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Showing posts from August, 2020

Case Update: Hague Abduction Convention, one year and now settled

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On August 26, 2020, in the case of Zaoral v. Meza, the U.S. District Court for the Southern District of Texas ordered the return of a 15-year-old child to Venezuela. The parties' youngest child, age 15 at the time of the trial, was the subject of a Venezuelan custody order that gave both parents joint parental responsibility, and ordered that the Mother, who was the primary residential custodian, could not change the child's residence without notifying the Father so he could exercise his rights and duties.  The Mother sought court permission to take the daughter on a several-week trip to visit family in Houston from July 6, 2018 through August 14, 2018.  The court permitted the trip and required the Mother to appear in court the week after her scheduled return.  The travel authorization from the court also included specific language that informed the Mother that her failure to return the child would be a criminal offense.  Nonetheless, the Mother failed to return. On November …

Case Update: Date of Wrongful Removal, One Year and Now Settled under the Hague Abduction Convention

On August 19, 2020, the Ninth Circuit Court of Appeals affirmed the trial court's refusal to return a minor child to Mexico in the case of Castro v. Hernandez Renteria on the basis that the underlying petition for return was filed more than one year after the child's wrongful removal/retention, and the child is now settled. This case shows some creative arguing by both sides.  The key issue was the date on which Bertha, the minor child's maternal grandmother, removed or retained the child outside of its habitual residence of Mexico.  There are a few potential dates, and each level of the court chose a different one.  At the time of the child's departure from Mexico with Bertha, the child was in its father's primary custody, but since the child' father was incarcerated, the child's paternal half-sister had de facto custody.  The child's mother was missing.  On August 25, 2017, the minor child boarded a flight from Mexico and arrived in Las Vegas, NV with…

Case Update: Cross-Border Child Placement, Home Study in a Foreign Country

In the Interest of Doe I, 467 P.3d 442 (2020), two minor children were removed from their mother's care in Idaho after they were found homeless and living in a car.  Their biological father's whereabouts were unknown, but presumably he had been deported to Mexico several years earlier.  About one year after the proceedings were started, the father's paternity was established, after he was located in Mexico.  The Idaho Department of Health and Welfare began a placement plan to send the children to live with their father in Mexico.  The children's Guardian Ad Litem, however, requested more information about the father's living situation before agreeing to the placement.  The Department was having difficulty obtaining a home study of the father's living situation because he was in Mexico.  The court ordered the children's prompt placement without a home study, but, then, in February 2020, additional evidence was discovered about the father's criminal past …

Case Update: Mature Child Objection and the 1980 Hague Abduction Convention

In the case of Colon v. Mejia Montufar, the U.S. District Court denied the Father’s request to return his minor child to Guatemala.  The parties had stipulated that the Father met his burden of presenting a prima facie case of wrongful removal, but the Mother presented two exceptions to returning the child: that returning the child would expose the child to a grave risk of harm, and that the child was mature and objected to being returned.  The Court concluded that the Mother did not meet her burden to prove a grave risk, but did meet her burden that the child is of sufficient age and maturity and that the court should consider his objection to being returned to Guatemala. 
The Mother first argued that the minor child would be recruited into a gang in Guatemala, or harmed if he refused to join a gang, creating a grave risk of harm if returned.  She hired Dr. Miguel Firpi to testify on both exceptions she argued.  Dr. Firpi opined that the minor child “may experience significant emotio…

Case Update: Issuing a U.S. passport to a minor child, abduction prevention issues

The case of LO v. NO, No. CAAP-19-0000762, gives me the opportunity to provide some reminders to everyone about child abduction prevention.  The actual underlying issue in this case was the Father’s appeal of the trial court’s post-decree order granting the Mother’s request for a U.S. passport for the parties’ minor child.  The appellate court ultimately affirmed the trial court’s order because the Father’s brief did not quote any of the family court’s findings of fact, nor did the Father append any findings of fact to the brief, which is required by the Hawai’i Rules of Appellate Procedure.  Because of this, the Father was bound by the findings of fact made by the trial court, and the family court did not abuse its discretion in ordering the Father to cooperate in securing a passport for the minor child, something he argued he did not want to do out of concern the Mother would take the child to Vietnam.
Here are some useful points to remember, spurred by the opinion:
The Court pointed…

ART Update: COVID and international surrogacy update

From Guest Blogger, Bruce Hale of Modern Family LawThe family law bar is facing a number of challenges posed by the global pandemic.  Much has already been written on the impact of the pandemic to matters of child custody and support.  Lesser known are issues in family formation, which are aggravated when they take place on the international stage.Many countries around the world restrict or ban certain forms of assisted procreation.  In most countries, surrogacy is banned outright or only available in very limited circumstances.  Gamete donation in many countries can also be subject to strict limitations.  Even fertility procedures, such as IVF, might not be available to all who seek to become parents.Because of these limitations in other countries, the United States is a destination for people who need fertility treatment or third-party assisted procreation.  In the United States, individuals and couples enjoy a generally broader set of freedoms to pursue the procreative options the…

Case Update: Hague Abduction Convention, issue preclusion & comity from a prior custody case

In the case of Pawananun v. Petit, the U.S. District Court addressed the Plaintiff’s Motion to Strike the Defendant’s asserted defense of a grave risk of harm if the children were returned to Thailand.
The parties were married and had two daughters.  The family lived in Thailand.  When the parents separated and divorced, they agreed to joint custody, sharing time with their daughters on a week-on, week-off schedule.  Thereafter, the Plaintiff Mother, began a relationship with a man named Roger Ian Hardy.   The Defendant Father alleges that Mr. Hardy touched his daughters inappropriately. His oldest daughter allegedly reported this behavior to her Father, and subsequently reported to a psychologist that Mr. Hardy inappropriately touched her younger sister.  
Defendant Father petitioned a Thai Court to revoke Plaintiff Mother’s custodial rights/parental powers because the Mother supported Mr. Hardy, despite the alleged behavior.  The Thai Court refused to revoke the Mother’s parental ri…

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…