Posts

Showing posts from November, 2020

Case Update: Home State under the UCCJEA

In February 2020, the Family Court in Kings County, New York addressed a custody jurisdiction issue between New York and Yemen in the case of Karimah K and Bassim A .  The parents were married in 2002 in a Muslim Religious ceremony in Yemen.  They remained in Yemen until 2005, at which time they moved to New York with their four daughters.  They frequently traveled back and forth between the two countries.  In Spring of 2016, the entire family traveled to Yemen.  The Mother was apparently expecting to return to New York, but the Father unilaterally decided to remain in Yemen.  The family lived together until November 2018 in Yemen, at which time the Mother vacated the home, without the children, and began living with her brother in Yemen.  In April 2019, she returned to New York, leaving the children in Yemen.  She then commenced custody proceedings on October 9, 2019 in NY.  There was some significant wrangling in the New York court initially, with orders to surrender passports, tempo

Case Update: attorney fee award in Hague Abduction return proceeding; no fees for the prevailing respondent

The U.S. District Court for the District of New Jersey, in Stone v. Stone , (2020 WL 491194) reaffirmed that a prevailing respondent in a Hague Abduction return proceeding is not entitled to an award of fees.  Specifically, ICARA section 9001, et. seq ., requires the respondent to pay necessary expenses if the petitioner prevails.  There is no provision under which a respondent may recover fees and costs from a petitioner.  This is bolstered by caselaw in other circuits.  Furthermore, the American Rule typically requires each party to bear the burden of his or her own legal expenses. 

Case Update: Request for alternative service using FedEx to a Defendant located in a treaty partner under the Hague Service Convention

Image
The Supreme Court of New York, Warren County, in Sweet-Martinez v. Martinez , ( 2020 NY Slip Op 20195)  authorized alternative service by Federal Express to a Defendant for an uncontested divorce proceeding (without children).  The Defendant had previously been removed and returned to Mexico.  Plaintiff had communicated with her Husband in Mexico, and had, what she believed to be his residential address in Mexico.  She sent paperwork to this address by postal mail, but the Defendant did not acknowledge receipt nor file any responsive pleadings in the divorce case.   The Supreme Court acknowledged that the U.S. and Mexico are treaty partners under the Hague Service Convention, and inquired as to what steps Sweet-Martinez had taken to ensure service was effectuated pursuant to this treaty.  She indicated that, on June 12, 2020 (less than 2 months prior to this court's opinion), she had prepared and submitted, by postal mail, a request for service to the Mexican Central Authority, and

Case Update: I-864, support of an immigrant, interplay with alimony and divorce suit

Image
This is a really interesting case that addresses the issue of an I-864 contract.  This immigration form is completed by a U.S. citizen who commits to ensuring that an applicant for residency maintains an income of 125% of the federal poverty level.  This obligation is indefinite, unless a specific "terminating event" occurs.  In the case of Pachal v. Bugreeff , Ms. Bugreeff signed an I-864EZ on behalf of Mr. Pachal, her fiance.  Prior to marrying, they also signed a prenuptial agreement waiving alimony.  About five years later, Bugreeff filed for divorce.  The proceeding progressed, and nearly 2 years after the filing, Pachal was ordered to leave the marital home, at which time he sought temporary alimony.  Separate from the ongoing state court divorce proceedings, Pachal filed a federal suit to enforce the I-864EZ.  Ms. Bugreeff filed to dismiss the federal suit, using the abstention doctrine.   As a refresher, the Younger doctrine mandates a federal court to abstain if four

Case Update: recognition of a foreign unilateral divorce for purposes of a U.S. citizenship application

Image
 Mr. Imad Jaffal sues the U.S. government for citizenship ( Jaffal v. Thompson ).  The underlying issue for whether Jaffal can be granted citizenship revolves around his parents' divorce, which occurred in Jordan.  Apparently, his father obtained a unilateral divorce from his mother in the shari'a court in Jordan.  The divorce was revocable and then turned into an irrevocable divorce after the requisite period of time passed.  Further, at the time of the divorce, both of Jaffal's parents were domiciliaries of the state of Ohio in the United States.  The U.S. District Court for the District of New Jersey concluded it could not recognize the Jordanian divorce, which was fatal to Jaffal's citizenship claim.  The divorce was unilateral and there was no evidence that Jaffal's mother had any notice of it, therefore it was not entitled to recognition as a matter of comity as it violated public policy.  Furthermore, it was, in all reality, equal to a "mail order"

Case Update: ameliorative measures, grave risk of harm under the Hague Abduction Convention, guarantees of performance

Image
The Second Circuit addressed a 2nd appeal in the Saada v. Golan case on October 28, 2020, and affirmed Judge Donnelly's May 5, 2020 order to return the minor child to Italy.  As a reminder, this family has been litigating the father's Hague Abduction Convention return petition up and down the second circuit for a few years.  The original trial yielded a finding that the child would be subject to a grave risk of psychological harm if returned to Italy, but the court fashioned certain "undertakings" to nonetheless make the child's return possible.  The mother, Ms. Golan, appealed.  The Second Circuit acknowledged that any undertakings had to be enforceable, and it remanded the matter to Judge Donnelly for further review of what ameliorative measures can and should be put in place that would enable a safe return.  After 9 months, Judge Donnelly again ordered the child returned , and altered the ameliorative measures.  In those 9 months, additional things had happene

Case Update: Hague Abduction return, high burden for proving a grave risk, no testimony by mature child

Image
The U.S. District Court for the District of New Jersey ordered 2 children returned to El Salvador on October 30, 2020 in the case of Re: JCC v. LC (Civil Action No. 19-21889).  There are a few interesting statements by the court worth mentioning in a blog post.  First, the Court, at no point, cites to Monasky when elaborating on its conclusion that El Salvador was the children's habitual residence.  The Court specifically said it applied the Third Circuit's definition of habitual residence, without elaborating on the standard.  It did provide reference to some facts, including the children's typical residence, the existing El Salvador custody order, the return airline ticket, and the parents' intentions, so in many regards, this has the indicia of a totality-of-the-circumstances analysis, nonetheless. Second, the court rejected the Respondent Mother's contention that the Father was abusive and it would be a grave risk to return the children.  In weighing the evide

Case Update: Registration of foreign child support order, submission of affidavits in U.S. court by a person outside of the United States, requirement of notarization

Image
The Supreme Court of North Carolina addressed yet another case this year that dealt with the registration of a foreign family court order.  In the case of Gyger v. Clement , they dealt with a Swiss child support order.  The parents were never married, but had 2 children born in Geneva, Switzerland.  The mother established parentage and obtained a Swiss child support order.  She then brought it to North Carolina to register it and enforce it on the children's father.  More specifically, the Swiss Central Authority attempted to register its child support order through the North Carolina Department of Health and Human Services (presumably NC's Title IV-D agency).  Defendant father was served about a week after the order's filing in June 2016.  He then sought to vacate that child support order, claiming a lack of notice.  The Mother presented an affidavit, signed under penalty of perjury, about the case, and submitted it as evidence in the North Carolina proceedings, where she

Case Update: Hague Abduction Petitions and suing third parties

Image
On October 7, 2020, in the case of Jacquety v. Baptisa , the U.S. District Court addressed the preliminary matter of whether Baptisa's apparent boyfriend, Wadghiri, was a proper party to the litigation.  Jacquety filed a Hague Abduction return petition in the U.S. District Court for the Southern District of New York against the child's mother, Baptista, and her apparent boyfriend, Wadghiri, with whom she and the child were living in New York.  When Baptista left Morocco, by way of Switzerland, she landed in New York and immediately began living with Wadghiri.  Wadghiri submitted a letter to the court, which the court construed as a Motion for Summary Judgment. In the letter, he argued that he was an improper party because he has no control over the child, and, if ordered to return the child, he could not do so.  Jacquety argued that there is no limitation on who can be sued to return a child, and it should not be limited to only relatives.  He cited to the U.S. implementing leg