MK Family Law

The  American Bar Association's International Law Section  will host a free webinar on February 10th at 11 a.m. ET.  During this hour-and-a-half webinar, join  Melissa Kucinski of MK Family Law  and  James Netto of the International Family Law Group  as they take attendees through the top highlights in international family law in 2020 in the United States and Europe.   Registration can be found by  clicking here . 

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...

In the continuing saga of Chris Brann and the Guimaraes Family , the Court of Appeals for the First District of Texas accelerated Chris' interlocutory appeal, and ultimately dismissed the Guimaraes' civil suit against him.  This family has been through a significant volume of litigation, including: family court cases in Texas and Brazil, a Hague Abduction return proceeding in Brazil, and a criminal suit in Texas.  This particular appeal relates to yet another lawsuit - a civil case brought by Marcelle Guimaraes' parents against her ex-Husband, Chris Brann.   As background, Carlos and Jemima Guimaraes' daughter, Marcelle, was married to Chris Brann and they had a son Nathaniel.  In 2012, Marcelle filed for divorce from Chris in Texas.  In 2013, Marcelle obtained a Texas trial court's permission to take Nathaniel to a family wedding in Brazil.  Once in Brazil, Marcelle enrolled Nathaniel in her family-run school, initiated a Brazilian custody case, and s...

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...

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 ...

The Maryland Court of Special Appeals issued an unreported opinion in the case of Olarinde v. Korede on August 20, 2020.  In the opinion, the court examined subject matter jurisdiction and whether Maryland was the "home state" of the parties' children so that Maryland could issue its initial child-custody determination.  The trial court concluded Maryland was the home state.  The COSA agreed.   The parents have 4 children - 2 born in Nigeria and 2 born in the United States.  The family took up residency in Maryland in 1999.  The couple are dual Nigerian-U.S. nationals.  In 2009 or 2010, the Father returned to Nigeria, traveling to Maryland for months at a time.  The parties' two eldest children left Maryland at various points in time, traveled to Nigeria and resided there, but ultimately returned to Maryland.  At this time, both are emancipated.   On August 2, 2016, the Father filed for divorce and custody in Maryland, but cla...

 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 19, 2020, the Third District Court of Appeal for the State of Florida, in Vicario v. Blanch , reversed the trial court's order staying a dissolution proceeding in lieu of a dissolution proceeding in Spain.   The parties have a complicated timeline of court filings in both jurisdictions.  The Husband first filed for divorce in Florida.  The parties began litigating, but then he voluntarily dismissed his Florida divorce action and filed a few days later in Spain.  Nearly simultaneous to when the Husband filed in Spain, the Wife filed her divorce action in Florida. Ultimately, the Husband served his Spanish divorce action on the Wife a few months before the Wife served her action on the Husband.  When the Husband dismissed his Florida suit, the case was closed.  With him then serving the Wife first with the newly filed divorce action, the Spanish suit took priority and was first-in-time.  Therefore, the trial court deferred to th...

On August 26, 2020, the U.S. District Court for the Middle District of North Carolina, in the case of Chambers v. Russell , ordered the return of a minor child to his habitual residence in Jamaica under the Hague Abduction Convention.  Among the court's examination, one of the key issues was its review of the child's habitual residence. The parties' minor child was born in and lived his entire life in Jamaica.  His parents had an informal custody arrangement, where the child resided primarily with his mother.  In 2018, the child's father moved to the United States.  Around this time, the mother found a job opportunity in the United Kingdom, and secured a visa. Mother then sought to apply for the child's visa in February 2019, which required the child's Father to provide his written consent. The initial visa application was denied, and the UK Embassy advised the Mother that she needed either a formal custody order or some other proof that she has sole custody.  M...

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 Interest of Doe I,  467 P.3d 442 (2020),  two minor children were removed from their mother's care in Idaho after they were found homeless and living in a car.  Their biological father's whereabouts were unknown, but presumably he had been deported to Mexico several years earlier.  About one year after the proceedings were started, the father's paternity was established, after he was located in Mexico.  The Idaho Department of Health and Welfare began a placement plan to send the children to live with their father in Mexico.  The children's Guardian Ad Litem, however, requested more information about the father's living situation before agreeing to the placement.  The Department was having difficulty obtaining a home study of the father's living situation because he was in Mexico.  The court ordered the children's prompt placement without a home study, but, then, in February 2020, additional evidence was discovered about the father's crimin...

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...

The case of LO v. NO, No. CAAP-19-0000762 , gives me the opportunity to provide some reminders to everyone about child abduction prevention.   The actual underlying issue in this case was the Father’s appeal of the trial court’s post-decree order granting the Mother’s request for a U.S. passport for the parties’ minor child.  The appellate court ultimately affirmed the trial court’s order because the Father’s brief did not quote any of the family court’s findings of fact, nor did the Father append any findings of fact to the brief, which is required by the Hawai’i Rules of Appellate Procedure.  Because of this, the Father was bound by the findings of fact made by the trial court, and the family court did not abuse its discretion in ordering the Father to cooperate in securing a passport for the minor child, something he argued he did not want to do out of concern the Mother would take the child to Vietnam. Here are some useful points to remember, spurred by the opinion:...

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...