Justia International Law Opinion Summaries

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

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

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

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

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

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

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

The Ninth Circuit vacated the district court's denial of a petition for return of petitioner's child to France under the Hague Convention on the Civil Aspects of International Child Abduction. The panel concluded that the district court made three legal errors: 1) assuming petitioner cut off financial support for the child, the district court erred as a matter of law in determining that was sufficient to establish that he clearly and unequivocally abandoned the child, the showing required for deeming a parent not to be exercising custody rights; 2) the district court further erred in declining to return the child to France based on a "grave risk" defense, without first considering whether there are alternative remedies available to protect the child and permit her return to France for the period of time necessary for French courts to make the custody determination; and 3) the district court also erred in relying in part on the pandemic to deny the petition because the record did not include any evidence addressing what specific pandemic related risk returning the child to France would present. View "Jones v. Fairfield" on Justia Law

Father sought the return of his children under the Hague Convention of the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act (ICARA), which implements the Convention. The district court found the repatriation of the minor children to Germany posed a grave risk of psychological harm if in father's custody and therefore ordered that the children be transferred back to Germany in mother's custody until a German court made a custody determination.The Ninth Circuit vacated and remanded the district court's alternative remedy order for the district court to reasonably ensure compliance with its alternative remedy in Germany. The court explained that, because mother wrongfully removed the children, as she conceded, the district court in no way exceeded its authority to mandate the children's return to Germany accompanied by mother. However, in the context of an Article 13(b) finding, the district court needed a fuller record to have sufficient guarantees that the alternative remedy will be enforced in Germany. View "Radu v. Johnson Shon" on Justia Law

The Court of Appeal affirmed the family law court's order denying father's petition filed pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, concluding that father did not bear his burden of establishing the existence of ameliorative measures to ensure his children's safety. In this appeal concerning an international custody dispute involving the two minor children of an American mother and a Chilean father, mother was subjected to acts of domestic violence and emotional abuse by father, which was sometimes committed in the presence of the children.The court concluded that it is a reasonable inference from the evidence that father will continue to drink to excess and drive while intoxicated, thus exposing his children to a grave risk of harm. Given father's failure to acknowledge his excessive drinking and acts of domestic violence, as well as his repeated acts of driving while intoxicated, the court explained that there are no ameliorative measures that will mitigate the grave risk of harm to his children. View "Emilie D.L.M. v. Carlos C." on Justia Law