Family Law Prof Blog

Editor: Margaret Ryznare
Indiana University
Robert H. McKinney School of Law

Wednesday, October 18, 2006

Law Regulating Overseas Brides Slowing Process of International Marriages

The New York Times reports on the International Marriage Broker Regulation Act.  Imbra is intended to give foreign women and the American government more information about the men who seek so-called mail-order brides. According to the Times, "Reports of violence in international marriages, some of them Internet matches, have increased in recent years. In 1998, fewer than 2,500 foreign women applied to become permanent residents under the Violence Against Women Act, which allows abused wives to apply for residence without the support of their husbands. In the fiscal year that ended in September, 9,500 applied.  The new law has angered many men, who argue that there is no definitive evidence that violence is more likely to take place in an international marriage arranged over the Internet than in a domestic one. Unwilling or unable to find a spouse in the United States, some worry that the law could make it more difficult to find a wife abroad."

Read the entire article (last visited October 18, 2006 bgf)

October 18, 2006 in International, Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 27, 2006

Case Law Development: Costs for Recovering Abducted Child from Another Country as Child Support or Attorneys Fees

The Maryland Court of Special Appeals addressed a case that I'm inclined to assign to students at the end of the semester with the instructions, "Here, read this case about all the topics we barely touched upon in the course and don't ever let me hear you say -- 'if I can't find a job, I can always do some family law!'"   

The case involves a factually and legally complicated story of Mother and Father who had a son (while Mother was married to another man).  When the son was 2 1/2 years old, and while a custody action between the parents was pending in Maryland, Father abducted him and took him to Turkey.  The court chronicles Mother's efforts to recover her son, which required 2 1/2 years, 11 trips to Turkey, multiple court hearings in both Maryland and Turkey, and over $350,000 in legal and private investigation fees and expenses.  Simply reading the story of what happened in this case to the point of the child's return is like a short course in international child custody litigation.

However, the case before the Maryland court required even more, as Mother was awarded some of her expenses in securing her son's return to the United States, which Father challenged in this appeal and sought to avoid through a separate bankruptcy proceeding.  The trial court had granted Mother $200,000 in costs in one proceeding and then $252,930 in a second hearing, which it treated as an award of counsel fees and costs.  Mother sought to have the first award characterized  as a contempt sanction and argued that the trial court had erred in overruling her motion to have the second award made as child support. 

The court commented on the parties' motivation for this characterization dispute: "The only reason the parties are arguing over whether the court could sua sponte treat Mother's motion as one for counsel fees and costs, and whether the $ 252,930 judgment is for child support, is that they believe the answers to those questions will determine ... whether that judgment was entered in violation of the automatic stay in bankruptcy.... [T]hat issue is to be decided under federal law, not Maryland law; and federal law about what obligations are child support, or "in the nature of child support," differs from Maryland law on that subject. Therefore, our answers to these two questions do not have the significance the parties believe they do."  Indeed, the court went on to explain that, while under state law "counsel fees and costs incurred by a parent in a custody case are not child support, even when they are for the benefit of the child", under federal law, these same expenses are "in the nature of child support" and thus non-dischargeable.

Regarding the characterization of the first award, the court found that the trial court had erred in characterizing that award as one for contempt, as there were no purge conditions in the first award. Rather, the court found that the trial court had retroactively re-characterized the first award in the hearing on the second award.  That error required reversal and remand.

While Father prevailed in this round of the litigation, the court was not without commentary on his approach to the litigation. The court addressed Father's argument that he should not be required to pay Mother for the expenses incurred in recoverying the child because Mother's husband -- not Mother -- had actually paid those expenses. In rejecting this argument, the court noted "If nothing else, this argument is notable as a fine example of chutzpah" with a footnote that explored the definition of the term and its use by the courts.

So, read and enjoy, and save the opinion in case you have trouble convincing your curriculum committee that there is sufficient content to justify offering an advanced child custody class.

Corapcioglu v. Roosevelt, 2006 Md. App. LEXIS 219 (September 20, 2006)
Opinion on web (last visited September 22, 2006 bgf)

September 27, 2006 in Bankruptcy, Child Support Enforcement, Contempt, Custody (parenting plans), International | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 23, 2006

Resource for Updates on UK Family Law

Our readers may find Family Law Week a particularly valuable resource for keeping in touch with developments in family law in the UK in particular and EU in general.  All content is provided free of charge and one can subscribe to an email update service without charge as well.

The most recent article presents a summary and analysis of the effect of recent key public law children cases, especially those relating to emergency protection order applications. Read Alex Verdan's article.  In another recent article, Lord Justice Thorpe reviews his first 15 months as the UK's Head of International Family Law in the UK publication Family Law Week.  He reviews the developments in family law that lead to the creation of his post and describes some of the issues he has addressed in the past year. Read Justice Thorpe's article.   

(last visited May 22, 2006 bgf)

May 23, 2006 in International | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 3, 2006

China Won’t Relax One-Child Policy

China has indicated that there are no plans to relax its coercive population control policies.  Its “one child" policy was introduced in the 1970s with the government pressuring couples to have only one child. Exceptions are made in some cases: of ethnic minorities or rural inhabitants, who may have a second child if their firstborn is a girl. The policy provides financial incentives and punitive fines for those who follow, or fail to follow it.   The United States government claims that the policy also has been enforced by forced abortion and sterilization. Source. CNSNews.com.  To read the complete story, please click here (last visited May 3, 2006, reo).

May 3, 2006 in International | Permalink | Comments (0) | TrackBack (0)

Saturday, April 8, 2006

Swiss Court Says HIV-Positive Woman Must Give Authorities Names of Any Future Sex Partners – Receives Suspended Jail Sentence

A Swiss court imposed a three year jail sentence and then suspended it for one year on an HIV-positive woman. The woman was found to have had consensual unprotected sex, although none of her partners apparently became infected with HIV, and she informed the men of her HIV infection before having sex. The court also ordered her to notify the authorities of the names of her future sexual partners – even if she uses condoms with them. Source.  Michael Carter, aidsmap.com. For the complete story, please click here (last visited April 8, 2006, reo).

April 8, 2006 in International | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 28, 2006

Case Law Development: Visitation Disputes under the International Child Abduction Remedies Act

The United States Court of Appeals for the Fourth Circuit affirmed a trial court's dismissal of visitation claims in a suit under the International Child Abduction Remedies Act.  The court held that the Act provides remedies only for violations of the Hague Convention on the Civil Aspects of International Child Abduction.  Since the treaty does not address visitation or access issues outside the context of wrongful removal or retention of a child, the federal courts have no jurisdiction under the act.  Rather, parties seeking to enforce visitation right should file suit in state courts.

A dissenting judge would have interpreted the act to cover these issues.

Cantor v. Cohen, 2006 U.S. App. LEXIS 6915 (4th Cir. March 21, 2006)
Opinion on the web (last visited March 26, 2006 bgf)

March 28, 2006 in Custody (parenting plans), International, Jurisdiction, Visitation | Permalink | Comments (0) | TrackBack (0)

Friday, February 24, 2006

Case Law Development: Recognition of Custody Orders of Foreign Countries Required

The Massachusetts Supreme Court holds that a trial court must respect the custody determination of a foreign state so long as that judgment is procedurally comparable to a domestic judgment.  The  child in this action was born in Trinidad, West Indies and was residing in Boston with Mother.  Father, who lives in Trinidad, filed a petition in the Massachusetts court to enforce a Trinidad consent decree that awarded the mother physical custody of the son, but prohibited either parent from taking the son out of Trinidad, except by agreement of the other parent or by court order. The Massachusetts Supreme Court affirmed the trial judge's order for enforcement of the Trinidad consent decree.

The court concluded that both under Massachusetts statutes regarding enforcement of foreign custody orders and under principles of comity, the court was required to respect the foreign order because it was in "substantial conformity" with Massachusetts law.  The "substantial conformity" test, requires proof that the foreign court had jurisdiction over the parties and over the subject matter; applied procedural and substantive law reasonably comparable to Massachusetts law; and was based on a determination of the best interests of the child.  Finding that the Trinidad court met these requirements, the court could not look further to examine the substance of the underlying order.

Khan v. Saminni, 2006 Mass. LEXIS 33  (February 15, 2006)
Opinion on the web (last visited February 23, 2006 bgf)

February 24, 2006 in Custody (parenting plans), International, Jurisdiction | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 17, 2006

Case Law Development: Standard of Proof in International Child Abduction Cases

The United States Court of Appeals for the Fourth Circuit reversed a trial court's dismissal of a petition under the International Child Abduction Remedies Act because the trial court had applied the wrong standard of proof.  Father had sued Mother under the act, seeking the return of his children to the United Kingdom. He alleged that Mother had violated the Hague Convention on Civil Aspects of Child Abduction by taking the couple’s children to live in the United States. The district court concluded that Father had failed to prove "beyond a reasonable doubt" that the children were "habitually resident" in the United Kingdom at the time of their removal.  The court of appeals reversed and remanded for additional proceedings, holding that the court need only establish the children’s habitual residence by a preponderance of the evidence.

Humphrey v. Humphrey, 2006 U.S. App. LEXIS 522 (January 10, 2006)
Opinion available on the web at http://pacer.ca4.uscourts.gov/opinion.pdf/041036.P.pdf (last visited January 13, 2006 bgf)

January 17, 2006 in International | Permalink | Comments (0)

Monday, October 24, 2005

Child Refugees

"Each year, some 6,000 to 7,000 children from foreign countries enter the United States without any parents or guardians to look after them, many seeking protection from repressive regimes, exploitation, abusive family situations or other traumatic circumstances. A bipartisan bill now percolating in the Senate would help improve the way these vulnerable children are treated while in federal custody. The bill, called the Unaccompanied Alien Child Protection Act, would not alter current immigration standards or expand rights to asylum. . . .the legislation would set minimum standards for custody, expand foster care programs and allow for the hiring of child welfare professionals to serve as temporary guardians. Perhaps most important, the measure would begin to create a nationwide system of pro bono legal representation for such unaccompanied children, most of whom speak little or no English." Editorial by The New York Times Link to Editorial (last visited 10-23-05 NVS)

The text of the legislation can be viewed at GovTrack.US (last visited 10-23-05 NVS)

October 24, 2005 in International | Permalink | TrackBack (0)

Sunday, September 25, 2005

Pakistani girl loses nose, lips for seeking divorce

MULTAN, Pakistan - A Pakistani man cut off the nose and lips of his 19-year-old sister-in-law after she went to court for a divorce in a tribal area of the central province of Punjab, police said on Thursday. . . . Pakistan‘s attitudes to violence against women have come under an international spotlight since the Washington Post quoted President Pervez Musharraf saying this month that many of his compatriots believed that crying rape was a fast way to make money and get a visa for Canada. By: Asim Tanveer, New Brisbane News, leadingthecharge.com.Click here for complete story. (Last visited September 25, 2005, REO).

September 25, 2005 in Domestic Violence, International | Permalink | TrackBack (0)

Japan concerned about declining birthrate

The Japanese are increasingly concerned about their nation's declining birthrate and want the government to take steps to reverse the trend, according to a government survey released yesterday. . . . As of 2004, Japanese women gave birth to an average of 1.29 children in their lifetimes - the lowest rate since the government began releasing the data in 1947, and one of the lowest in the world. . . . The trend threatens to leave Japan with a labour shortage, erode its tax base and strain the pension system as fewer taxpayers support an expanding elderly population. By: Christopher Clare, Scotlandonsunday.com.Click here for complete story. (Last visited September 25, 2005, REO).

September 25, 2005 in International, Paternity | Permalink | TrackBack (0)

Wednesday, September 21, 2005

Anglican rift over gays deepens in Nigeria

Nigeria's Anglican church has deleted all references to its mother church from its constitution, deepening a rift over homosexuality but stopping short of a feared schism. A statement on the church's website on Tuesday said "all former references to 'communion with the see of Canterbury' were deleted" at a meeting last week. Instead, the constitution affirms its ties with all churches that maintain the "faith, doctrine, sacrament and discipline of the one holy, Catholic and apostolic church". With about 17,5-million Anglicans, Nigeria has a strong voice in the 77-million-member worldwide Anglican communion. Nigerian Anglican Archbishop Peter Akinola has emerged as a leader of Anglican conservatives around the world, taking a key role through the Global South grouping of churches in Africa, Asia and Latin America in opposing any church acceptance of homosexuality. The Nigerian and Ugandan churches broke ties with the US Episcopal Church over its 2003 consecration of a gay bishop living with a partner. A dispute over same-sex marriages in England has deepened divisions. By:  Daniel Balint-Kurti, Mail & Guardian On line.

http://www.mg.co.za/articlepage.aspx?area=/breaking_news/breaking_news__africa/&articleid=251522 (last visited September 21, 2005, REO).

September 21, 2005 in International, Marriage (impediments) | Permalink | TrackBack (0)

Sunday, September 18, 2005

Vapostori sects ban polygamy

ZIMBABWE’S battle against Aids, which has so far claimed more than two million lives, received a major boost on Friday when more than 70 Apostolic and Zionist churches made a landmark resolution to abolish polygamy at the launch of an anti-HIV and Aids blueprint in the capital. Polygamy has been found to fuel the spread of HIV and Aids and is a deep-rooted practice in the sects. The 23-page policy document supports this landmark development with Scriptures from the Bible, and the abolition of polygamy will start with the leaders of the Apostolic and Zionist churches. By Sarah Tikiwa, The Sunday Mail, zimbabwemail.com.

http://www.zimbabwemail.com/index.php?id=12590&pubdate=2005-09-18  (last visited September 18, 2005 , REO).

September 18, 2005 in International | Permalink | TrackBack (0)

Cambodian legislature approves law to restrain domestic violence

PHNOM PENH. Cambodia's National Assembly approved unanimously on Friday a draft law on domestic violence aimed at protecting victims of domestic violence and preventing domestic violence. The draft law, initiated by the Ministry of Women's Affairs, was debated for three days and approved by 88 lawmakers at Friday's session. Lawmakers and activists welcomed the law, saying that the law will serve as an effective tool to help curb family violence in Cambodia. By: news.xinhuanet.com.

http://news.xinhuanet.com/english/2005-09/16/content_3499848.htm (last visited September 18, 2005, REO).

September 18, 2005 in Domestic Violence, International | Permalink | TrackBack (2)

Kalam okays Domestic Violence Act

NEW DELHI, India.  President APJ Abdul Kalam Friday gave his assent to the Protection of Women from Domestic Violence Act, 2005. The Act aims to provide more effective protection to women who are victims of violence of any kind within the family and for matters connected therewith or incidental thereto. The Act will be applicable to all states and UTs except J&K. By:  Thestatesman.net.

http://www.thestatesman.net/page.news.php?clid=2&theme=&usrsess=1&id=90086 (last visited September 18, 2005, REO).

September 18, 2005 in Domestic Violence, International | Permalink | TrackBack (0)

Saturday, September 3, 2005

Case Law Developments: International Child Abduction – Equitable Estoppel May Not Bar Timely Claim

The Fourth Circuit Court of Appeals in this case reverses the trial court’s denial of Father’s petition for return of his child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. The remedy of return of a child is available only when a removal violates custody rights, not if removal interferes with visitation or rights of access. Since the trial court did not clearly establish the nature of father’s rights, the court of appeals reversed for further proceedings.  The court also held that, while courts have used equitable estoppel to allow claims brought outside the one-year statute of limitations under the Act, equitable estoppel could not be applied against a petitioner whose claim is timely brought.

Katona v. Kovacs, 2005 U.S.App. LEXIS 18881 (4th Cir. August 31, 2005)

Text of opinion on web at http://pacer.ca4.uscourts.gov/opinion.pdf/042040.U.pdf

BGF

September 3, 2005 in Custody (parenting plans), International | Permalink | TrackBack (0)

Saturday, August 27, 2005

Who Controls the Family?

LINYI, China -- A crowd of disheveled villagers was waiting when Chen Guangcheng stepped out of the car. More women than men among them, a mix of desperation and hope on their faces, they ushered him along a dirt path and into a nearby house. Then, one after another, they told him about the city's campaign against "unplanned births."  Since March, the farmers said, local authorities had been raiding the homes of families with two children and demanding at least one parent be sterilized. Women pregnant with a third child were forced to have abortions. And if people tried to hide, the officials jailed their relatives and neighbors, beating them and holding them hostage until the fugitives turned themselves in. By:  Philip P. Pan, WashingtonPost Foreign Service, Washingtonpost.com.

http://www.washingtonpost.com/wp-dyn/content/article/2005/08/26/AR2005082601756.html?referrer=email&referrer=email (last visited August 27, 2005).

August 27, 2005 in International | Permalink | TrackBack (4)