Posts

Case Update: Hague Abduction Case, ICARA, Where to File a Return Request

On July 24, 2020, the U.S. District for the District of Columbia addressed an interesting request under the Hague Abduction Convention.  In the case of Stone v. U.S. Embassy Tokyo, et. al., Mr. Jack Stone sued the U.S. government to issue a passport for his first-born child.  Subsequently, he amended his filing.  In his Second Amended Complaint, he argued that his wife left the United States for Japan on November 11, 2018, with his child and without his consent, out of fear that she would be deported because the U.S. government had not issued her a visa, despite the Plaintiff submitting a Petition for Alien Relative (Form I-130) over a year prior.  Mr. Stone then filed additional pleadings, which the court construed as a motion for leave to amend his Second Amended Complaint.
In the Third Amended Complaint, Mr. Stone requested his child’s return under the Hague Abduction Convention, an order compelling U.S. citizenship for his second-born child, a visa for his Wife, and tort damages ag…

Case Update: Hague Abduction Convention, "now settled"

The case of Bejarno v. Jimenez denied the Petitioner Father’s request to return his child to Honduras using the Hague Abduction Convention.   The court’s analysis hinged on the "now settled" exception.  The court concluded that the Respondent Mother removed the parties’ child to the United States on April 24, 2018.  The Father submitted an application with the Honduran Central Authority on June 29, 2018, requesting the child’s return.  He then secured pro bono legal counsel, and filed his return petition in the appropriate federal court in NJ on August 30, 2019, sixteen months after the child was wrongfully removed.  
The court looked to the factors highlighted in Monzon v. De La Roca to determine if the child is now settled since the Father commenced the proceedings more than one year after the removal.  These factors include:  the age of the childthe stability of the child’s new residencewhether the child attends school or daycare consistentlywhether the child attends church…

Case Update: Hague Abduction Convention, Habitual Residence, Grave Risk & Undertakings

The U.S. Court of Appeals for the 2nd Circuit recently affirmed a return order issued pursuant to the Hague Abduction Convention in the Grano v. Martin matter.  The Respondent Mother appealed on three points.  
First, she argued that the trial court misapplied the Monasky v. Taglieri test in deciding that the minor child was habitually resident in Spain.  The 2nd Circuit disagreed.  Monasky requires the trial judge to apply a totality-of-the-circumstances test when determining a child’s habitual residence.  It also determined that the trial judge’s decision would only be overturned upon a showing of clear error.  The 2nd circuit elaborated on several facts that lead the trial judge to find Spain was this child’s habitual residence, including purchases of real estate, registering the child as a Spanish citizen, finding a school for the child, and traveling to Spain in 2017 on a one-way ticket.
Second, the Respondent Mother argued that the trial judge was wrong to find that there was no g…

Case Update: UCCJEA, Continuing Exclusive Jurisdiction, Temporary Emergency Jurisdiction

On July 6, 2020, the Court of Appeal of the State of California issued an opinion in the case of L.A. Cnty. Dep't of Children & Family Servs. v. MH.  At issue, in this case, is a minor child who had been in a shelter in Mexico, and was then transferred to his maternal grandmother in California.  The child's parents were both found unfit to care for the child, and the child had been living in deplorable conditions with the parents in Mexico.  The child is a U.S. national (the mother is American), and upon learning of the child's citizenship, the U.S. consulate was contacted, and arrangements were made to transfer the child as an unaccompanied minor to the United States.  The juvenile court in California issued a custody order on August 6, 2019 declaring the child a dependent of the court and ordering the child's placement with his maternal grandmother. The California court never contacted the Mexican court.  The Father timely appealed, arguing a lack of jurisdiction…

Case Update: UCCJEA, child custody jurisdiction, simultaneous proceedings, registration of foreign custody order

On July 7, 2020, in McDowell v. Buchman, the Court of Appeals of North Carolina affirmed a trial court decision that refused registration of a Canadian custody order.  The parents have a long history of litigating, which started shortly after the minor child was born (DOB 4/22/2010).  In March 2011, the parents agreed to custody in a consent order, entered by an NC court.  In November 2012, the parents agreed to a modified consent order, which was also entered by an NC court. It was evident that the parents were “totally unable to cooperate with one another regarding custody issues of the minor child” and a few weeks before the Father was set to begin his access with the child under the modified Consent Order, the Mother absconded to Ontario, Canada with their minor child.  The Father initiated an ex parte emergency proceeding in North Carolina related to the child’s removal, and he received an ex parte custody order in early 2013.  An arrest warrant was also issued for her criminal c…