Showing posts from June, 2020

Case Update: 1980 Hague Abduction Convention, Abstention Doctrine

The June 23, 2020 opinion in Cordoba v. Mullins raises an interesting abstention issue between a State Court divorce and protection order case and a Federal Hague Abduction return petition.  
Ms. Mullins (Mother) allegedly absconded with the parties’ two minor children to Illinois on January 4, 2020.  After learning of the children’s departure, Mr. Cordoba (Father) filed an "international parental child abduction case" in Ecuador and enrolled the children in the Passport Issuance Alert Program.  On January 9, 2020, Ms. Mullins filed a dissolution petition and a civil protection order matter in Cook County Circuit Court in Illinois (which were consolidated into one State Action).  
On March 18, 2020, Mr. Cordoba filed a motion to dismiss the State Action arguing a lack of jurisdiction.  That motion remains open and unresolved.  The Motion itself, according to the federal court, first raised the issue of the Hague Abduction Convention (despite not being a return petition filed u…

Case Update: Obtaining a U.S. passport for a minor child without both parents' signatures

When parents share joint legal custody of their child, both parents must sign the minor child’s U.S. passport application.  In the case of Clarke v. Lopez, the minor child’s father, Mr. Lopez, signed the child’s passport application but did it without the proper notarial stamp.  When asked by the child’s mother, Ms. Clarke, to rectify this error, he refused.  The U.S. Passport Office told Ms. Clarke that she should request an order from the appropriate court that gives her the sole authority to apply for the minor child’s passport, so Ms. Clarke filed a request for this relief in the Superior Court in the U.S. Virgin Islands.  She did not, however, request any change in legal or physical custody.   The court dismissed her request, without a hearing.  
Ms. Clarke appealed, and, on June 17, 2020, the Supreme Court of the Virgin Islands, reversed and remanded.  Not only did the court clarify that it should not have summarily dismissed Ms. Clarke’s request without an opportunity for her to…

Case Update: U.S. Citizenship, Child Born through Surrogacy outside of U.S., Same Sex Couple Parents

Roee Kiviti and Adiel Kiviti are married fathers to two children born through surrogates in Canada.  Their first child, LRK, born in 2016, used Roee’s sperm and has a biological relationship with Roee.  KRK, their second child, born in 2019, used Adiel’s sperm and has a biological relationship with Adiel.  The Canadian courts issued orders establishing that Roee and Adiel were the legal parents of both children and not the surrogates.
Shortly after LRK’s birth, upon re-entering the United States, the couple applied for and obtained a U.S. passport for their son.  Shortly after KRK’s birth, when taking the same steps, the U.S. Department of State concluded KRK was not a U.S. citizen under the Immigration and Naturalization Act (INA).  The DOS denied KRK a passport.
Roee and Adiel sued the U.S. Department of State arguing, among other things, that the government’s denial of a child, born in wedlock to two U.S. naturalized citizen parents, was contrary to the INA.  The court focused on thi…

Case Update: Attorney Fees and Costs in 1980 Convention Cases

Over the past few months, there have been several cases that have addressed the issue of legal fees and costs to be paid by a Taking Parent as part of a successful return order under the Hague Abduction Convention.  
The International Child Abduction Remedies Act includes a fee-shifting provision that provides that the court ordering the return of a child shall order the Respondent to pay necessary expenses incurred on behalf of the Petitioner unless the Respondent establishes that such an order would be clearly inappropriate.
The U.S. District Court for the Eastern District of Louisiana, in Joya v. Gonzalez, used the “lodestar” calculation as its starting point to award fees to a Left Behind Parent, by determining the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate in the local market.   The court, in this case, focused very heavily on the Petitioner Parent's documentation when it granted Mr. Joya the fees and costs he requested.  See th…

Case Update: Foreign Divorce Decree Comity, Subject Matter Jurisdiction for property division and support

The Superior Court of Pennsylvania consolidated two appeals in the case of  Ileiwat v. Labadi (2020 PA Super 132 (2020)) and, on June 3, 2020, rejected the Husband’s argument that the Pennsylvania court lacked subject matter jurisdiction to order the division of the parties’ property or award support to the Wife because neither party was domiciled in Pennsylvania for the requisite period of time prior to Wife’s initiation of the PA divorce suit.
The parties, both dual-Jordanian-US nationals, had been living in Saudi Arabia for the Husband’s work since 2003. In 2014, the Husband took a 10-month project in Philadelphia.  The family purchased a condo and their children moved to the United States.  Approximately six months later, the family traveled to Saudi Arabia to renew their visas.  While the Husband and children returned to Philadelphia in January 2015, the Wife detoured to their native Jordan to visit family.  While she was in Jordan, the Husband called her and gave her notice of …

Japan Update: Tokyo High Court addresses habitual residence under the 1980 Convention

From Guest Blogger, Hirotaka Honda of The Honda Law Office
Japanese courts are coming in line with other courts about habitual residence in東京高等裁判所令和元年(ラ)第2408号子の返還決定に対する抗告事件, Tokyo High Court Reiwa Gannen(Ra) No 2408 Appeal against a return order of a child.
On 15 May 2020, the Tokyo High (appeal) Court made a ruling, giving more weight on how children adapted themselves to a place when they decide on habitual residence in Hague 1980 cases. The court judged on the habitual residence in the same way as other courts do, looking at every factor that relates to a degree of integration by the child into a social and family environment.
In the first instance, the Tokyo Family Court gave great weight to the intention of the child’s parents (actually a parent) and found habitual residence in the Philippines. The appeal court revoked the decision and dismissed the petition for a return order.
The ruling of the first instance was in line with the ruling of the Osaka High (appeal) Court on 24 Februa…

Case Update: 1980 Hague Abduction Convention, Consent & Grave Risk not found; Return Stayed because of COVID-19

In the case of Guerra v. Rodas, (Case No. CIV-20-96-SLP), Plaintiff Mother sought the return of her minor child to Guatemala.  The child was removed from Guatemala in March 2019 by the child’s biological Father.  In May 2019, Plaintiff Mother reported the child’s removal to law enforcement and submitted a formal complaint. She followed this with an application to the Central Authority using the Hague Abduction Convention, and, then, in February 2020, filed the appropriate lawsuit in the U.S. District Court for the Western District of Oklahoma.   The court hearing itself was continued several times, including for Defendant to find counsel, to appoint a Guardian Ad Litem for the child, and because of COVID-19.  The trial was ultimately heard on June 1, 2020, with the Mother appearing remotely.   
The judge found that the Plaintiff Mother met her burden to have the child returned to Guatemala, and then addressed two exceptions argued by the Father.  
Father argued that the Mother consen…

Case Update: Domestic Violence, Personal Jurisdiction, Contacts between foreign national and U.S. state

The Alobaid v. Khan ( No. 3D19-2128, 3rd District Court of Appeal State of Florida) case addressed the father’s (Mr. Alobaid) argument that Florida lacked personal jurisdiction and subject matter jurisdiction to issue a domestic violence injunction that included a temporary custody arrangement.  On May 27, 2020, the court affirmed and upheld the trial court’s issuance of the temporary domestic violence injunction that also gave the father only supervised access to the parties’ minor child in Florida.
This international couple had a long-distance marriage after they met in college in Florida and wed in 2011, with Mr. Alobaid living in his home of Kuwait and Ms. Khan residing in her home of Florida.  Their child was born in Florida in January 2018.  In November 2018, Ms. Khan filed a petition for domestic violence injunction against Mr. Alobaid.  In her petition, she alleged four specific incidents of physical violence by Mr. Alobaid towards her, with one of the four occurring in Florida…