International Family Law News & Analysis

Abu Dhabi creates family laws and bilingual family courts for non-Muslims

The new laws allow joint custody, equitable financial orders in divorces, civil marriage, and Western-style wills. They only affect Abu Dhabi, not the rest of the United Arab Emirates.

Abu Dhabi emitió una ley de divorcio para los no musulmanes

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)

India: Panel proposes unique "Disputes Resolution Authority" on international child abduction instead of joining Hague Convention

The Justice Rajesh Bindal Committee, assigned to evaluate joining the Hague Convention on international parental child abduction, has instead proposed creating an "Inter-Country Parental Child Removal Disputes Resolution Authority". The proposal expressly rejects some basic principles of the Hague Convention -- especially the concept of leaving "the best interests of the child" to be determined only in a place where that can be done fully and fairly. Nevertheless, it offers a way to deal with these situations where there is currently none but the slowest, most expensive and brutal. It would be tailored to the particular needs of these families.  It might work considerably faster than ordinary family law litigation, but I'm not competent to say whether that is even a realistic possibility.

"Composition: The Authority should be headed by a sitting or retired Supreme Court judge, or a Chief Justice or judge of a High Court with at least five years’ experience, and experts with at least twenty years’ experience in the field ... with three appointed members to decide on applications. ... At least one... must be a woman...

Functions: ...The authority would play a role similar to that of “Central Authority” under ... the Hague Convention.

A parent would immediately have to report to this Authority when she arrives in India with her child, in a case of disputed inter-country parental child removal.

Indian Embassies could be tasked with educating persons residing abroad of the Authority’s existence after it is constituted. The myriad functions of the Authority include:

• To discover the whereabouts of children wrongfully removed to, or retained in India, or outside India
• To take appropriate measures to prevent harm to such child or other interested party.
• To secure the voluntary return of such child to the country of its habitual residence or to bring about an amicable resolution in the dispute
• Facilitating immediate access for the parent left behind in the foreign country to the removed child. This is to avoid allegations that the child was tutored by the taking-parent. Such access can be allowed on mutually agreed terms or on an order of the Authority or the Court
• Ensuring the well-being of the child through diplomatic and other channels before allowing the child to be taken to another country. Section 24 of the draft 2018 Bill lists exceptional scenarios where the Authority may refuse the return of the child in the interest of the child’s well-being.
• Facilitating behavioural counselling and other aid to the child/applicants ...
• Maintenance of a database of Indians residing abroad. Indian families abroad will have to notify the authority of any additions/modifications to the family.

Mediation first: It is proposed that mediation would be mandatory at the first instance in all cases. To this end, the Committee has recommended that a list of trained mediators be made available on the Central authority’s site for the disputing parties to choose from.

However, on request or if necessary, the Central authority should facilitate the provision of legal aid to the parties. A list of advocates willing to provide pro bono services should also be listed on the authority’s website.

Best Interests of the Child: This aspect is to form the basis of all the decisions to be made by the Authority. The best interests of the child has been expressly incorporated into the proposed 2018 Bill, as one of the exceptions for refusing the return of a child in these disputes. This is to ensure that the child is not merely treated as a pawn or reduced to a commodity.

... Proceedings before the authority would be kept confidential ... held in-camera as far as possible. ... Foster care is also not encouraged ..."

 From: Highlights of the Justice Rajesh Bindal Committee Report on Inter-country Parental Child Removal

By Meera Emmanuel,  May 9, 2018 in Bar & Bench.

Federal courts have jurisdiction over claims from I-864 Affidavits of Support

A Lynchburg, Va. federal court rejected an argument that an affidavit of support only allows a state-court breach of contract suit. It said the great majority of courts that have considered the issue have found that federal courts have jurisdiction for claims to enforce the affidavits. It also saw no problem with failing to attach a copy of the affidavit to the court filing, so long as the Twombly/Iqbal standard for stating a claim is met. Madrid v. Robinson, USDC W.D.Va., 10/31/16.

All Process, No Service: Serious bid to replace justice-delaying / obstructing Hague int'l process-service treaty

Once in a blue moon, law review articles, even those from law schools instead of lawyers' groups, are actually helpful to actual lawyers practicing law. That may just be a tragic accident. But seriously, sometimes, when an article actually is on point, it hits it out of the park. 

Here's a law review article that not only does that, but shows the value of academics' unique viewpoints in pointing out the bird's-eye view of problems that we working stiffs work with every day, but don't recognize. I think of myself as an outside-the-box, big-picture, go-upstream-to-stop-the-bodies-falling-in-the-river kind of guy, not blinkered by conventional wisdom. Yet I was caught totally unawares by this one, but had to agree with it as soon as I read the title.

Everyone knows that multilateral treaties are wonderful, progressive, and modernizing, right? And if you know that there is a treaty on serving court documents on litigants internationally, then you believe, as I always did, that it greatly improves international unity and comity by offering a single, simple procedure in which every country provides a way to serve anyone with a lawsuit from anywhere. This is the "Hague Service Convention" (long title: Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361.)  

Yes, after the first couple times I used it I have always tried hard not to, but I was always proud of it, of my knowledge of it, of my ability to use it as efficiently as possible, with less pompous fuss than those lawyers who love to make everything more ornate and difficult and thus make themselves more indispensable to clients.  But the emperor has no clothes, University of North Texas — Dallas law professor Eric Porterfield points out in "TOO MUCH PROCESS, NOT ENOUGH SERVICE: INTERNATIONAL SERVICE OF PROCESS UNDER THE HAGUE SERVICE CONVENTION", in the Temple Law Review, Vol. 86 p. 331 (2014). Yes, the treaty offers an intergovernmental service for delivering documents in other countries, but it takes two months at best, many more at worst, and in many cases the person never gets served. And although it has language saying that it doesn't interfere with other kinds of process-service, such as mail or private in-person delivery, those provisions have given many countries an opportunity to say they will not let their residents be notified of legal proceedings by those methods, only by the slow, official Hague method. Even though they allow mail and other less formal notification methods for their own non-international cases!

I had a case with India where we tried and failed to get Hague Service. The divorce and property-division was granted anyway, as the defendant filed an Answer in the case, which gave the Virginia court all the jurisdiction it needed. Besides, like many American courts nowadays, this one had "rocket-docket" rules that require cases to have initial status hearings quickly and proceed to final trials in a few months. About a year later, I got a shabby but colorful envelope with the papers I had prepared, along with a bundle of detailed handwritten letters from the process-server describing very frequent but unsuccessful visits to the defendant's last known address, and his conversations with small boys and old ladies there who always had a different story about where the defendant had moved to, or gone for an extended and indefinite vacation.

I had another case with Japan where I argued very hard to convince the judge to delay a hearing for months so that we could achieve proper Hague-Convention service, and finally a little more than two months before the hearing,  the father was about to get served, but then the Justice Ministry sent everything back to me with a form which explained that the papers could not be served because the hearing was coming up too quickly for the defendant to prepare for it. Fortunately, this too was sent by such slow mail process that it, too, arrived after the hearing.

In yet another, sadly common, case, I had to have a Hungarian translator in Cleveland translate routine uncontested divorce documents into Hungarian, to be served on an American. 

So in this day and age, when we and many other countries in the treaty have communication and even process-service by e-mail, and people are accessible almost anywhere and you can deal with them by e-mail, phone, etc. without even knowing what country they're in, the international cases are stuck in 1965. This treaty is probably worse than no treaty at all. It has become an anti-notification, forum-shopping, justice-obstructing, justice-delaying, justice-denying treaty, in a process Shakespeare had in mind when he wrote:

We must not make a scarecrow of the law,
Setting it up to fear the birds of prey,
And let it keep one shape, till custom make it. 
Their perch and not their terror.

-- "Measure for Measure". Using "fear" to mean "affright" or "terrorize."

But how, then, to reshape it? Read more at:

Eric Porterfield, "TOO MUCH PROCESS, NOT ENOUGH SERVICE: INTERNATIONAL SERVICE OF PROCESS UNDER THE HAGUE SERVICE CONVENTION", Temple Law Review, Vol. 86 p. 331 (2014).

India: Muslim women fight instant "triple talaq" -- 1 word thrice spoken, texted, skyped, etc.

After the article below came out, India's  All India Muslim Personal Law Board upheld triple talaqs, calling them part of the "Islamic ethos" according to the Sept. 3, 2015 Times of India. 

India's Muslim women fight to end triple talaq law that yields instant divorce

In India, Muslim women’s lives are being ruined because men can end marriages simply by saying ‘talaq’ three times – even on social media

By Amrit Dhillon in The Guardian, 8-10-15

via The Association of Family and Conciliation Courts

Related articles

Indian Muslim Law Board Upholds Triple Talaq

Triple Talaq System a Crime, But No Scope of Change: Muslim Law Board

MUSLIM WOMEN AGAINST "ORAL DIVORCE" AND POLYGAMY - Misna - Missionary International Service News Agency

Nearly all India's Muslim women reject 'triple talaq', polygamy, survey finds | Reuters

International Guidelines for Problem-Solving Vary by Country: Das internationale Problemlösungs-Chart

Das internationale Problemlösungs-Chart

England & Wales reform child custody process, foster care, adoption, other laws on children

Landmark Children and Families Act 2014 gains royal assent

England to overhaul child custody, adoption, divorce laws

 "A presumption that the involvement of both parents in a child’s life will further that child’s welfare, unless the contrary is shown" is included in the government's new Children and Families Bill. The bill also makes it easier to move children from foster care to adoption, removes ethnic-religious adoption restrictions, and lets foster parents become the child's adoptive parents. It also regulates and restricts expert witnesses in child-related cases, and seeks to clarify when mediation is required before filing a child custody case.

It repeals divorce law provisions that let a court delay the granting of a divorce, or give only a non-absolute divorce, to accommodate the needs of a child under 16.

The Bill would also finally repeal nearly all of the landmark Family Law Act 1996, which was never implemented. The 1996 Act reduced waiting periods for no-fault divorce but also eliminated "quickie" divorce on fault grounds, replacing both with a single one-year period for reflection and consideration, during which courts would provide information sessions and mediation. It also provided for indefinitely blocking a divorce that "would result in substantial financial or other hardship" for a spouse or a child. One of the few divorce reforms in history that was a product of thorough, educated debate in which scores of legislators studied deeply and understood the magnitude of their choices, it was a model for other countries' reforms, including the U.S.'s Second Chances Act and Parental Divorce Reduction Act.

National Center for Missing & Exploited Children will no longer handle abductions to U.S. under Hague Convention

An announcement dated  February 15, 2008 states:

"As of April 1, 2008, the National Center for Missing & Exploited Children (NCMEC) will no longer handle any aspect of incoming child abduction cases arising under the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention"). As the U.S. Central Authority, the U.S. Department of State has decided to assume all responsibility for managing incoming Hague Convention cases. As of April 1, 2008, please direct all inquiries and requests for assistance that your office receives on incoming cases to the Office of Children's Issues at the U.S. Department of State at 202-736-9090."

The people at NCMEC's international division have been great to work with over the years. They have been handling these cases almost exactly as long as I have. I hope the institutional know-how they've built up carries over.

The rest of NCMEC's statement is in the continuation: