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Showing posts from May, 2020

Case Update: International Adoption, Hague Adoption Convention, Central Authority Guidance

The National Council for Adoption sued the U.S. government over certain written guidance developed by the U.S. Department of State for Adoption Service Providers (ASPs) under the Intercountry Adoption Act, which is the U.S. federal implementing legislation for the Hague Adoption Convention.  (National Council for Adoption v. Pompeo, Civil No. 18-2704(RCL), 5/19/2020)
The relevant government agency in the child’s country of origin bears the ultimate responsibility for making a “referral” of a child to be placed with a particular family for adoption.  The adoption community, however, has also coined the term “soft referral” to refer to unofficial referrals or a matching process between child and family.  These soft referrals typically occur when prospective parents are matched with a child before the child is confirmed eligible for adoption or before the parents complete the lengthy required home study. 
The NCFA filed the instant case challenging written guidance by the U.S. Departmen…

Case Update: UCCJEA, Registration of Foreign Custody Order, Requirement of a Certified Copy

A parent can obtain a child-custody order from a foreign country, in substantial conformity with the jurisdictional provisions of the UCCJEA, and that child-custody order may then be registered in a U.S. state so that enforcement of it can be sought.  
In the case of Hamdan v. Freitekh, (Case No. COA19-929) the Court of Appeals of North Carolina vacated its trial court’s registration and subsequent enforcement of a Shar'ia custody order, obtained from the Shar'ia Court of Jerusalem by a Father after the parties’ children were removed from Ramallah and unilaterally relocated to North Carolina.  The father failed to meet the stringent requirements in the UCCJEA of what paperwork must be filed in order to seek registration of the Shar'ia custody order, specifically, he did not provide a certified copy of the custody order. 
Citing to N.C. Gen. Stat. 50A-305, which are the UCCJEA’s registration provisions, “the out-of-state child-custody determination may be registered for en…

Case Update: 1980 Convention, Federal vs. State Court, Abstention Doctrine

The U.S. District Court issued a new order on May 18, 2020 in the Barron v. Kendall case related to the issue of abstention in a Hague Abduction return proceeding simultaneously before the state courts and the federal courts. 
In this case, the father allegedly abducted the parties’ 5-year-old child from Mexico to San Diego, California, where, about one week later, he filed for custody.  He was granted temporary emergency custody. The mother appeared in the custody case in February 2020 and requested that the family court return the child to Mexico.  The judge denied the mother’s request, but set in, sua sponte, the case for a “Hague Status hearing” despite the fact that no petition was filed requesting that the child be returned to Mexico using the 1980 Hague Abduction Convention.  At the status hearing, the judge set in a trial date on the Hague Abduction issue, but it was continued, and continued again, due to court closures related to COVID-19.  As of the federal court’s May 18, …

Case Update: Consular Report of Birth Abroad and minor child's U.S. passport application

A minor child born overseas to U.S. parents is eligible for U.S. citizenship if the requirements outlined in the Immigration and Nationality Act (INA) are met.   The parents must request a Consular Report of Birth Abroad (CRBA) as evidence of the citizenship before the child’s 18th birthday from the nearest U.S. embassy or consulate, and, if the child will be traveling, simultaneously request a U.S. passport and social security number.  The consular officer at the embassy or consulate is responsible for adjudicating a U.S. citizenship claim for applicants seeking a CRBA.  It will include an assessment of the validity of the citizenship claim, a review of the evidence of the child and parents’ identities, and evidence of citizenship.  (see 7 FAM 1441.3) 
In the Sabra v. Pompeo case, (No. 19-cv-2090) Baby M is the subject of a request for a CRBA and a U.S. Passport.  Baby M was born in a home-birth to 46-year-old Mrs. Sabra, a U.S. citizen who was living in Gaza.  Baby M’s father is a …

Case Update: Distinction between Child Support Jurisdiction and Custody Jurisdiction

In Tompkins v. Tompkins, (2020 Ark. App. 122 (Ark. App. 2020), the Arkansas Court of Appeals, Division IV, made certain that the parties understood the distinction between custody jurisdiction under the UCCJEA and child support jurisdiction under UIFSA.  
The minor child had been residing in Germany with her mother for some time prior to the filing of a divorce action in Arkansas, where the father was a bona fide resident.  Everyone acknowledged that the custody matters must be brought in Germany, which, at the time, was the minor child’s “home state” under the UCCJEA.  At the trial, however, the mother requested child support from the father, and the trial court denied her request, accepting the father’s lawyer’s references to the UCCJEA and “the Hague Convention” (presumably referencing the Hague Child Abduction Convention).  Neither the UCCJEA nor the Hague Abduction Convention have any relevance to child support.  The appellate court corrected the misunderstanding, and cited to t…

Case Update: Simultaneous Actions, Separation vs. Divorce, and Recognition as a matter of Comity

Two Italian nationals met, married in Italy, and then subsequently moved to the United States, where they made their marital home for 40 years, and had their children.  Both became US nationals. On a trip to Italy in 2015, the spouses had a dispute, and the Husband returned to the United States without his Wife.  In 2016, the parties filed a separation action in Italy based on consent, which was ultimately dismissed.  They then filed a non-consensual separation action in Italy.  A separation action in Italy is different from a divorce action.  It must precede a divorce action, but a divorce action does not need to follow (if neither party wants to request a divorce).  Both parties had Italian counsel, and the Wife ultimately fought the Italian separation action.  Despite her overtures, it continued.  In 2018, she filed a divorce action in New Jersey.  By now, both parties were back in New Jersey.  Upon a request by the Husband, the NJ court dismissed its divorce action, giving deferen…

Case Update: Undertakings to Ameliorate a Grave Risk and the 1980 Convention

In 2019, the 2nd Circuit Court of Appeals addressed the issue of undertakings in a 1980 Hague Child Abduction Convention case.  In the case of Saada v. Golan, 930 F.3d 533 (2nd Cir 2019), a mother was accused of wrongfully retaining the parties’ minor child in New York after visiting for a family wedding.  The mother argued it would be a grave risk of harm to the minor child if the child were returned to Italy.  The U.S. District Court for the Eastern District of New York found that, with certain undertakings, the risk could be ameliorated, and the child should nonetheless be returned.  The undertakings included such things as the father giving the mother money before the child was returned for housing, that the father agree to stay away from the mother after the return, and that the child only visit with the father with the mother’s consent (of course, pending an appropriate custody resolution in Italy).  The 2nd Circuit expressed concern that certain undertakings, particularly those…

Case Update: Simultaneous Divorce Actions, Forum Non Conveniens

In a March 2, 2020 opinion by the Supreme Court in New York County in Federbush v. Shah (2020 NY Slip Op 50300(U)), the court addressed a multi-jurisdictional divorce suit between a couple that had married in Thailand 8 years earlier.  The couple had signed a prenuptial agreement on the same date as their wedding, which divided property by title, and Wife gave birth to a child about 2 months later.  The family lived in Thailand until mid-2017 when they then relocated to NY.  While Husband is American, the Wife’s nationality presented problems for her remaining in the United States for more than a set number of days at a time.  Approximately 1 year after their arrival in NY, the parties separated while vacationing in Thailand. 
The family was embroiled in 3 separate court cases.  Wife filed a Hague return petition in NY that was denied, finding that NY had become the child’s habitual residence by agreement of his parents.  Before this decision was rendered, Wife filed a divorce action…

Case Update: Pinpointing the date of a wrongful retention - Moreno v. Zank

On April 23, 2020, the U.S. District Court for the Western District of Michigan (Southern Division) issued an opinion on remand from the 6th Circuit in the case of Moreno v. Zank (No. 1:17-cv-732) to pinpoint the moment in time when the minor child was wrongfully retained by her father in Michigan. 
While the family has an acrimonious history, the court chose to focus on several dates within the month of August 2016 to try to pinpoint the date on which the minor child, BLZ, was retained in Michigan at the end of a summer vacation to see her father.  The father was slated to put BLZ on a plane to Florida on August 9, 2016 at which time her maternal grandfather would take over custody (and presumably, after a trip to Walt Disney World, take her back to Ecuador).  Due to a Delta Airlines nationwide outage, that flight did not happen, and shortly thereafter, BLZ told her father that she objected to returning to Ecuador.  The minor child’s travel authorization permitted BLZ to travel to t…

DOS Update: New ICAPRA Report Out

The U.S. Department of State issues a yearly "compliance" report, as mandated by Congress, that visits outstanding child abduction cases from the United States to other countries and explores some of the underlying reasons behind why certain cases remain unresolved.  The report includes both countries where there is a treaty relationship with the United States under the 1980 Hague Child Abduction Convention and countries where there is no treaty relationship (and, perhaps, no laws in place to facilitate the return of a child to the US).

For the 2020 report (looking at cases from 2019), the below countries were designated as "non-compliant" by the United States.  Non-compliance relates to a country's "persistent failure" to abide by legal obligations to return children or work with the U.S. government to resolve cases.  Under ICAPRA, a "persistent failure" is where 30% or more of all abduction cases remain unresolved; the foreign country'…

Case Update: Divorce, Simultaneous Proceedings, and Forum-Shopping

The Court of Appeal of the State of California (4th Appellate District - Division 3) issued an unpublished opinion on April 24, 2020 in Kwon v. Park (G057226) addressing a variety of  issues in a couple’s multi-jurisdictional divorce. 
Ms. Kwon and Mr. Park are embroiled in divorce litigation in both Korea and California.  To get a fuller picture of the multi-jurisdictional interplay, one needs to also review the briefs in this case.  
The spouses in this case are both Korean nationals who had a residence in Irvine, CA.   The parties separated in mid-2017 and Ms. Kwon filed a petition for dissolution in California shortly thereafter.  In her petition, she listed the marital assets of which she was aware, but noted a need for pre-trial discovery to fully understand all the assets.  Ms. Kwon then proceeded to serve Mr. Park with a variety of CA pleadings, including subpoenas duces tecum, letters rogatory to discover assets in Mexico, and a preliminary declaration of disclosure.  Approx…

HCCH Update: COVID-19 Toolkit

The Hague Conference published a document that pinpoints its resources for those working on private international law issues during the covid-19 pandemic.  The toolkit can be found at this link.  When reviewing the document, you can click on links that will divert you to places on the HCCH's website to help you easily find resources, like the Guide to Good Practice on Article 13(b) of the 1980 Convention, the Guide to Good Practice on Mediation, and the HCCH's e-Apostille program.

For those who are not familiar navigating the HCCH's website, this toolkit will more easily help you find the most pertinent parts that might be implicated by the global pandemic.


Case Update: 1980 Convention, Grave Risk, Return Stayed due to COVID-19

On April 30, 2020, the US District Court for the Western District of Texas Austin Division issued an order in the case of Gallegos v. Garcia Soto returning the parties’ minor child to Mexico.  The court, which took evidence in early March took the further step of staying its return order because of the COVID-19 pandemic. 

The key issue before the court was whether the Mother proved by clear and convincing evidence that the spousal abuse she suffered was a grave risk of harm to the minor child.  The court applied the standard from the Gil-Leyva v. Leslie case, 780 F.App’x 580 (10th Cir 2019), which required a finding that the sustained spousal abuse was seriously endangering the child.  In other words, the Court was looking for a nexus between the abusive behavior towards the parent and any grave risk to the child.  The court here, however, found that the Father was not violent or abusive towards the child directly, and that the matter itself was best considered by a Mexican court. 

Most…

Case Update: Minor Child's Passport Issuance and its interplay with the 1980 Convention and COVID-19

Mr. Joseph Raia sued the U.S. Secretary of State and the U.S. Department of State requesting an immediate issuance of a new passport for his 10 year old son who is presently located in Italy and is the subject of a Hague Abduction return proceeding in that country.  The minor child’s passport, which was used by the child’s mother to remove the child from the United States and take the child to Italy, was cancelled after the petitioner father submitted a passport application and marked the passport as “lost.”  (Raia v. Pompeo and U.S. Department of State, 20-cv-1083 (JMA) (AYS) US District Court EDNY)
The father argued that the minor child is in need of an immediate passport, so that “when” the Italian courts order the child returned under the Hague Abduction Convention, the father can promptly return the child to the United States.  The father expressed a sincere concern over his child’s immediate safety, with the child having a serious heart condition that could be impacted by the C…