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Showing posts from July, 2020

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…

Case Update: Hague Abduction Convention, burden of proof, consent exception

Shortly before the entire world came to a halt because of the coronavirus, the Eleventh Circuit issued an opinion that should serve as a clear reminder on best practices when arguing a Hague Abduction matter.  
In Berenguela-Alvarado v. Castanos-I, the parties’ minor child, who had lived her entire life in Chile with her mother, traveled to Florida in early 2019 to spend approximately 2 months with her father.  The parties had a return ticket purchased for the child.  Before the child’s return date, the Father tried to secure the Mother’s agreement to let the child remain in Florida.  He, in fact, had a friend in Florida draft and send a document to the Mother, which included language for her to give consent to the child’s permanent relocation.   The Mother scheduled 2 appointments at the U.S. consulate to sign the document before a notary but did not attend either appointment (which she later says was her delaying, trying to have the child returned as scheduled).  The Mother ultimatel…

Case Update: Comity, Foreign Marriage, Void Marriage

The Claflins spent significant time and energy litigating in two countries over their divorce.  
Ms. Zamora Claflin filed for divorce in Florida.  Mr. Claflin sought to dismiss her divorce petition, alleging that Ms. Zamora could not have legally married Mr. Claflin because she was already married at the time they said their vows. Both Ms. Zamora's first marriage and her marriage to Mr. Claflin occurred in the Philippines.   Therefore, the Florida court sent the couple packing to resolve the issue of Ms. Zamora’s sequential marriages in the Philippines.  
A court in San Mateo, Philippines declared Ms. Zamora’s first marriage invalid because she lacked the legal capacity to marry her first “husband” as she was too young.  Mr. Claflin, dissatisfied with this answer, took his grievance to a court in Pasig City, Philippines, where he argued that his marriage in the Philippines to Ms. Zamora was void ab initio because her first marriage was never declared invalid prior to her second marr…

Case Update: Recognition of Foreign Divorce Decree, Notice of Foreign Order, Court Deadlines

The Derbez v. Derbez divorce matter reminds lawyers that they must be familiar with their jurisdiction’s rules, procedures, and deadlines, and understand the complexity of the recognition and enforcement of foreign judgments. 
Mr. Derbez pursued a divorce from his wife in Mexico, where he resided, in 2015.  Mrs. Derbez fought this divorce proceeding, arguing a lack of jurisdiction, but she lost.  The divorce case apparently proceeded and the parties were divorced on April 19, 2016. 
On August 2, 2016, Mrs. Derbez, who refused to recognize the Mexican divorce decree, filed a petition for divorce in Texas, where she resided. After some significant delays, the court finally held a merits-hearing on the divorce request on February 20, 2018.   At this hearing, Mrs. Derbez testified that Mr. Derbez agreed to a variety of financial payments to her.  When Mr. Derbez testified through an interpreter, he confirmed that he understood and agreed to what Mrs. Derbez said. At no point did either part…

Case Update: Hague Abduction Convention, ICARA, fee-shifting, legal fees

On June 29, 2020, the U.S. District Court for the Southern District of New York issued an order for Ms. Orna Kirsh to pay fees and costs to Mr. Dror Nissim after Mr. Nissim prevailed in a Hague Abduction Convention return proceeding.  The US implementing legislation for the Hague Abduction Convention (ICARA) includes a fee-shifting provision that orders the respondent (Kirsh) to pay necessary expenses incurred on behalf of the petitioner (Nissim) during the course of the Hague Abduction Convention proceedings unless it would be clearly inappropriate.  
The court reviewed 6 factors in determining whether a fee award would be “clearly inappropriate," and concluded it would not be.
The court considered the following factors: whether there was a reasonable basis for removing the children to the USAwhether either party engaged in forum shoppingthe degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and coststhe respondent’s inability to pay a…

Case Update: Hague Child Abduction Convention, Consent to Relocate, COVID-19 Return to EU

As the COVID-19 pandemic drags on, it is inevitable we will see more international cases that address this issue, even if tangentially.
In the case of Sacchi v. Dervishi, the US District Court for the Northern District of California ordered two children returned to their habitual residence of Italy and crafted its return order to account for the European Union's travel restrictions that left the United States off of approved travel partners due to a resurgence in the COVID-19 outbreak in many parts of the U.S.
The couple, who were residing in Italy for the better part of 2 years with their children, were having marital difficulties.  The children’s mother, Ms. Dervishi, decided she wanted to return to California, where the family had previously lived, and where the children were born.  She asked their Father, Mr. Sacchi, for permission to move the children with her.  It appears that both parents had a tentative (albeit somewhat unclear) understanding that the children could move to …

Treaty Update: US accepts Pakistan's accession to the 1980 Child Abduction Convention

On July 1, 2020, the United States accepted Pakistan's accession to the 1980 Hague Child Abduction Convention.  The treaty will enter into force between the U.S. and Pakistan on October 1, 2020.
As a quick note, Pakistan did not appear among the list of countries that are not compliant with returning abducted children in the most recent compliance reports under ICAPRA, issued by the U.S. Department of State each spring. This may or may not have played a role in the U.S. government's decision to accept Pakistan's accession. 
Pakistan became a party to the 1980 Convention in 2017, but the U.S. delayed in accepting its accession.  Pakistan has not completed its Country Profile, which is requested of each country who becomes a treaty party to the Convention.  Country Profiles are helpful documents maintained by the Hague Conference on Private International Law that gives basic details on the treaty's operation in that country.  

HCCH Update: COVID-19 Toolkit for the 1980 Hague Child Abduction Convention

The Hague Conference on Private International Law published a toolkit that explores the application of the 1980 Hague Child Abduction Convention in the wake of COVID-19.  
You can find the toolkit by going here.  The toolkit pinpoints resources and publications provided by the HCCH that support a global response to the current pandemic.  
The document highlights: - focusing on each case individually (on a "case-by-case" basis) - ensuring suitable contact between parents and children - promoting mediation and other mechanisms to resolve these cases, including remote mediation - sharing information and collaborating among judges and the Central Authorities - putting in place practical door-to-door arrangements to ensure a child is returned safely
The document then provides hyperlinks to the relevant documents on the HCCH's website that provides additional guidance.





Case Update: Abduction Prevention, Restrictions on Passport Renewal, Ne Exeat

In the custody trial of OG v. AB, a Mother expressed her desire to take the parties’ children to visit her family in her native Russia but indicated that the Father was unwilling to give her the children’s expired Russian passports so that she could renew them for the travel.  The Father testified that the mother had previously threatened to “never let him see the Children again” and he was concerned she would not return to the United States once in Russia. The children are dual nationals of Russia and the United States.
At the conclusion of the trial, the parties were granted shared legal and physical custody and the court issued a writ of ne exeat, prohibiting either parent from traveling with the Children outside of the continental United States without the written consent of the other parent.  The court declined to authorize the renewal of the children’s Russian passports because Russia and the United States are not treaty partners under the Hague Child Abduction Convention.  It al…