MK Family Law

The 10th Circuit affirmed the Pope v. Lunday decision on November 20, 2020.  Ms. Lunday, pregnant with twins, returned to her home of Oklahoma from Brazil.  The twins were born in Oklahoma, and shortly after, Mr. Pope filed suit under the 1980 Hague Abduction Convention, seeking the twins' return to Brazil.  The children had never been to Brazil, except in utero .  The trial court's focus was on pinpointing the twins' habitual residence.  It concluded it was the United States, and therefore denied Mr. Pope's return request on the papers. The 10th Circuit had the benefit of the Monasky opinion when it reached its decision in November, which not only discussed the habitual residence of newborns, but established the standard of review as "clear error."  Mr. Pope argued that the parents shared an intent to make Brazil the home of their twins, with Ms. Lunday taking steps towards licensure for her profession in Brazil, and the couple registering their partners...

Tatiana Akhmedova filed an ex parte request of the U.S. District Court for the Western District of Texas , using 28 USC 1782 to seek certain evidence in support of her English divorce action.  Tatiana alleges that the English courts have ordered certain money judgments and transfers of property in her divorce action against her Husband, Farkhad Akhmedova.  She also alleges that Farkhad has failed to abide by the orders and, in fact, has transferred certain assets that the English court awarded to her, including a yacht, the M/Y Luna. In her attempts to collect on the judgments, the English court ordered Farkhad's son Temur, to produce certain electronic information and cooperate in a forensic investigation.  Needless to say, at the end of the day, Tatiana claims no one cooperated, and Tatiana is now seeking discovery from Rackspace, the email host for Great Circle, the entity that provided email and IT hosting for the M/Y Luna.  She is also asking that the court per...

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...

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 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...

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 p...

Over the past few months, there have been several cases that have addressed the issue of legal fees and costs to be paid by a Taking Parent as part of a successful return order under the Hague Abduction Convention.   The International Child Abduction Remedies Act  includes a fee-shifting provision that provides that the court ordering the return of a child shall order the Respondent to pay necessary expenses incurred on behalf of the Petitioner unless the Respondent establishes that such an order would be clearly inappropriate. The U.S. District Court for the Eastern District of Louisiana, in Joya v. Gonzalez , used the “lodestar” calculation as its starting point to award fees to a Left Behind Parent, by determining the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate in the local market.   The court, in this case, focused very heavily on the Petitioner Parent's documentation when it granted Mr. Joya the fees and costs he reque...

On April 23, 2020, the U.S. District Court for the Western District of Michigan (Southern Division) issued an opinion on remand from the 6th Circuit in the case of Moreno v. Zank (No. 1:17-cv-732) to pinpoint the moment in time when the minor child was wrongfully retained by her father in Michigan.  While the family has an acrimonious history, the court chose to focus on several dates within the month of August 2016 to try to pinpoint the date on which the minor child, BLZ, was retained in Michigan at the end of a summer vacation to see her father.  The father was slated to put BLZ on a plane to Florida on August 9, 2016 at which time her maternal grandfather would take over custody (and presumably, after a trip to Walt Disney World, take her back to Ecuador).  Due to a Delta Airlines nationwide outage, that flight did not happen, and shortly thereafter, BLZ told her father that she objected to returning to Ecuador.  The minor child’s travel authorization perm...

On April 16, 2020, the Hague Conference on Private International Law published its newest Guide to Good Practice under the Evidence Convention .  This publication looks at the development of video-links in taking evidence overseas using the Evidence Convention.  It outlines good practices and has references to material from Contracting Parties. The Evidence Convention provides a mechanism to obtain evidence overseas between treaty partners in contemplation of judicial proceedings.  You can find more information on the Evidence Convention on the HCCH's website by clicking here .

The U.S. District Court for the Southern District of New York issued an opinion in In Re. Mariani (20 Misc. 152) on April 16, 2020 where it granted Lorenzo Mariani's petition under 28 U.S.C. 1782 to serve a subpoena duces tecum on Citibank, N.A. to obtain documents to use in his divorce proceeding in Florence, Italy. For a petitioner to succeed in securing discovery for his or her foreign proceeding, s/he must: 1. make the request in the federal district court where the person resides or is found (Citibank is in New York); 2. the discovery is for use in a foreign proceeding in a foreign tribunal (his divorce was pending in the courts in Florence, Italy); and 3. the request is made by a foreign international tribunal or any interested person (Mr. Mariani is an interested person in his own divorce). Mr. Mariani met these three requirements under 28 U.S.C. 1782. Meeting these three requirements leaves the federal district court free to grant the discovery request in its di...