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1. Basic Basics

My story

Fast growing area

Int’l r’ships prone to breakdown

Fam law still local & parochial

Some treaties

No “Int Fam Law”

Comparative lawyer

Collaboration with local counsel

Expert witness

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2. Issues

Areas include:

Preventing international child abduction

Recovering abducted children

International child custody matters, including:

— International child custody jurisdiction.

— Enforcement of foreign-country custody orders.

— Modification of foreign-country custody orders.

— Foreign-country enforcement of U.S. custody orders.

— Applications for relocation of children to foreign

countries.

International divorce issues, including:

— Divorce jurisdiction planning for international people.

— Divorce jurisdiction litigation when there is a foreign-

country element.

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— Securing stays of domestic divorce actions because of the

pendency of foreign-country cases.

— Securing recognition in U.S. of foreign-country divorce

decrees.

— Enforcement of foreign-country divorce decrees in the

U.S.

International pre / post nuptial agreement planning and drafting.

International postnuptial agreement planning and drafting.

International child support issues

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3. Foreign Travel

Indian arranged / deranged marriage

Can 1 parent take child to visit India?

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4. Foreign Travel?

Parent has a right to travel but no right to take a child. Katare v. Katare, 283 P.3d 546 (Wash. 2012).

Best interests governs.

Children’s travel should generally be encouraged.

Court has right and duty to judge a foreign system.

Must assist judge. Use expert evidence.Judge must undertake difficult balancing test.

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Preventing Abduction

US has no exit controls, with certain exceptions.

Mere court order will not trigger the kind of effective checks that other countries have in place to prevent children from being taken out of the country by one parent or family member.

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Preventing Abduction

If the question is whether the child is to be taken to a non-Hague country at the least one should expect the worst.

If a Japanese parent is taking a child to Japan I tell the American left-behind parent that they should expect never to see the child again.

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Evaluating Foreign Systems

Congress requires State Dept to evaluate foreign countries’ compliance with Hague Abduction Conv terms

Beware – this is not the final word for all cases.

No evaluation for non-Hague countries.

Other official reports can be helpful. Country reports for several countries.

Human Rights reports for various countries.

Other countries’ reports.

UN reports

Independent agency reports.

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Evaluating Foreign Systems

Always consider whether there are special issues that may bear on the issue of whether this particular child will be returned, e.g.

India’s 498A law - “legal terrorism” against husbands

Adultery as a crime in several countries

Noncustodial father as a danger to family peace - as in Japan

Corruption – as in Russia

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Prevent Departure Program

Of some v. limited use

• Aliens only• Must have a custody or restraining order• Subject must be in the US • Must be some likelihood that subject will attempt to depart in immediate

future.• State Dept's Office of Children's Issues must make the request• Commercial carriers only

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Terms of No-Travel Order

1. Injunction2. Bond – rarely big enough3. Supervised access – an extreme remedy4. Prevent Departure Program5. Passport provisions - secure the child’s passport; passport alert program;

but many foreign consulates issue renewal passports or other travel documents to their own nationals; request to foreign consulate.

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Terms of Travel Authorization Order

1. “Hague Language” e.g. define habitual residence; require concession from taking parent as to other parent being no-risk

2. Continuing jurisdiction language3. Mirror order4. Bond5. Legal fees in escrow6. Law enforcement language

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Relocation from US

Same best interests test as state-to-state. But requesting parent’s circumstances are often v. different, e.g. trailing spiuse.

Other special factor: “Guaranteeing” left-behind’s access rights:

1. Continuing jurisdiction overseas?2. Mirror order?3. Bond4. Legal fees in escrow5. Law enforcement language6. Effect of criminal sanctions

Condon case in California Same best interests test as state-to-state. But requesting parent’s circumstances are often v. different, e.g. trailing spiuse.   Other special factor: “Guaranteeing” left-behind’s access rights:  

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Continuing jurisdiction overseas? Mirror order? Bond Legal fees in escrow Law enforcement language Effect of criminal sanctions   Condon case in California

The conditions that courts have imposed in an effort to ensure compliance with its current and future orders in international relocation cases include:   Requiring the relocating parent to:   Post a substantial financial bond in a specific amount sufficient to ensure compliance with the court’s judgment and orders;   Consent to the court’s continuing jurisdiction over the child (and in some cases re-file such consent annually;   Agree to a prohibition against attempting to modify the judgment in an overseas court;   Agree that any attempt by such parent to modify the judgment by application to any foreign court could be deemed a violation of the court’s judgment and grounds for forfeiture of the bond and other appropriate sanctions;   Register the trial court’s judgment with the proper overseas authorities (and, in some cases, re-register the judgment annually);   Obtain an order from the court in the country to which the relocating parent is moving that mirrors the terms of the forum court’s order, that acknowledges that the forum court has continuing exclusive jurisdiction concerning all matters as to the child’s custody and visitation, and that requires the appropriate authorities to enforce such orders;

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  Refrain from taking the child to the foreign country until the judgment was registered and until the trial court has made a further determination that the relocating parent has fully complied with the court’s judgment;   Waive extradition if an arrest warrant is issued for parental kidnapping under the federal international child kidnapping statute (18 US Code Sec 1204);   Deposit support payments in a trust fund to finance travel for visitation, and perhaps for attorney fees in seeking enforcement of the orders.   Awarding legal custody jointly to the father and mother, while giving primary physical custody to the mother, in order to ensure that the non-relocating father had rights of custody for purposes of the Hague Abduction Convention; Ordering that support payments will be forfeited in the event of non-compliance; and   Imposing a severe financial penalty on the relocating parent if she fails to comply with the order.  In addition, courts have provided for many methods of shaping custody orders so as to alleviate the disruption of contact between the internationally relocating child and the left-behind parent and to maintain the relocating child’s language skills and cultural connections to the United States. Such provisions have included:   Providing longer periods of visitation during school breaks as compensation for the loss of more frequent visitation;  Requiring the relocating parent to pay the costs of the child's travel back to the United States and for the left-behind parent’s travel to the foreign country. 

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Requiring the relocating parent to arrange for an adult to accompany the child during travel;   Requiring the relocating parent to arrange for the use of technological services such as the internet and videoconferencing to enhance contact with the left-behind parent, and to pay for the necessary equipment;   Requiring daily internet contact with webcams; and   Requiring the relocating parent to enrol the child in an English speaking school accredited in the United States. Averbuch v. Strekovsky, 2008 WL 5063831 (Cal.App. 2 Dist.,2008); Ish-Shalom v Wittmann 19 AD3d 493, 797 NYS2d 111 (2d Dept 2005).

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International Prenuptial Agreements

Complexities are greatly magnified when the clients are international.

Lawyers must consider the impact of the different laws of the various jurisdictions with which the parties are connected or are likely to become connected.

They must work with international counsel who have sophistication and experience in handling international prenuptial agreements and who can bring in appropriate  local counsel in selected jurisdictions relevant to the issues that the clients has raised or should have raised.

Propose a "home" for the prenuptial agreement. Perhaps not where the lawyer practices.

"Choice of law" clauses are common in the United States and they are usually upheld there, IF significant connection and no public policy violation.

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"Choice of court" clauses are also a common feature of US prenuptial agreements. While they can usually not oust a court's jurisdiction they may be useful in persuading a court that it should accept a case that is brought in the jurisdiction selected by the parties or that it should decline a case brought in another jurisdiction.

"Shopping" for a suitable law and forum is not only appropriate but it may well be good practice - and some might argue that it is even an essential practice - whenever one represents an internationally-connected client with significant current or anticipated assets who wants to maximize the chances that such an agreement will enforced and/or who wants to include terms that might fall foul of a fairness test but which would more likely survive a test based on unconscionability.

Lawyers cannot guarantee the enforceability of pre- or post-nuptial agreements to clients, but they should steer clients to jurisdictions that are more likely to satisfy their goals.

For example, New York's public policy is to promote the resolution of issues between spouses by means of prenuptial and postnuptial agreements. That policy is reflected in a host of decisions from the New York courts upholding such agreements, including agreements that might well not be enforced in other jurisdictions.

For that reason counsel representing a client who has (or whose spouse-to-be has) a New York connection - whether based on current, prior or contemplated residency, current, prior or contemplated employment or other factors - should consider recommending that the parties make an express choice of New York law to govern their agreement.

Indeed, if such a choice is made, counsel might perhaps suggest that such a client should enhance the connections with New York by signing the agreement in that state and/or entering into the civil marriage there (even if the marriage festivity occurs elsewhere).

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Since an English court might not enforce such an agreement, although very many jurisdictions around the world would do so, one might recommend that the parties should enter into two separate prenuptial agreements.

One would be drafted with a view to English law and would apply only if the "stronger" foreign-oriented agreement were invalidated, either in whole or in significant part.

Alternatively the agreements could provide that the "weaker" agreement would apply only if the financial issues were resolved in England while the "stronger" agreement would have priority if the financial issues were resolved elsewhere.

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International Divorce Planning

People with assets and international connections who are contemplating a divorce, as well as their spouses, should consult experienced international family law counsel for advice on strategic international divorce planning as far in advance of filing suit as possible. The financial consequences of being divorced in one jurisdiction rather than another might be highly significant.

For example, the difference between getting divorced in London instead of in New York can be staggering. England has recently acquired a well-deserved reputation as the divorce capital of the world for anyone whose spouse is well-endowed with assets. Once the English divorce courts have finished their work, and the English solicitors and barristers have collected their fees, a once-married spouse with assets will most likely have become an ex-spouse with far less assets. Such people often wonder too late why they did not seek international divorce planning advice before it was too late.

Likewise, the disparity between the practices of divorce courts in Tokyo as compared to those in Sydney, and of the divorce courts in Hong Kong as compared to those in Frankfurt, are equally vast – or possibly even more so.

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The difference between one divorce jurisdiction and another is far more than between a soccer team playing at home or playing away. It is about playing one game at home and a totally different game with totally different rules away.

Indeed, the analogy to a game is not inappropriate. Any serious competitor plays a competitive game strategically. Is the process of divorce any less serious than that?

Yet very few people do their homework on these critical issues at a time when it could really make a big difference. They simply assume that wherever they live is necessarily the jurisdiction in which they must sue or be sued. They walk in blind to what may be the most significant financial transaction of their life.

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