MK Family Law

The Hague Conference's (HCCH) Council on General Affairs and Policy (the organization's governing body) holds an annual meeting, typically in March, to set forth an agenda for the organization's work over the coming year.  The meeting is attended by representatives of Member States.  Prior to each year's Council meeting, the Permanent Bureau (PB) staff prepare a variety of useful documents related to the organization's work .  There are a variety of family law topics on the Council agenda for the March 2021 (tentative) meeting.  Included among those topics is planning for the organization's next Special Commission meeting on the 1980 Child Abduction and 1996 Child Protection Conventions.  Special Commission meetings are scheduled once every (approximately) five years and serve as a meeting for Members and relevant international organizations to discuss the practical operation of a specific treaty.  The 1980 and 1996 Conventions are routinely packaged togeth...

Today marks an auspicious day in history.  It is the 40th anniversary of the 1980 Hague Child Abduction Convention.  This highly successful treaty serves to promptly return children to their habitual residence after they are wrongfully removed or retained in another treaty partner country.   You can find the Hague Conference's resource page for all things Child Abduction by clicking here .  For practitioners, pay special attention to a few resources on this website, including the Country Profiles  (cheat sheets on the resources available in a country for the Child Abduction Convention), the Status Table (to see what countries have ratified, acceded, and what countries accepted accessions), and a link to INCADAT (the caselaw database on child abduction cases).  Be sure to explore the Guides to Good Practice, the Explanatory Report, and all the documents reviewed and discussed as part of the Special Commission meetings (held about every 5 years to discu...

Dr. Hil Rizvi appeals a trial court order dismissing his complaint against a Massachusetts social service agency, a Maryland social service agency, and two separate Swiss governmental agencies.  The Third Circuit Court of Appeals affirmed the dismissal on September 25, 2020 .   Rizvi is the father of two daughters who reside in Switzerland.  They were taken to Switzerland by their mother, Rizvi's estranged wife.  One of his two daughters received treatment, first in Maryland, and now in Switzerland, for an eating disorder.  Dr. Rizvi disagrees with the treatment.  This daughter did temporarily reside with Dr. Rizvi in Massachusetts in 2016, but pursuant to an emergency temporary custody order, the child was returned to Switzerland in the custody of her mother.  This federal lawsuit was filed by Dr. Rizvi who alleges that the four governmental agencies violated his parental rights.  He further argued that the Maryland and Massachusetts agencie...

The case of Biagioli Da Silva et. al. v. Vieira is, in most respects, a run-of-the-mill Hague Abduction return proceeding.  The parents and children were all Brazilian nationals.  The parents separated, divorced, and shared custody in Brazil.  The Father, Biagioli Da Silva, ran into some difficulties with the law and was incarcerated.  His mother (the paternal grandmother) nonetheless still saw the children and participated in their lives on his behalf, by written agreement, incorporated into a court order in Brazil.  In early 2019, the children's Mother, Vieira, asked the Father for permission to visit family in Orlando, Florida.  He vehemently refused, fearing she would not return.  She, however, convinced the Brazilian court that it was a temporary visit, verified by return plane tickets, and entry to the U.S. on a tourist visa, so the court granted her request over the Father's objection.  The Mother traveled to Florida, but retained the chil...

On May 11, 2020,  the Second Circuit Court of Appeals affirmed the return of a minor child to Ecuador in the case of Valles Rubio v. Veintimilla Castro , 813 Fed.Appx. 619 (2020).  The key issue on appeal revolved around the grave risk of harm to the minor child if returned to Ecuador, and more specifically the ameliorative measures available to ensure a safe repatriation of the minor child.  “In cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country.”  In this case, the court concluded there was a grave risk of harm, but further concluded that the Ecuadorian courts were capable and willing to protect the child.  The Mother appealed, arguing that the court did not sufficiently develop the record to support its conclusion that there are enforceable ameliorative measures in Ecuad...

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 ...

 On August 20, 2020, the Ninth Circuit affirmed the U.S. District Court for the District of Arizona in Farr v. Kendrick , which had denied Mr. Farr's petition to have his children returned to Mexico using the Hague Abduction Convention. The district court concluded that the United States, not Mexico, was the children's habitual residence, and therefore they cannot be returned to Mexico.  The district court reached this conclusion prior to the Monasky v. Taglieri opinion on February 25, 2020, which now mandates courts to assess habitual residence by reviewing a totality-of-the-circumstances.  Even though the district court had focused on the parents' shared desire to not abandon the United States as the children's home, the trial court gathered sufficient evidence that the Ninth Circuit was able to conclude that the United States is the habitual residence when examining all facts.   For example, both parents and children were U.S. citizens, Farr's job in Mexico w...

On August 26, 2020, in the case of Zaoral v. Meza , the U.S. District Court for the Southern District of Texas ordered the return of a 15-year-old child to Venezuela. The parties' youngest child, age 15 at the time of the trial, was the subject of a Venezuelan custody order that gave both parents joint parental responsibility, and ordered that the Mother, who was the primary residential custodian, could not change the child's residence without notifying the Father so he could exercise his rights and duties.   The Mother sought court permission to take the daughter on a several-week trip to visit family in Houston from July 6, 2018 through August 14, 2018.  The court permitted the trip and required the Mother to appear in court the week after her scheduled return.  The travel authorization from the court also included specific language that informed the Mother that her failure to return the child would be a criminal offense.  Nonetheless, the Mother failed to ret...

On August 19, 2020, the Ninth Circuit Court of Appeals affirmed the trial court's refusal to return a minor child to Mexico in the case of Castro v. Hernandez Renteria on the basis that the underlying petition for return was filed more than one year after the child's wrongful removal/retention, and the child is now settled.  This case shows some creative arguing by both sides.  The key issue was the date on which Bertha, the minor child's maternal grandmother, removed or retained the child outside of its habitual residence of Mexico.  There are a few potential dates, and each level of the court chose a different one.   At the time of the child's departure from Mexico with Bertha, the child was in its father's primary custody, but since the child' father was incarcerated, the child's paternal half-sister had de facto custody.  The child's mother was missing.  On August 25, 2017, the minor child boarded a flight from Mexico and arrived in Las Vegas, NV ...

In the case of Colon v. Mejia Montufar , the U.S. District Court denied the Father’s request to return his minor child to Guatemala.  The parties had stipulated that the Father met his burden of presenting a prima facie case of wrongful removal, but the Mother presented two exceptions to returning the child: that returning the child would expose the child to a grave risk of harm, and that the child was mature and objected to being returned.  The Court concluded that the Mother did not meet her burden to prove a grave risk, but did meet her burden that the child is of sufficient age and maturity and that the court should consider his objection to being returned to Guatemala.  The Mother first argued that the minor child would be recruited into a gang in Guatemala, or harmed if he refused to join a gang, creating a grave risk of harm if returned.  She hired Dr. Miguel Firpi to testify on both exceptions she argued.  Dr. Firpi opined that the minor child “may ex...

In the case of Pawananun v. Pettit, the U.S. District Court addressed the Plaintiff’s Motion to Strike the Defendant’s asserted defense of a grave risk of harm if the children were returned to Thailand. The parties were married and had two daughters.  The family lived in Thailand.  When the parents separated and divorced, they agreed to joint custody, sharing time with their daughters on a week-on, week-off schedule.  Thereafter, the Plaintiff Mother, began a relationship with a man named Roger Ian Hardy.   The Defendant Father alleges that Mr. Hardy touched his daughters inappropriately. His oldest daughter allegedly reported this behavior to her Father, and subsequently reported to a psychologist that Mr. Hardy inappropriately touched her younger sister.   Defendant Father petitioned a Thai Court to revoke Plaintiff Mother’s custodial rights/parental powers because the Mother supported Mr. Hardy, despite the alleged behavior.  The Thai Court refused to...

On July 24, 2020, the U.S. District for the District of Columbia addressed an interesting request under the Hague Abduction Convention.  In the case of  Stone v. U.S. Embassy Tokyo, et. al. , Mr. Jack Stone sued the U.S. government to issue a passport for his first-born child.  Subsequently, he amended his filing.  In his Second Amended Complaint,  he argued that his wife left the United States for Japan on November 11, 2018, with his child and without his consent, out of fear that she would be deported because the U.S. government had not issued her a visa, despite the Plaintiff submitting a Petition for Alien Relative (Form I-130) over a year prior.  Mr. Stone then filed additional pleadings, which the court construed as a motion for leave to amend his Second Amended Complaint. In the Third Amended Complaint, Mr. Stone requested his child’s return under the Hague Abduction Convention, an order compelling U.S. citizenship for his second-born child, a visa f...

The case of Bejarno v. Jimenez denied the Petitioner Father’s request to return his child to Honduras using the Hague Abduction Convention.   The court’s analysis hinged on the "now settled" exception.  The court concluded that the Respondent Mother removed the parties’ child to the United States on April 24, 2018.  The Father submitted an application with the Honduran Central Authority on June 29, 2018, requesting the child’s return.  He then secured pro bono legal counsel, and filed his return petition in the appropriate federal court in NJ on August 30, 2019, sixteen months after the child was wrongfully removed.   The court looked to the factors highlighted in Monzon v. De La Roca to determine if the child is now settled since the Father commenced the proceedings more than one year after the removal.  These factors include:  the age of the child the stability of the child’s new residence whether the child attends school or daycare consistently wh...

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 wr...

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 sc...

On June 29, 2020, the U.S. District Court for the Southern District of New York issued an order for Ms. Orna Kirsh to pay fees and costs to Mr. Dror Nissim after Mr. Nissim prevailed in a Hague Abduction Convention return proceeding .  The US implementing legislation for the Hague Abduction Convention (ICARA) includes a fee-shifting provision that orders the respondent (Kirsh) to pay necessary expenses incurred on behalf of the petitioner (Nissim) during the course of the Hague Abduction Convention proceedings unless it would be clearly inappropriate.   The court reviewed 6 factors in determining whether a fee award would be “clearly inappropriate," and concluded it would not be. The court considered the following factors: whether there was a reasonable basis for removing the children to the USA whether either party engaged in forum shopping the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs the respondent’s inabili...

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...