MK Family Law

On August 25, 2020, the U.S. District Court for the District of Minnesota ordered a minor child returned to Germany in the case of Forcelli v. Smith under the Hague Abduction Convention.  The key issue was whether Germany was the child's habitual residence.  In or about August 2019, the parents, with the Mother in Germany and Father in Minnesota, agreed to have the parties' three children visit with their father in Minnesota for 3 weeks.  Just prior to the trip, the parties started talking about the Mother securing a U.S. green card (although she never completed the process).  The 1 oldest child was already a U.S. citizen, and the parents applied for U.S. citizenship for both younger children.  When the mother and 3 children arrived in Minnesota, the Mother expressed concern over finances and her health.  The parents agreed the three children would remain with their Father in the United States "for the time being" (according to the Mother).  She retur...

The U.S. Court of Appeals for the Fifth Circuit recently had the opportunity to apply the Monasky v. Taglieri habitual residence test in the case of Smith v. Smith .   The parents and children, all U.S. citizens, were residing in Argentina, when the mother traveled with the children to Texas for a funeral, and then retained them.  The couple shared custody in an Argentinian custody and divorce order.  The father petitioned the U.S. District Court for the Northern District of Texas for the children's return.  The children's mother argued that the United States, and not Argentina, was the children's habitual residence, and prevailed.  At the time of the trial, the Monasky opinion had not been handed down by the U.S. Supreme Court, so the district court applied the parents' "last shared intent" standard.  In doing so, it examined all the facts in the family's history.  This included: everyone was born in the U.S. and continued to be U.S. citizens; t...

Just before I started this blog, the U.S. Court of Appeals for the First Circuit issued an opinion in the case of Da Silva v. De Aredes (953 F.3d 67 (March 13, 2020) ).   There were a few issues that the Respondent Mother (de Aredes) argued on appeal, but ultimately the court affirmed the U.S. District Court's order to return the minor child, ACA, to Brazil.  It agreed that any potential abuse alleged by de Aredes did not rise to the level of being a grave risk, and despite the Petitioner Father (da Silva)'s court filing beyond one year after the wrongful removal, the child was not settled in East Boston.   Perhaps the most interesting part of the First Circuit's opinion, however, was that it remanded the case (despite affirming) for the U.S. District Court to re-word its return order.  This is particularly interesting given my last blog post where a U.S. District Court in Arizona crafted a Hague Abduction return order that placed the child in the temporary...

On September 16, 2020, the U.S. District Court for the District of Arizona returned the parties' children to their habitual residence of Germany.  In the case of Radu v. Shon , the Respondent Mother (Shon) conceded that her removal of the children from Germany in June 2019 was wrongful.  She argued 2 exceptions to their return: consent/acquiescence and grave risk of harm.  The court focused predominantly on the grave risk of harm arguments. Shon argued that the Petitioner Father (Radu) was emotionally and psychologically abusive towards her and the children in Germany, causing them to fear Radu.  Shon alleged that Radu had an explosive temper, he yelled, degraded her, and used derogatory language. Further, she argued that Radu banged his hands on the table, threw objects, and once slapped her.  The Court noted that none of this caused the children to require medical attention and no one sought a protective order or filed a police report because of this behavior....

In the case of Trott v. Trott, the Eastern District of New York granted a father's petition to have his two daughters returned to Bermuda. The parties are parents to two daughters.  Their eldest child is not the father's biological daughter, but was raised as his daughter.  The youngest is his biological daughter.  The children had lived in Bermuda since they were young, but, moved to New York with their mother, without objection by their father (despite a Bermudian ne exeat order being in place) in 2013.  During a visit to Bermuda in 2018, the children alerted their father to what amounted to abuse and neglect by their mother. The father refused to return the girls to New York, and their mother pursued a Hague Abduction return petition in the Berumdian courts.  The trial court examined whether it would be a grave risk of harm to return the children, ultimately concluded it would not, and asked the parties to identify protective measures available in New York ...