Justia International Law Opinion Summaries

Petitioner initiated this action for wrongful removal under the Hague Convention, seeking the return of his son to Switzerland. The district court found that respondent breached no rights of custody in removing the child and denied the petition for return. Respondent had sole custody of her son when she traveled with him to the United States and Swiss law gave her a unilateral right to remove the child while he was in her sole custody. Petitioner failed to prove by a preponderance of the evidence that respondent's removal of the child abused her rights under Swiss law or breached any rights of custody petitioner held at the time of removal. Accordingly, the court affirmed the judgment.View "White v. White" on Justia Law

Petitioner, the mother of twin girls, filed an application under the Hague Convention on International Aspects of Child Abduction, 19 I.L.M. 1501, after the girls' father, a resident of the United States, did not return them to Mexico. The district court held that the parties abandoned Mexico as the children's habitual state of residence when their parents decided they should, for an indefinite period, spend the majority of their time in the United States. The court concluded that the district court judge did not err in deciding that the parents shared a settled intention to abandon Mexico- they had immediate plans to avail the twins of government assistance in the United States as well as longer-term plans to educate the girls in the United States. The father could prevail by showing that he and the girls' mother shared a settled intention to abandon Mexico as the twins' sole habitual residence, that there was an actual change in geography, and that an appreciable period of time had passed. Accordingly, the court affirmed the judgment of the district court. View "Valenzuela v. Michel" on Justia Law

Petitioner initiated proceedings pursuant to Article 3 of the Hague Convention on Civil Aspects of International Child Abduction, 51 Fed. Reg. 10, implemented by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. 11601 et seq., and sought return of his children to Canada from New York in order to allow the Canadian courts to determine which parent was to be awarded custody of the children. The court concluded that the district court properly determined under the Convention that the parties' last shared intention regarding the children's residence was that they live in Canada and for that reason the habitual residence of the children remained in Canada; there was no basis to conclude that the district court clearly erred in finding that the children have not become so acclimatized to life in New York that returning them to Canada would be harmful to them; and respondent failed to prove any affirmative defense. The court considered respondent's remaining arguments and found them to be without merit. Accordingly, the court affirmed the judgment.View "Hofmann v. Sender" on Justia Law

Albert DiFederico, a former naval commander, was serving as a civilian contractor for the State Department in Pakistan when he was killed in a terrorist attack on the Marriott Islamabad Hotel. His widow and their three sons brought this wrongful death action and survivorship claim alleging that Marriott was liable for its failure to adequately secure its franchise hotel. The district court granted Marriott's motion to dismiss on the basis of forum non conveniens, finding that Pakistan was an available, adequate, and far more convenient forum to hear the case. Plaintiffs brought their suit in the forum of Marriott's principal place of business, the District of Maryland. The court found that plaintiffs were entitled to heightened deference in their choice of forum. The court concluded that it would be a perversion of justice to force a widow and her children to place themselves in the same risk-laden situation that led to the death of a family member. Plaintiffs were inconvenienced by the fear, emotional trauma, and associated logistical complexity that would afflict them if this case were dismissed and decided in Pakistan. The court's review of several of the applicable public and private factors provided additional support for the court's conclusion that the district court abused its discretion in dismissing the case. Accordingly, the court reversed and remanded for further proceedings.View "DiFederico v. Marriott Int'l, Inc." on Justia Law

Respondent Stanislav Dobrev from sought a custodial arrangement from a Utah State court more favorable than the arrangement he received from a French court a few weeks prior. Petitioner and Respondent divorced in France; Petitioner found work in Belgium, Respondent found work in Utah. Petitioner was granted leave to move with her children to Belgium by the French court. Prior to waiving his right to appeal the French order, Respondent picked up the children and brought them to the United States for a pre-approved vacation. The children were scheduled to return to Belgium, but Respondent instead filed for “Emergency Jurisdiction and Custody” in Utah to challenge the French court’s order. A week after holding a preliminary hearing, the district court, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and its implementing legislation, The International Child Abduction Remedies Act (ICARA), summarily granted Petitioner petition for return of the children. On top of that, the district court awarded Petitioner fees, costs, and expenses. Respondent appealed to the Tenth Circuit, generally claiming a denial of due process based on the district court’s refusal to provide him an evidentiary hearing. The Tenth Circuit noted that Respondent alleged or could have alleged before the French court many of the facts he alleged in his state petition. Given the facts of this case, the Tenth Circuit saw “nothing to suggest the district court stepped beyond the bounds of its discretion in awarding Petitioner her fees, costs, and expenses. Based upon all [the Court has] written [. . .], much of which certainly suggests Respondent [was] not blameless for the current state of affairs,” the Court could not say the award was “clearly inappropriate.” The judgment of the district court was affirmed in all respects. View "West v. Dobrev" on Justia Law

The Yaman children, ages 10 and 11, have lived with their mother since 2004, having lived with both parents before that. The mother and children have lived in the U.S. since 2010, but the habitual residence of the children was Turkey. The father was given custody of the children by the Turkish courts, but their American mother wrongfully removed the children in 2007 and hid them, preventing their father from locating them. The district court denied the father’s petition for return of his children to Turkey, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, 51 Fed. Reg. 10,494, concluding that the children were "now settled" in the U.S.; the court rejected claims of sexual abuse by the father. The First Circuit affirmed. The Convention does not allow a federal district court to toll equitably the one-year period that must elapse before a parent can assert the "now settled" defense and the evidence supports the conclusion that the children are "now settled." Their father did not seriously contest that holding. The court noted that its decision has no impact on the Turkish courts’ ruling concerning custody. View "Yaman v. Yaman" on Justia Law

Petitioner, the father, sought the return of his children to Peru under the Hague Convention on the Civil Aspects of International Child Abduction, and its implementing legislation, the International Child Abduction Remedies Act (ICARA), 42 U.S.C. 11601 et seq. The district court found that petitioner's violent temper and inability to cope with the prospect of losing custody of the children would expose them to a grave risk of harm were they returned to Peru. On appeal, petitioner challenged the district court's determination and respondent, the mother, cross-appealed. The court concluded that the district court did not abuse its discretion in admitting an expert's testimony that several factors indicated that returning the children to Peru would expose them to a high risk of harm where the factual basis for the expert's testimony was sufficient. The court also concluded that the district court did not abuse its discretion in declining to return the children to Peru where petitioner did not make a specific proposal for appropriate undertakings before the district court. Accordingly, the court affirmed the judgment and dismissed the cross-appeal as moot. View "Acosta v. Acosta, et al." on Justia Law

In combined cases, the Supreme Court examined the Indian Child Welfare Act (ICWA) to decide whether several issues relating to the Act's notice provision mandate notice be sent to the appropriate tribe or to the Secretary of the Interior. Because the question of whether notice violations occurred in these cases began with determining whether the tribal-notice requirement was triggered, the Court first considered what indicia of Indian heritage sufficed to trigger the notice requirement. Further, the Court then considered whether a parent could waive the rights granted by ICWA to an Indian child's tribe and determine the appropriate recordkeeping requirements necessary to document the trial court's efforts to comply with ICWA's notice provision. "While it is impossible to articulate a precise rule that will encompass every possible factual situation, in light of the interests protected by ICWA, the potentially high costs of erroneously concluding that notice need not be sent, and the relatively low burden of erring in favor of requiring notice, we think the standard for triggering the notice requirement of 25 USC 1912(a) must be a cautionary one." Upon review, the Supreme Court held that: (1) sufficiently reliable information of virtually any criteria on which tribal membership might be based suffices to trigger the notice requirement; (2) a parent of an Indian child cannot waive the separate and independent ICWA rights of an Indian child's tribe and that the trial court must maintain a documentary record; and (3) the proper remedy for an ICWA-notice violation is to conditionally reverse the trial court and remand for resolution of the ICWA-notice issue.View "In re J.L. Gordon, Minor" on Justia Law

In combined cases, the Supreme Court examined the Indian Child Welfare Act (ICWA) to decide whether several issues relating to the Act's notice provision mandate notice be sent to the appropriate tribe or to the Secretary of the Interior. Because the question of whether notice violations occurred in these cases began with determining whether the tribal-notice requirement was triggered, the Court first considered what indicia of Indian heritage sufficed to trigger the notice requirement. Further, the Court then considered whether a parent could waive the rights granted by ICWA to an Indian child's tribe and determine the appropriate recordkeeping requirements necessary to document the trial court's efforts to comply with ICWA's notice provision. "While it is impossible to articulate a precise rule that will encompass every possible factual situation, in light of the interests protected by ICWA, the potentially high costs of erroneously concluding that notice need not be sent, and the relatively low burden of erring in favor of requiring notice, we think the standard for triggering the notice requirement of 25 USC 1912(a) must be a cautionary one." Upon review, the Supreme Court held that: (1) sufficiently reliable information of virtually any criteria on which tribal membership might be based suffices to trigger the notice requirement; (2) a parent of an Indian child cannot waive the separate and independent ICWA rights of an Indian child's tribe and that the trial court must maintain a documentary record; and (3) the proper remedy for an ICWA-notice violation is to conditionally reverse the trial court and remand for resolution of the ICWA-notice issue.View "In re C.I. Morris, Minor" on Justia Law

Appellant is a citizen of Mexico who entered the United States illegally in 2003. He married Jane Doe (Mother) in Payette, Idaho. After they were married, Appellant was arrested in when he attempted to open a bank account with a false social security number. He served three months in jail, and was then transferred to a to be held for deportation. He agreed to voluntarily leave the United States and did so, returning to his parents' home in Mexico. Mother also went to Mexico, but she returned to the United States after she became pregnant. Their child (Daughter) was born in the United States in November 2008. Mother also had a four-year-old son by another man. In March 2009, Father reentered the United States illegally in an attempt to be with his wife and Daughter, but he was caught in Arizona and returned to Mexico. In 2009, Mother and her boyfriend took the boyfriend's son to the hospital regarding severe bruising on his head. Because Mother and the boyfriend gave conflicting accounts of how the child was injured, medical personnel called law enforcement. The two were arrested, and the State initiated proceedings for care of the children in Mother's custody. The petition alleged the daughter's father was unknown, in Mexico, at an unknown address. Appellant spoke by telephone from Mexico with a State caseworker, expressing his wish to be reunited with Mother and his daughter. When informed that Mother was not adhering to the plan, Appellant attempted to have his daughter moved to Mexico so that he may care for her. For the next year, there was a breakdown in communications between Appellant and the state caseworker. The State decided to initiate termination proceedings against Appellant. A default judgment was entered against him and his parental rights to his daughter were terminated. Upon review, the Supreme Court found the magistrate's finding that Appellant "made no attempt to establish a relationship by the means that were available to him" was "absurd." The Court found the magistrate's decisions with regard to the child "clearly erroneous," and reversed the lower court's decision. The Court remanded the case with instructions for the State to make all reasonable steps to promptly place the daughter with Appellant in Mexico.View "RE: Termination of Parental Rights of John (2011-23) Doe" on Justia Law