Divorce Law Journal

Published Child Support Opinion From Ky Court of Appeals Today: Testimony from Litigant Outside the Country and Application of Child Support Guidelines

MOSKOVITZ V. MOSKOVITZ

Appellant’s motion to modify child support was denied by the Circuit Court because Appellant could not attend a hearing in person. Appellant was a resident of Venezuela and unable to legally enter the United States. The Appellate Court reversed and remanded the Circuit Court’s decision, holding the Circuit Court abused its discretion, as the child support modification statute does not require a party’s physical presence at a hearing. The Circuit Court has an affirmative duty to apply the child support guidelines in any action to modify a child support order.

Published Opinion from Ky Court of Appeals Today: Order requiring mother to have a passport issued for child affirmed

Benton v. Sottingeanu

An order requiring a parent to obtain a passpot for a child does not require specific findings of fact where no modification of parenting time is made. The court must consider the child's best interests. Federal law permits a court to order a passport where a joint custodian refuses consent. Court's order requiring mother to insure issuance of passport was affirmed.

The court of appeals noted numerous safeguards were imposed by the trial court  to monitor international travel, including that mother would retain the passport, a hearing regarding travel would be held once a prliminary interary was proposed, father would have to post a $250,000 cash bond if travel is permited by court order, mother would have conatct with the child while away, and after the child is returned the passport will be delivered back to mother.  

Thanks To Bonnie Brown For Her Guest Post

We are delighted Bonnie Brown took the time to study the Abbott opinion and permitted us to post her analysis on this blog. Sorry about the irregular font. That periodic problem is ours not hers, and we just haven't yet taken the time to have it fixed. Thank you, Bonnie!

From Guest Blogger Bonnie Brown: DEVELOPMENTS IN INTERNATIONALIZATION OF FAMILY LAW: U.S. SUPREME COURT ADDRESSES THE TRAGEDY OF INTERNATIONAL CHILD ABDUCTION

    Although family mobility has been global for decades, the United States Supreme Court, for the first time,[1] has interpreted a provision of the Hague Convention on the Civil Aspects of International Child Abduction, a treaty to which the United States is a contracting state.  The treaty’s full text can be found at

       http://hcch.e-vision.nl/index_en.php?act=conventions.text&cid=24.

BACKGROUND

    The Hague Convention is implemented in the US by the International Child Abduction Remedies Act (ICARA), 42 USC §11601 et seq.  It determines which forum will decide a custody dispute – not the custody dispute itself.  See, Friedrich v. Friedrich, 78 F.3d 1060 (6^th Cir. 1996).  With authority to hear Hague cases in every state and federal jurisdiction, there are literally thousands of Courts that could be presented with a case. It is no wonder a Hague issue is only now being decided by this country’s highest Court.

    In general, a parent seeking return of a child must show that the child was abducted or wrongfully retained in violation of that parent’s custody rights, which depend upon the laws of the state from which the child was removed.  That country must have been the child’s habitual residence.  The parent must act within one year.  The Convention applies to children under age sixteen.  The Court may refuse to return the child if the parent seeking return agreed to the removal or retention or if there is a grave risk that the child’s return would lead to physical or psychological harm or if the country to which return is sought violates fundamental principles relating to the protection of human rights and fundamental freedoms.[2]

 Kentucky construed Hague’s return provisions over a decade ago. In Harsacky v. Harsacky, 930 S.W.2d 410 (Ky.App. 1996), the Court of Appeals refused to order return of American born children to a mother in Finland because she had failed to prove that the children were wrongfully abducted or retained in the United States, and that Finland was not the children’s habitual residence.  Two years later, the Kentucky Court of Appeals ordered a child returned to her father in Greece from which the mother had wrongfully removed her child.  Janakakis-Kostun v. Janakakis, 6 S.W.3d 843 (Ky. App. 1999).   

THE ABBOTT FAMILY

Resolving a split among the Circuits, Abbott v. Abbott, 560 U.S. ____ (2010) holds that the right to veto a child’s removal from the country constitutes a custodial right enabling its violation to invoke the return remedy set forth in the Hague Convention.  In so doing, the United States joins the majority of nations in this interpretation, though not necessarily the majority of Circuits. Justice Kennedy’s majority Opinion was joined by Justices Roberts, Scalia, Ginsburg, Alito, and Sotomayor.  The decision is consistent with Kentucky law, which associates custody with decision making, rather than physical control of the child.  KRS 403.330(1).

    In Abbott, the father was British and mother American.  They married in 1992, and their son was born in 1995.  The family moved to Chile in 2002, but separated in 2003.  A Court in Chile granted the mother what most in the United States would label as sole custody while granting the father visitation rights.  However, under the laws of Chile,  parents with the type of visitation rights granted the father automatically have a ne exeat (no exit) right, namely a right to consent before the mother could take the child out of Chile. 

    The father obtained a British passport for the son, and the mother obtained an Order that the father be prohibited from taking the boy out of Chile.  In 2005, while the proceedings were pending in the Chilean Court, the mother herself removed the child without the father’s permission.  A private investigator found the child in Texas, and in 2006, the mother filed for divorce in Texas.  She further sought to eliminate the father’s veto authority and to impose supervised visitation for the father in Texas.  The Texas Court granted the father visitation so long as he remained in Texas.  As reported in the Opinion, that litigation is not concluded. 

    .

    The father began Hague proceedings in May 2006.  The Federal District Court determined that the father’s ne exeat rights did not constitute a right of custody under the Hague Convention and denied the return remedy.  The Fifth Circuit agreed in 2008.  Interestingly, the Fifth Circuit relied on a Second Circuit case, Croll v. Croll, 229 F.3d 133 (2000), holding that ne exeat rights were not custody rights under the Convention.  A dissenting Opinion was written by then-Judge Sotomayor who considered ne exeat rights to constitute a right of custody because it allowed decision-making authority regarding a child’s international relocation.  Justice Sotomayor’s consistency resulted in her joining  the majority in the Abbott case.  

    Justice Kennedy analyzed that the ne exeat right indeed constitutes a right relating to determination of the child’s residence.  The father’s rights affected the child’s language, identity, culture, and traditions.  The right also enabled the father to control or prevent disruptions in his visitation by hypothetically conditioning his consent to relocation in a country where the father could obtain employment, thus allowing him to have continued contact with the child.

    Justice Stevens filed a dissenting Opinion joined by Justices Thomas and Breyer.  The dissent disagreed that the ne exeat rights constituted a right of custody invoking the return remedy under the Hague Convention.  Justice Stevens analyzed it as being closer to a right of access, which does not require the return remedy, but rather cooperation of the contracting state to allow that access to the extent possible.  Veto power based on Chilean law, the dissent reasoned, is not synonymous with the affirmative authority to establish in which country the child lives. Thus, the veto power would not “transform” the father into a custodian.

WHAT HAGUE CONVENTION CAN AND CANNOT ACCOMPLISH

The decision has been criticized by women’s rights advocates for domestic violence survivors who are concerned that it would burden the ability of women to flee abusive situations.[3]  That can certainly be a disturbing consequence of the Hague Convention’s focus on forum rather than results. Perhaps this issue could be more fully developed in construing the defenses and exceptions. Yet, on a positive note, this decision could give momentum to the decisions in other countries in which children abducted from this country are found.

    The ultimate tragedy is that this dispute began in 2005, when the child was approximately 10 years old.  He is now 15 years of age and nearly grown. Successful mediations involving international parental child abduction have been reported.  This solution should be considered by any attorney assisting a parent in a Hague Convention case and  that case evaluated for its ability to benefit from this alternative process.

Respectfully submitted.

    Bonnie M. Brown

---

[1] Bureau of National Affairs, Inc., Family Law Reporter News Archive, 5/18/2010.

[2] See Graham/Keller, Kentucky Practice, Domestic Relations Law, §14:48.

[3] See B.N.A. Archive, supra.

U.S. Supreme Court Decides Hague Convention Case of Abbott v. Abbott

If a custodial parent violates an order not to remove a child from the country, the non-custodial parent may use the Hague Convention to have the child returned. Abbott v. Abbott, decided May 17, 2010 and online here

John Crouch at The Family Law News Blog says in this post, "This result is good policy, it’s good for international families, it’s good for the rule of law. It’s consistent with how people use and rely on the Hague Convention today, and how most courts in the U.S. and abroad interpret it. I’m not sure it reflects the treaty’s original intent or text, but the treaty leaves room for interpretation in that area.

What is especially significant is what it says about our current understanding of child custody. The majority reads “rights of custody” as implying “a bundle of rights”, in which some rights may be exclusive to one parent and others will often be shared by both, and both parents will ordinarily remain parents, and exercise some parental authority after divorce. The dissent takes an older view of custody as something that is (at least ordinarily) unitary, held by one parent after divorce. This view is declining but is still very strong in the more tradition-minded parts of our culture. These two views coexist, in different proportions, in other countries as well, as divorce and unwed parenthood become more common and society’s other institutions strain to adapt to them. They drive a lot of the drama in child abduction, alienation, and other contentious custody situations."

Simcox v. Simcox (6th Circuit) Hague Abduction, Grave Risk Of Harm

Digest from the 6th Circuit Blog: Simcox v. Simcox, Northern District of Ohio at Cleveland
BOGGS, Chief Judge. Claire Simcox appeals from the decision of the district court ordering her to return to Mexico with two of the four children currently residing with her in Ohio, which return the district court found was required under the Hague Convention on Civil Aspects of International Child Abduction (“the Convention”) and its implementing legislation, the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. Because of evidence of serious abuse to both Mrs. Simcox and the children at the hands of Mr. Simcox, the district court conditioned return of the children on certain “undertakings” designed to ameliorate the risk of harm to them upon their return to Mexico. Although we agree with much of the district court’s legal analysis of the Hague Convention, its ordered undertakings are problematic on the facts of this case, particularly its command that Mrs. Simcox herself return to Mexico. We therefore REVERSE and REMAND to allow the court to reconsider what conditions, if any, could ensure the safety of the children in Mexico during the pendency of custody proceedings.
Jeffery Morley at International Family Law calls this case a highly significant ruling on the grave risk of harm defense to a Hague Convention international child abduction petition.

Top Ten Tips for Expats

Jeremy Morley in Top Ten Tips for Expats at International Family Law gives us some gems of wisdom in these categories:
Before you move overseas
If you make a deal
Before you switch residences
Before leaving home
If you’re overseas
If you’re feeling stuck overseas
On the other hand
If you’re overseas and pregnant
Don’t assume
Local divorce lawyers
It's an outstanding post to have at your fingertips when that call comes.

National Center for Missing & Exploited Children Announces Creation of an Attorney Manual for Litigating Hague Convention Cases

The National Center for Missing and Exploited Children announces:

The International Missing Children’s Division of the National Center for Missing & Exploited Children is very pleased to announce the creation of a practitioner’s guide to litigating Hague Convention cases. The manual, “Litigating International Child Abduction Cases Under the Hague Convention,” was prepared by the law firm of Kilpatrick Stockton LLP and is a valuable resource for all attorneys litigating Hague Convention cases in U.S. federal or state courts. The manual provides guidelines and relevant case law relating to litigating a Hague Convention case for the return of or access to a child.

The manual is online.

Welcome A New International Family Law Blog

International Family Law News And Analysis is a new blog that we are welcoming to our blogroll. Some sample posts since it went live in March, 2007:
New group says immigration laws tear families apart
6 nations join Hague Convention on Child Abduction
Court in India issues injunction against U.S. divorce case
Czech court reverses autistic boy's return to US
Habitual Residence: Objective facts beat claimed agreement that residence is temporary
German judge says Koran justifies wife-beating by Moroccan living in Germany
Authored by Richard E. Crouch, an AAML Fellow and John Crouch, a frequent contributor to Family Law News Blog, this blog launched in March and is worthy of checking regularly.

International Child Abduction Problems Whether Country Is A Signatory To Hague Convention Or Not

Even in countries who are signatories to the Hague Convention on International Child Abduction, parental abduction can be difficult to remedy. Consider this post from International Family Law:

South Africa’s Court of Appeal has blasted the failure of the courts below to order the prompt return of a child, now aged five, who was wrongfully retained in South Africa away from his then habitual residence in the Netherlands by his mother for 3½ years. The Court ordered (June 4, 2007) that the child now be returned immediately to the Netherlands, in compliance with South Africa’s obligations under the Hague Child Abduction Convention.

Meanwhile, Florida Divorce Law Blog reports of a Canadian child abducted by a parent from Canada to Lebanon via Australia and the mother's plea for change in Hague countries:

The mother eventually got her kids back, via unorthodox means that landed two men aiding her in jail temporarily. But both Canada and Lebanon now reportedly recognize that the mother has full legal custody of the kids.

Somehow, the mother was able to expend hundreds of thousands of dollars to recover her children from where they were allegedly abducted to in Lebanon. And the father now faces criminal charges in Canada.

But not all children have such a positive outcome when abducted from Hague Convention on the Civil Aspects of International Child Abduction - signatory countries to non-signatory countries.

The mother is now serving as a spokesperson for the Missing Children Society of Canada.

And her hard-learned message is:

stricter controls are needed in countries which are signatories to the Hague Convention, to prevent noncustodial parents from circumventing the Hague Convention by whisking children off to countries that are not signatories to the Hague Convention …

Because recovering children from countries that do not adhere to the Hague Convention is just plain dicey - at best.

Preventing International Child Abduction

Kansas is the 5th state to adopt The Uniform Child Abduction Prevention Act, International Family Law reports at Preventing International Child Abduction:

The Uniform Child Abduction Prevention Act – which includes some specific provisions designed to prevent international child abduction – was signed into law in Kansas on April 6, 2007. Kansas is the fourth state to enact it, along with Nevada, Nebraska and South Dakota. Bills to adopt the new law have been introduced in at least five other legislatures -- Colorado, Connecticut, Kansas, South Carolina, Utah, and the U.S. Virgin Islands.

Governor Kathleen Sebelius said, "Children aren't just abducted by strangers. Sometimes, abductions take place during custody disputes. We want to identify situations where a child is potentially at risk for abduction and provide ways to prevent that abduction from taking place."

The American Bar Association’s House of Delegates at its Midyear Meeting in Miami in February approved the Uniform Act.

The Act authorizes a proceeding in a court between contestants in a child custody dispute during which the court considers the probability that a contestant will abduct a child to another state or foreign jurisdiction. Upon a finding that an abduction is highly probable, the court may issue orders as necessary to prevent that abduction. The court hears evidence respecting the risk of abduction, based upon statutorily provided risk factors: previous abductions or attempts to abduct; threats by a contestant respecting abduction; abuse of the child; domestic violence; negligence; or, refusal to obey an existing child-custody order.

There are further risk factors if the anticipated abduction is to a foreign country, especially if the country is not a party to the Hague Convention on International Child Abduction. Standing to bring such a proceeding broadly includes the court itself, a contestant in a child-custody proceeding, a prosecutor or a public attorney. UCAPA relies upon the jurisdictional rules of the Uniform Child Custody Jurisdiction and Enforcement Act.

Even where the country is a Hague signatory there can be problems. See Jeremy Morley's follow-up post, Venezuela “Noncompliant” with Hague Child Abduction Convention.

Children Of Illegal Immigrants

The Family Law Professor's Blog has linked to an insightful and troubling article published by the New York Times. A quoted excerpt from the profs:

"They are the hidden side of the government's stepped-up efforts to track down and deport illegal immigrants: Toddlers stranded at day care centers or handed over to ill-equipped relatives. Siblings suddenly left in charge of younger brothers and sisters.

When illegal-immigrant parents are swept up in raids on homes and workplaces, the children are sometimes left behind -- a complication that underscores the difficulty in enforcing immigration laws against people who have put down roots and begun raising families in the U.S.

Three million American-born children have at least one parent who is an illegal immigrant; one in 10 American families has mixed immigration status, meaning at least one member is an immigrant here illegally, according to the Pew Center for Hispanic Research and the office of U.S. Rep. Jose Serrano. Children born in the U.S. are automatically American citizens and are not subject to deportation."

International Child Abduction – Japan

I have seen several articles recently reporting how difficult it can be to retrieve a child who has been abducted by a parent to Japan. See, for example, a page at the U.S. Department of state website here and The International Family Law BIog here and here. I recently came across Japan Children’s Rights Network that is filled with information I would like to have on hand when and if this issue ever arises. It is not written by lawyers, but these passionate advocates have done a nice job accumulating information. You can later find the site, too, in the “International” category.

6th Circuit Affirms Dismissal For Lack Of Jurisdiction Under Alien Tort Claims Act

Taveras v. Taveraz, __ F.3d __ (6th Cir. 2007), 2007 WL 494928 (C.A.6 (Ohio)

Issue and Holding:
Whether the district court had subject matter jurisdiction over the parental child abduction action pursuant to the Alien Tort Statute. The Court held no, the district court did not have jurisdiction.

Facts:

Both parties are citizens of the Dominican Republic. During their marriage, two children were born. In 2003 the couple divorced in the Dominican Republic, and Ms. Taveraz was granted full guardianship of the children. In August 2004 Ms. Taveraz took the children under a visitor’s visa to the United States, allegedly for a two week vacation. In September 2004, Ms. Taveraz contacted Mr. Taveras and told him that she was never returning to the Dominican Republic. Mr. Taveras then discovered her and the children were living in Ohio.
Mr. Taveras filed a criminal complaint and a civil action in the Dominican Republic. In July 2005 the Santo Domingo family court ordered the return of Ms. Taveraz and the children to the Dominican Republic to appear for a hearing. However, they never returned.
In September 2005 Mr. Taveras filed an action against Ms. Taveraz in the United States District Court for the Southern District of Ohio alleging parental child abduction pursuant to the Full Faith and Credit Clause of the US Constitution, the Hague Convention of 1980, and the International Child Abduction Remedies Act. Ms. Taveraz moved to dismiss the action for lack of subject matter jurisdiction. Mr. Taveras then amended his complaint to include a cause of action under the Alien Tort Statute (hereinafter ATS). The district court granted the motion to dismiss for lack of subject matter jurisdiction. Mr. Taveras appealed only the district court’s denial of subject matter jurisdiction under ATS.

Analysis:

The United States Supreme Court held in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), that at the time ATS was enacted only three actions were generally recognized as infractions of the law of nations: piracy, offenses against ambassadors, and violations of safe conducts. The Court also held that other causes of action based upon present day law of nations may be cognizable under the ATS if the claim both “rest[s] on a norm of international character accepted by the civilized world and [is] defined with a specificity comparable to the features of the [aforementioned] 18th-century paradigms[.]” Id. at 725.
In the instant case, the Court rejected Mr. Taveras’ argument that Ms. Taveraz’s actions violated the terms for safe conducts under the law of nations. The Court noted that the purpose of the doctrine of safe conducts was to protect the safety and property of the journeying alien bearing the safe conduct privilege. Therefore, there was no violation of the terms for safe conducts under the law of nations, since there was no infraction of the safe passages of Ms. Taveraz or the children to, within, or out of the United States and there was no injury to their person or property. The Court also found, even assuming Ms. Taveraz’s entry into the United States constituted a violation of the law of nations, that there was an insufficient nexus between this violation and the alleged tort committed against Mr. Taveras. Mr. Taveras’ reliance on Adra v. Clift, 195 F.Supp. 857 (D.Md. 1961) was misplaced.
The Court also rejected Mr. Taveras’ argument that an international consensus against parental child abduction is established through the Hague Convention of 1980, the Hague Convention of 1996, and the United Nations Convention on the Rights of the Child. The Court found that Mr. Taveras failed to produce sufficient evidence that there is an international consensus that the sort of parental child abduction alleged in the complaint is a wrong so generally and universally recognized that it becomes a violation of the law of nations pursuant to ATS.
Finally, the Court held that the district court did not have federal question jurisdiction over the complaint either.
Accordingly, the Court affirmed the lower court’s dismissal of the action for lack of subject matter jurisdiction.

Italian Government Approves Bill to Grant Legal Rights to Cohabitants

From The Family Law Prof Blog: Italian Government Approves Bill to Grant Legal Rights to Cohabitants. Whether their parliment will pass it appears to be a coin toss.

Lawsuits Against Airlines: The Latest Effort To Stem International Child Abductions

Jeremy Morley at International Family Law reports:

The abduction of children from the United States is facilitated by the lack of exit controls at U.S. borders. A lawsuit just filed in Massachusetts against Continental Airlines may help shift at least some of the responsibility onto the airlines.

The plaintiff claims that Continental should not have allowed his ex-wife to fly to Mexico with their 3-year-old daughter without his permission. He contends that Continental's policies and Mexican law both require a single parent traveling with a minor child to present a notarized letter from the absent parent authorizing travel into Mexico.

In 2005, a Connecticut jury returned a $27 million verdict against a charter airline company in favor of a mother for negligently failing to maintain adequate safeguards against abductions when it accepted $160,000 to fly a father and his three children to Egypt and then to Cuba.

This opens the door to what [may] prove to be a useful way to encourage the airlines to act more diligently to prevent international child abduction.

More on this story at South Coast Today.

Earlier this week Custody battle exposes difficulties with international law was published at Yakima Herald (WA) covering the nightmare of children taken to foreign countries even in violation of a court order. Some courts now require a parent to post a bond for the safe return of a child before permitting international travel where the risk of abduction is high.

Second Edition of International Parental Kidnapping Guide Issued

The U.S. Office of Juvenile Justice and Delinquency Prevention announces A Family Resource Guide on International Parental Kidnapping . It offers

practical and detailed advice about preventing international kidnapping and increasing the chance that children who are kidnapped or wrongfully retained will be returned. This OJJDP Report offers descriptions and realistic assessments of available civil and criminal remedies, explains applicable laws, identifies public and private resources, and identifies strategies to help left-behind parents recover their children or reestablish meaningful contact with them in another country. It covers important developments in policy and practice since the publication of the first edition in February 2002. The guide also includes a list of recommended readings; a directory of related resources, including Web sites; a Hague Convention application, with instructions; a checklist for parents involved in non-Hague cases; and an index.

Save it; it is a good article to have at your fingertips when a call about an international parental kidnapping comes to you. Or, do as I do and come back here and check the categories when you "know you saw that somewhere."

Family Relationship Centers

From The Age in Australia: "The first 14 Family Relationship Centres are opening around Australia, signalling the start of what the federal government hopes will be a landmark shift in family law.The government is establishing dozens of the centres across Australia in an attempt to resolve divorce and custody disputes before they reach court.Acting Attorney-General Chris Ellison said the centres could offer information to families no matter what the status of their relationships.The (centres) are the cornerstone of the Australian government's new family law system, Senator Ellison said in a statement. The changes to the law, supported by these new family relationship services, are part of a new system of co-operation, and we are hoping it will lead to a change in the culture of family law. I welcome the opening, on time, of all centres today as a turning point for Australian families who need assistance with relationships."
The world will be closely watching this sweeping change in family law. With domestic relations law being the province of states rather than the federal government in the United States, such massive national change is difficult to forseee here. Yet, courts are not an ideal place to dump relationship problems. Time will tell if Australia has found the solution.

Equal Parenting Law

Australia's new national revamping of its family child custody and support law is garnering international attention. "As sweeping changes to Australia's family law system take effect today, putting new emphasis on children spending equal time with parents after separation, research shows some children can be seriously harmed by 50:50 arrangements." Sydney Morning Herald.
From ABC News Online, "A family law expert says changes to federal laws which come into effect today will have a major impact on the way parents deal with their children after separation. The changes will allow courts to order that children spend equal time with both parents or "substantial and significant time" with the non-custodial parent. Associate Professor Tom Altobelli, from the University of Western Sydney, says this m>.