MK Family Law

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...

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 - Vica...

 From Guest Blogger, Bruce Hale of Modern Family Law     The family law bar is facing a number of challenges posed by the global pandemic.  Much has already been written on the impact of the pandemic to matters of child custody and support.  Lesser known are issues in family formation, which are aggravated when they take place on the international stage. Many countries around the world restrict or ban certain forms of assisted procreation.  In most countries, surrogacy is banned outright or only available in very limited circumstances.  Gamete donation in many countries can also be subject to strict limitations.  Even fertility procedures, such as IVF, might not be available to all who seek to become parents. Because of these limitations in other countries, the United States is a destination for people who need fertility treatment or third-party assisted procreation.  In the United States, individuals and couples enjoy a generally broader set...

As the COVID-19 pandemic drags on, it is inevitable we will see more international cases that address this issue, even if tangentially. In the case of Sacchi v. Dervishi, the US District Court for the Northern District of California ordered two children returned to their habitual residence of Italy and crafted its return order to account for the European Union's travel restrictions  that left the United States off of approved travel partners due to a resurgence in the COVID-19 outbreak in many parts of the U.S. The couple, who were residing in Italy for the better part of 2 years with their children, were having marital difficulties.  The children’s mother, Ms. Dervishi, decided she wanted to return to California, where the family had previously lived, and where the children were born.  She asked their Father, Mr. Sacchi, for permission to move the children with her.  It appears that both parents had a tentative (albeit somewhat unclear) understanding that the child...

The Hague Conference on Private International Law published a toolkit that explores the application of the 1980 Hague Child Abduction Convention in the wake of COVID-19.   You can find the toolkit by going here .  The toolkit pinpoints resources and publications provided by the HCCH that support a global response to the current pandemic.   The document highlights: - focusing on each case individually (on a "case-by-case" basis) - ensuring suitable contact between parents and children - promoting mediation and other mechanisms to resolve these cases, including remote mediation - sharing information and collaborating among judges and the Central Authorities - putting in place practical door-to-door arrangements to ensure a child is returned safely The document then provides hyperlinks to the relevant documents on the HCCH's website that provides additional guidance.

In the case of Guerra v. Rodas, (Case No. CIV-20-96-SLP) , Plaintiff Mother sought the return of her minor child to Guatemala.  The child was removed from Guatemala in March 2019 by the child’s biological Father.  In May 2019, Plaintiff Mother reported the child’s removal to law enforcement and submitted a formal complaint. She followed this with an application to the Central Authority using the Hague Abduction Convention, and, then, in February 2020, filed the appropriate lawsuit in the U.S. District Court for the Western District of Oklahoma.   The court hearing itself was continued several times, including for Defendant to find counsel, to appoint a Guardian Ad Litem for the child, and because of COVID-19.  The trial was ultimately heard on June 1, 2020, with the Mother appearing remotely.    The judge found that the Plaintiff Mother met her burden to have the child returned to Guatemala, and then addressed two exceptions argued by the Father. ...