MK Family Law

On February 11, 2021, in the unpublished opinion of Minkiewitz v. Becker , the Court of Appeal of California affirmed the return of a minor child to Mexico under the Hague Abduction Convention.   The parties are parents to a 7-year-old son, all are U.S. citizens, and were living on their boat docked in Marina del Rey, California.  In December 2016, the family set sail for Mexico, and by January 2017, the family had set up residency in Mexico, where they moored their boat. They enrolled their son in school, he was learning Spanish, but they continued to drive back to Los Angeles for his medical care, so they maintained insurance for cars registered in the United States. The parents acquired the necessary permits and visas to reside in Mexico indefinitely, and while the visas were only temporary, they continued to renew them, and the father applied for permanent residency.  The father had bank accounts in both countries, and the family enjoyed entertainment and sociali...

On November 19, 2020, the US District Court for the M.D. of Georgia issued its opinion, denying Mr. Romero's request to return his two children to Chile .  In December 2017, Mr. Romero brought the parties' 2 children to Florida to see his mother, with the intention of remaining until March 2018.  Ms. Bahamonde alleged, however, that in January 2018, Mr. Romero advised her that he and the children would not be returning.  In February 2018, she moved to Florida, first living with Mr. Romero's mother, and then moving out on her own.  Eventually, both children began residing with Ms. Bahamonde.  The parties had an acrimonious relationship both in Chile and in Florida.  Ms. Bahamonde had filed several requests for protective orders, and a hearing was scheduled for September 20, 2018, then re-scheduled to December 13, 2018.  She ultimately dismissed the case, however, learning that Mr. Romero had returned, with both children's passports, to Chile on Septembe...

The Middle District of Tennessee examined the issue of habitual residence in a "retention" case under the 1980 Hague Abduction Convention in Rodriguez v. Fernandez .  In this case, the court weeded through inconsistent testimony taken by remote technology through interpreters and messages that were translated in real time by the witnesses from Spanish to English.  It concluded that the parents of a young child, AM, who were living in Mexico, agreed to move as a family to Tennessee with their child in late 2018.  The mother and child moved in October to spend some time with the maternal grandmother.  The father was to join in December 2018 after work obligations, but, before he could relocate, the mother alerted him that she no longer wished to cohabit.  The record became more confusing when different witnesses and evidence debated when the father actually concluded that the mother and child's time in Tennessee was intended to be a permanent relocation without hi...

The Washington Foreign Law Society was founded in 1952 and promotes knowledge and understanding of international legal matters, comparative law issues, and foreign law.  The organization, centered in the robust legal community of Washington, D.C., produces fantastic programs.   On November 17, 2020, I was honored to be joined by Jonathan Lounsberry and Richard Min to discuss the 2020 U.S. Supreme Court cast of Monasky v. Taglieri and the definition of habitual residence in Hague Child Abduction Convention proceedings.   Check out the recording of the program here . 

The recent 1980 Hague Abduction case of De Carvalho v. Carvalho Pereira focused on two key issues: the children's habitual residence and whether the children were now settled in the United States.  The District Court of Appeal of Florida affirmed the trial court's order to return both children to Brazil.   The family, in this case, moved to Florida in January 2016 for the Father's short-term medical fellowship in a U.S. hospital, and for the Mother to give birth to the parties' second child on U.S. soil.  A few months later, and after the 2nd child's birth, the Father's fellowship fell through, so he returned to Brazil to prepare the family home for everyone's return.  He sent return plane tickets to his family, but the Mother decided (on or about April 5, 2016) she was remaining in the United States, with the children, and wished to divorce.   The trial court concluded that neither parent intended to permanently relocate the family to the United Stat...

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...

The U.S. District Court for the District of New Jersey ordered 2 children returned to El Salvador on October 30, 2020 in the case of Re: JCC v. LC (Civil Action No. 19-21889).  There are a few interesting statements by the court worth mentioning in a blog post.  First, the Court, at no point, cites to Monasky when elaborating on its conclusion that El Salvador was the children's habitual residence.  The Court specifically said it applied the Third Circuit's definition of habitual residence, without elaborating on the standard.  It did provide reference to some facts, including the children's typical residence, the existing El Salvador custody order, the return airline ticket, and the parents' intentions, so in many regards, this has the indicia of a totality-of-the-circumstances analysis, nonetheless. Second, the court rejected the Respondent Mother's contention that the Father was abusive and it would be a grave risk to return the children.  In weighing the e...

The case of Schwartz v. Hinnendael gives an interesting assessment of both the Monasky habitual residence standard and the grave risk of harm analysis.  I suggest reading the actual case to get the best view of how the court weighed all the facts and reached its conclusion.  I think the conclusion shows how fact-intensive these cases are, and how judge-specific certain results may be. The parties are both Americans, met in California, and were married in the United States.  The parties separated, and Ms. Hinnendael initiated a divorce proceeding in the United States.  Ms. Hinnendael then moved to Mexico for work.   Mr. Schwartz followed, and the two reconciled.  Ms. Hinnendael ended work with her company (where she sold time shares), but Mr. Schwartz started working for the same company.  The couple then had two children (one in 2018 and the other earlier this year (2020)), both in Mexico.   Ms. Hinnendael removed the children from Me...

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...

 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, 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...

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...

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...

From Guest Blogger, Hirotaka Honda of The Honda Law Office   Japanese courts are coming in line with other courts about habitual residence in   東京高等裁判所令和元年（ラ）第２４０８号子の返還決定に対する抗告事件,  Tokyo High Court Reiwa Gannen(Ra) No 2408 Appeal against a return order of a child. On 15 May 2020,  the  Tokyo High (appeal) Court made a ruling, giving  more weight on how children ad a pted themselves to  a  place when they decide on habitual residence in Hague 1980 cases. The court judged on the habitual residence in the same way as other courts do, looking at every factor that relates to  a  degree of integration by the child into a social and family environment. In the first instance, the Tokyo Family Court gave great weight to the intention of the child’s parents (actually a parent) and found habitual residence in the Philippines. The appeal court revoked the decision and dismissed the petition for a return order. The ruling of the first...

In an unpublished appellate opinion on March 27, 2020, the Court of Appeal of the State of California (2nd Appellate District, Division 2) affirmed a mother’s request to relocate her child to Japan.   In re Marriage of Inoue (B289261 c/w B290642, Cal. App. 2020), had the child’s father appealing the trial court’s decision to allow the child’s international relocation.  Both parents were born and raised in Japan, and met and married in the United States.  Their son was born in the United States.  In November 2016, the petitioner mother requested permission to relocate with the child to Tokyo, arguing that her residence in Japan was the only option for her to become self-supporting and that both parents’ families would be a support system for her and the child in Japan.  The respondent father argued against the relocation and raised concerns that any California custody order would not be enforceable in Japan, that joint custody is not a recognized custodial ...

On February 25, 2020, the U.S. Supreme Court affirmed the opinion of the U.S. Court of Appeals for the Sixth Circuit, which concluded that Italy was the habitual residence of an infant that was brought from Italy to Ohio by her mother in 2015, shortly after the child was born. This opinion resolved a circuit split over the definition of habitual residence. The 1980 Hague Child Abduction Convention is the private international law instrument that seeks to secure the prompt return of a child removed from or retained out of its habitual residence. It is not a child custody or jurisdictional determination, and not a means of enforcing existing custody orders. Instead it is designed to restore some type of status quo so that the child’s parents can pursue a custody order from the court in the appropriate jurisdiction. It discourages forum shopping and gives the child some consistency during the parents’ custody litigation. The threshold question that a court must resolve in determining w...