MK Family Law

The 2nd Circuit Court of Appeals, in the case of U.S. v. Houtar , recently addressed the issue of whether the International Parental Kidnapping Crime Act (IPKCA) was unconstitutionally vague as applied against a father who had not actually abducted his children, but instead retained his children in Yemen after they had already lived there for several years.  The parents were married in Yemen, moved to the U.S., had children, and then returned to Yemen with the children.  They obtained a divorce in Yemen, and then returned to the U.S. separately, leaving the children with Mr. Houtar's family in Yemen. In September 2016, Mr. Houtar's ex-wife obtained a custody order from the Kings County Family Court, which ordered Mr. Houtar to bring the children back to the U.S. from Yemen.  He defied the order, fled the U.S., and resumed living in Yemen with the children.  The mother then went for three years without seeing the children.  Mr. Houtar was charged with 2 counts of...

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...

On October 7, 2020, in the case of Jacquety v. Baptisa , the U.S. District Court addressed the preliminary matter of whether Baptisa's apparent boyfriend, Wadghiri, was a proper party to the litigation.  Jacquety filed a Hague Abduction return petition in the U.S. District Court for the Southern District of New York against the child's mother, Baptista, and her apparent boyfriend, Wadghiri, with whom she and the child were living in New York.  When Baptista left Morocco, by way of Switzerland, she landed in New York and immediately began living with Wadghiri.  Wadghiri submitted a letter to the court, which the court construed as a Motion for Summary Judgment. In the letter, he argued that he was an improper party because he has no control over the child, and, if ordered to return the child, he could not do so.  Jacquety argued that there is no limitation on who can be sued to return a child, and it should not be limited to only relatives.  He cited to the U.S. ...

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 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...

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 ...

A recent 10th Circuit Case,  United States v. Mobley , addressed an appeal of a crime that related back to the mother's abduction of her children to Russia. Mobley (Father) and Osipova (Mother) had a daughter.  Shortly after Mobley filed for divorce in Kansas, Osipova abducted their daughter to Russia.  At the time of the abduction (April 2, 2014), Osipova was seven months pregnant with the couple's second child.  She gave birth 2 months after her arrival in Russia.  Two weeks after the abduction, the Father secured a sole custody order from Kansas related to the eldest child.  Shortly after the youngest child's birth in Russia, the father secured a divorce and sole custody order from Kansas for that child. (Note - this is a criminal case, so I am not clear how the Kansas court had jurisdiction under the UCCJEA over the youngest child to issue an initial child-custody determination).  In Spring 2015, Osipova secured a divorce, and custody and chil...

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 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...

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:...