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The Year in Review

International Legal Developments Year in Review: 2021

International Family Law - International Legal Developments Year in Review: 2021

Robert G Spector and Melissa Ann Kucinski


  • This article examines international developments in the area of family law in 2021.
  • Most U.S. international litigation in the area of family law in 2021 involved the Abduction Convention1 and its implementing legislation, the International Child Abduction Remedies Act (ICARA).
  • Federal and state courts have concurrent jurisdiction to resolve a parent's request for the return of their child under the Abduction Convention
International Family Law  - International Legal Developments Year in Review: 2021
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This article examines international developments in the area of family law in 2021.

I. International Litigation

A. The Hague Convention of October 25, 1980, on the Civil Aspects of International Child Abduction (“Abduction Convention”)

Most U.S. international litigation in the area of family law in 2021 involved the Abduction Convention and its implementing legislation, the International Child Abduction Remedies Act (ICARA). Federal and state courts have concurrent jurisdiction to resolve a parent’s request for the return of their child under the Abduction Convention.

The Abduction Convention seeks to ensure the prompt return of children to their habitual residence. To obtain an order returning a child, the petitioner must prove that the child was wrongfully removed from, or retained outside of, the child’s “habitual residence” and that the petitioner had “a right of custody,” which they were “actually exercising,” or would have exercised but for the abduction, under the law of the child’s habitual residence.

1. Applicability of the Abduction Convention

The Abduction Convention only applies to countries that have ratified or acceded to it and between countries that have accepted the accession of the other country as a treaty partner. The respondent in the case need not have parental rights. For example, the respondent could be the opposing parent’s partner or parent. There are limitations to the applicability of the convention. The Abduction Convention cannot be made applicable to a case by agreement. It ceases to apply when the child in question turns sixteen. A California district court held that the Abduction Convention does not apply to visitation or access issues. It also does not apply when the respondent has been given permission to move to the United States from the other country.

2. Habitual Residence of the Child

As in most Hague conventions, the Abduction Convention does not define the term “habitual residence.” In 2020, the U.S. Supreme Court gave clarity to the undefined term in Monasky v. Taglieri, holding that “a child’s habitual residence depends on the totality of the circumstances specific to the case.” In her opinion, Justice Ruth Bader Ginsburg included a footnote that provided some facts that courts have considered when resolving the location of a child’s habitual residence.

In J.C.C. v. L.C., the court found that the petitioner and respondent intended for El Salvador to be the children’s permanent residence. The children’s visit to the United States to see the respondent was intended to be temporary. “Respondent’s decision to retain the children beyond January 21, 2019, was unilateral, as evidenced by Petitioner’s continuous attempts to exercise his parental rights at the time of retention and since then”—leading to this litigation.

In Stirk v. Lopez, the court examined a situation where a child was born in Florida but was raised by her parents in Juarez. This established Juarez as the child’s permanent home because “[b]esides living in Florida for less than a year after birth, M.V.C. has lived her entire life in Mexico, M.V.C. attended school in Juarez, enjoyed a close relationship with family in Mexico, and participated in the usual social activity in Juarez.” Because less than a year elapsed before the petitioner’s return request and because the parties admitted that no objective facts pointed “unequivocally” to a permanent change in the child’s social attachment from Mexico, Mexico was determined to be the child’s “habitual residence.”

In Smith v. Smith, the court determined that the child’s habitual residence was in the United States by applying the standard set out in Monasky. In Monasky, the court held that the correct approach to habitual residence was to examine the totality of the circumstances. Because Monasky was decided after the trial court decision in Smith, the court had to determine whether to remand the case to apply the standard set out in Monasky. The Supreme Court determined that there was no need to remand the case because of the extensive fact finding of the district court.

In Babcock v. Babcock, the court determined that, although the child had many friends in Iowa and a close relationship with his extended family there, Canada remained his country of habitual residence because there was no clear intent by the parties or the child to abandon Canada as the child’s habitual residence. In Sain ex rel. V.R.S. & L.P.S. v. Sain, the court determined that the children’s stay in the United Kingdom was meant to be temporary and was prolonged because the father and children could not return to China due to the COVID-19 pandemic. These circumstances did not change the child’s habitual residence from China to the United Kingdom. While waiting to return to China, the respondent and the minor children traveled to Florida awaiting the reopening of travel to return to China. The petitioner filed the petition in this action, seeking to have the children returned to her in the United Kingdom (where they had previously been staying). Because mainland China is not a party to the Abduction Convention, the return to the United Kingdom was denied.

Finally, in Dumitrascu v. Dumitrascu, the parties’ intent was to return to the United States after the birth of their child in Romania. But, due to questions about green cards and the ability to obtain permanent residency in the United States, their plans changed, and the petitioner consented to the respondent’s return to the United States with the child. The petitioner, on the other hand, stated that the intent was for the respondent to return to the United States only for a limited amount of time and then for the child to return to Romania. The petitioner testified that she believed that it was not possible for her to apply for a U.S. green card while in Romania, based partially on the fact that the respondent had sponsored her first green card while he was living in Colorado, which explains why she consented to the respondent removing the child from Romania on a conditional basis. The court held that the child’s habitual residence was Romania because the child was born there and had lived there for ten months prior to the child’s removal to the United States.

3. Rights of Custody and Exercise of Those Rights

a. Rights of Custody

A removal or retention is only wrongful if the left-behind parent had a right of custody under the law of the jurisdiction of the child’s habitual residence and the left-behind parent was “actually exercising” that right at the time of removal, or would have exercised that right but for the removal.

In Lukic v. Elezovic, the court reaffirmed that ne exeat rights (restraints on removal from a jurisdiction) constitute a right of custody and, therefore, justified sending the child back to Montenegro. In Stirk v. Lopez, the parties’ settlement agreement preserved the father’s patria potestad rights, which gave him a right of custody.

b. Exercise of the Right to Custody

Normally, the question of exercise of custody rights is not an issue in the case. Most cases follow the determination made in Friedrich v. Friedrich that “[t]he only acceptable solution, in the absence of a ruling from a court in the habitual residence, is to liberally find ‘exercise’ whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.” The Eastern District of Washington order, concluding that a father was not actually exercising his rights of custody, was vacated and remanded by the Ninth Circuit, finding that cutting off financial support is insufficient to establish clear and unequivocal abandonment of the child.

c. Wrongful Retention

In Babcock v. Babcock, the court determined that a wrongful retention occurs when “the noncustodial parent no longer consents to the child’s continued habitation with the custodial parent, and instead seeks to reassert custody rights, as clearly and unequivocally communicated through words, actions, or some combination thereof.”

4. Exceptions to Return

There are several exceptions that a respondent may assert when arguing that a child should not be returned to the child’s habitual residence. But the exceptions must be timely asserted and filing a general denial and waiting until opening statement to assert the exception may constitute a waiver.

a. Child Is Settled in His/Her New Environment

Article 12 provides that the authorities need not return a child if more than one year has elapsed between the child’s removal or retention and the petitioner’s return request and the child is now settled in the child’s new environment. The one-year period runs from the date the retention or removal became “wrongful.” A retention occurs not on the date the abducting parent formed the intent to wrongfully retain the child but rather on the date the petitioning parent’s actions were so unequivocal that the left-behind parent knew or should have known that the child would not be returned.

In Luis Alfonso V.H. v. Banessa Christina A.Z., the court noted that the father had failed to file his action within one year, and the court would not exercise its discretion to return the child. The factual findings used in determining the “now settled” exception were reviewed under the clear error standard.

The issue of whether the child is settled in its new environment can rarely be decided on a motion to dismiss because it requires detailed fact findings. In Carvalho v. Carvalho Pereira, the court “discussed the evidence presented about the children’s lives in their various residences in the United States, their relatives in both the United States and Brazil, and lack of ties to the community due to their young ages.” The possibility that the appellate panel could have “gone the other way had it been our call” does not constitute a clear error of judgment by the trial court.

In de Jesus Joya Rubio v. Alvarez, the court found that a child was settled when the father filed his Hague return petition fifteen months after the child was removed to the United States. The fact that the father did not know about the Hague return remedy did not mitigate his failure to file in time.

b. Grave Risk of Harm/Intolerable Situation

i. Exception Not Sustained

Under Article 13(b), a court need not return a child if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Such an exception cannot be decided on a motion to dismiss but requires an evidentiary hearing. In determining whether to sustain the exception when it is founded on domestic violence, the court must consider the nature and frequency of the abuse, the likelihood of its recurrence, and whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the child caused by its return.

In Rishmawy v. Vergara, the respondent failed to prove, by clear and convincing evidence, that there was a grave risk in returning the child to Honduras. In J.C.C. v. L.C., the trial court found that the “[r]espondent’s allegations of abuse were undercut by her own testimony that she agreed to the petitioner’s primary physical custody of the children after the parties divorced and sole physical custody after she moved to the United States.” “The allegations were also contradicted by her testimony that she allowed petitioner to spend extended time alone with the children after she retained them . . . .”

In Pozniak v. Shwartsman, the court found that the respondent’s grave risk argument rested on a faulty premise: that ordering the child’s return to Israel requires that he be separated from the respondent. There was no evidence that the respondent could not travel to Israel with the child or that returning the child to Israel would interfere with the respondent’s custody rights.

In Nobrega v. Luque, the court noted the following:

[A]t most, the respondent harbors an amorphous and uncorroborated suspicion that [petitioner] exposes [the child] to unwholesome influences and fosters unwanted behavior more characteristic of an older child. Even if true, [respondent’s] conduct falls well short of the evidence needed to “clearly and convincingly” prove that complying with the dissolution agreement would expose [the child] to a “grave risk” of harm.

Although harm to the child is required under 13(b), most courts recognize that sustained spousal abuse can, in some instances, create such a risk. Spousal abuse, one court said, is relevant for Article 13(b) purposes only if it “seriously endangers” the child There is a difference between evidence of a clear and long history of spousal abuse, which could suffice to show a propensity for child abuse, and evidence of isolated incidents of abuse, which generally demonstrate a risk of harm only to the spouse. At a minimum, the spouse must “draw a connection,” showing that the risk such abuse poses to her “constitute[s] a grave risk to the children.” But in Velozny v. Velozny, the respondent never claimed that the petitioner physically abused any of the children. In fact, it was undisputed that the children did not report ever being abused by their father to the parties’ expert witnesses. Nor has respondent “established that an Israeli court could not provide adequate protection for the children during any divorce or custody proceedings.”

ii. Exception Sustained

In In re M.V.U., the evidence and testimony presented in support of the exception demonstrated a pattern of escalating violence and interference with the respondent’s personal liberty, which, in turn, impacted the child’s psychological welfare. The respondent demonstrated that the petitioner interfered with her personal liberty when he prohibited her from working as a teacher outside the home. The respondent’s evidence “clearly and convincingly established a pattern of escalating domestic abuse beginning with [the petitioner’s] demand she obtains an abortion and ending with him choking her while she held the child in her arms and making repeated threats on her life.”

In Sanchez v. Sanchez, credible evidence before the court regarding past (and possible future) sexual abuse of the child, including unrebutted expert testimony and petitioner’s own testimony, proved the existence clearly and convincingly of “a grave risk that the child’s return [to Honduras] would expose [her] to . . . psychological harm . . . .”

In Jacquety v. Baptiste, the respondent proved by clear and convincing evidence that the child faced a grave risk of harm if she were repatriated to Morocco. An expert determined that there was “clear and compelling evidence” that the child suffered from post-traumatic stress disorder (PTSD) resulting from domestic violence by the petitioner toward the respondent. The expert predicted “with a great deal of certainty” that, if returned to Morocco, the child’s PTSD symptoms would increase and her developmental functioning would regress.

A split has developed among courts considering this exception as to whether the court must look for laws and practices in the habitual residence to protect the child from the alleged abuse if the child were returned. In any event, when a father has failed to acknowledge that he has a drinking and abuse problem, no measures from Chile can serve as ameliorative measures that would protect the children from his excessive drinking and abusive behavior. In Radu v. Shon, “the district court in no way exceeded its authority to mandate the children’s return to Germany accompanied by Shon.” “But in the context of an Article 13(b) finding, the district court needed a fuller record to have sufficient guarantees that the alternative remedy would be enforced in Germany,” so the circuit court remanded to the district court to develop a fuller record on the availability of a safe harbor order.

The issue of whether the court can order a mental examination of the petitioner was discussed in Ilves v. Ilves. The court refused to order the examination because the respondent “alleged no specific history of mental illness, nor explained why a psychological examination would be likely to show the respondent’s purported physical or mental abuse.”

c. Mature Child’s Objection

In applying this exception, the court must consider whether the child objects to being returned to the country of the child’s habitual residence and not whether the child has a preference to live in a specific country. This issue is subject to review under the clear error standard. In Avendano v. Balza, an appellate panel affirmed a trial court’s discretion to allow the child’s express preference to stay in the United States. The child was twelve years old and appeared not to be coached and indicated a well-thought-out preference to stay in the United States. On the other hand, the court in Chung Chui Wan v. DeBolt, agreed with the guardian ad litem and the experts that the children had not reached the age of maturity to express a preference.

d. Human Rights and Fundamental Freedoms

Article 20 provides that the return of a child may be refused “if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.” The only cases where this exception was raised, the trial courts dismissed it out of hand.

e. Consent/Acquiescence to the Removal

To show acquiescence, there must be “an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period.” Some courts have required that the totality of circumstances be examined to determine whether there was consent or acquiescence. In rare instances, cases involving consent or acquiescence can be decided on summary judgment.

In Pozniak v. Shwartsman, the court determined that the respondent did not consent to the child’s removal to the United States, nor had he shown that the petitioner subsequently acquiesced to the move. There was no “formal statement” of the petitioner’s agreement, nor was there a “consistent attitude of acquiescence over a significant period of time” following the child’s abduction. On the contrary, the persuasive evidence—the petitioner’s repeated requests that the respondent return the child to Israel—shows that there was neither consent nor acquiescence.

In Romero v. Bahamonde, the court determined that the petitioner effectively consented to the children remaining in the United States with the respondent when he went back to Chile, leaving the respondent and the children in the United States and taking the children’s passports.

5. Other Issues Under the Hague Abduction Convention and ICARA

a. Attorney’s Fees

The court has the authority to request that an attorney volunteer to represent a petitioner in a Hague return action.

Under ICARA, attorney fees and costs are to be awarded to the prevailing petitioner unless the respondent can show that the award would be clearly inappropriate. Most circuit courts have held that district courts have broad discretion to determine when an award of costs and fees is appropriate. The “clearly inappropriate” inquiry is necessarily dependent on the facts of each case. But the following two considerations are often relied on in determining whether to grant fees and costs under ICARA: (1) whether a fee award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child and (2) whether a respondent had a good faith belief that his or her actions in removing or retaining a child were legal or justified.

In Forcelli v. Smith, the court reduced the amount requested based on equitable considerations because the determination of habitual residence was questionable, there continued to be reprehensible conduct by both sides, the respondent was unable to pay, and the petitioner’s lawyer incurred much greater fees than the respondent’s lawyer. In Hart v. Anderson, the court denied an attorney fee award, noting that the amount requested was four times the respondent’s take-home pay. The court also found that the doctrine of “unclean hands” applied to deny the petitioner’s attorney fee request because his pattern of alcohol abuse and violent behavior precipitated the respondent’s removal of the children. In Grano v. Martin, the court reduced the award by eighty-five percent, considering the respondent’s demonstrated financial hardships. Respondent had demonstrated that she was under financial strain and was unable to secure employment in Spain because she was not a legal resident there. She also owed her attorneys over $170,000.

In Adkins v. Adkins, the court determined that ICARA provides for an award of necessary expenses incurred in “an action brought under section 9003 [of the Convention].” The statute does not authorize the court to award fees and costs in ancillary matters litigated in other fora, like the habitual residence, and the petitioner did not identify any other basis for the court’s authority to do so. But, in Chambers v. Russell, the court refused to hold that the respondent’s earnings were insufficient to support an attorney fee award, given that the respondent had a house worth over $200,000.

In Hulsh v. Hulsh, the court found that the petitioner had not broken down how the attorneys dedicated their time and had instead stated, in a conclusory manner, that they worked the asserted number of hours. The court found this to be inadequate to support a fee request. “In requesting, challenging, and granting attorneys’ fees, specificity is critical. A request for fees must be accompanied by ‘fairly definite information as to hours devoted to various general activities, e.g., partial discovery, settlement negotiations, and the hours spent by various classes of attorneys.’”

A court has the authority to order fees and costs, even if the child turns sixteen after the return order. But what can be awarded as costs, as opposed to attorney fees, is limited by 28 U.S.C. § 1920 and does not include the costs of holding a trial remotely.

The provisions in ICARA authorize the award of attorney fees to the petitioner. It follows that nothing in ICARA provides that fees can be awarded to a prevailing respondent.

b. Procedural Issues

The voluntary return of a child moots the return proceeding. A recent conviction for domestic violence on the part of a respondent’s current husband was insufficient to change the court’s mind on the establishment of the now settled or grave risk exceptions to return.

c. Stays

In considering whether to stay a return order in an Abduction Convention case, courts consider the traditional factors: “(1) whether the stay applicant has made a strong showing that [s]he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”

In Radu v. Shon, the court granted a stay pending appeal because of the following:

Case law offers only minimal guidance regarding how to properly craft remedies allowing for a child’s return under the [Abduction Convention] while avoiding a grave risk of harm under Article 13(b). Given the scant case law, the court found that the first factor—the likelihood of respondent’s success on the merits of her appeal—weighs in favor of a stay.

d. Temporary Restraining Orders

A petitioner seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. The temporary restraining order can also be extended if the respondent is seeking to avoid service.

e. Other Procedural Issues

It is usually never appropriate for a federal court to abstain from deciding an abduction case merely because a proceeding for custody had been previously filed in state court. Abstention is only proper if the state proceeding will decide all the issues in the abduction case.

A Canadian service member was allowed to testify via video conferencing due to the difficulty of travel during the pandemic. In Romanov v. Soto, the court entered temporary orders granting the father’s request for a freeze order and an order granting the father temporary visitation via Skype of at least thirty minutes a day.

Normally, post-trial developments will not change the results of a removal proceeding. The abducting mother’s contempt proceeding against a respondent was dismissed because the father was to “facilitate” daily communications between the child and the mother, not to ensure that such communications occurred.

B. The Hague Service Convention

Personal service is required in a termination of parental rights case. In In re Daniel F., a juvenile case against the child’s father was reversed because the juvenile court’s order denied the father’s petition to vacate the disposition order. The father, who resided in Mexico, was never served with the dependency petition, notice of the jurisdiction and disposition hearing, or the statutorily required form for asserting paternity.

South Korea objects to service by mail, and, therefore, the respondent was not properly served in a Guam action for divorce. But the application of the Hague Service Convention can be waived by entering a general appearance.

C. Other Cases Involving International Family Law Litigation

1. Marriage and Divorce

A Kentucky court was not obligated to recognize a Jordanian divorce, particularly when the husband allowed the wife to continue to perform wifely duties. An Iowa court applied the doctrine of forum non conveniens to dismiss a case in favor of France when most of the evidence needed in the divorce case was in France.

2. Premarital Agreements

In Fraccionadora y Urbanizadora de Juarez, S.A. de C.V. v. Delgado, under Texas choice of law principles, application of Mexican law was warranted to determine the existence of a premarital agreement, and issues as to whether the premarital agreement existed under Mexican law precluded partial summary judgment. In L.R.O. v. N.D.O., substantial evidence supported a finding that the wife, a Vietnamese national whose first language was not English and who had corresponded with her husband, who lived in Hawaii, electronically before they met and got married, voluntarily executed a premarital agreement where she waived her right to any spousal support.

3. Children’s Issues

a. Custody

i. Home State and Significant Connections Jurisdiction

It is often necessary to hold a hearing to determine the facts that support or deny jurisdiction. Therefore, it was erroneous for a New York court to dismiss a case without holding a hearing to determine whether the children’s home state was New York or Yemen.

New York could exercise home state jurisdiction over a child repatriated from Pakistan because the over one year sojourn in Pakistan constituted a temporary absence for the child from New York. Florida could exercise jurisdiction over a child born in Belize who had been in Florida for more than six months.

ii. Continuing Jurisdiction

In Cortez v. Cortez, the appellate court affirmed a lower court determination that the children’s absence from Texas for five years, and the absence of their father from their lives, meant that Texas no longer had exclusive continuing jurisdiction over the case. Alaska determined that it had no authority to modify a Turkish decree and that registering the decree in Alaska did not make it an Alaskan decree.

iii. Inconvenient Forum

In Marriage of Margrain & Ruiz-Bours, the court concluded that Mexico clearly intended to decline jurisdiction and that declination should be enforced by Arizona courts, even though the Mexican court did not consider all the factors set out in the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA).

In Stone v. Suzuki, the appellate court concluded that the trial court had prematurely ended the petitioner’s case and that the petitioner should be given an opportunity to present evidence that Japan had declined to exercise jurisdiction and Florida would be a more convenient forum. In re Marriage of Koivu, the appellate court concluded that, in applying the UCCJEA, the trial court did not err in concluding that Minnesota was a more appropriate forum for deciding custody, as opposed to Finland.

iv. Enforcement

Texas must recognize a Mexican emergency custody order when the father had actual notice of the Mexican order within a few days after it was issued and was aware that he could contest it in that proceeding.

A Pennsylvania trial court erred in holding a German father in contempt for not returning his child to Pennsylvania because of defective service against the father. California did not have to enforce a Chinese order that had been stayed pending an appeal.

Arizona must enforce a Canadian order modifying the grandparent visitation provisions of an agreement when Arizona no long retained continuing jurisdiction because only a grandparent resided in the state.

v. International Travel

In Nahard v. Salgia, the appellate court reversed the trial court’s failure to allow the plaintiff to travel internationally with the child. The court had not considered that international travel was important to this family, which is why they agreed to such travel in their settlement agreement. The court also did not consider that the parties were fully aware of the risk of future litigation in India when they reached the agreement to, nonetheless, allow the plaintiff to travel internationally with the children.

California allowed a mother to move to Hungary with the proviso that she forfeit some child support to assure that she would obey California orders.

vi. Juvenile

A Texas court concluded that the trial court did not have factually sufficient evidence on which to exercise its discretion as to its finding of significant impairment to overcome the parental presumption that custody of the children should go to their father in Guatemala. Wisconsin decided that there was sufficient evidence to retain a juvenile in foster care, instead of sending the child to his father in Mexico.

D. Child Support

The Washington Court of Appeals refused to enforce a Polish child support order for adult children because the defendant did not receive notice prior to entry of the Polish order. A New Jersey court could not modify a Chinese support order because the father continued to reside in China.

1. Other

The Second Circuit upheld the International Parental Kidnaping Act against a void for vagueness allegation.