MK Family Law

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 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...

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...

In 2019, the 2nd Circuit Court of Appeals addressed the issue of undertakings in a 1980 Hague Child Abduction Convention case.  In the case of Saada v. Golan , 930 F.3d 533 (2nd Cir 2019), a mother was accused of wrongfully retaining the parties’ minor child in New York after visiting for a family wedding.  The mother argued it would be a grave risk of harm to the minor child if the child were returned to Italy.  The U.S. District Court for the Eastern District of New York found that, with certain undertakings, the risk could be ameliorated, and the child should nonetheless be returned.  The undertakings included such things as the father giving the mother money before the child was returned for housing, that the father agree to stay away from the mother after the return, and that the child only visit with the father with the mother’s consent (of course, pending an appropriate custody resolution in Italy).  The 2nd Circuit expressed concern that certain underta...

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...

The Minnesota Court of Appeals issued yet another opinion in the hotly litigated case of Cook v. Arimitsu .  The facts are extremely complex, but surround a mother who took four children (2 sets of twins) to Japan in 2014, and did not return with them.  Afterwards, the parents engaged in a series of lawsuits in Japan and Minnesota, having appealed all results in both courts on numerous occasions.   In Japan, the father initiated a Hague return petition, which, after an appeal, was granted for all 4 children, but was then eventually overturned in 2018. The current court order from those Hague proceedings denies the father’s request to return the minor children to the United States. In Minnesota, the father initiated a child custody case, which after several appeals proceeded and ultimately gave the father sole custody.  For this appeal, the mother brought forth several discreet issues, but the most prominent issue was her request that the 2018 modified Ha...