International Family Law News & Analysis

Norway ratifies Hague Child Protection/Jurisdiction/Enforcement treaty, Turkey seeks to join

Norway has ratified the 1996 Hague Child Protection Convention as of March 1, 2016, and the Turkish government has asked its legislature to ratify it. (Not the Child Abduction Convention, which both nations already belong to.) The U.S. has not yet ratified the 1996 treaty, although it has begun the process.

If the U.S. were to complete ratification, it would strengthen other countries' enforcement of U.S. and other child custody orders and prevent competing claims to jurisdiction; but it would eliminate (in international cases between two member countries) two very important U.S. child custody rules that make our Uniform Child Custody Jurisdiction and Enforcement Acts and Parental Kidnapping Prevention Act work so well to prevent, and not reward, child abduction: (1) our clear rule that jurisdiction for the first determination of a child's custody usually does not shift to a new state until six months after moving; and (2) that once a state or country has jurisdiction, it keeps it until everyone involved has moved away.

Text of treaty

Status table of all countries' ratifications and other actions

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

Japanese court gives US father custody of abducted child

[Note: It may be relevant that the child was not actually in Japan - the actual return happened earlier, when a US order was enforced, and only because the mother came to Hawaii and was arrested there on federal child abduction charges. That has historically been the only way to undo abductions to Japan and other countries that view child custody and enforcement extremely differently from English-speaking countries.]

The Osaka High Court has awarded a 40-year-old Nicaraguan man living in the United States custody of his daughter, following his divorce from the girl's Japanese mother who abducted her to Osaka ... ruling the 9-year-old girl had become accustomed to life in the United States with her father and his family. ... the daughter has already been handed over to her father in the U.S.

The couple married in 2002 and the child was born the same year. They lived in Wisconsin, but the woman returned to Japan with the child in 2008 without her then-estranged husband's permission.

The man was granted custody of the child in a U.S. suit over the couple's divorce. The woman was arrested by U.S. authorities in April last year when she visited Hawaii to renew her green card. She was released in December the same year after relinquishing the girl to her father. 

From "Osaka High Court grants custody of kid abducted to Japan to father in U.S."

- Japan Times, June 15, 2012 via Kevin Brown

Court: Hague Convention is different from jurisdiction/enforcement cases

This new Colorado case does not break any new ground, but it helpfully discusses the difference between a Hague Convention child abduction case and a case about child cusotdy jurisdiction questions under the Uniform Child Custody Jurisdiction and Enforcement Act. The Hague Convention is not about custody jurisdiction, it's more like extradition. But that distinction is often lost when trying to make people understand the even more fundamental distinction between deciding the merits of custody and deciding about jurisdiction or abduction return -- which are "procedural" decisions, and yet all-important ones that can make the difference in whether justice is done,whether a child continues to have a relationship with both parents, and whether a child's custody is decided by a court with sufficient evidence to actually decide a case in the child's best interests. Even some U.S. Supreme Court justices who were supportive of the Hague Convention, in the oral arguments of Abbot v. Abbot,130 S.Ct. 1983 (2010) mistakenly described the Convention as being about jurisdiction.

In this case, "IN RE PARENTAL RESPONSIBILITIES CONCERNING T.L.B.", Colo. App. 1/19/12, a Vancouver mother abducted children to Colorado and the father immediately filed for custody in Vancouver. The father filed and lost a Colorado Hague Convention case for immediate repatriation of the children, but when the Vancouver court finally was able to investigate the merits of the case, it found that the mother had made false sexual abuse allegations, and it gave custody to the father. When he went to Colorado to enforce the custody order, the mother argued that jurisdiction over child custody had moved to Colorado when the father filed the Hague case there. The Colorado Court of Appeals responds to that:

23 Mother argues, however, that Colorado's subject matter jurisdiction to determine parental responsibilities for the children was established in father's Hague Convention proceeding in Adams County, and that because the children's return to Canada was denied in that proceeding, the trial court erred by applying the UCCJEA and finding that Canada, rather than Colorado, had jurisdiction. We are not persuaded. ... ¶ 27 We reject mother's argument, relying on the Supremacy Clause, U.S. Const. art. VI, cl. 2, that the Hague Convention proceedings preempted the trial court's UCCJEA analysis. Proceedings under the UCCJEA do not conflict with, and are not preempted by, proceedings under the Hague Convention because the two laws address different objectives. See Suarez v. Castrillo, (D. Colo. No. 11-cv-01762-MSK, July 13, 2011) (2011 WL 2729074) (unpublished opinion and order denying reconsideration). The Hague Convention focuses on returning children who have been wrongfully removed from their place of habitual residence, whereas the UCCJEA sets forth standards to determine which jurisdiction decides custody disputes. ¶ 28 ... we reject her contention that a decision not to return a child under the grave risk exception means that the country to which the child was taken must always make the final parental responsibilities decision concerning the child. ¶ 29 Under the Hague Convention, a country to which a child has been removed has jurisdiction to decide the merits of the return claim but not necessarily the merits of the underlying custody dispute. ... See Simcox v. Simcox, 511 F.3d 594, 607 (6th Cir. 2007) (finding grave risk of harm is not an invitation for an abducted-to country to also decide the child's best interests); Friedrich, 78 F.3d at 1068 (grave risk exception is not a license for abducted-to country to decide best interests because that decision is a custody matter reserved to the child's country of habitual residence);

Thanks to Ron Nelson for alerting me to this one.

Parent coming to US for custody jurisdiction dispute can't be served here - Va. case

Virginia Family Law Appeals: Left-behind parent coming to Va. for UCCJEA case can't get served here or incur Va. jurisdiction.

Calls for India to join Hague Convention in wake of S.Ct. case

Custody disputes: Call for India to sign Hague Convention - Mangalorean.Com.

India's Supreme Court has ruled that an Indian court did not have to defer to the custody order of a U.S. state court which had jurisdiction over the case under the U.S.'s uniform state law, the Uniform Child Custody Jurisdiction and Enforcement Act, which ensures that after an international or international child abduction, the state the child was taken from will generally keep exclusive jurisdiction. In response, children's rights/joint custody groups in India called for ratification of the1980  Hague Convention on Child Abduction. (The issue is also addressed in a different but complementary way by the 1996 Hague Child Protection Convention.) 

 

Excerpt-
 

"Supreme Court advocate Kirti Singh explained that Indian law does not recognise parental child abduction as a crime. When one parent removes the child from the family home, or throws the mother out of the house - it is an offence against the child. The child is taken away to an alien atmosphere or is deprived of the presence of the mother and the child suffers due to the withdrawal from the familiar environment, Singh added."

Thanks to Global Justice Initiative for bringing the story to our attention.

Pastor Charged in Parental Kidnapping in Miller-Jenkins Gay Custody Case

The Family Law News Blog: Pastor Charged in Parental Kidnapping in Miller-Jenkins Gay Custody Case - NYTimes.com.

Spanish mother remains jailed for abducting child to avoid visitation

Courtesy of the great New Jersey divorce lawyer and blogger Charlie Abut, a story about a standoff between Spanish and U.S. courts over custody jurisdiction and visitation enforcement:

Court rebuffs jailed mother
Wednesday, April 4, 2007
Bergen Evening Record

HAGUE CONVENTION AND CUSTODY MODIFICATION LITIGATION - HABITUAL RESIDENCE - “GRAVE RISK” DEFENSE - ADDITIONAL ANALYSIS REQUIRED.

A California Court of Appeal made some important points about the boudaries between custody cases and hague convention cases, and construed the "Grave Risk of Harm" defense narrowly, in Forrest-Benavides v. Eaddy, ___ P.3d ___, ___ Cal. App. ___, 33 FLR 1039 (11/17/06), as it reversed a modifying decision by the California court that had made the original custody order.