Cross Borders: An International Family Law Blog

Welcome to Cross Borders: International Family Law

Thank you for visiting.  This informational blog in no way provides legal advice or a substitute for an attorney in your jurisdiction.  I can however assist you with international family law issues.

Parents and attorneys facing international family law issues: I have worked with U.S. and foreign attorneys on complicated international family law issues, writing memos and offering testimony for custody hearings. 

I offer free consultations--please click here to access my online consultation form.

Lawdiva shares insight on international child abduction

Georgialee Lang's Lawdiva Blog offers valuable insight from a lawyer who works out of Vancouver and regularly handles cross-border custody cases. In describing the outcome of three Hague Abduction Convention cases from this summer, Lawdiva explains that for these cases:

the endings were bitter-sweet. In all cases the children were returned, but returning home merely signals the beginning of long, ugly, expensive, custody/access battles where neither parent wins, and the children lose.

Ms. Lang's post offers frank discussion of an unfortunate situation. International child abductors seldom enjoy "success" as a result of their abductions. Most the time, courts order children's returns. The costs of the return just add to the price tag of what will likely turn into a prolonged custody battle.

Japan begins legislative process on Hague Convention

After Japan stated its intention to join the Hague Abduction Convention, the Daily Yomuiri Online reports that its enactment has received attention from a legislative subcommitte. According to this site, legislation that sets up the Central Authority and relevant processes could pass next year.

Some in Japan fear the Hague Abduction Convention's results in cases with child abuse exceptions. Indeed, evidentiary burdens with the somewhat negative proof required in Article 13(b)'s exception for returns can be difficult to bear in some cases where the abducting parent alleges a grave risk of harm exception for abuse.

The Japanese Foreign Ministry reportedly found that courts take "an average of 166 days from the time of the initial petition to settle custody disputes when the courts order return of the child but 286 days when they rule against a return."

Western District of Texas Hague case finds exercise of rights of custody

In the recent case Delgado-Ramirez v. Lopez, the Western District of Texas rejected a defense regarding the exercise of rights of custody, despite a Mexican court's revocation of parental rights two days before the wrongful removal.

The child, D.L.A., was living with Delgado-Ramirez, who had custody.  D.L.A. however was the natural child of Avila and Lopez.  Before the removal, the child had moved backed in with Avila.  However,

Delgado-Ramirez had registered D.L.A. for school in Ciudad Juarez; was paying for that school and other expenses related to D.L.A.'s care; was exercising her authority over D.L.A.'s living arrangements by allowing D.L.A. to live with the mother, with ongoing monitoring to ensure that D.L.A. was receiving adequate care; and was the person with authority to determine when Lopez's visits would take place.

On September 4, 2010, Lopez took the child to El Paso, Texas.  A Mexican court revoked Delgado-Ramirez's custody on September 6.

In U.S. District court, Lopez contended that D.L.A. should not be returned to the habitual residence in Mexico because Delgado-Ramirez was not exercising rights of custody, as the Convention requires.  The court required that Lopez prove this by showing "'acts that constitute clear and unequivocal abandonment of the child."  Applying case law of the the Fifth and Sixth Circuit, the court held that this standard was not met for three reasons.

First, the Mexican revocation did not define an exercise of custody rights.  The District Court interpreted case law as defining a "'ruling of the child's country of habitual residence' to refer to a broadly applicable decision defining the term 'exercise,' rather than a reference to a decree specifically applicable in a case before a court."

Second, the Mexican decision did not specify whether Delgado-Ramirez was exercising rights of custody.

Finally, the Mexican courts afterwards reinstated Delgado-Ramirez's custodial status.

Thus, we see that in Texas, as in most U.S. courts, the removing parent has a heavy burden to prove that the left-behind parent was not exercising rights of custody.

 

 

http://scholar.google.com/scholar_case?q=hague+abduction+convention&hl=en&as_sdt=2,48&as_ylo=2011&case=6440665178930252237&scilh=0

Gone but not forgot!

Hi Readers!

Please excuse my little hiatus.  Between graduation, weddings, relocated across an ocean and continent, studying for the bar exam, and externing for a judge at the Superior County Court for the past three weeks, life has been busy!

Fear not.  The posts will keep coming as I balance my new schedule.  In the meantime, feel free to email me with your questions at [email protected].

All my very best wishes,

TMH

Japan moves towards improving child abduction policy

Recent media sources report that Japan is moving toward improving its international child abduction policy.  It seems however that Japan's efforts will largely involve a revamp of its internal child custody laws and procedures.  Such a move does not ensure that Japan will ratify or implement the Hague Abduction Convention.

While this news is welcomed by the international community, it by no means indicates that Japanese courts will in practice modify their handling of international child abduction cases.

Fee award upheld in 9th Circuit despite pro bono counsel

The Ninth Circuit has upheld fee awards for pro bono counsel in Cuellar v. Joyce. 

The attorneys provided their services pro bono (that's fancy lawyer talk for "free").  Despite their generosity, the court held that a fee award was not clearly inappropriate for several reasons.

First, the abducting parent relied on legal tactics "intended to 'manipulate judicial process for purpose of delay.'"  Second, this deincentivizes parents from using delay tactics against pro bono counsel.  Third, this ruling does not discourage attorneys from providing pro bono counsel in Convention cases.

Reasonable fees for a Hague Abduction Convention petition

A recent case in Minnesota proves that it doesn't pay to be on the losing end of a Hague Abduction Convention petition.

In Lakeman v. Weed, the mother sought money from the father to reimburse the fees and expenses she spent on her successful Convention petition.

For attorney fees, the court applied the "lodestar" rule: "the product of the number of hours reasonably expended on the litigation and the reasonable hourly rate at which those hours should be billed."  Here the court found that a 275$ per hour attorney rate in Minnesota to the total of $32,481.48 was reasonable.

For expenses, the court held that flight and hotel costs were necessary to the tune of $3,930.35.

The father argued that making him pay the full fees and expenses was clearly inappropriate because he was strapped for cash.  The court thus gave him a 10% discount, leaving him liable for $32,770.

 

UCAPA unsuccessful in Virginia, New Mexico

The Uniform Child Abduction Prevention Act is did not pass this year in Virginia or New Mexico.  UCAPA provides pretty broad discretion to restrict a child's movement, including cases where a parent applies to get a child's health records or comes from a country that has not ratified the Hague Abduction Convention.

India's non-signatory status not sufficient to block child's travel

The New Hampshire Supreme Court, in a case called In the matter of Rix, has held that India's status as a non-signatory to the Hague Abduction Convention was not sufficient to block a father from taking his son to India on a visit.

The mother had sought an ex parte order in New Hampshire to block the child's travel to India based mainly on her fears that she could not get the child back if the father retained the child in India.  India is not a signatory of the Hague Abduction Convention and, according to the U.S. State Department, not the easiest place to get a child back from after a wrongful removal or retention.  To the contrary, India seems to be an abduction haven.

Nonetheless, the trial court did not stop the father from taking the child to India, nor did the New Hampshire Supreme Court.

Instead, the NH Supreme Court gave four reasons to allow the travel.  First, it found "no indication that the respondent intended to flee to India with [the child] and not return." 

Second, "significant financial ties to the United States, and has lived in this country for over twenty years." 

Third, the child had "possessed a passport since shortly after his birth, that the parties have traveled to India with him three times to visit [the] paternal grandmother, and that each time they [] returned to the United States." 

Finally, the court paid particular attention to "the requirement that the respondent permit the petitioner to accompany him on the trip to India[.]"

The court did hint at a little tip that the mother should have considered:

We note that the petitioner did not ask for relief such as the posting of a bond or other security, and we therefore do not undertake an analysis regarding the propriety or practicality of such an order here.

I think the court was saying "(wink, wink, nod, nod) Next time ask for a bond or other security!"

Virginia passes tough law on child abduction

A law in Virginia on child abduction passed this month, making the laws of the Commonwealth some of the toughest--if not the toughest--U.S. domestic rules on child abduction.

The law allows law enforcement to seize property used in connection with child abductions to or from Virginia.  In practice, any person convicted of child abduction in the Old Dominion will risk having money, personal property, and real property seized by and forfeited to the Commonwealth.

Time will tell how this law will affect international child abductions, which will certainly pose some enforcement problems regarding property located outside of Virginia.

Canadian parent having little success getting B.C. boy back from India

Last month, the CBC reported about a boy from B.C. whose father abducted him from Canada to India.  Though Canadian authorities know where the boy is, authorities in India offer no help in securing the boy's return.  The father violated no law in India, which is not a Hague signatory.

Check back on this blog Wednesday for report on a U.S. court that has dealt with the issue of child abductions to India.

Cross Borders turns 10,000!!!

In the wee hours this morning, after 18 glorious months of riveting international family law analysis, a Google search from the U.K. provided Cross Borders' 10,000th hit. 

Thanks folks, I have enjoyed the ongoing pleasure of providing this kind of information.

Upward and onward--the hits keep coming!

Zarraga in the Court of Justice of the European Union: Who decides whether child had opportunity to be heard?

In the Zarraga case, the Court of Justice of the European Union ("CJ") decided that when a court issues a certified judgment to another Member State court, it is for the court that issued the certified judgment to determine whether the child had an opportunity to be heard.

In the case, the mother had retained the child from Spain in Germany after a Spanish court had given the father custody.  When the father petitioned the child's return under the Hague Abduction Convention, the German court refused to return the child based on the child's expressed views in German court to remain in Germany.

Then, the Spanish court issued a certified judgment to the German court to nonetheless enforce the Spanish custody order under Regulation 2201/2003 ("Brussels IIbis") Article 44(3).  The German court asked the CJ whether it had to enforce the Spanish certified judgment in light of the fact that the Spanish court never heard the child's views, as required by Article 42 of Regulation 2201/2003 and, in turn, Article 24 of the EU Charter of Fundamental Rights ("Charter").

The CJ noted that indeed Brussels IIbis and the Charter required courts to provide the child an opportunity to be heard (but not necessarily to actually be heard).  However, it was up to the court that issued a certified judgment for enforcement to determine whether the child had an opportunity to be heard--not up to the court that received a certified judgment.  Thus, in this case, the German court had no power to refuse to enforce the Spanish certified judgment.

Maternity tourism on both sides of the Atlantic

Today's NYT article on the maternity tourism facility that officials shut down in California sheds a little light on the lengths that some parents will go to secure citizen birth rights for their children.  While some parents use commercial birth services, I imagine most will stay with friends or family or find more discrete ways to get their children birth citizenship.

This is not a uniquely U.S. occurrence.  In Europe, birth in an E.U. Member State that provides for birth citizenship ensures not only citizenship in that Member State but also the coveted E.U. citizenship.

In the European Court of Justice ("CJ") case Zhu and Chen, the CJ handed down a landmark decision on E.U. citizenship.  In the case, the mother from China had admittedly moved to the U.K. six months into her pregnancy to deliver her child into the world in Ireland as a Irish and E.U. citizen.  The mother then tried use the child's E.U. citizenship rights to secure legal residence in the U.K.

It worked.  Based on the right to free movement protected under E.U. primary and secondary legislation, the child--and the mother--had the right to reside in E.U. Member States.

While not all Member States provide for birth citizenship, all must respect the right to reside in the E.U. when a person holds one Member State's citizenship (thus, E.U. citizenship), so long as the E.U. citizen and family meet the additional requirements for the right to reside under E.U. law.

Canadian Supreme Court to consider palimony, eh

While its neighbor to the south has no united stance on post-relationship payments to unmarried ex-partners, Canada might be headed towards a national rule on palimony.

The Supreme Court of Canada will hear a case involving the question of an unmarried ex-partner's right to receive payments from her ex after they ended their long-term relationship.

It seems the issue is whether differentiating between married and unmarried couples post-relationship rights constitutes illegal discrimination.

No surprise, this case came out of Quebec, where unmarried cohabitation and child-rearing is the norm.  The Quebec Court of Appeal decided the laws in the Civil Code unlawfully discriminated against unmarried partners.

Now, the Supreme Court must decide.  We will wait eagerly.

Gay couple's surrogate child finally gets to Belgium

Several news outlets have reported this story internationally:

Samuel Ghilain, Peter Meurrens, and Laurent Ghilain are together as a family in Belgium, thanks to Belgian law's silence on the issue of surrogacy.  For this family however, getting together took an excruciating two years.

The gay married couple arranged to have the child through a surrogate mother in Ukraine.  However, bureacratic hurdles stopped the couple from obtaining a passport.  Without a passport, Samuel couldn't get into Belgium.

After endless paperwork, a failed illegal border crossing, and a court case, the Belgian government finally issued Samuel a passport.  Now the family lives in Southern France.

Grave Risk in the 9th Circuit

The next several posts will focus on the Article 13 grave risk exception to returns under the Hague Abduction Convention.  This is not by chance--my next academic piece for publication will address the grave risk exception in U.S. law.

Last year, the 9th Circuit Court of Appeals heard the case Cuellar v. Joyce.  In that case, a father took his daughter from her Panamanian mother from Australia to the U.S.  Though the court below found a wrongful removal, it denied the child's return based on the Art. 13 grave risk exception.  The court below gave three reasons why a return would pose a grave risk.

First, the mother's living conditions in Panama.  Despite no running water, climate control, and little furniture, the appellate court rejected this as a reason for not returning the child.  The court noted that billions of people live in such conditions and "[i]f that amounted to a grave risk of harm, parents in more developed countries would have unchecked power to abduct children from countries with a lower standard of living." 

Though a professor of childhood education testified that the child was perhaps malnourished, this did not meet the clear and convincing evidentiary standard needed to show a grave risk.  Likewise, the court viewed injuries that the child had sustained in Panama as a potential example of "[w]ell-cared-for children [who] do occasionally have accidents."

The father also argued that the Panamanian courts wouldn't give him a fair hearing.  The 9th Circuit was unsympathetic.  The 6th Circuit had held that when "courts 'in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection' from a severely abusive or neglectful parent[,]" a return may be denied.  But the 9th Circuit did not have to consider whether to adopt this position because the father's evidence came "nowhere close to raising the issue."

Second, medical conditions.  The father said that the child had ataxia, but the Court of Appeals was not convinced by his evidence.  Even had he presented better evidence, he "would have to provide clear and convincing evidence both of the child's serious medical needs and of the home country's inability to provide the necessary care."  He didn't.

Third, psychological harm.  The District Court found a grave potential for psychological harm based on her "attachment to the United States and her father."  The Court of Appeals noted that "[t]his was a very serious error" because "[t]he fact that a child has grown accustomed to her new home is never a valid concern under the grave risk exception."  Thus, after three strikes, the District Court's decision and the father's arguments were out.

Nonetheless, the Court of Appeals looked at one more argument--the mother's consent.  However, the only evidence presented was that she allowed herself to be separated from the father and daughter at the airport.  This did not "unequivocally demonstrate that [the petitioning parent] consented to the child's indefinite stay in [America,]" as a previous 9th Circuit decision required.

 

Back to Blogging: McB in the European Court of Justice

Publications, travel, and life have pulled me away from Cross Borders for the past month, but the hits keep coming.  With up to 100 hits a day, I see that I need to get back in the blogger's seat.

In a case I mentioned in a paper that I recently submitted for publication in law journals, the Irish Supreme Court referred a question regarding rights of custody to the European Court of Justice ("CJ").

The case, McB, involved a father who had filed for paternity when the mother took their child from Ireland to England.  The Irish court doubted that this created rights of custody under BIIbis or the Hague Abduction Convention.  Rather, the Supreme Court thought that the father needed a final court order of paternity--he could not rely on an inchoate right by applying for such rights. 

However, as per Art. 267 of the Treaty on the Functioning of the European Union, the Irish Supreme Court sought a preliminary ruling from the CJ because the issue dealt with EU law.

Without directly answering whether the father's application for paternity gave rights of custody, the CJ held that BIIbis:

must be interpreted as not precluding a Member State from providing by its law that the acquisition of rights of custody by a child’s father, where he is not married to the child’s mother, is dependent on the father’s obtaining a judgment from a national court with jurisdiction awarding such rights to him, on the basis of which the removal of the child by its mother or the retention of that child may be considered wrongful.

In other words, the CJ gave Irish courts the thumbs-up to rule that the father's mere application did not create rights of custody.

That ruling was clear enough.  However, the case is a fascinating intersection of fundamental European rights and family law in the CJ. 

The father's argument relied heavily on the EU Charter of Fundamental Rights (and inherently the European Convention on Human Rights), which has enjoyed an elevated status in EU law since the Treaty of Lisbon went into effect (See Treaty on European Union, Art. 6).  The CJ relied heavily on a European Court of Human Rights decision in which the ECHR held that laws providing mothers automatic rights of custody while requiring unmarried fathers to apply for paternity did not violate fathers' rights to family life (ECHR Art. 8).  Thus, the Irish courts were free to rule as they wished.

This kind of ruling will certainly irk fathers' rights groups.  After all, giving unmarried mothers automatic parental rights while requiring unmarried fathers to apply isn't exactly equal rights.  More subtly, these laws differentiate between unmarried fathers (who must apply) and married fathers (who get automatic parental rights).  This kind of discrimination might not last forever in the ECHR.

For now, all unmarried fathers in Ireland wishing to have legal parental rights must file for paternity.

Pre-Season's Greetings!

Well folks, it is about that time of year when everyone stops working and starts eating! 

After finishing up a semester worth of French civil law, EU law, French contracts, French criminal procedure, French torts, French litigation, French intellectual property, independent work on the U.S. Supreme Court case Abbott v. Abbott, research assistance work on international criminal law, and freelance international family law consulting, I am about ready for a break! 

Those who know me however will be well aware that I will not be idly sipping espresso and passively watching la vie Parisienne for the next six weeks between semesters...

No, instead (ok--in addition,) I will be taking a trip to Poland next week to meet with contacts there.  Upon my return to Paris, I will touch up the International Family Solutions website (my very own consulting firm :)), set to launch next month.  I will also be editing my article on habitual residence under the Hague Abduction Convention that has been accepted for publication.

Of course, you can look forward to some exciting blog entries as well...

Best regards!

 

Florida appellate court rejects adoption ban on homosexual parents

This past September, the Florida Court of Appeals struck down a Florida law that forbid adoptions by homosexual parents.  In the case Florida Department of Children and Families v. Matter of Adoption XXG, the court held that the prohibition lacked any rational basis.

The case involved a homosexual man who adopted two brothers.  When they came to him under foster care, their situation was heart-breaking.  The older brother--4 years old--couldn't speak, and "his main concern was changing, feeding and caring for his baby brother."  Both children had severe health problems because of neglect.

Amazingly, the foster father nursed the children to normal health by providing exceptional care. 

Despite this exceptional care, the Department of Children and Families denied his adoption application under a Florida adoption law forbidding him solely because he was homosexual.  He went to court to challenge that law.

Both sides agreed that he was otherwise fully fit to adopt.  The trial court held that the law violated the Florida Constitution.

The appellate court upheld this decision.  Based on the Florida's equal protection provision in Art. I section 2, the Department had to show a rational basis for the discrimination based on sexual orientation.  The Department relied on a "rational basis for the prohibition on homosexual adoption because children will have better role models, and face less discrimination, if they are placed in non-homosexual households, preferably with a husband and wife as the parents."  The court however noted that "that is not what the statute does."

Instead, the court held that the statute had no rational basis because it could not find in the statute "any rational basis in utilizing homosexual persons as foster parents or guardians on a temporary or permanent basis, while imposing a blanket prohibition on adoption by those same persons."

The court reviewed a wide scope of expert data and many amicus briefs submitted for this case.  In the end, the court struck down the ban.  Now, homosexual parents may adopt in Florida--as in almost all U.S. states.  The father welcomes further appeal from the Department to get a definitive ruling from the Florida Supreme Court.