Showing posts from April, 2020

India Update: Implications of the Lockdown on Family Cases in India (GUEST BLOGGER)

From Guest Blogger, Subham Jain in Delhi, India
Implications of Lockdown on Family Law Cases in Indian Jurisdiction: Present & Future
While many are enjoying the time being spent with the families, there are many who are facing difficulty in keeping intact their marital cord. There is a tremendous spike in the calls to family law lawyers where their clients are waiting for the courts to open to file divorce. Being forced to live together at these times, even small disagreements are turning out to be a major issue and further worsening existing disputes. 
Rise in Domestic Violence and measures taken Since the initiation of lockdown, instances of domestic violence have increased. Couples are finding it difficult to cope with the increasing mental health issues. All this is happening when the sale of liquor is prohibited during lockdown, which is considered as intimate partner of domestic violence. Women are finding it difficult to report cases considering the prohibition of movement. Th…

Case Update: Religious Marriage Contracts - Enforceability of Mahr

Maryland's Court of Special Appeals (its intermediate appellate court) issued an opinion on April 7, 2020 that addressed the issue of the enforceability of Islamic marriage contracts in two separate, yet consolidated, cases.

Nouri v. Dadgar and Ghazirad v. Mojarrad set forth the premise that mahr (a provision in an Islamic marriage contract for a husband to pay a wife a sum of money) is not per se unenforceable.  In fact, if the contract can be interpreted based on neutral contract principles, and does not touch upon ecclesiastical law, the court can address the contract's enforceability.  The court, however, went a step farther and set a higher standard for these particular marriage contracts because they are entered into between two individuals in a confidential relationship.  On that basis, the enforceability of the contract should involve a more stringent standard such as that which would apply in the situation of a premarital agreement and look to whether there was unfairn…

Case Update: Recognition of Foreign Court's Hague Abduction Order

The Minnesota Court of Appeals issued yet another opinion in the hotly litigated case of Cook v. Arimitsu.  The facts are extremely complex, but surround a mother who took four children (2 sets of twins) to Japan in 2014, and did not return with them.  Afterwards, the parents engaged in a series of lawsuits in Japan and Minnesota, having appealed all results in both courts on numerous occasions.  
In Japan, the father initiated a Hague return petition, which, after an appeal, was granted for all 4 children, but was then eventually overturned in 2018. The current court order from those Hague proceedings denies the father’s request to return the minor children to the United States.
In Minnesota, the father initiated a child custody case, which after several appeals proceeded and ultimately gave the father sole custody. 
For this appeal, the mother brought forth several discreet issues, but the most prominent issue was her request that the 2018 modified Hague return order (which denies …

Case Update: "Actually Exercising" custody rights in the 1980 Convention

In the U.S. District Court for the District of Delaware case of Lopez v. Bamaca, decided on April 20, 2020 (C.A. No. 19-1001-LPS), the Court analyzed a Left Behind Parent's exercise of their parental rights over a child that was wrongfully removed from their habitual residence.

The 1980 Hague Abduction Convention references a parent's exercise of their custody rights in 2 distinct places in the treaty.

In Article 3(b), the Petitioner has a burden of showing that he or she had "actually exercised" rights of custody at the time of the child's retention or removal.  Virtually every circuit in the United States follows the test outlined in Friedrich v. Friedrich (78 F.3d 1060 (6th Cir. 1996)) that says, "nothing short of clear and unequivocal abandonment will prove that the petitioner failed to exercise his or her custodial right."

In Article 13(a) of the Treaty, the Respondent may argue an affirmative defense, or exception, to the child's return by …

UK Update: Family Courts and Child Abduction in the Time of Corona (GUEST BLOGGER)

From Guest Blogger, James Netto of Dawson Cornwell in London

Abduction in times of corona
Much to the ire of certain abducting parents, it is still business (almost) as usual for the High Court of Justice in London. Although the UK is on lockdown preventing people from leaving home bar in very specific circumstances, our courts have been obliged to adapt exceptionally rapidly. Family lawyers are in totally new territory: for a steadfastly cautious profession known more for its wigs and gowns rather for than for its working of Google Hangouts, the last month has been a very, very steep learning curve. With detailed and radical guidance emanating from our highest judges and professional organisations effectively overnight, the profession is gradually getting used to hearings occurring remotely – either by telephone, or by webcam.
So how is it going so far? Although it has not been without some bumps in the road, the higher courts are functioning with relative ease. Judges have been removed…

Case Update: International Relocation of a Minor Child

In an unpublished appellate opinion on March 27, 2020, the Court of Appeal of the State of California (2nd Appellate District, Division 2) affirmed a mother’s request to relocate her child to Japan.  
In re Marriage of Inoue (B289261 c/w B290642, Cal. App. 2020), had the child’s father appealing the trial court’s decision to allow the child’s international relocation.  Both parents were born and raised in Japan, and met and married in the United States.  Their son was born in the United States.  In November 2016, the petitioner mother requested permission to relocate with the child to Tokyo, arguing that her residence in Japan was the only option for her to become self-supporting and that both parents’ families would be a support system for her and the child in Japan.  The respondent father argued against the relocation and raised concerns that any California custody order would not be enforceable in Japan, that joint custody is not a recognized custodial arrangement in Japan, that th…

Case Update: Fees in 1980 Convention Cases - Joya v. Gonzalez

The U.S. District Court for the Eastern District of Louisiana issued an order on April 17, 2020 (Civil Action No. 20-236 Section M (5)) in the case of Joya v. Gonzalez fixing the fees due to Mr. Orellana Joya, the petitioner father who secured a return order of his child to Honduras.   In the return order, the court awarded Mr. Joya fees, pursuant to the International Child Abduction Remedies Act (22 USC 9001, et. seq.).  In its subsequent order, the court set forth the amount of the fees to be paid and its analysis in calculating the fee award.

When calculating the fees due to a prevailing parent in a 1980 Convention return proceeding, the court uses the "lodestar" calculation, determining the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.  The amount of fees can then be adjusted upward or downward.  The party requesting the fee award bears the burden of establishing the reasonableness of the fees and costs and must submit adeq…

HCCH Update: Evidence Convention - New Guide on Use of Video-Link

On April 16, 2020, the Hague Conference on Private International Law published its newest Guide to Good Practice under the Evidence Convention.  This publication looks at the development of video-links in taking evidence overseas using the Evidence Convention.  It outlines good practices and has references to material from Contracting Parties.

The Evidence Convention provides a mechanism to obtain evidence overseas between treaty partners in contemplation of judicial proceedings.  You can find more information on the Evidence Convention on the HCCH's website by clicking here.

HCCH Update: Article 13(b) Guide is now available

The Hague Conference on Private International Law published its much anticipated Guide to Good Practice on Article 13(b) of the 1980 Hague Child Abduction Convention.  This guide provides guidance to attorneys, judges, and governments on the application of the grave risk of harm exception to returning a child under the treaty.

The work of the Experts Group that produced the Guide was approved during the Sixth Special Commission meeting of the Hague Conference in 2011/2012.  The Experts Group convened for its first meeting in June 2013.

The Guide can be found here.

Case Update: Habitual Residence under the 1980 Convention - Monasky v. Taglieri

On February 25, 2020, the U.S. Supreme Court affirmed the opinion of the U.S. Court of Appeals for the Sixth Circuit, which concluded that Italy was the habitual residence of an infant that was brought from Italy to Ohio by her mother in 2015, shortly after the child was born. This opinion resolved a circuit split over the definition of habitual residence.

The 1980 Hague Child Abduction Convention is the private international law instrument that seeks to secure the prompt return of a child removed from or retained out of its habitual residence. It is not a child custody or jurisdictional determination, and not a means of enforcing existing custody orders. Instead it is designed to restore some type of status quo so that the child’s parents can pursue a custody order from the court in the appropriate jurisdiction. It discourages forum shopping and gives the child some consistency during the parents’ custody litigation. The threshold question that a court must resolve in determining wh…

Case Update: Discovery for a Foreign Proceeding - In Re. Mariani

The U.S. District Court for the Southern District of New York issued an opinion in In Re. Mariani (20 Misc. 152) on April 16, 2020 where it granted Lorenzo Mariani's petition under 28 U.S.C. 1782 to serve a subpoena duces tecum on Citibank, N.A. to obtain documents to use in his divorce proceeding in Florence, Italy.

For a petitioner to succeed in securing discovery for his or her foreign proceeding, s/he must:

1. make the request in the federal district court where the person resides or is found (Citibank is in New York);
2. the discovery is for use in a foreign proceeding in a foreign tribunal (his divorce was pending in the courts in Florence, Italy); and
3. the request is made by a foreign international tribunal or any interested person (Mr. Mariani is an interested person in his own divorce).

Mr. Mariani met these three requirements under 28 U.S.C. 1782.

Meeting these three requirements leaves the federal district court free to grant the discovery request in its discretion…