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Case Update: Hague Abduction Convention, Habitual Residence, Grave Risk & Undertakings

The U.S. Court of Appeals for the 2nd Circuit recently affirmed a return order issued pursuant to the Hague Abduction Convention in the Grano v. Martin matter.  The Respondent Mother appealed on three points.  
First, she argued that the trial court misapplied the Monasky v. Taglieri test in deciding that the minor child was habitually resident in Spain.  The 2nd Circuit disagreed.  Monasky requires the trial judge to apply a totality-of-the-circumstances test when determining a child’s habitual residence.  It also determined that the trial judge’s decision would only be overturned upon a showing of clear error.  The 2nd circuit elaborated on several facts that lead the trial judge to find Spain was this child’s habitual residence, including purchases of real estate, registering the child as a Spanish citizen, finding a school for the child, and traveling to Spain in 2017 on a one-way ticket.
Second, the Respondent Mother argued that the trial judge was wrong to find that there was no g…

Case Update: UCCJEA, Continuing Exclusive Jurisdiction, Temporary Emergency Jurisdiction

On July 6, 2020, the Court of Appeal of the State of California issued an opinion in the case of L.A. Cnty. Dep't of Children & Family Servs. v. MH.  At issue, in this case, is a minor child who had been in a shelter in Mexico, and was then transferred to his maternal grandmother in California.  The child's parents were both found unfit to care for the child, and the child had been living in deplorable conditions with the parents in Mexico.  The child is a U.S. national (the mother is American), and upon learning of the child's citizenship, the U.S. consulate was contacted, and arrangements were made to transfer the child as an unaccompanied minor to the United States.  The juvenile court in California issued a custody order on August 6, 2019 declaring the child a dependent of the court and ordering the child's placement with his maternal grandmother. The California court never contacted the Mexican court.  The Father timely appealed, arguing a lack of jurisdiction…

Case Update: UCCJEA, child custody jurisdiction, simultaneous proceedings, registration of foreign custody order

On July 7, 2020, in McDowell v. Buchman, the Court of Appeals of North Carolina affirmed a trial court decision that refused registration of a Canadian custody order.  The parents have a long history of litigating, which started shortly after the minor child was born (DOB 4/22/2010).  In March 2011, the parents agreed to custody in a consent order, entered by an NC court.  In November 2012, the parents agreed to a modified consent order, which was also entered by an NC court. It was evident that the parents were “totally unable to cooperate with one another regarding custody issues of the minor child” and a few weeks before the Father was set to begin his access with the child under the modified Consent Order, the Mother absconded to Ontario, Canada with their minor child.  The Father initiated an ex parte emergency proceeding in North Carolina related to the child’s removal, and he received an ex parte custody order in early 2013.  An arrest warrant was also issued for her criminal c…

Case Update: Hague Abduction Convention, burden of proof, consent exception

Shortly before the entire world came to a halt because of the coronavirus, the Eleventh Circuit issued an opinion that should serve as a clear reminder on best practices when arguing a Hague Abduction matter.  
In Berenguela-Alvarado v. Castanos-I, the parties’ minor child, who had lived her entire life in Chile with her mother, traveled to Florida in early 2019 to spend approximately 2 months with her father.  The parties had a return ticket purchased for the child.  Before the child’s return date, the Father tried to secure the Mother’s agreement to let the child remain in Florida.  He, in fact, had a friend in Florida draft and send a document to the Mother, which included language for her to give consent to the child’s permanent relocation.   The Mother scheduled 2 appointments at the U.S. consulate to sign the document before a notary but did not attend either appointment (which she later says was her delaying, trying to have the child returned as scheduled).  The Mother ultimatel…

Case Update: Comity, Foreign Marriage, Void Marriage

The Claflins spent significant time and energy litigating in two countries over their divorce.  
Ms. Zamora Claflin filed for divorce in Florida.  Mr. Claflin sought to dismiss her divorce petition, alleging that Ms. Zamora could not have legally married Mr. Claflin because she was already married at the time they said their vows. Both Ms. Zamora's first marriage and her marriage to Mr. Claflin occurred in the Philippines.   Therefore, the Florida court sent the couple packing to resolve the issue of Ms. Zamora’s sequential marriages in the Philippines.  
A court in San Mateo, Philippines declared Ms. Zamora’s first marriage invalid because she lacked the legal capacity to marry her first “husband” as she was too young.  Mr. Claflin, dissatisfied with this answer, took his grievance to a court in Pasig City, Philippines, where he argued that his marriage in the Philippines to Ms. Zamora was void ab initio because her first marriage was never declared invalid prior to her second marr…