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The Year in Review

International Legal Developments Year in Review: 2022

International Family Law - International Legal Developments Year in Review: 2022

Robert G Spector and Melissa Ann Kucinski


  • This article highlights significant legal developments relevant to international family law that took place in 2022.
  • In the United States, the Abduction Convention is implemented by 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 pursuant to the Abduction Convention.
International Family Law  - International Legal Developments Year in Review: 2022
Christian Petersen-Clausen via Getty Images

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This article highlights significant legal developments relevant to international family law that took place in 2022.

I. The Convention on the Civil Aspects of Ineternational Child Abduction, Done at the Hague October 25, 1980 (Abduction Convention)

In the United States, the Abduction Convention is implemented by 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 pursuant to the Abduction Convention. To obtain an order returning a child pursuant to the Abduction Convention, 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 at the time of the removal/retention. Countries may become party to the Abduction Convention as a result of ratification, acceptance, approval of, or accession to, the Convention. An accession will have effect between the acceding country and another party to the Convention if the latter country has declared its acceptance of the accession. The Abduction Convention ceases to apply when the child in question turns sixteen.

A. Petitioner’s Case

1. Habitual Residence

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.” Justice Ginsburg, in her opinion, included a footnote that provided some considerations that courts have applied when considering whether a child has acclimatized to a habitual residence.

The Supreme Court, in Monasky, also established a clear-error standard of review on appeal, which has had the effect of rarely overturning a trial judge’s finding of habitual residence. For example, the U.S. Court of Appeals for the Fifth Circuit affirmed a district court’s denial of a petitioner’s request to return his child to Ireland. The district court concluded that the United States was the child’s habitual residence, despite a variety of facts that showed the parents’ intention to establish Ireland as the child’s home base, involve him in toddler groups, apply for his residency status, and obtain his Irish medical card. On the other hand, the child lived a transitory lifestyle with his musician mother, and therefore, his habitual residence never shifted to Ireland, where he spent relatively little time. Likewise, a transitory family who moved between Los Angeles, New York, Mexico, and then to Iceland could establish the child’s habitual residence in Iceland, even though their move did not foreclose future additional moves. The court concluded that while habitual residence anticipates some amount of settlement, “it need not mean that’s where you plan to leave your bones.”

On the contrary, however, two state appellate courts reversed the trial judge’s finding of habitual residence. The Court of Appeals of Texas overturned a trial judge’s finding of habitual residence, when the children were born in Israel, but, the father had all but considered himself an unmarried man, questioned the children’s paternity, refused to let his wife and the children’s mother live with him, and left her pregnant and alone. The fact that the mother signed a custody agreement in Israel, which she did not have translated and claimed to not understand, did not, in isolation, establish Israel as the habitual residence. Likewise, the Court of Appeals of Indiana overturned a trial judge’s finding of habitual residence on the basis that while the parents’ move to Indiana left open the circumstances under which the family might return to Germany, it was clear that the parents saw the family’s move to the United States as indefinite and potentially permanent.

2. Rights of Custody & Their Exercise

A removal or retention is only wrongful for purposes of the Abduction Convention if the petitioner had a right of custody under the law of the child’s habitual residence and was “actually exercising” that right at the time of removal or retention, or would have exercised that right, but for the removal or retention. Normally, the question of exercise of custody rights is not an issue in the case. Most courts follow the determination made in Friedrich v. Friedrich that the 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.

When a father relied heavily on a document purporting to absolve a Honduran mother’s custody rights, and the court found (based on testimony of a handwriting expert) that it was forged, it concluded that petitioner had not, as respondent claimed, relinquished her rights of custody under an existing Honduran settlement agreement. When a father in Australia was prohibited from being within 100 meters of his children for five years, and presented no evidence that contradicted the terms of this protective/restraining order, the district court in Colorado concluded that he did not have a right of custody at the time that respondent unilaterally moved the children to Colorado.

B. Respondent’s Case

There are several exceptions that a respondent may assert in arguing that a child should not be returned to the child’s habitual residence.

1. Child Is Settled

Article 12 of the Abduction Convention provides that the authorities need not return a child if more than one year has elapsed between the wrongful removal or retention of the child and the commencement of proceedings for the return of the child, and the child is now settled in the child’s new environment. A retention occurs not on the date the abducting parent formed the intent to wrongfully retain the child, but rather on the date the responding parent’s actions were so unequivocal that the petitioner knew or should have known that the child would not be returned. The issue of whether the child is settled in their new environment can rarely be decided on a motion to dismiss because it requires detailed fact finding.

Even if a court determines a child is settled in their new environment, the court may still use its discretion to order the child be returned to their habitual residence. Furthermore, even if a parent neglects, for whatever reason, to commence the lawsuit in the United States within one year of the removal or retention becoming wrongful, a child is not automatically considered settled. Such was the case when a petitioner took diligent steps to locate the child in the United States but was thwarted by the respondent’s movements and relocation within the United States. In another case, the respondent could not demonstrate the child was settled in Massachusetts because she resided with her boyfriend, who paid all her expenses, she was unemployed, relied on public assistance, and her and the child’s immigration status was uncertain.

2. Grave Risk or Intolerable Situation

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 should not 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 and the likelihood of its recurrence. In addition, a court may consider measures to reduce the likelihood of harm upon return. The U.S. Supreme Court observed that “[w]hile a district court has no obligation under the Convention to consider ameliorative measures that have not been raised by the parties, it ordinarily should address ameliorative measures raised by the parties or obviously suggested by the circumstances of the case . . .” In the U.S. Supreme Court’s fifth case under the Abduction Convention, Golan v. Saada, it examined the Second Circuit’s mandatory consideration of ameliorative measures and reached the conclusion that there are three things a court must consider when it chooses to examine ameliorative measures: (1) it must prioritize the child’s physical and psychological safety, (2) it cannot usurp the role of the court that will ultimately adjudicate the child’s custody, and (3) any consideration must accord with the Abduction Convention’s requirement to act expeditiously. The Supreme Court remanded the case, and the district court, on remand, again ordered the child returned, concluding that even if not mandated to consider ameliorative measures, it would have considered them in this case, because it was “obviously suggested by the circumstances . . .”

Post-Golan, a New York district court agreed to explore ameliorative measures when a petitioner parent put forth eight separate proposed measures, but in doing so, concluded that none of the measures presented would actually protect the child upon return to Canada.

Although harm to the child is required under Article 13(b), most courts recognize that sustained spousal abuse can, in some instances, create such a risk. Spousal abuse is usually 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 respondent must “draw a connection” showing that the risk of such abuse “constitute[s] a grave risk to the children.” Therefore, when a respondent parent presented evidence of two incidents of kicking and slapping, it did not meet the clear and convincing threshold to demonstrate an Article 13(b) exception. A family brawl, in which the respondent parent was also a participant, and a report of uncorroborated threats timed just after service of the summons in the Abduction Convention lawsuit, also did not meet the clear and convincing threshold.

The Second Circuit also granted a non-precedential summary order, concluding that the district court did not commit error when it rejected a Mother’s argument that returning the children to Israel would expose them to a grave risk, because only one month prior to her removal of the children from Israel, she had expressed willingness to let the children travel unaccompanied to Israel twice each year to see their father.

A child’s return may be refused if the habitual residence is in a state of domestic terrorism, however, when a respondent failed to introduce sufficient evidence that Venezuela was in a zone of war, famine, or disease, she did not meet her burden to establish an Article 13(b) exception.

Separate from physical harm (or the threat of physical harm) is the psychological harm that might befall a child if returned to their habitual residence. Therefore, when a respondent was able to demonstrate that the child suffered, and continued to suffer, psychological harm because of the petitioner’s behavior, including threatening texts, inappropriate reprimands of the child, and threats to punish the mother, who petitioner qualified as a criminal, the respondent succeeded in successfully arguing Article 13(b). Evidence of psychological harm is often demonstrated through expert evaluations and testimony. When a respondent alleges no specific history of mental illness, or explains why a psychological examination is necessary, a court will likely refuse to order such an examination. The Ninth Circuit, however, concluded that the district court erred when it refused to honor the respondent mother’s request for appointment of a forensic psychologist to examine the child and provide an expert opinion regarding her allegations of abuse and the resulting harm to the child.

A court has the discretion to appoint a Guardian Ad Litem in a case that involves Article 13(b).

3. Mature Child’s Objection

In applying the “mature child” exception, the court must consider whether the child objects to being returned to the child’s habitual residence and not whether the child has a preference to live in a specific country or with a specific parent. The federal courts in Missouri had opportunity to address this exception on several occasions recently. One court found that a thirteen-year-old was not sufficiently mature to express an objection because his responses to even minor adversities were exaggerated and disproportionate, reminding the parties that when the only potential reason for not returning a child to their habitual residence is that child’s objection, the court must apply a stricter standard in considering the child’s wishes. The court also noted that it is an extraordinary case when a child under the age of sixteen is deemed mature enough for his objection to defeat a meritorious petition for his return under the Abduction Convention. In another Missouri federal court case, a ten-year-old child did not develop particular objections to returning to Spain. Contrary to his mother’s assertions that the child “disliked” living in Spain, he did not communicate dislike for Spain so much as a preference for the United States, saying that, in Spain, there was “nothing to do there” whereas, in Missouri, there were “a lot of things to do there.” The court found the child’s statements to be that of a typical ten-year-old, but not especially mature.

4. Human Rights

Article 20 provides that the return of the 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.” Practically speaking, this exception is typically unsuccessful, and therefore not often raised. In the past year, however, it has featured more prominently in the caselaw. A federal district court in Texas agreed with a father’s argument under Article 20 that returning his five-year-old and four-year-old to Ciudad Juarez, Mexico, would violate their human rights, as they were not afforded the fundamental right to a special education free of charge to meet their specific needs, thereby impacting their fundamental freedoms in the future. Referring to the Universal Declaration of Human Rights, the Individuals with Disabilities Education Act, the Texas Constitution, and Brown v. Board of Education, the court concluded that while Mexican law provides for special education, it required the children’s mother to be present so the children could attend school, which created a conflict with her work schedule, and this acted to deny them a fundamental right to education.

In a second case, while the district court ordered the return of the minor child to Venezuela, despite the child having been granted asylum in the United States, a dissenting opinion from the United States Court of Appeals for the Sixth Circuit urged the majority to consider whether asylum claims may invoke an Article 20 exception, arguing that when dealing with a refugee child, there should be a rebuttable presumption that if the child is returned, there is a risk of persecution. The dissent also cited to the 1951 Convention Relating to the Status of Refugees and Article 14 of the Universal Declaration of Human Rights to argue that returning an asylee is a matter under Article 20. But the primary issue, argued at trial, was not Article 20; the respondent relied primarily on Article 13(b), which the majority determined was relevant but required a very different burden of proof than a request for asylum.

5. Consent/Acquiescence

To show acquiescence there must be either 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 of time.” Courts have required that the totality of circumstances be examined to determine whether there was consent or acquiescence.

C. Other Issues

1. Attorney’s Fees

A court has the authority to request an attorney volunteer to represent the 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 hold that district courts have broad discretion to determine when an award of costs and fees is appropriate. While the “clearly inappropriate” inquiry is necessarily dependent on the facts of each case, 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 their actions in removing or retaining the child were legal or justified. A court found that an attorney fee award would not be inappropriate when a respondent’s financial condition still permitted him to visit the children, particularly since he had free flights to Thailand. Further, he had no good faith belief that his actions were legally justified. If a respondent argues financial hardship, they need to provide sufficient evidence to be successful in their argument.

A court has the authority to order fees and costs even if the child turns sixteen after the return order, but before the fee award. The award may be for fees and costs, but the costs might not include the cost of holding a trial remotely. Petitioner must also ensure that they follow local procedural rules governing the timing of the attorney fee request. A request filed forty-two days after the child was ordered returned violated a local court rule requiring requests to be filed within fourteen days and was therefore denied.

The provisions in ICARA authorize an award of attorney fees to the prevailing petitioner. It follows, therefore, that there is nothing in ICARA permitting the award of fees to a prevailing respondent. A court can, however, award sanctions to a respondent for the bad faith activities of petitioner’s counsel under provisions other than ICARA, such as the Federal Rules of Civil Procedure 11(b).

D. Procedural Issues

1. Interpreters

U.S. federal courts do not typically provide interpreters for the parties at no cost. But there are occasions when a court has found that an Abduction Convention proceeding is an exception to the general rule, and the parties can revisit the issue of costs later in the proceeding.

a. Remote Testimony

The Federal Rules of Civil Procedure requires testimony in open court, but permits, in compelling circumstances, and with appropriate safeguards, for testimony by contemporaneous transmission from a different location. A petitioner father argued that this should be permitted in his situation, where he was serving in the U.S. military in Germany, it would cost between $800 to $1,600 and more than fourteen hours for him to travel to California, and his military duties were to support the ongoing Ukraine war. He also had a condition (ulcerative colitis) that would make travel difficult. The court, however, rejected the petitioner’s request, having found that two days earlier, the petitioner had requested a summer trip with his children to Disneyworld. The court concluded that the trial could be scheduled for when the father was already in the United States.

2. Mootness

An Abduction Convention matter that had been dragging due to procedural posturing, was dismissed as moot after the petitioner mother secured a foreign child custody order and registered and enforced it under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) in Michigan, securing the return of her children using that process. The respondent father argued that the children could only be returned to Germany using the Abduction Convention and in federal court, and so he requested the federal court order the children re-returned to Michigan for further proceedings under the Abduction Convention. The court rejected this argument.

3. Stays

In considering whether to stay a return order in an Abduction Convention case, courts consider the traditional stay 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.” Stays pending appeal are generally frowned upon in a proceeding under the Hague Convention.

4. Temporary Restraining Orders

A petitioner seeking a preliminary injunction must establish that “[s]he is likely to succeed on the merits, that [s]he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his/her favor, and that an injunction is in the public interest.”

The court may also remove the child from the abductor during the pendency of the case if it is allowed to do so under state law. An Ohio court removed the children because the appointed Guardian Ad Litem observed that the respondent was “prone to impulsive behavior, and she may not comply with a court order directing her to facilitate the children’s return to France.”

A Michigan court refused to issue an ex parte order based solely on a petitioner’s version of the events. Similarly, a California court refused a petitioner’s ex parte request for a ne exeat, to prevent the respondent from leaving Alameda County, because nothing in the record before the court indicated that the respondent was poised to leave Alameda, where he had lived for some time.

5. Enforcement of Foreign Orders

A Kansas court determined that it should give comity to a Dutch decision not to return a child under the Abduction Convention. The court then determined that the child’s home state was the Netherlands and therefore the Netherlands had jurisdiction to decide the custody issue. But, it does not automatically follow that Kansas courts do not have jurisdiction simply because the Dutch courts refused to return the child under the Abduction Convention.

6. Abstention

It is rare for a federal court to abstain from deciding an abduction case because a proceeding for custody had been previously filed in state court. Abstention is proper if the state proceeding will decide all the issues in the abduction case. When a father, who was seeking access through the Abduction Convention, sought the same in a federal court in the United States, despite pending litigation on the issue of custody and access in both a U.S. and English family court, the Tenth Circuit Court of Appeals concluded that his request was precluded from resolution by the abstention doctrine because of the ongoing litigation in the family courts on the precise same issue.

7. Discovery

When a respondent failed to cooperate in the discovery process, the petitioner filed a request for discovery sanctions. The court, pursuant to the Federal Rules of Civil Procedure, sanctioned respondent by precluding her from arguing a grave risk of harm exception for interfering with the psychological expert’s report, and made a finding that England was the child’s habitual residence because the lack of discovery responses to questions related to habitual residence meant the respondent could not prove it was not England.

8. Shielding an Address

A petitioner parent argued that his due process rights were violated when the respondent was permitted to shield/protect her address. She also refused to provide her boyfriend’s name and the county in which she lived with her boyfriend because of her protected address. The court agreed with petitioner that he was entitled to know what was happening in the house where the child lived for the purpose of defending against the respondent’s assertion that the child was now settled but concluded that protecting the information did not inhibit his ability to present his case.

9. International Organizations and Tribunals

The United States is not a treaty party to the U.N. Convention on the Rights of the Child, but Chile is. After two consecutive orders refusing to return an autistic child to Spain, the Supreme Court of Chile ordered the return of the child pursuant to the Abduction Convention. The mother, having exhausted her appeals, lodged a letter with the U.N. Committee on the Rights of the Child, alleging that the court in Chile violated several articles of the U.N. Convention on the Rights of the Child. The committee ultimately agreed that the Chilean Supreme Court order did not provide sufficient reasoning in its decision for the committee to assess that the court considered the child’s best interests in reaching its decision.

II. International Judicial Assistance

A. Service of Process

A New York trial court erred in allowing a husband to serve his wife by email when he failed to make out a case that service would not otherwise be completed under Italian law.

B. Evidence Requests

A Michigan court enforced letters rogatory from an Egyptian court seeking documents from a respondent in Michigan concerning his salary at the University of Michigan to facilitate the petitioner’s suit for support in Egypt. The respondent’s claim of lack of notice prior to the subpoena was rejected since he had actual notice and failed to show any prejudice for the fact that the notice came a couple of days after the subpoena.

III. Divorce

A. Alimony

A Connecticut court concluded that spousal maintenance orders, entered in a divorce matter in England, could be modified in Connecticut. The Connecticut court’s reading of the U.K.’s Reciprocal Enforcement of Maintenance Orders Order 2007 (REMO) conferred modification jurisdiction of U.K. spousal support orders in the U.K. courts, but that jurisdiction was not exclusive, meaning a Connecticut court could concurrently modify the orders, particularly in that both parties had left England.

B. Marriage Contracts

A couple who executed an Islamic marriage contract in Iraq, and where the husband did not suggest the contract was unenforceable in Iraq under Iraqi law, or that he was coerced into signing it, were bound by the contract at the time of their divorce in New York. As a matter of comity, the generally accepted rule is that matters bearing on a contract’s execution, interpretation, and validity are determined by the law of the place where the contract was made. A Florida couple disputed the interpretation (but not validity) of a Bangladeshi Islamic marriage contract, questioning whether the contract set a minimum amount due to the wife or a maximum amount due to the wife. The court applied Florida law to the secular terms in the contract, and looking at Florida’s presumption in favor of equitable distribution, the court reversed and remanded indicating that there was no language in the contract waiving such equitable distribution. A couple who executed a marriage contract in Quebec, Canada, which selected a “separate property regime” pursuant to the Civil Code of Quebec, but were divorcing in Florida, were required to have their property divided according to the civil code of Quebec. Florida courts will enforce contractual choice-of-law provisions unless in violation of Florida public policy.

C. Void Marriages

Parties who were married legally in Lebanon had their marriage invalidated in California by a California judge as being bigamous. Even though the parties waivered in their assertions as to whether they were married, or not, and the originally assigned judge found the marriage valid because it was valid under Lebanese law, the bigamous marriage was void in California as against public policy.

D. Divorce

A Polish national could form the requisite intent to make Washington State her domicile so that she could pursue a divorce there. Her immigration status post-divorce, where she would no longer be a dependent on her Swiss spouse’s employment visa in the United States, was irrelevant to the domicile argument.

IV. Children

A. Custody Determinations

A Tennessee mother was allowed to take her children to Germany for the summer conditioned upon her posting a $50,000 bond.

A New York court reversed an order allowing a father to travel with his children to Ghana, which has not ratified the Abduction Convention, as there was no sound and substantial basis in the record to support a finding that such unrestricted international travel was in the best interests of the young children.

B. Jurisdiction over Custody

1. Home State & Significant Connections Jurisdiction

It is often necessary to hold a hearing to determine the facts that support or reject jurisdiction. For example, a New York trial court erred in examining a totality of circumstances to hold that New York had jurisdiction when in fact the child had lived in Italy for the last ten months. Ohio also could not exercise jurisdiction over a child who had lived in India for over six months, thereby giving India home state jurisdiction.

A child who had lived in Canada with his mother for a year prior to filing for custody in California was only temporarily absent from California. California remained the child’s home state because the plan for the mother and child to live in Canada was merely a temporary plan for the mother to secure acting jobs, but then return to California where she would find permanent work.

2. Continuing Jurisdiction

An Illinois court properly modified its own order and allowed the children to visit their mother in Japan. A Texas court had exclusive continuing jurisdiction over children who had lived in Mexico for the last four years because the mother prevented the children from seeing their father. A Michigan court modified a custody determination and changed custody to the father when the mother moved to Mexico, obtained a restraining order against the father, refused to allow him to exercise his parenting time, and did not consult him on those aspects of parenting required by the decree.

3. Registration and Enforcement

A New Hampshire trial court properly enforced a custody determination from Turkey because the father had been given an opportunity to be heard in the Turkish proceeding. A Georgia court enforced a custody order from the United Kingdom as the mother in Georgia did not meet her burden for contesting registration under the narrow provisions of the UCCJEA.

V. Criminal Kidnapping & Ancillary Issues

A New Jersey custody order, granting sole custody of a child to the child’s father, resulted in the child’s mother filing criminal charges against the father after he moved the child to India. Arguing that the order that the federal prosecutor was attempting to use as the basis for the criminal charges (a subsequent order requiring the father to return the child) gave no rights to the mother, and her visitation was vague at best, the father succeeded in having the charges dismissed. The court concluded that “visiting rights” under the International Parental Kidnapping Crime Act (IPKCA) must be concrete and specifically defined in the court order or legally binding agreement prior to the unlawful removal or retention.

The U.S. Department of State also issued its annual “compliance” report under the International Child Abduction Prevention and Return Act of 2014 (ICAPRA) on June 17, 2022. This report examines every country where a child was taken during the prior calendar year (here, 2021). It then provides guidance as to whether each country exhibited a pattern of noncompliance (i.e., it did not return the child, regardless of whether there was a legal mechanism in place to provide for the return of the child or not). While certain countries have long been listed as not compliant by the Department of State, the report included a few new countries this year, including Austria (noting delays in communication about the resolution of cases and judicial decisions that are not consistent with the Abduction Convention), Belize (noting delays in the judiciary), Honduras (noting Central Authority delays and delays in the judiciary), South Korea (noting delays in the judiciary and delays in enforcement of return orders), and Trinidad and Tobago (noting delays in the judiciary).