Justia International Law Opinion Summaries

Articles Posted in Family Law
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Plaintiff and Defendant had two children together. After the couple separated, the children remained in Mexico with Galaviz. In July 2021, Defendant took the children to El Paso and refused to return them. Plaintiff filed an action in the district court requesting the return of the children to Mexico under the Hague Convention. Defendant raised two affirmative defenses claiming that returning the children would violate their fundamental right to an education and would expose them to a grave risk of harm or an intolerable situation. The district court concluded that Defendant had satisfied his burden and denied Plaintiff’s request for the return of the children. Plaintiff appealed.   The Fifth Circuit reversed and remanded. The court explained that in the present case, the district court’s findings regarding the children’s healthcare, including the children’s cognitive decline, the fact that they remained non-verbal, or their regression to using diapers, may be supported by evidence that would be sufficient in a custody dispute. However, this evidence falls short of meeting Defendant’s clear and convincing burden. Finally, Defendant presented no evidence that unsuitable childcare would expose the children to a grave risk of harm. He merely expressed concern that Plaintiff often left the children with her older daughters, and they did not take care of the children. This is not clear and convincing evidence of a grave risk of harm. View "Galaviz v. Reyes" on Justia Law

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In October 2021, Defendant flew from Japan to Missouri with her and Plaintiff’s child, L.T. In March 2022, Plaintiff filed a petition for the return of their child under the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) to have L.T. returned to Japan. The district court found L.T. was “at home” in Japan before Defendant removed the child to the United States. The district court granted Plaintiff’s petition to have L.T. returned to Japan. Defendant appealed arguing Japan cannot be L.T.’s habitual residence because Sarah was coerced into living in Japan and therefore did not intend to make Japan L.T.’s home.   The Eighth Circuit affirmed. The court held that there is no evidence of physical abuse, violence, or threats of violence in this case. Additionally, having considered the testimony and having reviewed the text message exchanges between the parties, the court did not find evidence of the type of verbal abuse or controlling behavior that would suggest that Defendant was coerced or forced into staying in Japan. Therefore, Defendant’s coercion argument on appeal is inconsistent with the district court’s factual findings, which are not clearly erroneous. View "Naoteru Tsuruta v. Sarah Tsuruta" on Justia Law

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This is an international child custody dispute between Respondent and Petitioner over their minor children. While the family was residing in Germany, Respondent took the children to the United States and refused to return them. The Hague Convention generally requires children to be returned to the state of habitual residence so that the country’s courts may adjudicate the merits of any custody disputes. The Ninth Circuit previously vacated and remanded the district court’s first order to return the children to Germany. Because the Supreme Court issued its decision in Golan while the court was considering Respondent’s appeal of the second return order, the court also remanded that order for the district court’s reconsideration. The district court then granted the petition a third time.   The Ninth Circuit affirmed the district court’s order granting, on a second remand, Petitioner’s petition against Respondent for the return, pursuant to the Hague Convention, of the parties’ two children to Germany. Agreeing with other circuits, the panel held that, in cases governed by the Hague Convention, the district court has discretion as to whether to conduct an evidentiary hearing following remand and must exercise that discretion consistent with the Convention. The panel held that, on the second remand, the district court did not abuse its discretion in declining to hold a third evidentiary hearing when the factual record was fully developed. The panel held that, in making determinations about German procedural issues, the district court neither abused its discretion nor violated Respondent’s due process rights by communicating with the State Department and, through it, the German Central Authority View "BOGDAN RADU V. PERSEPHONE JOHNSON SHON" on Justia Law

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At issue is whether the Commonwealth of Virginia would recognize a divorce granted by a foreign nation to its own citizens when neither spouse was domiciled in that nation at the time of the divorce. The question arises from Petitioner’s marriage to a woman after the woman and another man — both Ghanaian citizens — divorced pursuant to Ghanaian customary law. At the time of the divorce, the woman and man were lawful permanent residents of the United States, and neither was present or domiciled in Ghana. Based on his marriage to the woman, Petitioner became a lawful permanent resident of the United States. But when Petitioner applied to become a naturalized citizen, United States Citizenship and Immigration Services (USCIS) determined that he and the woman were not validly married. USCIS reasoned that under controlling Virginia law, the Commonwealth would not recognize a divorce granted by a nation where neither spouse was domiciled at the time of the divorce. Petitioner sought a review of the decision in the district court, which granted summary judgment to USCIS. Petitioner then brought this appeal.   The Fourth Circuit reversed and remanded with instructions to grant Petitioner’s naturalization application. The court concluded as a matter of comity, Virginia would recognize this otherwise valid divorce granted by a foreign nation to its own citizens, regardless of the citizens’ domicile at the time. The court explained it rejected only USCIS’s argument that pursuant to present Virginia law, the Commonwealth would refuse to recognize a divorce granted by a foreign nation to its own citizens simply because neither was domiciled in the foreign nation at the time of the divorce. View "Michael Adjei v. Alejandro Mayorkas" on Justia Law

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Defendant violated her joint custody agreement with Petitioner by traveling from Switzerland to the United States with their then-12- year-old daughter, M.D., in July 2020. Petitioner filed a petition seeking M.D.’s return to Switzerland, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention). After an evidentiary hearing on the merits, the district court denied the petition based on the mature child defense, finding that M.D. was of sufficient age and maturity such that the court should take account of her views and that she objected to returning to Switzerland. Petitioner appealed.   The Eighth Circuit reversed the judgment of the district court and remanded the case with directions to grant the petition for the return of M.D. under the Hague Convention on the Civil Aspects of International Child Abduction. The court explained that it agreed with the district court that M.D. is an “innocent party” in this acrimonious dispute. But because M.D. did not express a particularized objection to returning to Switzerland, instead describing a preference—for a variety of understandable reasons—to remain in the United States, the district court’s finding that M.D.’s statements constituted an objection within the meaning of the mature child defense was clearly erroneous. View "Vladyslav Dubikovskyy v. Elena Goun" on Justia Law

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Golan, a U.S. citizen, married Saada, an Italian citizen, in Italy, where, in 2016, they had a son, B. In 2018, Golan flew to the United States and moved into a domestic violence shelter with B. Saada sought an order returning B. to Italy under the Hague Convention on the Civil Aspects of International Child Abduction, which requires that a child be returned to the child’s country of habitual residence upon a finding that the child has been wrongfully removed to or retained unless the authority finds that return would expose the child to a “grave risk” of “physical or psychological harm or otherwise place the child in an intolerable situation.” The district court concluded that B. would face a grave risk of harm if returned to Italy, given evidence that Saada had abused Golan but ordered B. returned to Italy, applying Second Circuit precedent obligating it to “examine the full range of options that might make possible the safe return of a child” and concluding that ameliorative measures could reduce the risk to B. Following a remand, the Second Circuit affirmed.The Supreme Court vacated. A court is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for the return of a child to a foreign country once the court has found that return would expose the child to a grave risk of harm. The Second Circuit’s rule, imposing an atextual, categorical requirement that courts consider all possible ameliorative measures in exercising discretion under the Convention, improperly elevated return above the Convention’s other objectives. A court reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings. View "Golan v. Saada" on Justia Law

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Tescari and Salame, Venezuelan citizens, have two minor children. Tescari removed the children from their home in Venezuela and brought them with her to the U.S. Salame filed a petition seeking their return under the Hague Convention on Civil Aspects of International Abduction. Tescari and the children were granted asylum in the U.S.The parties stipulated that Salame had a prima facie of wrongful removal and retention. Tescari claimed an affirmative defense under Article 13(b) of the Convention, 22 U.S.C. 9003(e)(2). The court concluded Tescari failed to establish, by clear and convincing evidence, her affirmative defense that returning the children to Venezuela would subject them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation.The Sixth Circuit affirmed. Because the alleged abuse was relatively minor, the court had no discretion to refuse the petition nor to consider potential future harm. The determination that Salame could provide the children with shelter, food, and medication in Venezuela is not clearly erroneous. Despite Venezuela’s political schisms and civil unrest, Tescari failed to introduce sufficient evidence that it is a zone of war, famine, or disease. Any defects in the Venezuelan court system fall short of "an intolerable situation." While the factors that go into a grant of asylum may be relevant to Hague Convention determinations, the district court has a separate and exclusive responsibility to assess the applicability of an Article 13(b) affirmative defense. View "Ajami v. Solano" on Justia Law

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Respondent-father Nedim Suljevic appealed a circuit court order denying his motion for the court to exercise temporary emergency jurisdiction over the parties’ custody dispute pursuant to New Hampshire’s Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and granting petitioner-mother Senay Akin's petition to enforce the parties’ Turkish child custody order. The parties, who both have or previously had Turkish citizenship, were married in December 2010 and had a daughter the following year. According to Mother, the parties married in New Hampshire, and when she was pregnant with their daughter, she moved to Turkey while Father continued to reside in the United States. The parties’ daughter was born in Turkey in December 2011 and, until the events giving rise to this proceeding occurred in 2019, lived in Turkey continuously, attending school and receiving medical care there. The parties were divorced by a Turkish court in January 2015; the decree granted Mother sole custody of the child and allowed Father to have visitation with her. In 2019, Mother agreed that the daughter could spend July and August in the United States to visit Father. However, at the end of this two-month visit, Father refused to return the daughter to Mother. Mother made repeated overtures to Father for the daughter’s return, but he refused her entreaties. Mother accepted employment in Massachusetts during the 2020-2021 timeframe so that she could visit the daughter. During this time, Father continually rejected Mother’s requests for the daughter’s return to her custody. Because of the COVID-19 pandemic and difficulty finding a suitable attorney, Mother did not bring a court action for the daughter’s return until filing the underlying petition for expedited enforcement of a foreign child custody order in April 2021. Father was served with Mother’s petition, and then filed his own motion at issue here. As grounds for his motion, Father argued Mother physically abused the daughter while in the Mother's custody. Mother objected to Father’s motion, asserting that he had “refused repeatedly to return [her] daughter” and had issued threats. Mother asserted that Father “should not be allowed to litigate in New Hampshire when the Turkish order controls custody.” After review, the New Hampshire Supreme Court upheld the circuit court's decision to deny Father's request, and to grant Mother's petition to enforce the parties' Turkish child custody order. View "In the Matter of Akin & Suljevic" on Justia Law

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S.L.C. is the now-six-year-old, U.S.-citizen daughter of Lazaro, who resides near Seattle, and Colchester, who resides in Spain. Colchester was given sole custody of S.L.C. by a Spanish court. Lazaro was visiting Colchester and S.L.C. when the COVID-19 pandemic erupted. According to Lazaro, during that visit, Colchester often “screamed at and acted aggressively.” Lazaro testified about several specific instances of abuse. Lazaro absconded with S.L.C.and, unable to stay in Spain because of the lockdown, fled to Seattle with S.L.C.Colchester filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction. The Spanish court issued a warrant, with an order declaring that Spain was S.L.C.’s habitual residence. In Washington state, Lazaro filed petitions for domestic violence orders of protection. Colchester filed a Hague Convention petition in Washington. After dismissing Lazaro’s petitions, the state court issued a warrant, authorizing law enforcement to seize S.L.C. Lazaro responded by temporarily hiding with S.L.C.The district court granted the Hague Convention petition. The Ninth Circuit vacated. Neither the Hague Convention nor its implementing legislation, the International Child Abduction Remedies Act, provides for the appointment of a psychologist as of right but the district court erred in refusing the mother’s request for such an appointment to provide an expert opinion regarding her allegations of abuse and psychological harm to the child. The district court also erred by failing to make findings of fact adequate to support its order. View "Colchester v. Lazaro" on Justia Law

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Harm is a citizen of the United Kingdom and Northern Ireland, currently residing in Ireland. Lake-Harm is a U.S. citizen, currently living in New Orleans. The couple was married in the U.S.; their daughter, SLH, was born in the U.S. in 2017. Lake-Harm was a musician and traveled extensively. Harm alleged that SLH was abducted by Lake-Harm from Ireland in 2019. The three had been living in Ireland to obtain European Union residency for Lake-Harm and SLH. Harm initiated a custody suit in the U.S.Under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the country in which a child maintains her “habitual residence” almost always has jurisdiction to decide a custody dispute between the parents. If a child moves to a new country but her presence there is deemed “transitory,” the country in which the child habitually resided before the move remains the child’s habitual residence. The district court applied the “totality-of-the-circumstances” analysis in determining that SLH’s habitual residence was in the U.S. and that her residence in Ireland was transitory. The Fifth Circuit affirmed. Despite “the increase of SLH’s parents’ center of gravity in Ireland,” the district court followed the Supreme Court’s precedent in Hague Convention cases and did not commit clear error in determining and weighing the operative facts. View "Harm v. Lake-Harm" on Justia Law