MK Family Law

In the case of Glory and Sunita Jayagaran , the Washington Court of Appeals refused to recognize an Indian divorce decree because the Husband did not properly serve his Wife, thereby denying her due process.  The couple lived approximately 18 years, having 3 children, in Washington State.  In March 2015, the couple returned to India for Husband's job.  Shortly thereafter, the Wife brought the children back to the United States, allegedly escaping a bad marriage.  The Husband initiated a divorce proceeding in India, and attempted service several times on the Wife's parents' house in India, with each attempt at service being rejected because she was not residing there ("return to sender" and her mother telling the person serving process that she had returned to the United States a year earlier).  Husband sought alternative service from the Indian court, and mailed the new "Form 11" to the Wife's friend's house and a Microsoft Campus Building (presu

Some interesting issues arose in the case of MARG v. Texas Department of Family & Protective Services .  Third party caregivers were appointed as three (3) children's conservators (custodians) in Texas.  The child's mother, from whom the children were removed, was agreeable to the third parties having custody of the children.  At first, the father could not be located, and the children's mother told authorities that she did not know his location or have his contact details.  The father was appointed an attorney, and eventually was located.  He alerted the Texas authorities that the oldest child had been abducted by the Mother quite some time before, and he had no idea to where she took the child.  The second child was in utero at the time of the abduction.  (The third child is not his child). He claims to have filed a criminal kidnapping action in Guatemala, where he lives, along with a police report, and a filing with the local court.  In the instant proceedings in Te

In the recent case of In re MVU , the Appellate Court of Illinois affirmed an order refusing return of a minor child to its habitual residence of Mexico because that would present a grave risk of harm to the child based on the father's domestic violence of the mother.   The court in opining on the grave risk acknowledged that most jurisprudence on the Hague Abduction Convention arises from federal courts.  This particular case was brought in a state court where there was a parentage case pending over the same child (which was stayed when this Hague Abduction return petition was filed).  At trial, the taking-parent mother, presented evidence about several situations she argued formed the basis of a grave risk of harm to returning the child.  The situations included: an altercation where she says the father choked her while she was holding the child; another where the father threatened her that if she took the child, he would kill her; and another where the father would refuse to all

In a rare appellate opinion that addresses international child support, the Court of Appeals of Arkansas reversed its trial court and concluded that Arkansas did have jurisdiction to issue an initial child support order .   Natalie Tompkins and the parties' child resided in Germany, which the parties agreed was the child's "home state" (pursuant to the UCCJEA for purposes of custody jurisdiction).  Lawrence Tompkins was active duty military and his permanent residence was Arkansas.  The parties proceeded to a divorce hearing in Arkansas in November 2018.  It did not address custody of the parties' child.  During the hearing, Natalie's lawyer raised the issue of child support, and requested a child support order.  The trial court conflated the issue of child support with jurisdiction over the child's custody, and denied Natalie's request for a support order.  The Court of Appeals clarified that the UCCJEA dictates child-custody jurisdiction, but the Uni

On December 1, 2020, the Court of Appeals of the State of Washington, Division II, affirmed a Superior Court order that had the effect of refusing to recognize a Polish child support order. David and Eva Hedges are parents to two children .  The Hedges divorced in Arizona, where they resolved their dissolution by settlement agreement.  They apparently re-married, and then divorced a second time, in 1998, in New York, where the NY court incorporated their Arizona settlement agreement into their NY divorce decree.  The divorce decree obligated David to pay child support until the children reached the age of majority, and he continued making those payments until each child reached the age of 21 respectively.  After his obligation ceased, Eva and the adult children moved to Poland.  A few years later, Eva requested child support from a court in Krakow, arguing that the children were disabled.  By now, the children were ages 28 and 29.  The court in Krakow issued a new child support order o

The Washington Foreign Law Society was founded in 1952 and promotes knowledge and understanding of international legal matters, comparative law issues, and foreign law.  The organization, centered in the robust legal community of Washington, D.C., produces fantastic programs.   On November 17, 2020, I was honored to be joined by Jonathan Lounsberry and Richard Min to discuss the 2020 U.S. Supreme Court cast of Monasky v. Taglieri and the definition of habitual residence in Hague Child Abduction Convention proceedings.   Check out the recording of the program here . 

2020 was not for the faint of heart, with a global pandemic and a U.S. Supreme Court opinion on the Hague Abduction Convention authored by the late Justice Ginsburg.  Here are the TOP TEN most clicked blog posts from MK Family Law's Family Law Across Borders  BLOG.   No. 10     Case Update: International Service of Process using the Hague Service Convention - Winston v. Walsh No. 9     Case Update: Hague Abduction Convention's application between Hong Kong and the United States after July 2020 Executive Order - Wan v. DeBolt No. 8     Case Update: Issuing a U.S. passport to a minor child, abduction prevention issues - LO v. NO No. 7      HCCH Update: COVID-19 Toolkit for the 1980 Hague Child Abduction Convention No. 6    Case Update: Recognition of Foreign Divorce Decree, Notice of Foreign Order, Court Deadlines - Derbez v. Derbez No. 5     Case Update: Simultaneous divorce proceedings, comity - Vicario v. Blanch No. 4    DOS Update: New ICAPRA Report Out No. 3    Case Upda

The 2nd Circuit Court of Appeals, in the case of U.S. v. Houtar , recently addressed the issue of whether the International Parental Kidnapping Crime Act (IPKCA) was unconstitutionally vague as applied against a father who had not actually abducted his children, but instead retained his children in Yemen after they had already lived there for several years.  The parents were married in Yemen, moved to the U.S., had children, and then returned to Yemen with the children.  They obtained a divorce in Yemen, and then returned to the U.S. separately, leaving the children with Mr. Houtar's family in Yemen. In September 2016, Mr. Houtar's ex-wife obtained a custody order from the Kings County Family Court, which ordered Mr. Houtar to bring the children back to the U.S. from Yemen.  He defied the order, fled the U.S., and resumed living in Yemen with the children.  The mother then went for three years without seeing the children.  Mr. Houtar was charged with 2 counts of parental kidnap

The Appellate Division of the Superior Court of NJ's case of Begum v. Palanisamy involves a multi-jurisdictional family and a NJ custody order.  While the opinion itself is merely about a variety of motions filed between the parties, there are some interesting issues that arise that allow this blog to address the mirroring or domesticating of U.S. custody orders in foreign countries.  Under the parents' custody agreement, incorporated into a NJ court order, they shared joint legal custody of their minor daughter, and the child was permitted to relocate to Singapore, with the child's father in NJ having access to the child in Singapore and in the United States.  The order also specified that NJ would retain jurisdiction over the custody matter and the parties were permitted, but not required, to domesticate the NJ custody order in Singapore. The parties returned to the NJ court not long after when the plaintiff mother sought Singaporean citizenship for the child, Alexis.  T

The recent 1980 Hague Abduction case of De Carvalho v. Carvalho Pereira focused on two key issues: the children's habitual residence and whether the children were now settled in the United States.  The District Court of Appeal of Florida affirmed the trial court's order to return both children to Brazil.   The family, in this case, moved to Florida in January 2016 for the Father's short-term medical fellowship in a U.S. hospital, and for the Mother to give birth to the parties' second child on U.S. soil.  A few months later, and after the 2nd child's birth, the Father's fellowship fell through, so he returned to Brazil to prepare the family home for everyone's return.  He sent return plane tickets to his family, but the Mother decided (on or about April 5, 2016) she was remaining in the United States, with the children, and wished to divorce.   The trial court concluded that neither parent intended to permanently relocate the family to the United States, un

On October 29, 2020, the California Court of Appeal, Fourth District, Division 3, addressed, in an unpublished opinion, the 2nd appeal noted by Tammy Noergaard to the order returning her eldest daughter, Mia, to Denmark.  In quick summary, Tammy had 2 daughters with Christian Noergaard.  They were born in California, but a few years later, the family re-settled in Denmark.  The parents separated, and they went through years of litigation and appeals in Denmark over the custody of their two children, eventually resulting in Christian securing full custody of both daughters in October 2011, affirmed on appeal in December 2012.  In May 2013, Tammy abducted the oldest child to California.  In January 2014, Christian located Mia, filed a Hague Abduction return petition, and Mia was ordered returned to him.  Tammy appealed (apparently without obtaining a stay of the return order), and succeeded.  Her case was reversed and remanded for a new trial because of certain due process deficiencies

The 10th Circuit affirmed the Pope v. Lunday decision on November 20, 2020.  Ms. Lunday, pregnant with twins, returned to her home of Oklahoma from Brazil.  The twins were born in Oklahoma, and shortly after, Mr. Pope filed suit under the 1980 Hague Abduction Convention, seeking the twins' return to Brazil.  The children had never been to Brazil, except in utero .  The trial court's focus was on pinpointing the twins' habitual residence.  It concluded it was the United States, and therefore denied Mr. Pope's return request on the papers. The 10th Circuit had the benefit of the Monasky opinion when it reached its decision in November, which not only discussed the habitual residence of newborns, but established the standard of review as "clear error."  Mr. Pope argued that the parents shared an intent to make Brazil the home of their twins, with Ms. Lunday taking steps towards licensure for her profession in Brazil, and the couple registering their partnership

The International Child Abduction Remedies Act allows a parent who is seeking the return of his or her child under the 1980 Hague Abduction Convention to request provisional remedies (see Sec. 9004).  In the case of Babcock v. Babcock , Mrs. Babcock did just that (in August 2020).  She asked the court to issue a temporary restraining order, preventing Mr. Babcock from removing their 11-year-old from Iowa pending a hearing on the merits.  She had filed a Hague Abduction return petition with the federal court.  She asked that the court grant this temporary restraining order without notice to Mr. Babcock, which is permitted under FRCP 65(b)(1) only when: (1) specific facts in her affidavit/verified complaint show that immediate and irreparable injury would result before Mr. Babcock would be heard in opposition to the TRO request, and (2) Mrs. Babcock's attorney certified any efforts to give notice to Mr. Babcock and why it should not be required.  The TRO can be granted if Mrs. Babco

The Superior Court of Pennsylvania, in JS v. RSS , addressed an issue of an international relocation and a U.S. court's subject matter jurisdiction over a custody modification action.  The facts are long and twisted, but the salient ones are: the parents divorced in 2015.  The father sought custody of their child with a request to relocate him to Hungary in November 2015.  The mother agreed to the father's custody of the child and the child's relocation to Hungary, believing the father was entering a witness protection program. The father didn't move to Hungary, and the parties actually threw the terms of their custody agreement out the window.  The mother had significant access to the child.  Apparently, however, the father did relocate the child to Hungary in July 2016, unbeknownst to mother.  The mother did not see the child after July 2016, but the father still traveled to Pennsylvania, and remained sexually intimate with the mother, even though he had remarried in