This Article discusses significant legal developments in family law from 2023.
A Washington State court referenced Indian law in determining that two people were validly married in India. Indian law required that the marriage be registered post-ceremony. The husband presented contested documentation of this registration, which the trial court accepted. The wife, seeking an annulment in lieu of a divorce, challenged the satisfaction of the registration requirement, seeking to void the marriage. The Court of Appeals affirmed, concluding that, even if registration had been improper, failure to register a marriage was not listed among the reasons for voiding a marriage under the Indian Marriage Act.
A couple was bound by two “agreements” executed in Colombia that were related to the division of their marital property when the Husband filed for divorce in Minnesota. The “agreements” were treated as judgments under Colombian law, as they were prepared and executed before a notary, which has a different status from a notary in the United States. Therefore, the court found that the agreements were entitled to recognition as a matter of comity.
An ex parte Egyptian divorce decree, obtained by the Husband, was not entitled to comity by a New York family court because neither party was domiciled in Egypt, and the Wife did not have proper notice of the proceedings until the day after the divorce decree was issued. Compare that with a Texas case in which husband, present in Texas, pronounced talaq and notified the appropriate Pakistani government official pursuant to Pakistan’s Muslim Family Laws Ordinance 1961. The wife unsuccessfully challenged the divorce in the courts of Pakistan, with the matter ultimately addressed by the Supreme Court of Pakistan. The wife separately petitioned for divorce in Texas. The Texas courts dismissed the petition as a matter of comity.
The Supreme Court of Nebraska clarified that a divorce case, filed in Nebraska, under circumstances that permitted a divorce (i.e., one spouse was domiciled for the requisite period of time), could not be dismissed for lack of subject matter jurisdiction. The Defendant argued that an existing Venezuelan divorce decree divested Nebraska of jurisdiction. The Supreme Court concluded that the existence of the foreign divorce judgment would not be relevant to the existence of subject matter jurisdiction, although a trial court could decide to recognize a foreign judgment as a matter of comity.
The U.S. Court of Appeals for the Fourth Circuit considered whether a divorce effectuated by the spouses’ family members in Ghana, where both spouses were citizens of Ghana but neither spouse was domiciled in Ghana, involved a sufficient nexus between the spouses and Ghana for a Virginia court to recognize the foreign divorce decree as a matter of comity. The long-standing rule is that at least one spouse must have been a domiciliary of the foreign jurisdiction to have their divorce recognized. The Court of Appeals opined that the Ghanaian citizenship of the couple was a sufficient link to justify recognition of the divorce.
When a trial judge summarily denied a Father’s request for a U.S. passport (which was not challenged by the Mother), the Court of Appeals of Nevada, in an unpublished opinion, reversed and remanded, indicating that the court should have examined the child’s best interests prior to ruling. Further, the appellate court held that, despite the Father’s lack of immediate international travel plans, the matter was ripe for judicial review given the significant amount of time to obtain a U.S. passport, especially if the Father must seek court intervention.
Idaho’s Supreme Court concluded that a parent who relocates their child in a manner that either explicitly violates or effectively frustrates the purpose of an existing custody arrangement, retains the burden of proving the move is in the child’s best interests, even after the move occurs. When an Idaho mother surreptitiously relocated the parties’ son to Costa Rica, the court was bothered by the behavior. The court determined that the burden of proving that relocation is in the best interests of a child must be placed on the relocating parent, otherwise there would be no deterrent for the relocating parent to refrain from abducting the child.
U.S. state enactments of the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) provide the exclusive basis for jurisdiction to issue an initial child-custody order in the United States, except in Massachusetts. The Court of Appeals of Texas held that a court must apply the jurisdictional rules in the UCCJEA rather than presuming that the court has subject-matter jurisdiction.
The UCCJEA defines “home state” as the state in which the child has resided with a parent, or a person acting as a parent, for six consecutive months immediately prior to commencing the lawsuit, minus any temporary absence from that location. In January 2023, in the absence of a legislative definition of “temporary absence,” the Court of Appeals of Arizona adopted the “totality-of-the-circumstances” test. This is one of three tests that are commonly adopted throughout the United States, with some other states adopting the duration test or the intent test.
A Maryland Court of Special Appeals affirmed a trial court, which declined to exercise child-custody jurisdiction concerning children residing in Germany. The children were residing in Germany with their father (their mother having returned to Maryland alone) almost two years into a five-year temporary relocation. The trial court found that Maryland was not the home state of one of the children. The trial court also relinquished jurisdiction over the second child, with respect to whom a Maryland Juvenile Court had made a custody determination (which would provide Maryland continuing, exclusive jurisdiction).
A New York family court assumed jurisdiction over a minor child who had never lived in the United States, and was, at the time of the custody lawsuit in New York, living full time in Nigeria, under the UCCJEA’s vacuum jurisdiction provisions. The court found that both parents had relocated to New York with their other three children, but left the child at issue in Nigeria when they had difficulty obtaining a visa for the child. The child was rotating between relatives’ houses, and both parents had, at least initially, indicated to the New York court that they wanted that child to move to the United States. The court found that the child was not residing with a “person acting as a parent” in Nigeria, and therefore, Nigeria was not the child’s home state at the time the mother filed her New York custody suit.
A foreign child-custody order shall be enforced if registered in a U.S. state. There are a few arguments permitted against the registration of another country’s custody order. One possible argument is that the foreign determination was not made under factual circumstances in substantial conformity with the jurisdictional standards of the UCCJEA. When a father argued before the Court of Appeals of Michigan that the German courts did not employ a “best interest” analysis before rendering a child-custody determination and, therefore, the determination was not in substantial conformity with Michigan law, the Michigan court observed that “substantial conformity” relates to jurisdictional standards, not substantive law.
The Court of Appeals of California, in an unpublished opinion, affirmed that California courts had temporary emergency jurisdiction pursuant to the UCCJEA to issue a domestic violence restraining order and an associated child custody order relating to a child present in California, where a French court had already issued a child custody judgment. Because California’s enactment of the UCCJEA provides that any order issued based on California’s temporary emergency jurisdiction “remains in effect until an order is obtained from the other state within the period specified or the period expires,” a California court could not renew the order based on temporary emergency jurisdiction.
In the United States, the Convention on the Civil Aspects of International Child Abduction, done at The Hague October 25, 1980, (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 “actually exercised” (or would have exercised, but for the abduction), under the law of the child’s habitual residence.
Countries may become party to the Abduction Convention as a result of ratification, acceptance, or approval of, or accession to, the Convention. An accession will have effect between the acceding party and another party to the Convention if the latter party has declared its acceptance of the accession. The Abduction Convention ceases to provide a return remedy when the child in question turns sixteen.
a. Habitual Residence
The Abduction Convention does not define the term “habitual residence.” In 2020, the U.S. Supreme Court addressed 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. A district court in Michigan subsequently found that a 4-year-old child who had moved frequently between Brazil, China, and Mexico before landing in the United States had her habitual residence in Brazil, because it was the only constant to which the family kept returning.
A child’s habitual residence is a country and is not a parent. When both parents argued their child’s emotional connection to them, and therefore argued they were the child’s habitual residence, the court was not persuaded and concluded that it must determine which country was the habitual residence, particularly since the law of the child’s habitual residence dictates certain other legal determinations in an Abduction Convention case.
A Florida federal judge found that two children who moved to Canada with their Canadian-national parents in September 2020 when their Father was deported from the United States, living there for over a year, never shifted their habitual residence from the United States to Canada. The parents purchased a house, and obtained employment, in Canada. When their mother traveled to Florida with them in November 2021, and retained them there, it was not wrongful. Several witnesses testified that when the family moved to Canada, their intention was never to remain there permanently, but to explore another country where they could live (for example the United States, Europe, or Panama).
The U.S. District Court for the District of Arizona decided that the habitual residence of twins had not changed despite numerous communications between the parents. These communications did not reflect a shared, settled intent of the parents to raise the children in the United States as their plan “was ever-changing and subject to various unfulfilled contingencies.” Therefore, when the mother traveled to Arizona with the children in June 2022 on a one-way plane ticket, and retained them at the end of the trip, her retention was wrongful. The U.S. District Court for the Middle District of Florida noted that when the two parents had pre-marital discussions of eventually moving from Australia to Florida, this was not a change in their future child’s habitual residence, or consent to the Mother retaining the child at the end of a three-week trip to Florida in July 2022.
The U.S. District Court for the Eastern District of Missouri held that a mother who argued that her child’s habitual residence was the United States, and not Japan, because she was coerced by the father into living in Japan, could not overcome the volume of evidence that the child was “at home” in Japan. Her evidence of coercion included the father having her sign a marriage license she did not understand, controlling their finances, speaking only Japanese to the child so as to isolate the child from her, and controlling all important decisions.
The U.S. District Court for the Northern District of Illinois denied a Respondent’s motion to dismiss an Abduction Convention return request based on, among other arguments, the parties’ prior Illinois custody agreement (incorporated into a court order) that specifies that the United States was the child’s habitual residence. The district court stated, “[t]hat the parties appeared to agree that A.P.’s habitual residence was Illinois as of May 23, 2022 may be relevant to this action’s assessment of A.P.’s habitual residence approximately fourteen months later, but it is not identical or dispositive, and does not preclude the instant inquiry.”
b. Rights of Custody and 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 “actually exercised” 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.” The Abduction Convention includes, in two separate places, the opportunity to address the petitioner’s actual exercise of their custody rights—Articles 3(b) and 13(a). A petitioner must prove, by a preponderance of the evidence that they were actually exercising their rights, but, if the respondent contests it, the burden will also shift to them to prove that the petitioner was not actually exercising their custody rights. Therefore, when a respondent Mother argued that the petitioner Father had not even seen the children for several months before her removal of them to New York, not only was the petitioner required to prove his actual exercise, but the burden then shifted to the respondent to demonstrate, by a preponderance of the evidence that she had not actually exercised her rights of custody.
The U.S. District Court for the Southern District of New York held that the Royal Borough of Kensington and Chelsea had a right of custody as the body charged with effectuating orders of the English High Court, and when a child was a Ward of the High Court, said court had a right of custody so that it could seek the return of the child after the child’s Mother wrongfully removed that child from England.
There are several exceptions to a State Party’s obligation to return a child pursuant to the Abduction Convention that a respondent may assert.
a. Child is Settled
Article 12 of the Abduction Convention provides that a State Party is not obligated to 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 U.S. District Court for the Middle District of Florida held that a child abducted to Florida was now settled notwithstanding the Mother’s pending application for asylum. The U.S. District Court for the Southern District of New York held that a wrongful retention occurred, and thus the twelve-month period began, when a Father reported to police in Spain that the Mother had kidnapped their children. The U.S. District Court for the District of Massachusetts held that a child was now settled because he had lived half of his life in Massachusetts, was learning English, had an asylum application pending with an interview in early 2024, and had friends, school, and family nearby.
b. Grave Risk or Intolerable Situation
Pursuant to Article 13(b) of the Abduction Convention, a court is not required to 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.” The U.S. District Court for the Western District of North Carolina has held that this exception cannot be decided on a motion to dismiss but requires an evidentiary hearing. The Hague Conference on Private International Law made the following observations:
The specific focus of the grave risk analysis in these instances is the effect of domestic violence on the child upon his or her return to the State of habitual residence of the child, and whether such effect meets the high threshold of the grave risk exception, in light of such considerations as the nature, frequency, and intensity of the violence, as well as the circumstances in which it is likely to be exhibited.
In addition, a court may consider measures to reduce the likelihood of harm. The Supreme Court has 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 its third opinion in a case, this time after a remand from the U.S. Supreme Court in the Golan v. Saada decision, the Ninth Circuit affirmed the return of two children to Germany. An issue on appeal revolved around whether the District Court violated the Respondent’s due process rights when it initiated contact with the U.S. Department of State, and then connected with the German Central Authority in its exploration of ameliorative measures. The Ninth Circuit clarified that the District Court was interpreting foreign law (the law in Germany and what would happen upon the child’s return in the German legal system), that it may consider any relevant material or source, and that it may also engage in its own research.
The U.S. District Court for the District of Colorado relied on Article 13(b) of the Abduction Convention in refusing to order the return of a child, who disclosed a pattern of significant sexual abuse by her Father during an in camera interview. In this matter, in which both parents requested the return of the child, who had been in the care of family members in the United States, the District Court found that this harm was significant, likely to repeat, and could not be ameliorated. The judge was concerned that the Mother would not protect the child, the Bahamian authorities would not properly investigate, and the parents would ultimately punish the child for disclosing the abuse.
The U.S. District Court for the District of New Jersey applied Article 13(b) to deny a Father’s request to return a child to Colombia, based on the Father’s violation of provisional orders of protection entered in Colombia. The U.S. District Court for the Eastern District of New York has held that a single incident of physical force against a child does not itself satisfy the Article 13(b) threshold.
Although Article 13(b) focuses on harm to the child, many courts recognize that sustained spousal abuse can, in some instances, present such harm.
The U.S. District Court for the Southern District of Texas relied upon Article 13(b) to deny a request to return a child after finding that the Petitioner had a history of repeated violence against the mothers of all of his children, was a convicted felon with a criminal record of domestic violence and injunction violations, and had displayed a willingness to inflict abuse in the presence of his children. The District Court relied on expert testimony that a child in this child’s situation would likely experience a relapse of PTSD symptoms if returned.
The U.S. District Court for the Northern District of Ohio denied a Mother’s request to hold in abeyance an Abduction Convention return proceeding pending the outcome of her asylum application, as the Article 13(b) exception requires a higher evidentiary burden, and the Father is not afforded an opportunity to present arguments in the asylum proceedings.
c. Mature Child’s Objection
Pursuant to a different part of Article 13 of the Abduction Convention, a court is not required to return a child “if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” 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 or with a specific parent.
The Eighth Circuit remanded a case directing the District Court to order the return of a child to Switzerland after concluding that the child had not objected to a return, but instead had stated a preference to remain in the United States. The child was equivocal when asked whether she objected to returning to Switzerland or simply preferred one location.
Trial courts vary in how to elicit a child’s views and on what subject matter they discuss. For instance, one court had two children, ages nine and eleven, “testify.” Another court interviewed a 13-year-old on camera in the presence of a Guardian Ad Litem, who provided separate testimony, in determining the child had a particularized objection to returning to Germany.
Many courts will consider whether the views expressed by a child are the child’s views. One court determined that the testimony of a nine-year-old made “abundantly clear that her views have been unduly influenced by the adults in her life, specifically that she has been influenced regarding the circumstances underlying or resulting in any objection to return, her understanding of these proceedings, and her preference to live with Respondent.” Another court determined that a twelve-year-old autistic child’s parroting of his Mother’s language weighed against a conclusion that his objections were those of a mature child. Still another court concluded that a twelve-year-old, who had spent nine months living with his Mother and her parents, was unduly influenced in part after the child mirrored adult words and expressed increasing animosity against his Father.
d. Human Rights
Article 20 of the Abduction Convention provides that the return of a child may be refused if such return would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.
e. Consent and Acquiescence
Pursuant to part of Article 13(a) of the Abduction Convention, a court is not required to order the return of a child if the person, institution, or other body having the care of the person of the child had consented to, or subsequently acquiesced in, the removal or retention. The U.S. District Court for the Western District of Texas court noted that the Fifth Circuit has identified some general principles, including that focus on the inquiry should include the Petitioner’s “subjective intent” and the court should consider “what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country.” In that case, the court concluded that, although the Father had provided permission for the removal of the child from Mexico, the Mother failed to establish that the Father “clearly and unequivocally intended for [the child] to remain in the United States.”
Credibility and documentary evidence can play a large role in a court’s determination as to whether a parent consented to a child’s permanent relocation. For instance, when two parents testified in opposition to one another as to whether the Petitioner consented to the children’s relocation to the United States, the court found that he had consented based primarily on certain WhatsApp exchanges between the parties and his lack of credibility, especially when his testimony seemed to contradict the WhatsApp messages.
To establish acquiescence by a petitioner, 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. Some courts have required that the totality of circumstances must be examined to determine whether there was consent or acquiescence. In rare instances, cases involving consent or acquiescence can be decided on summary judgment. The U.S. District Court for the Western District of Texas held that a Father who visited his children in Texas, sent their immunization records to the Mother to enroll them in a Texas school, and paid child support did not acquiesce to their retention, because to hold otherwise would encourage petitioning parents to jeopardize the welfare of their children to prove that they had not acquiesced.
a. Attorney’s Fees
Pursuant to ICARA, a court ordering the return of a child shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs and legal fees, unless the respondent can show that the award would be clearly inappropriate. A prevailing respondent is not entitled to recover similar expenses. District Courts have broad discretion to determine when an award of costs and fees is inappropriate. The “clearly inappropriate” inquiry is dependent on the facts of each case. However, 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.
A district court reduced a request for $199,878.84 in fees and costs to $85,921.55, after reviewing the expenses, concluding the counsel had driven up costs, and considering the burden on the petitioner.
A court has the authority to order fees and costs even if the child turns 16 after the return order but during the pendency of an appeal.
b. Procedural Issues
i. 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 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.”
ii. Motions to Dismiss
A district court denied a respondent’s motion to dismiss an Abduction Convention return petition, concluding that respondent’s challenge was premature, and petitioner would have the opportunity at an evidentiary hearing to demonstrate a right of custody under foreign law.
iii. Wording of Return Order
The Eleventh Circuit held that a District Court order that a Father take “physical custody of the Child” so that he could “return the Child to France” was not a custody determination that modified the existing French custody order and did not exceed the district court’s subject matter jurisdiction under ICARA.
d. Criminal Kidnapping
The Pennsylvania Supreme Court held that, when reviewing a prosecutor’s decision disapproving a private criminal complaint, a court may only overturn that decision if the private complainant demonstrates that the decision “amounted to bad faith, occurred due to fraud, or was unconstitutional.” A prosecutor’s decision not to prosecute based on lack of resources, alternative remedies in other venues, insufficient probable cause, and caution in criminalizing behaviors in estranged parents’ custody disputes was not overturned.
The California Court of Appeals affirmed a criminal conviction against a Father for child abduction. The Father retained the child in California in violation of a UK custody order. The Court rejected Father’s claim that return of the child to Mother would expose the child to a grave risk of harm as this would be relevant in an Abduction Convention case.
e. Abduction Prevention
The Colorado Court of Appeals found that the District Court erred when it did not examine all factors in Colorado’s enactment of the Uniform Child Abduction Prevention Act. In particular,
“[t]he district court here not only failed to make a specific finding that father posed a credible risk of abducting the children, but it also relied on little more than the UAE’s status as a nonsignatory to the [Abduction] Convention, along with the mother’s “fears and concerns,” as a basis for imposing the abduction prevention measures.”
The Arizona Court of Appeals refused to find ambiguous a mediated agreement entered into by two parents that provided that “no parent shall be required to give consent to travel to countries that are not signer [sic] to the Hague convention.” The father, originally from Ghana, argued, among other things, that he had a material misunderstanding when agreeing to this language, believing Ghana to be a Contracting State to the Abduction Convention (which it is not).
The Court of Appeals of Arizona held that the Superior Court had not erred in permitting a Father, who had sole legal decision-making authority over his daughter, to travel with his daughter to Iran to visit his parents. Several years earlier, the Father had entered into an Agreement with the child’s Maternal Grandparents, which was adopted by the Superior Court, providing that the Father must either obtain a written agreement of the Maternal Grandparents, or a court order, before taking the child outside of the United States. The Court of Appeals held that the Superior Court’s “finding that travel would be in the child’s best interests necessarily means that Maternal Grandparents have not met the higher burden of showing that travel would endanger the child’s physical health or impair her emotional development.”
U.S. state enactments of the Uniform Interstate Family Support Act provide rules for the registration and enforcement of a foreign child support order. When a mother in Switzerland, which is a Foreign Reciprocating Country with the United States, but not a Contracting State to the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, obtained a Swiss child support order, a North Carolina District Court held, and the Court of Appeals affirmed, that the Swiss tribunal lacked personal jurisdiction over the Father and, thus, granted the Father’s motion to vacate the registration of the foreign order.w
The Court of Appeals of Louisiana affirmed a child support order issued by a Louisiana court. The Mother had first obtained a Spanish child support order, for which the Father successfully challenged registration in Louisiana. Separately, the Mother had a new child support order issued in Louisiana. The Court of Appeals held that Louisiana courts properly exercised jurisdiction in this matter.
The California Court of Appeals affirmed the registration of a Colombian child support order when the Father did not contest validity or enforcement of the order within 20 days, but a motion for relief from default more than five months later. The Court held that the Father failed to meet his burden.
A New York Supreme Court considered the Mother’s violation of its court orders, disrespect for its ongoing proceedings, and abduction of the parties’ child to India, when awarding the Father 100% of the parties’ marital assets and refusing to award her alimony.
The Court of Appeals of Ohio upheld a default divorce judgment issued by the Court of Common Pleas. The trial court had applied Article 15 of the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, which addresses when a court may issue a judgment in the absence of a defendant after the plaintiff has attempted to utilize the Convention. The Husband had sent a service request to the Indian Central Authority for the Convention, and, after receiving no response for over six months, requested that the court authorize alternative service by publication. The court did not appear to address his alternative service motion, and instead simply entered judgment.
