MK Family Law

On February 9, 2021, in the case of Lukic v. Elezovic , the U.S. District Court for the ED of NY ordered the minor child returned to Montenegro after both parties filed motions for summary judgment.  The court reviewed memorandums and affidavits, and issued its order granting the father's motion, and denying the mother's. The court concluded that Montenegro was the child's habitual residence.  The parents had a written custody order from a Montenegrin court that, on its face, appeared to give the father only access rights, but the Montenegrin Code provided for the father to retain rights to decide the child's residence jointly with the mother unless abrogated by court order, so the court concluded the father had a ne exeat right in the vein of Abbott v. Abbott .  The mother argued that the father signed a travel consent form for an "unlimited" amount of time, but looking at the father's subjective intent, the consent form was merely to authorize an unrest...

The U.S. District Court for the Western District of Washington denied Mr. Colchester's request that the court immediately return his daughter to him in Spain pursuant to the Hague Abduction Convention.  The case came before the court after Ms. Lazaro, the child's mother, removed the case from the state family court.  Mr. Colchester requested the federal court promptly return his daughter, and argued that the court need not take evidence to do so.  The court disagreed.  While the court has discretion to determine its procedures for resolving the petition, and courts have resolved Hague Abduction return petitions merely on the papers (see Pope v. Lunday ), in this case, Mr. Colchester has not yet met his burden of proof to establish a prima facie case that his daughter was wrongfully removed from her habitual residence.  Citing to the February 25, 2020 opinion of Monasky v. Taglieri , the court acknowledged that habitual residence is a fact-bound determination, ...

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...