Justia International Law Opinion Summaries
Articles Posted in Family Law
Cartes v. Phillips
Father petitioned the district court to order mother to return their three-year-old daughter to Paraguay, where she lived with both parents from October 2014 to October 2016. The Fifth Circuit affirmed the district court's determination that Paraguay was the daughter's habitual residence and that mother had wrongfully removed her to the United States. The court held that the district court did not legally err in assessing the parties' shared intent about their child's habitual residence; nor did the district court clearly err in finding that they agreed that their daughter would habitually reside in Paraguay; and any purported evidentiary error was harmless. View "Cartes v. Phillips" on Justia Law
Cohen v. Cohen
Father, a citizen of Israel, petitioned for return of the child under the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act (ICARA), 22 U.S.C. 9001-9011. The Eighth Circuit held that the district court did not err in finding that the child's habitual residence was the United States, and thus the retention of the child was not wrongful within the meaning of the Convention. Accordingly, the court affirmed the judgment of the district court. View "Cohen v. Cohen" on Justia Law
Padilla v. Troxell
Petitioner filed a petition for the return of her child under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 19 I.L.M. 1501, as implemented by the International Child Abduction Remedies Act (ICARA), 22 U.S.C. 9001 et seq. The district court denied the petition. The court concluded that the district court did not clearly err in finding that respondent was "more believable" and petitioner did not challenge that determination. The court agreed with the district court that the preponderance of the evidence demonstrated that petitioner consented to respondent's removal of the child to the United States. Accordingly, the court affirmed the judgment. View "Padilla v. Troxell" on Justia Law
Vergara Madrigal v. Tellez
Father initiated proceedings for the return of his two young daughters under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89. The children resided in Mexico City until Mother took them on vacation and wrongfully detained them in the United States. The district court ordered the children returned to Mexico. The court affirmed the district court's denial of Father's post-judgment motions, concluding that the courts in Mexico, the state of the children's habitual residence, are the appropriate forum to grant relief to address his concerns. The court explained that, subject only to the confines of Mexican law, Mexican courts are free to grant Father full custody over the children and to prohibit or restrict their international travel, and there is no international legal void that requires the Convention’s intervention. In regard to Mother's challenge of the district court's denial of her motion to vacate the Original Return Order, the arrest warrant for Mother's arrest does not establish clear and convincing evidence of a grave risk of harm to the children. Therefore, the court affirmed the district court's denial of Mother's motion to vacate. View "Vergara Madrigal v. Tellez" on Justia Law
Hernandez v. Cardoso
Hernandez and Cardoso, citizens of Mexico, have two children: A.E., born in 2008, and M.S., born in 2002. Cardoso left Mexico with the children in 2014, allegedly to escape Hernandez's abuse and protect the children. Hernandez learned of Cardoso’s location in Chicago and sought the return of A.E. under the Hague Convention on the Civil Aspects of International Child Abduction. Cardoso agreed to return M.S. to Hernandez, but refused to return A.E. The district court heard witnesses and took testimony from the child, in chambers, outside the presence of counsel or the parties. The court found that Cardoso testified credibly that Hernandez hit her in the presence of A.E., intending that A.E. witness the abuse of his mother. The judge “observed a significant change in the demeanor of A.E. when the child discussed Hernandez, the domestic violence and the possible return to Hernandez’s custody.” The court found clear and convincing evidence of a grave risk of physical or psychological harm to A.E. if returned to Hernandez’s custody. The Seventh Circuit affirmed, finding the credibility determination sound. Repeated physical and psychological abuse of a child’s mother by the child’s father, in the presence of the child, is likely to create a risk of psychological harm to the child. View "Hernandez v. Cardoso" on Justia Law
Pliego v. Hayes
Hayes, a U.S. citizen, married Pliego, a Spanish diplomat. Their child was born in 2011. In 2012, the family moved to Turkey, where Pliego served in the Spanish embassy. In 2014, Hayes took the child to Kentucky, stating she would not return. Pliego sought the child’s return under the International Child Abduction Remedies Act, 22 U.S.C. 9001–9011 (ICARA), which implements the Hague Abduction Convention. The district court determined the child’s country of habitual residence was Turkey and that removal of the child violated Pliego’s joint custody rights under Turkish law. Convention Article 13(b) creates a defense to a child’s return if “there is a grave risk” of “physical or psychological harm” or “an intolerable situation.” Hayes alleged, and Pliego denied, that Pliego had abused her and the child. The court concluded that the evidence of “physical or psychological harm” was not “clear and convincing.” Pliego and the child returned to Turkey. Hayes followed and obtained temporary custody from a Turkish court. That court subsequently dismissed the temporary custody order based on Pliego’s diplomatic status, but Hayes and the child had fled to the United States. Pliego filed his second ICARA petition; the court granted Pliego temporary custody while Pliego waived diplomatic immunity to seek permanent custody in Turkey. During visitation, Hayes photographed bruises on the child; she alleged that Turkish courts could not protect the child due to Pliego’s diplomatic status. The court found credible Pliego’s and his mother’s testimony that the “bruises” were actually mosquito bites, held that custody litigation could proceed in Turkey, held that Hayes had failed to make out a defense under Article 13(b), and awarded Pliego $100,471.18 in fees and costs. The Sixth Circuit affirmed. The Spanish government’s waiver of Pliego’s diplomatic immunity sufficiently permits the Turkish courts to adjudicate custody. View "Pliego v. Hayes" on Justia Law
Custodio v. Torres Samillan
Torres are the parents of M. and G. who were born and resided in Peru until Torres removed them to the United States. Custodio seeks return of the children to Peru under the Hague Convention on Civil Aspects of International Child Abduction (Hague Convention), Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, and its implementing statute, the International Child Abduction Remedies Act (ICARA), 22 U.S.C. 9001–11. The district court denied Custodio's petition. Because M. turned 16 during the pendency of these proceedings, the court concluded that the Hague Convention no longer applies to him and dismissed as moot the appeal as to M. The court also concluded that the district court did not clearly err in finding that G.’s statements constituted an objection within the meaning of the mature child defense. Finally, the court concluded that the district court’s decision to respect 15-year-old G.’s opposition to returning to Peru and desire to remain in the United States was not an abuse of discretion. Accordingly, the court affirmed the district court's judgment as to G. View "Custodio v. Torres Samillan" on Justia Law
In re R.L.
Cynthia C. and Gerardo L. appealed the termination of their parental rights to their daughter, R. L. Gerardo contended the jurisdictional and dispositional findings and orders, and all subsequent orders, had to be reversed because the juvenile court did not have home state jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act. He also contended he did not receive notice of the proceedings pursuant to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Cynthia joined in Gerardo's arguments to the extent they inured to her benefit, but raised no other issues. After review of the trial court record, the Court of Appeals found Cynthia and Gerardo's arguments unavailing, and affirmed termination of their parental rights. View "In re R.L." on Justia Law
Didon v. Castillo
Dominguez moved to Dutch Sint Maarten in 2007. Dominguez met Didon and moved into his Dutch Sint Maarten apartment in 2009. In 2010, A.D. was born; in 2011, Dominguez’s daughter from a previous relationship, J.D., joined them. Didon and Dominguez successfully petitioned the French consulate to change J.D.’s birth certificate to list Didon as her father. The family resided in Dutch Sint Maarten, Didon worked and the children attended school in French Saint Martin. In 2014, Dominguez took the children to New York for her sister’s wedding, showing Didon round-trip tickets. Dominguez did not return with the children. Didon pursued a custody action. A French court granted him full custody of both children in an ex parte order. Didon’s investigator located them in Pennsylvania. Didon filed a Hague Convention petition. Following an ex parte telephone hearing, the Pennsylvania district court ordered the U.S. Marshals Service to serve Dominguez, and to confiscate the passports of Dominguez, A.D., and J.D. After hearings at which both parties presented evidence, the court granted Didon’s petition. The Third Circuit vacated. The Hague Convention on the Civil Aspects of International Child Abduction allows a parent to petition for the return of a child when that child has been removed or retained from her “habitual residence” country in violation of the parent’s custody rights in that country. The Hague Convention is recognized by French Saint Martin but is not recognized by Dutch Sint Maarten. Rejecting an argument that a child could have two concurrent “habitual residence” countries, the court concluded that the children were habitual residents only of the country in which they “lived”—Dutch Sint Maarten. View "Didon v. Castillo" on Justia Law
Delgado v. Osuna
Petitioner challenges the district court's denial of his petition for return of his children to Venezuela pursuant to the Hague Convention. The court concluded that the district court applied the correct legal standard in determining the children’s habitual residence, and its shared intent determination was not clearly erroneous. In this case, the record demonstrates that respondent, the children's mother, and petitioner's last shared intent was to abandon Venezuela permanently as the children’s habitual residence. There was a meeting of their minds to abandon Venezuela as the children’s habitual residence. The court also concluded that petitioner cannot meet his burden to show that the children were wrongfully removed from Venezuela or retained in the United States because Venezuela was abandoned as the children’s habitual residence. Accordingly, the court affirmed the judgment. View "Delgado v. Osuna" on Justia Law