MK Family Law

On March 4, 2021, Judge Liam O'Grady of the U.S. District Court of the EDVa, entered an order in the case of Aluker v. Yan , granting Respondent's motion for judgment on partial findings.  Petitioner has appealed. In September 2017, the Aluker-Yan family moved from the United States to Portugal, where they initially resided together, but separated thereafter.  On November 9, 2018, the parties executed a Separation and Property Settlement Agreement (PSA).  The pertinent language from that PSA says, "[Yan] shall have sole legal and primary physical custody of [both children]. [Aluker] shall be entitled liberal and reasonable visitation with the children."  The agreement also had a clause construing the provisions therein according to the law of Virginia, where Ms. Yan presently resides with the children. In May 2019, Mr. Aluker filed proceedings in the Portuguese family court.  The PSA was not introduced into those proceedings.  On October 3, 2019, Ms. Yan in...

On March 15, 2021, in the case of Pozniak v. Shwartsman , the U.S. District Court for the EDNY ordered a minor child to be returned to Israel under the Hague Abduction Convention.   Ms. Pozniak (a Ukrainian national) and Mr. Shwartsman are unmarried parents to one 9-year-old child, SP.   During the first few years of SP's life, the family moved between Ukraine and Israel, until about 2014, at which time the family settled in Israel, sometimes under the same roof, and, at other times, not.   Mr. Shwartsman traveled with SP a few times to New York City.  The parents had no formal custody agreement, but worked together to ensure access between SP and both parents.  In July 2019, Mr. Shwartsman traveled to NYC with SP.  At trial, the parents disagreed as to the length of the trip, with Mr. Shwartsman arguing it was meant to be indefinite.  Ms. Pozniak argued that she agreed that SP return no later than September 1st for school, but that date...

On March 15, 2021, in the case of de Jesus Joya Rubio v. Alvarez , the U.S. District Court for the SD of Florida denied a father's petition to have his 12-year-old son returned to Mexico.  The father proved his prima facie case, so the court shifted its review to the 3 exceptions the respondent mother argued.  As part of the mother's arguments, she retained the services of a psychologist to evaluate the minor child.  Ultimately the mother demonstrated that the minor child was mature, objected to returning to Mexico, and was not unduly influenced, and that the father filed his return petition more than one year past the wrongful retention and the child was now settled.   Mature Child's Objection The psychologist's evaluation of the child was key, and he focused on several very prominent issues when opining that the child had mature objections and was not unduly influenced.  Most specifically, the child was diagnosed with ADHD in Florida, and his mother had ...

On April 5, 2021, the U.S. Supreme Court invited the Acting Solicitor General to file a brief in the case of Golan v. Saada, to express the views of the United States.  This blog has featured a variety of updates on this case over the past year.  The issue presented to the Supreme Court was:  "The Hague Convention on the Civil Aspects of International Child Abduction requires return of a child to his or her country of habitual residence unless, inter alia, there is a grave risk that his or her return would expose the child to physical or psychological harm. The question presented is: 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 notwithstanding the grave risk finding."   Ms. Golan's Petition for a Writ of Cert can be found here .  Mr. Saada's Affirmation in Opposition can be found here .  Ms...

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 ...

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) ...

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 Supr...

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...

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...

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...

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...

On February 11, 2021, in the unpublished opinion of Minkiewitz v. Becker , the Court of Appeal of California affirmed the return of a minor child to Mexico under the Hague Abduction Convention.   The parties are parents to a 7-year-old son, all are U.S. citizens, and were living on their boat docked in Marina del Rey, California.  In December 2016, the family set sail for Mexico, and by January 2017, the family had set up residency in Mexico, where they moored their boat. They enrolled their son in school, he was learning Spanish, but they continued to drive back to Los Angeles for his medical care, so they maintained insurance for cars registered in the United States. The parents acquired the necessary permits and visas to reside in Mexico indefinitely, and while the visas were only temporary, they continued to renew them, and the father applied for permanent residency.  The father had bank accounts in both countries, and the family enjoyed entertainment and sociali...

On January 7, 2021, in the case of Dubikovskyy v. Goun , the U.S. District Court for the WD of Missouri, denied Mr. Dubikovskyy's request to return his daughter to Switzerland.   Mr. Dubikovskyy (who is Ukrainian) and Ms. Goun (who is Russian) are permanent residents of Switzerland, where they resided with their daughter (age 12) in Lausanne, while Mr. Dubikovskyy commuted to Geneva for work.  MD, their daughter, had been born in California, and was a U.S. citizen, but had not lived in the United States since age 3.  In 2020, Ms. Goun accepted a teaching position in Missouri, and arranged to move with her new significant other (as the parties were still married), their child, and MD.  She told Mr. Dubikovskyy, who was sharing joint custody over MD under a Swiss court order, the day before she left in July 2020.  Litigation ensued, where Mr. Dubikovskyy obtained a subsequent Swiss custody order granting him custody, and a criminal arrest warrant for Ms. Goun...

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 to Montenegro after both parties filed motions for summary judgment.  The court reviewed memorandums and affidavits, and issued its order granting the father's motion, and denying the mother's. The court concluded that Montenegro was the child's habitual residence.  The parents had a written custody order from a Montenegrin court that, on its face, appeared to give the father only access rights, but the Montenegrin Code provided for the father to retain rights to decide the child's residence jointly with the mother unless abrogated by court order, so the court concluded the father had a ne exeat right in the vein of Abbott v. Abbott .  The mother argued that the father signed a travel consent form for an "unlimited" amount of time, but looking at the father's subjective intent, the consent form was merely to authorize an unrest...

On November 19, 2020, the US District Court for the M.D. of Georgia issued its opinion, denying Mr. Romero's request to return his two children to Chile .  In December 2017, Mr. Romero brought the parties' 2 children to Florida to see his mother, with the intention of remaining until March 2018.  Ms. Bahamonde alleged, however, that in January 2018, Mr. Romero advised her that he and the children would not be returning.  In February 2018, she moved to Florida, first living with Mr. Romero's mother, and then moving out on her own.  Eventually, both children began residing with Ms. Bahamonde.  The parties had an acrimonious relationship both in Chile and in Florida.  Ms. Bahamonde had filed several requests for protective orders, and a hearing was scheduled for September 20, 2018, then re-scheduled to December 13, 2018.  She ultimately dismissed the case, however, learning that Mr. Romero had returned, with both children's passports, to Chile on Septembe...

The UK Supreme Court heard oral argument this week in the case of G v. G, on the complex issue of a child's asylum claim and a parent's request to return that child using the Hague Abduction Convention to the country that the child is trying to escape.  You can find the case details here .  The questions presented to the Supreme Court were:  1) Does a child named as a dependent on a parent's asylum application have any protection from refoulement?  2) Can a return order be made under the 1980 Hague Convention even where a child has protection from refoulement? 3) Should the High Court be slow to stay an application under the 1980 Hague Convention prior to determination of an application for asylum? The Court of Appeals for England and Wales concluded that the High Court was not barred from determining the Father's application for the return of his child under the Hague Abduction Convention, nor was the court barred from making an order to return the child. ...

In Avendano v. Balza , the First Circuit affirmed the U.S. District Court's refusal to return G, a minor child, to Venezuela on the basis that G was mature, and objected to the return.  The Petitioner Mother appeals the court's finding on two points. Point one : Petitioner argues the court wrongly concluded the child was mature The trial judge did not commit clear error when concluding that the child was mature.  The trial judge had examined a variety of witnesses who had observed the minor child's demeanor, heard testimony from the child's Guardian Ad Litem , and had even interviewed the minor child personally in the GAL's office before concluding that the child's desires were "very clear, consistent, and rational" and that he not only stated a preference for the United States, but clearly objected to being returned to Venezuela.  The Court rejected the Petitioner's argument that the Court should have examined the child's maturity at the time ...

On January 8, 2021, the U.S. District Court for the Western District of Virginia denied a return petition brought under the Hague Abduction Convention in the case of Alfonso VH v. Christina AZ  on the basis that the minor child is now settled in the United States. The court found that the Petitioner Father established a prima facie case of wrongful retention after the child's Respondent Mother refused to return their child to Honduras as scheduled on April 23, 2019 (at the end of a planned 2-week trip).  The Respondent argued three exceptions to the child's return: (1) the child was now "well" settled, (2) the child's "wishes," and (3) a grave risk.  The minor child was appointed a Guardian Ad Litem , who filed a report with the court, which included statements made by the child, and which both parents agreed the court could accept in lieu of the child's testimony.  The Petitioner did not file his return petition with the court in Virginia until app...

In the case of  Pawananun v. Pettit , the U.S. District Court returned the parties' two daughters to their habitual residence of Thailand.  The parties stipulated that the father, Mr. Pettit, had wrongfully removed the parties' children from Thailand.  Mr. Pettit focused on arguing that it would present a grave risk of harm to the children to return them to Thailand because of certain claims of abuse of his daughters that he believed were inflicted by a family friend that may have been having an affair with his ex-Wife. The family friend, Mr. Hardy, was a doctor who had moved to Thailand from the United States.  Mr. Hardy had been investigated in the U.S. after allegedly sexually assaulting patients and staff.  He surrendered his U.S. medical license.  Upon learning of this, Mr. Pettit began surreptitiously investigating Mr. Hardy and his involvement with his daughters by taking the children to a series of doctors without advising their mother of the s...

The U.S. District Court for the Western District of Washington denied Mr. Colchester's request that the court immediately return his daughter to him in Spain pursuant to the Hague Abduction Convention.  The case came before the court after Ms. Lazaro, the child's mother, removed the case from the state family court.  Mr. Colchester requested the federal court promptly return his daughter, and argued that the court need not take evidence to do so.  The court disagreed.  While the court has discretion to determine its procedures for resolving the petition, and courts have resolved Hague Abduction return petitions merely on the papers (see Pope v. Lunday ), in this case, Mr. Colchester has not yet met his burden of proof to establish a prima facie case that his daughter was wrongfully removed from her habitual residence.  Citing to the February 25, 2020 opinion of Monasky v. Taglieri , the court acknowledged that habitual residence is a fact-bound determination, ...