MK Family Law

On March 30, 2021, the European Court of Human Rights, in Case of Thompson v. Russia , weighed in on a Hague Abduction case filed in Russia, seeking the return of a minor child to Spain.  At the trial level court in Russia, the court rejected the return petition on the basis that returning the minor child would place the child in an intolerable situation in the vein of Article 13(b), because the child, age 3 years and 3 months, was "deeply attached to his or her mother, both physiologically and psychologically."  The trial court also relied on Principle 6 of the UN 1959 Declaration of the Rights of the Child, arguing that, except in exceptional circumstances, a child of tender years should not be separated from his or her mother.  The mother had no intention of returning to Spain.  The appellate court agreed and further relied on Article 38 of the Russian Federation Constitution arguing that the child had become well integrated into her social and family environment in Russia

In the unreported opinion of Koivu v. Koivu , the Minnesota Court of Appeals addressed the issue of whether Minnesota should decline jurisdiction over the Koivu children's custody because it was an inconvenient forum as compared to Finland.  The couple lived in Minnesota for the better part of every year for the Husband's job as an NHL hockey player, and spent summers and holidays in Finland, where they also had a house.   Pursuant to the UCCJEA, the court may decline jurisdiction if it determines that it is an inconvenient forum under the circumstances and that a court of another State (or country) is a more appropriate forum.  The parties are allowed to provide information on 8 separate factors to persuade the court.  These factors include: (1) protection against domestic violence that has occurred, (2) the length of time the children resided outside of the state, (3) the distance between the two courts, (4) the relative financial circumstances between the parties, (5) any ag

In the unpublished opinion of  FY v. JL , the New Jersey Superior Court Appellate Division denied a Mother's attempt to modify the parties' Chinese child support order.   The parties, parents to a minor child born in China in 2006, entered into a Marital Settlement Agreement (MSA) in China, and divorced by consent in China in 2009.  Their agreement was made part of their "certificate of divorce" issued by the Chinese authorities, and the NJ court concluded this made it equivalent to a court order.  Their MSA settled issues related to property, finances, custody, and child support.  More specifically, the child was to remain in China with his mother, and she would also retain all of the parties' assets.  In return for retaining all assets, the father was not obligated to pay child support.  He remarried and moved to NJ with his new wife in 2017.  The child came and lived with his father in NJ in 2018 for almost a year, returned to China, and was then brought back

On February 9, 2021, in the case of  Lukic v. Elezovic , the U.S. District Court for the ED of NY ordered the minor child returned forthwith to Montenegro . However, the mother failed to return the minor child.  On February 22, 2021, the trial judge held a phone conference to develop a plan to return the child, and on February 26th, the parents agreed to such a plan.  On March 1st, the Montenegrin Family Court denied the father's request to modify its custody order, thereby leaving the existing custody order in place.  That day, the mother appealed the return order. Therefore, the mother did not return the child as scheduled on March 5th.  The father renewed a contempt motion for the mother's failure to return the child, and the Respondent mother filed a motion to stay the return order.   A district court may issue a stay to the enforcement of a judgment while an appeal is pending, but it is a difficult burden requiring the movant to demonstrate, (1) she is likely to succeed o

The UK Supreme Court heard oral argument in January 2021 in the case of G. v. G .   The minor child's parents lived near one another in South Africa until February 2020. The minor child identified as lesbian, and the child's mother claims that she began experiencing persecution in South Africa on this basis.  The mother removed the minor child and took her to England, where she made an application for asylum.  The child's father brought a return petition under the Hague Abduction Convention.  The child's return was ordered.  The mother appealed to the UK Supreme Court asking:  1. Does a child named as a dependent on a parent's asylum application have any protection from refoulment? 2. Can a return order be made under the 1980 Hague Convention even where a child has protection from refoulment? 3. Should the High Court be slow to stay an application under the 1980 Convention prior to determination of an application for asylum? On March 19, 2021, the Supreme Court issu

On January 28, 2021, the U.S. District Court for the Eastern District of Washington denied a Father's request to return his child to France using the Hague Abduction Convention in the case of In Re Matter of ICJ (Jones v. Fairfield) .  The Father (Mr. Jones) has already appealed. While the trial judge concluded that there would be a grave risk of harm to return the minor child to France, the interesting part of this opinion is that the Court actually found that Mr. Jones was not actually exercising  his rights of custody at the time of the removal, and therefore the removal was not "wrongful" under the treaty.  This prong of the Petitioner's case-in-chief is often given lip-service in Hague abduction litigation, often just being assumed.  The case of Friedrich v. Friedrich had addressed this question in 1996 and said, "The only acceptable solution, in the absence of a ruling from a court in the country of habitual residence, is to liberally find "exercise&q

In Summer 2020, in Bejarno v. Jimenez , the U.S. District Court for the District of NJ denied a Father's request to have his son returned to Honduras on the basis that the Father had filed his Hague abduction return petition in the courts more than one year after the wrongful removal, and the child was now settled.  The trial judge analyzed ten factors, and concluded that the totality of the circumstances led the court to believe the child was now settled.   Only two of the ten factors weighed against finding the child was settled, and it is on one of those two factors that Mr. Bejarno appeals. On appeal to the Third Circuit , Mr. Bejarno argued that the trial judge erred in declining to hear additional testimony concerning the child and his mother's immigration status, and that the trial judge should have treated that one of the ten factors as dispositive, thereby concluding that the child was not settled because the child was not in status in the U.S.  The District Court foun

On February 26, 2021, in the matter of Colchester v. Lazaro , the U.S. District Court for the W.D. of Washington ordered the parties' 6-year-old child returned to Spain.  This child had been the subject of a separate Hague Abduction return petition in 2018.  In January 2020, Mr. Colchester secured a sole custody order from the Spanish courts, and in April 2020, Ms. Lazaro again absconded with the child to Washington State, precipitating this action.   The Court spent the better part of its 3-page order describing what it deemed to be Ms. Lazaro's "meritless" efforts to "sidestep" court rulings and her repeated "disregard" for those rulings.  In elaborating on Ms. Lazaro's behavior, the District Court crafted an order that included quite a few enforcement measures that are worth noting in a blog post.  Most specifically, the order included the following language: "The United States Marshals Service shall assist Mr. Colchester or his duly-ap

The Hague Conference on Private International Law organized a meeting of an Experts Group to discuss the feasibility of a future instrument on the issues of parentage and surrogacy.  This group met from February 15-17, 2021 online.  You can view its report here .  The group concluded it is ready to prepare a final report to the Council on a possible future legal instrument that will outline private international law rules on parentage due to surrogacy.  But, the group concluded that it was difficult to have meaningful discussions virtually, so it will wait until 2022 so that members can travel to meet in-person to prepare a final report.  Therefore, the current goal is to prepare a final report to submit to the Council for its 2023 meeting (usually held in March each year).  

The governing body of the Hague Conference on Private International Law, its Council on General Affairs and Policy , met from March 1-5, 2021 online.  This body dictates the work of the Hague Conference.  There were a few family law items on the agenda, and the Conclusions and Decisions reached by the CGAP can be found here .   Some family law highlights include: 1. The Permanent Bureau will finalize the draft Practical Guide on cross-border recognition and enforcement of agreements reached in the course of family matters involving children, to be circulated to the organization's members for comment, and then submitted to the CGAP for its approval in one year (2022).  You can learn more about this project here .   2. The CGAP approved preparations for the Special Commission (SC) meeting on the Hague Abduction and Hague Child Protection Conventions, to be held the second half of calendar year 2023.   Up for discussion at this SC meeting will be a Country Profile template for the Hag

On March 1, 2021, Mr. Saada filed his response to Ms. Golan's petition to the U.S. Supreme Court, where she asked the court to answer " Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child not withstanding the grave risk finding ."  Mr. Saada takes the view that "ameliorative measures" are simply one tool available to a court, in that a court always has the discretion to return a minor child, even if Respondent demonstrates an exception by the requisite burden of proof from ICARA.  Mr. Saada argues that Ms. Golan is simply seeking to restrict the court's discretion, thereby undermining the goals of the treaty.  Specifically, in addressing why cert should not be granted, Mr. Saada says, "To be clear, none of the Circuits have established a blanket rule that it is inappropriate to consider ameliorati

The Kentucky Supreme Court addressed a Husband's request for a writ of mandamus to compel his family court judge, Judge Hagerty, to dismiss his Wife's petition for a divorce because he had already secured a divorce in Jordan.   For purposes of this blog, I am going to skip over the merits of the writ of mandamus arguments and whether Husband was entitled to one (note: he was not).  I do want to discuss the basic tenets of these simultaneous (or proximate) divorce proceedings in the U.S. and overseas.   In the case of Iqtaifan v. Hagerty , the court elaborated on the following facts.  Mr. Iqtaifan met his Wife and married her in Jordan in 2005.  They then moved to Kentucky, where they resided for the entirety of their marriage, and where both of their children were born.  In July 2017, the parties traveled to Jordan to visit family, and it was apparently during this timeframe where Mr. Iqtaifan pronounced talaq and commenced Jordanian divorce proceedings, without his Wife's

The Hague Conference on Private International Law engages in a lot of post-Convention work that benefits countries interested in or party to its treaties.  Part of its post-Convention work involves meetings of Experts Groups.  One such Experts Group on International Transfers of Maintenance Funds met for its second meeting from February 8-11, 2021.  Its meeting included a discussion on good practices and how to improve the cross-border transfer of child support payments, such as making it more cost-effective, transparent, and efficient.  The Experts Group summarized the outcome of its meeting and published it here .  It is common that prior to meetings, the Hague Conference staff (its Permanent Bureau) produces a questionnaire for attendees.  This occurred prior to the February 2021 meeting. You can find that questionnaire and a summary of its responses here .   The United States reported its plan to create a centralized international payment service with a goal of eventually eliminati