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Showing posts from October, 2020

Case Update: Hague Abduction Convention's application between Hong Kong and the United States after July 2020 Executive Order

In Wan v. DeBolt (2020 WL 6274992), the U.S. District Court for the Central District of Illinois allowed a Mother's Hague Abduction return petition to proceed.  The father sought to dismiss the petition, arguing that President Trump's July 2020 Executive Order to "suspend or eliminate different and preferential treatment for Hong Kong" (Executive Order No. 13936, 85 Fed. Reg. 43413) eliminates the distinction between Hong Kong and China for purposes of the Hague Abduction Convention.  Hong Kong and the United States are treaty partners.  China is not a treaty party to the Hague Abduction Convention.  The Court concluded that the treaty is still in force between the United States and Hong Kong.  Specifically, the court received a form letter from the U.S. Department of State on October 15, 2020 acknowledging it is the Central Authority under the treaty, and detailing its available resources, clearly stating its role in this particular case with Hong Kong.   Further, t…

Case Update: Subject Matter Jurisdiction over a Divorce, Domicile, Foreign Marriage - U.S. divorce

The Maryland Court of Special Appeals addressed a recent argument made numerous times before in virtually every U.S. state: if a couple is married overseas, particularly in a religious marriage ceremony, then the couple must also divorce overseas.  In the case of Melki v. Melki, the couple married in an Orthodox Christian ceremony in Lebanon.   The couple then began residing in Montgomery County, Maryland and ultimately the Wife filed for divorce years later in Maryland.  Dr. Melki, the Husband, fought the divorce, and among his numerous arguments was that Lebanon was the only appropriate jurisdiction that could divorce the couple (i.e., that Maryland has no subject matter jurisdiction).  As the Maryland COSA indicated, "'[A]n essential element of the judicial power to grant a divorce, or jurisdiction,' is that one spouse be domiciled within the state at the time the complaint was filed. ... A court must have jurisdiction of the res, or the marriage status, in order that …

HCCH Update: Happy 40th to the 1980 Hague Child Abduction Convention

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Today marks an auspicious day in history.  It is the 40th anniversary of the 1980 Hague Child Abduction Convention.  This highly successful treaty serves to promptly return children to their habitual residence after they are wrongfully removed or retained in another treaty partner country.  You can find the Hague Conference's resource page for all things Child Abduction by clicking here.  For practitioners, pay special attention to a few resources on this website, including the Country Profiles (cheat sheets on the resources available in a country for the Child Abduction Convention), the Status Table (to see what countries have ratified, acceded, and what countries accepted accessions), and a link to INCADAT (the caselaw database on child abduction cases).  Be sure to explore the Guides to Good Practice, the Explanatory Report, and all the documents reviewed and discussed as part of the Special Commission meetings (held about every 5 years to discuss the treaty).  Finally, I want …

Case Update: Hague Convention suit must be brought where the child sits

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Dr. Hil Rizvi appeals a trial court order dismissing his complaint against a Massachusetts social service agency, a Maryland social service agency, and two separate Swiss governmental agencies.  The Third Circuit Court of Appeals affirmed the dismissal on September 25, 2020.  Rizvi is the father of two daughters who reside in Switzerland.  They were taken to Switzerland by their mother, Rizvi's estranged wife.  One of his two daughters received treatment, first in Maryland, and now in Switzerland, for an eating disorder.  Dr. Rizvi disagrees with the treatment.  This daughter did temporarily reside with Dr. Rizvi in Massachusetts in 2016, but pursuant to an emergency temporary custody order, the child was returned to Switzerland in the custody of her mother. This federal lawsuit was filed by Dr. Rizvi who alleges that the four governmental agencies violated his parental rights.  He further argued that the Maryland and Massachusetts agencies colluded to raise allegations of child a…

Case Update: Foreign Injunction to proceed with US divorce and the issue of Comity

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Thamilselvan v. Thamilselvan reads like a law school exam question.  The spouses, both Indian citizens had lived in Michigan with their daughter since 2000.  They owned a house.  In December 2017, the Wife and daughter left the marital home.  In February 2018, the Wife sought a divorce in Michigan, alleging abuse.  The Husband then petitioned the Indian Family Court for "restoration of his conjugal rights" in an attempt to reconcile.  He also asked for an injunction to prevent the Wife from continuing with her divorce action in Michigan.  Despite her fighting the injunction, it was granted.  The Husband then sought to amend his Answer in the Michigan divorce suit claiming he erroneously admitted the spouses were residents of Michigan.  The court rejected the amendment.  He also sought to dismiss the Michigan divorce suit, first using a comity argument in an attempt to recognize the Indian injunction, and then, when his first motion was denied, by arguing, mid-trial, that the…

Case Update: Hague Abduction Convention, application of Monasky for young children, grave risk of harm, simultaneous custody proceeding

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The case of Schwartz v. Hinnendael gives an interesting assessment of both the Monasky habitual residence standard and the grave risk of harm analysis.  I suggest reading the actual case to get the best view of how the court weighed all the facts and reached its conclusion.  I think the conclusion shows how fact-intensive these cases are, and how judge-specific certain results may be.The parties are both Americans, met in California, and were married in the United States.  The parties separated, and Ms. Hinnendael initiated a divorce proceeding in the United States.  Ms. Hinnendael then moved to Mexico for work.   Mr. Schwartz followed, and the two reconciled.  Ms. Hinnendael ended work with her company (where she sold time shares), but Mr. Schwartz started working for the same company.  The couple then had two children (one in 2018 and the other earlier this year (2020)), both in Mexico.   Ms. Hinnendael removed the children from Mexico and flew to Wisconsin, where her family resides…

Case Update: Hague Abduction Convention - Right of Custody

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The case of Biagioli Da Silva et. al. v. Vieira is, in most respects, a run-of-the-mill Hague Abduction return proceeding.  The parents and children were all Brazilian nationals.  The parents separated, divorced, and shared custody in Brazil.  The Father, Biagioli Da Silva, ran into some difficulties with the law and was incarcerated.  His mother (the paternal grandmother) nonetheless still saw the children and participated in their lives on his behalf, by written agreement, incorporated into a court order in Brazil.  In early 2019, the children's Mother, Vieira, asked the Father for permission to visit family in Orlando, Florida.  He vehemently refused, fearing she would not return.  She, however, convinced the Brazilian court that it was a temporary visit, verified by return plane tickets, and entry to the U.S. on a tourist visa, so the court granted her request over the Father's objection.  The Mother traveled to Florida, but retained the children at the end of the trip.  T…

Case Update: Choice of Law for the division of marital property

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The case of Mbatha v. Cutting reads like a law school version of Cliff's Notes, summarizing the potential choice of law options for the equitable distribution of Mr. Mbatha and Ms. Cutting's marital assets in a Georgia divorce proceeding.  The couple met while Ms. Cutting was on a trip to South Africa, where Mr. Mbatha resides. They married quite quickly in New York, where Ms. Cutting lived and worked, and, while on their honeymoon in Europe, things began to sour and they ultimately separated shortly thereafter.  Ms. Cutting, while pregnant with their child, left South Africa and moved to her parents' house in Georgia.  A divorce action was initiated.  The key focus of the Court of Appeals matter related to which law applies when defining marital assets and deciding how to divide them between the spouses.During the parties' trial, the Wife argued South African law should apply to the property division (as the parties' only marital domicile and because Georgia has n…

Case Update: Jurisdiction for Petition of Adoption for a child born via surrogacy

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In this post, I am returning to April 2, 2020, where a Massachusetts court, in the Adoption of Daphne, vacated a trial court's order dismissing a petition to adopt a minor child born in Massachusetts to a gestational surrogate.  The child was the product of in-vitro fertilization.  The genetic father of the child and his partner entered into a gestational carrier agreement with the surrogate in Massachusetts.  The two men selected an egg from a donor, fertilized it with the sperm of the genetic father and implanted it into the surrogate who carried the child to term in Massachusetts.  The child's birth certificate lists the genetic father and the birth Mother (surrogate) as parents, and the two intended to proceed with a post-birth adoption to terminate the mother's rights, and establish the genetic father as the sole parent.   In April 2018, the mother signed the "surrender form" under Massachusetts law.  The father, his partner, and the child remained in Massac…

Case Update: Civil Suit for Fraud, Slander, etc., after Criminal Conviction for aiding and abetting a criminal kidnapping

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In the continuing saga of Chris Brann and the Guimaraes Family, the Court of Appeals for the First District of Texas accelerated Chris' interlocutory appeal, and ultimately dismissed the Guimaraes' civil suit against him.  This family has been through a significant volume of litigation, including: family court cases in Texas and Brazil, a Hague Abduction return proceeding in Brazil, and a criminal suit in Texas.  This particular appeal relates to yet another lawsuit - a civil case brought by Marcelle Guimaraes' parents against her ex-Husband, Chris Brann.  As background, Carlos and Jemima Guimaraes' daughter, Marcelle, was married to Chris Brann and they had a son Nathaniel.  In 2012, Marcelle filed for divorce from Chris in Texas.  In 2013, Marcelle obtained a Texas trial court's permission to take Nathaniel to a family wedding in Brazil.  Once in Brazil, Marcelle enrolled Nathaniel in her family-run school, initiated a Brazilian custody case, and secured custody …

Case Update: Grave Risk in Hague Abduction Case, and ameliorative measures

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On May 11, 2020,  the Second Circuit Court of Appeals affirmed the return of a minor child to Ecuador in the case of Valles Rubio v. Veintimilla Castro, 813 Fed.Appx. 619 (2020).  The key issue on appeal revolved around the grave risk of harm to the minor child if returned to Ecuador, and more specifically the ameliorative measures available to ensure a safe repatriation of the minor child.  “In cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country.”  In this case, the court concluded there was a grave risk of harm, but further concluded that the Ecuadorian courts were capable and willing to protect the child.  The Mother appealed, arguing that the court did not sufficiently develop the record to support its conclusion that there are enforceable ameliorative measures in Ecuador, and it did not give …