MK Family Law

On March 4, 2021, Judge Liam O'Grady of the U.S. District Court of the EDVa, entered an order in the case of Aluker v. Yan , granting Respondent's motion for judgment on partial findings.  Petitioner has appealed. In September 2017, the Aluker-Yan family moved from the United States to Portugal, where they initially resided together, but separated thereafter.  On November 9, 2018, the parties executed a Separation and Property Settlement Agreement (PSA).  The pertinent language from that PSA says, "[Yan] shall have sole legal and primary physical custody of [both children]. [Aluker] shall be entitled liberal and reasonable visitation with the children."  The agreement also had a clause construing the provisions therein according to the law of Virginia, where Ms. Yan presently resides with the children. In May 2019, Mr. Aluker filed proceedings in the Portuguese family court.  The PSA was not introduced into those proceedings.  On October 3, 2019, Ms. Yan in...

On January 28, 2021, the U.S. District Court for the Eastern District of Washington denied a Father's request to return his child to France using the Hague Abduction Convention in the case of In Re Matter of ICJ (Jones v. Fairfield) .  The Father (Mr. Jones) has already appealed. While the trial judge concluded that there would be a grave risk of harm to return the minor child to France, the interesting part of this opinion is that the Court actually found that Mr. Jones was not actually exercising  his rights of custody at the time of the removal, and therefore the removal was not "wrongful" under the treaty.  This prong of the Petitioner's case-in-chief is often given lip-service in Hague abduction litigation, often just being assumed.  The case of Friedrich v. Friedrich had addressed this question in 1996 and said, "The only acceptable solution, in the absence of a ruling from a court in the country of habitual residence, is to liberally find "exercise...

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 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 ...

In the U.S. District Court for the District of Delaware case of Lopez v. Bamaca, decided on April 20, 2020 (C.A. No. 19-1001-LPS) , the Court analyzed a Left Behind Parent's exercise of their parental rights over a child that was wrongfully removed from their habitual residence. The 1980 Hague Abduction Convention references a parent's exercise of their custody rights in 2 distinct places in the treaty. In Article 3(b), the Petitioner has a burden of showing that he or she had "actually exercised" rights of custody at the time of the child's retention or removal.  Virtually every circuit in the United States follows the test outlined in Friedrich v. Friedrich (78 F.3d 1060 (6th Cir. 1996)) that says, "nothing short of clear and unequivocal abandonment will prove that the petitioner failed to exercise his or her custodial right." In Article 13(a) of the Treaty, the Respondent may argue an affirmative defense, or exception, to the child's retur...