked the U.S. court to give comity to the German decision that had found mutual consent for the children's move to Germany.

At that time, the mother and children had had round-trip tickets the father bought, with a return flight scheduled for Aug. 11. He said he bought round-trip tickets because she was going to Germany for four weeks to reconsider her decision to leave the marriage.

The U.S. court reviewed the German court's stated reasons for finding the mother more credible than the father. It was “at least minimally reasonable” for the German court to believe the mother’s testimony that weeks before she took the children to Germany on July 13, her husband had been told the move was permanent and consented to it, though expressing hope that she would change her mind. He first testified that he only learned her intention the day before she was supposed to come back, Aug. 10. When he was confronted with, and admitted, the fact that on Aug. 1 he had posted on Facebook, “Please come back to me", he then said he learned of her true intention when she called him in late July to tell him. 

When the father later kept the children in North Carolina, he had signed a notarized statement saying he would return the children to Germany in a month, or soon after that. But:

Expressing concerns over their dental care and schooling, Mark kept the children in North Carolina and informed Daniela of 8 his decision via Facebook ...

As for standards for granting or withholding comity,

The Ninth Circuit has provided a useful framework for extending comity in Hague cases: “[W]e may properly decline to extend comity to the [foreign] court’s determination if it clearly misinterprets the Hague Convention, contravenes the Convention’s fundamental premises or objectives, or fails to meet a minimum standard of reasonableness.” Asvesta v. Petroutsas, 580 F.3d 1000, 1014 (9th Cir. 2009). ... the Second Circuit pointed out in Diorinou that “[a]lthough deference as a matter of comity often entails consideration of the fairness of a foreign adjudicating system, a case-specific inquiry is sometimes appropriate.” Diorinou, 237 F.3d at 143 (citations omitted). In any event, whether we follow Daniela’s proposed standard of review or that described in Asvesta, the result is the same because, as discussed below, the facts of this case render the German court’s decision at least minimally reasonable.

The court points out that in Asvesta, the U.S. court could tell that the foreign court's finding of consent was very unlikely to be correct, from the parties' written communications, and from a notarized consent to temporary travel, regardless of which party was considered credible. And there was no other evidence of agreeing to a permanent move. [And yet, the e-mail that it quotes from that case says, "Go to Greece with the child and we will see how I will come to Greece to visit him.” But the court considers it superseded by the later, notarized written permission to travel to Greece "between the following dates." While that could be read literally as allowing the departure to be between those dates and saying nothing about return, there would be no practical reason for someone to give consent in that form. [That last sentence is my observation, not the court's.] 

The court here discusses some particular, common kinds of evidence in such cases, including what probative value round-trip tickets have. It notes that they were cheaper than one-way tickets. Also, they are consistent with the mother's testimony that she promised to consider changing her mind and returning. While the father filed for custody, that could just show that he "regretted his earlier consent." And the mother said she "brought the children’s birth certificates in case she needed them for school enrollment or other purposes."

 Smedley v. Smedley (4th Cir. 11/5/14, published)

Does Hague Convention's One-Year Rule Undermine It, Encourage Abduction & Underground Concealment?

The Hague Convention doesn't exactly have a statute of limitations, but it says that if a case is filed more than one year after the abduction or retention, the judge can consider whether the child is "settled in the new environment." Here's what prizewinning student author Lisa Havilland says about that:

 

“One Year Isn’t Enough: How the Hague Abduction Convention’s One-Year

Limitation Encourages Abductors to Conceal Their Child’s Whereabouts”

By Lisa Havilland, The George Washington University School of Law

ABA First Place Schwab Essay Contest Winner, 2016

 ABA Family Law Quarterly, Vol. 51, No. 1

Expats' marriages more stressed, divorces harder

Everything in this Wall Street Journal article, posted on LinkedIn by the consummate family lawyer, Betty Sandler (Vanity Plate: "SCOURGE"), matches what my father Richard Crouch and I have observed in our combined 60+ years of practicing international family law. Over half our cases are international in some substantial way.

Expat scholar Yvonne McNulty, an associate faculty member at SIM University in Singapore, found in her study, “Till Stress Do Us Part: The Causes and Consequences of Expatriate Divorce,” to be published in June in the Journal of Global Mobility, that expat life brings its own form of marriage stressors. Dr. McNulty studied 38 expat divorces in 27 countries and found a range of issues: trailing spouses who may find themselves with a loss of identity after a move; a lack of a longtime community that might bolster a struggling couple; and long work hours mixed in with extensive travel that pulls couples apart."...  When couples do break up the results are far more serious, she says, with international battles over child custody, confusion over which country has jurisdiction over the divorce, and huge relocation costs for companies that have sent entire families overseas.

One element that can intensify problems, she says, is the expat community itself, which can “become almost like a toxic influence on a marriage.”

“It’s like a groupthink attitude. If one or two individuals are engaging in extramarital affairs the men tend to say, that gives me permission to do it.” Some common expat destinations, particularly Asia and the Middle East, are “notorious for changing a marriage,” Dr. McNulty says.

... 

Another problem is social isolation. Most expat couples are far removed from any kind of setting – family, friends, communities – that might have bolstered a struggling marriage. Dr. McNulty says that in her research, “one of the strongest things that came out was the lack of role models or mentors” for troubled marriages. Many of the women she surveyed said to her, “If we had been home, my parents, his parents, his brother would have pulled him up by the scruff of his neck and said, ‘What are you doing?’”

In addition, the expat community is not always willing to get involved. “When you’ve got marital problems, the other expat wives think you have a disease, and they shun you,” Dr. McNulty says.

Divorce, Global Style: For Expat Marriages, Breaking Up is Harder to Do

By DEBRA BRUNO in Wall Street Journal — World, Mar 18, 2015

Japan issues manual for applying, enforcing Hague Convention on child abduction

Japanese Supreme Court manual lays out procedures for child retrievals

US Bill Seeks Bilateral Child Abduction Agreements With Non-Hague Nations

Agence France-Press and the Japan Times report that on Thursday the House Committee on Foreign Affairs unanimously approved H.R. 3212, the Sean and David Goldman International Child Abduction Prevention and Return Act of 2013. It was amended but the amendment seems to include minor additions to, and no detraction from, the original bill.

Other than the formal record of the approval, a patch.com story about Congressman Joe Kennedy speaking in favor, and the committee's videos of the markup hearing, I could find no news of this from U.S. sources.

"Congress eyes bill on abductions"

AFP-JIJI, JIJI 10/10/13

Japan Times - via Chris Savoie

Excerpts:

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.

 

 

Olson Hague case raises tricky three-nation "absentee habitual residence" question, consent dispute

Hat tip to Seattle-area international family lawyer David Starks for getting up early out there and telling me about this AP story quoting me about a tough child abduction case that goes to trial today in Nashville, Oana Olson v. Oliver Olson. It raises some perennial Hague Convention issues in fascinating new ways. 

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.

Consent:

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. 

Habitual residence

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 the children to visit their grandparents while the parents carried out the move. 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.

Hungary and Romania, but not the U.S. (yet) are both parties to another Hague Convention, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. Unlike U.S. law, it dovetails closely with the 1980 Hague Convention on child abduction.

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. 

Hague abduction treaty compliance drops, slows, snarls, "pussyfooting" cited - BBC

Excerpts: "A study suggests the proportion of returns under the Hague Convention on child abduction fell between 2003 and 2008 and that cases took longer. Cardiff University Professor Nigel Lowe says his study sends "warning signs" about the treaty's overall performance. ... The Cardiff study compared figures from 2008 with those from five years earlier and found there was a 45% increase in the number of applications to get children back, that the proportion of returns had declined and cases took longer to resolve. ... 

"Lady Catherine Meyer - whose two sons were detained overseas by her ex-husband 10 years ago and who now runs the charity Parents and Abducted Children Together - said the time for diplomacy alone was over. 'If we go pussyfooting like this all the time, nothing is ever going to change. We need to be much more firm. The Hague Convention is better than nothing but it is absolutely not fool proof and some countries do not abide by it the way they should.'

More at:  "Warnings over abduction treaty" By Jon Douglas, Face the Facts, BBC Radio 4 and even more on a BBC Radio 4 programat 4:00 EDT today, "Face the Facts: The Stolen Families" at 4:00 EST. It is already available on on BBC iPlayer.

Sec. Clinton to "redouble, triple our efforts" on child abduction

Clinton pledged her commitment to bring abducted U.S. children home, increase federal interagency collaboration, and push nonsignatory countries to ratify the 1980 Hague Abduction Convention: "One day is too long, years is just unthinkable. There’s really not much that I or any of our officials can say that will fill the anger and frustration, disappointment, the big hole in the center of your hearts ... . We believe that The Hague Convention is the best tool for deterring and resolving abductions ..."

 - - from "Secretary Clinton pledges to improve U.S. response to international parental abduction"

-via Global Justice Initiative,  which adds: "Less than half of the world’s sovereign states are currently U.S. treaty partners under the 1980 Hague Abduction Convention, and a number of partner countries are not complying with their treaty obligations. ...  Both Secretary Clinton and President Obama have raised individual missing children’s cases at the highest levels during diplomatic visits abroad."

Newborn "returned" to parents' country under Hague Convention, "unclean hands" irrelevant

An Illinois federal court "returned" a newborn to a country he had never been to, but where his parents undisputedly lived when he was born, in Uzoh v. Uzoh (N.D. Ill. 5/2/12 & 5/3/12). It said the parents' joint actions and intent were that the boy would be born in the U.S. to gain citizenship, but would reside in the family's home in England. 

The court also rejected a request to bar the petitioner from seeking any relief because he had "unclean hands", i.e., he had done something wrong himself. While there is a traditional rule in "equity" cases that someone who asks a court for relief must have "clean hands", there is no such rule in the Hague Convention:

"it is not appropriate to consider the details of the parties' messy domestic disputes beyond their relevance to those defenses explicitly provided by the Hague Convention".

Personally, I have long been bothered by attempts to raise "unclean hands" defenses for another reason, too: They are usually about things done in another country, the evidence about them is not convenient to collect in a Hague case in the country the child was taken to, and since the treaty does not make them relevant, the petitioner and attorney should not have to take the time and expense of preparing to defend against every possible allegation about the history of the marriage or, in many cases, the many years since the separation and divorce.