Jefferson Circuit Court

Questions Presented: Family Law. Foreign Judgments. Writ of Mandamus. Opinion of the Court affirming the Court of Appeals’ denial of a writ of mandamus against family court judge for failure to dismiss a petition for dissolution of marriage on grounds that the parties were already divorced under the laws of the Kingdom of Jordan. Court held that appellant/real party in interest was not entitled to writ relief of any kind, and specifically held that the family court was not acting outside its jurisdiction by not automatically giving full faith and credit to a divorce decree from a foreign country under the Full Faith and Credit Clause of the United States Constitution. Family court had jurisdiction and discretion to grant comity to the foreign decree, if appropriate in the judgment of the family court.

The parties were married in the Kingdom of Jordan and subsequently moved to Jefferson County, Kentucky. Wife later filed for dissolution of their marriage. Throughout the proceedings, Husband asserted in court documents that the parties were married. However, in his response to the petition for dissolution of marriage, Husband asserted that the parties were divorced by a Jordanian court prior to the filing of the petition when the parties traveled to the Kingdom of Jordan for vacation, where the wife’s participation is not required, and the husband must only state three times that he is divorcing his wife. Husband subsequently filed a “Certificate of Divorce” from the Kingdom of Jordan. Wife asserted that she had no knowledge of the divorce, and that it would have been nullified anyway, because Husband continued to allow Wife to perform “wifely duties” during Idda, the three-month period following a Muslim husband’s proclamation of divorce during which a husband may cancel the divorce by either announcing that he and his wife are married again or by having his wife perform “wifely duties” for him. Furthermore, Husband stated numerous times in court documents that the parties were married. Husband moved to dismiss the petition for dissolution of marriage, which Family Court overruled. Husband later renewed his motion to dismiss, which was also overruled. Husband subsequently petitioned for a writ of mandamus in the Kentucky Court of Appeals, seeking to compel Family Court to dismiss the petition. The Court of Appeals denied the writ. Husband appealed to the Supreme Court of Kentucky.

There are two classes of writs, and Husband was not entitled to a writ under either class. Under the first class, the petitioner must show that the lower court is proceeding or is about to proceed outside its jurisdiction and there is no remedy through appeal. Husband argued that that there was no adequate remedy by appeal because he would have to wait until the conclusion of the case after spending a large sum of money before having a right of appeal. Kentucky jurisprudence is clear that inconvenience, expense, annoyance, and other undesirable aspects of litigation do not satisfy the requirement to demonstrate great and irreparable injury. This does not demonstrate a lack of adequate remedy on appeal.

Husband argued that Family Court did not have authority to allow the petition to proceed because the parties were already divorced in the Kingdom of Jordan. Assuming that the parties were divorced in the Kingdom of Jordan, Family Court was not required to acknowledge or enforce that decree. The Full Faith and Credit Clause requires that full faith and credit be given “in each State to the public Acts, Records, and judicial Proceedings of every other State.” Thus, it requires a state to honor only the laws and judicial proceedings of a sister state, and Family Court was not required to honor the decree. The decree was entitled only to a consideration of international comity, the recognition which one nation allows within its territory to the legislative, executive, and judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or other persons who are under the protection of its laws. Trial courts have discretion whether to afford international comity to a foreign decree. The Court of Appeals addressed the issue, and it was not an abuse of discretion.

Under the second class of writs, the petition must show that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no remedy by appeal or otherwise, and it usually requires a showing that great injustice and irreparable injury will result if the petition is not granted. Husband argued that Family Court acted erroneously because it refused to give full faith and credit to the Jordanian divorce decree, but decrees of a foreign nation are not entitled to full faith and credit. Husband argued that he lacked an adequate remedy by appeal due to the expense of litigation, but the delay incident to litigation and appeal by litigants who may be financially distressed cannot be considered as unjust, does not constitute irreparable injury, and is not a miscarriage of justice. The Court of Appeals correctly addressed the arguments.

Digested by Nathan R. Hardymon

The post Full Faith and Credit Clause Does Not Apply to Foreign Decrees; Family Court Has Discretion to Grant International Comity to Foreign Decree – Published Opinion from Supreme Court of Ky. appeared first on Goldberg Simpson - Family Law Group.

Appellant’s motion to modify child support was denied by the Circuit Court because Appellant could not attend a hearing in person. Appellant was a resident of Venezuela and unable to legally enter the United States. The Appellate Court reversed and remanded the Circuit Court’s decision, holding the Circuit Court abused its discretion, as the child support modification statute does not require a party’s physical presence at a hearing. The Circuit Court has an affirmative duty to apply the child support guidelines in any action to modify a child support order.

The post Published Child Support Opinion From Ky Court of Appeals Today: Testimony from Litigant Outside the Country and Application of Child Support Guidelines appeared first on Goldberg Simpson - Family Law Group.

An order requiring a parent to obtain a passpot for a child does not require specific findings of fact where no modification of parenting time is made. The court must consider the child's best interests. Federal law permits a court to order a passport where a joint custodian refuses consent. Court's order requiring mother to insure issuance of passport was affirmed.

Benton v. Sottingeanu

An order requiring a parent to obtain a passpot for a child does not require specific findings of fact where no modification of parenting time is made. The court must consider the child's best interests. Federal law permits a court to order a passport where a joint custodian refuses consent. Court's order requiring mother to insure issuance of passport was affirmed.

The court of appeals noted numerous safeguards were imposed by the trial court  to monitor international travel, including that mother would retain the passport, a hearing regarding travel would be held once a prliminary interary was proposed, father would have to post a $250,000 cash bond if travel is permited by court order, mother would have conatct with the child while away, and after the child is returned the passport will be delivered back to mother.  

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We are delighted Bonnie Brown took the time to study the Abbott opinion and permitted us to post her analysis on this blog. Sorry about the irregular font. That periodic problem is ours not hers, and we just haven't yet taken the time to have it fixed. Thank you, Bonnie!

The post Thanks To Bonnie Brown For Her Guest Post appeared first on Goldberg Simpson - Family Law Group.

    Although family mobility has been global for decades, the United States Supreme Court, for the first time,[1] has interpreted a provision of the Hague Convention on the Civil Aspects of International Child Abduction, a treaty to which the United States is a contracting state.  The treaty’s full text can be found at

       http://hcch.e-vision.nl/index_en.php?act=conventions.text&cid=24.

BACKGROUND

    The Hague Convention is implemented in the US by the International Child Abduction Remedies Act (ICARA), 42 USC §11601 et seq.  It determines which forum will decide a custody dispute – not the custody dispute itself.  See, Friedrich v. Friedrich, 78 F.3d 1060 (6^th Cir. 1996).  With authority to hear Hague cases in every state and federal jurisdiction, there are literally thousands of Courts that could be presented with a case. It is no wonder a Hague issue is only now being decided by this country’s highest Court.

    In general, a parent seeking return of a child must show that the child was abducted or wrongfully retained in violation of that parent’s custody rights, which depend upon the laws of the state from which the child was removed.  That country must have been the child’s habitual residence.  The parent must act within one year.  The Convention applies to children under age sixteen.  The Court may refuse to return the child if the parent seeking return agreed to the removal or retention or if there is a grave risk that the child’s return would lead to physical or psychological harm or if the country to which return is sought violates fundamental principles relating to the protection of human rights and fundamental freedoms.[2]

 Kentucky construed Hague’s return provisions over a decade ago. In Harsacky v. Harsacky, 930 S.W.2d 410 (Ky.App. 1996), the Court of Appeals refused to order return of American born children to a mother in Finland because she had failed to prove that the children were wrongfully abducted or retained in the United States, and that Finland was not the children’s habitual residence.  Two years later, the Kentucky Court of Appeals ordered a child returned to her father in Greece from which the mother had wrongfully removed her child.  Janakakis-Kostun v. Janakakis, 6 S.W.3d 843 (Ky. App. 1999).   

THE ABBOTT FAMILY

Resolving a split among the Circuits, Abbott v. Abbott, 560 U.S. ____ (2010) holds that the right to veto a child’s removal from the country constitutes a custodial right enabling its violation to invoke the return remedy set forth in the Hague Convention.  In so doing, the United States joins the majority of nations in this interpretation, though not necessarily the majority of Circuits. Justice Kennedy’s majority Opinion was joined by Justices Roberts, Scalia, Ginsburg, Alito, and Sotomayor.  The decision is consistent with Kentucky law, which associates custody with decision making, rather than physical control of the child.  KRS 403.330(1).

    In Abbott, the father was British and mother American.  They married in 1992, and their son was born in 1995.  The family moved to Chile in 2002, but separated in 2003.  A Court in Chile granted the mother what most in the United States would label as sole custody while granting the father visitation rights.  However, under the laws of Chile,  parents with the type of visitation rights granted the father automatically have a ne exeat (no exit) right, namely a right to consent before the mother could take the child out of Chile. 

    The father obtained a British passport for the son, and the mother obtained an Order that the father be prohibited from taking the boy out of Chile.  In 2005, while the proceedings were pending in the Chilean Court, the mother herself removed the child without the father’s permission.  A private investigator found the child in Texas, and in 2006, the mother filed for divorce in Texas.  She further sought to eliminate the father’s veto authority and to impose supervised visitation for the father in Texas.  The Texas Court granted the father visitation so long as he remained in Texas.  As reported in the Opinion, that litigation is not concluded. 

    .

    The father began Hague proceedings in May 2006.  The Federal District Court determined that the father’s ne exeat rights did not constitute a right of custody under the Hague Convention and denied the return remedy.  The Fifth Circuit agreed in 2008.  Interestingly, the Fifth Circuit relied on a Second Circuit case, Croll v. Croll, 229 F.3d 133 (2000), holding that ne exeat rights were not custody rights under the Convention.  A dissenting Opinion was written by then-Judge Sotomayor who considered ne exeat rights to constitute a right of custody because it allowed decision-making authority regarding a child’s international relocation.  Justice Sotomayor’s consistency resulted in her joining  the majority in the Abbott case.  

    Justice Kennedy analyzed that the ne exeat right indeed constitutes a right relating to determination of the child’s residence.  The father’s rights affected the child’s language, identity, culture, and traditions.  The right also enabled the father to control or prevent disruptions in his visitation by hypothetically conditioning his consent to relocation in a country where the father could obtain employment, thus allowing him to have continued contact with the child.

    Justice Stevens filed a dissenting Opinion joined by Justices Thomas and Breyer.  The dissent disagreed that the ne exeat rights constituted a right of custody invoking the return remedy under the Hague Convention.  Justice Stevens analyzed it as being closer to a right of access, which does not require the return remedy, but rather cooperation of the contracting state to allow that access to the extent possible.  Veto power based on Chilean law, the dissent reasoned, is not synonymous with the affirmative authority to establish in which country the child lives. Thus, the veto power would not “transform” the father into a custodian.

WHAT HAGUE CONVENTION CAN AND CANNOT ACCOMPLISH

The decision has been criticized by women’s rights advocates for domestic violence survivors who are concerned that it would burden the ability of women to flee abusive situations.[3]  That can certainly be a disturbing consequence of the Hague Convention’s focus on forum rather than results. Perhaps this issue could be more fully developed in construing the defenses and exceptions. Yet, on a positive note, this decision could give momentum to the decisions in other countries in which children abducted from this country are found.

    The ultimate tragedy is that this dispute began in 2005, when the child was approximately 10 years old.  He is now 15 years of age and nearly grown. Successful mediations involving international parental child abduction have been reported.  This solution should be considered by any attorney assisting a parent in a Hague Convention case and  that case evaluated for its ability to benefit from this alternative process.

Respectfully submitted.

    Bonnie M. Brown

The post From Guest Blogger Bonnie Brown: DEVELOPMENTS IN INTERNATIONALIZATION OF FAMILY LAW: U.S. SUPREME COURT ADDRESSES THE TRAGEDY OF INTERNATIONAL CHILD ABDUCTION appeared first on Goldberg Simpson - Family Law Group.

If a custodial parent violates an order not to remove a child from the country, the non-custodial parent may use the Hague Convention to have the child returned. Abbott v. Abbott, decided May 17, 2010 and online here

John Crouch at The Family Law News Blog says in this post, "This result is good policy, it’s good for international families, it’s good for the rule of law. It’s consistent with how people use and rely on the Hague Convention today, and how most courts in the U.S. and abroad interpret it. I’m not sure it reflects the treaty’s original intent or text, but the treaty leaves room for interpretation in that area.

What is especially significant is what it says about our current understanding of child custody. The majority reads “rights of custody” as implying “a bundle of rights”, in which some rights may be exclusive to one parent and others will often be shared by both, and both parents will ordinarily remain parents, and exercise some parental authority after divorce. The dissent takes an older view of custody as something that is (at least ordinarily) unitary, held by one parent after divorce. This view is declining but is still very strong in the more tradition-minded parts of our culture. These two views coexist, in different proportions, in other countries as well, as divorce and unwed parenthood become more common and society’s other institutions strain to adapt to them. They drive a lot of the drama in child abduction, alienation, and other contentious custody situations."

The post U.S. Supreme Court Decides Hague Convention Case of Abbott v. Abbott appeared first on Goldberg Simpson - Family Law Group.

Digest from the 6th Circuit Blog: Simcox v. Simcox, Northern District of Ohio at Cleveland
BOGGS, Chief Judge. Claire Simcox appeals from the decision of the district court ordering her to return to Mexico with two of the four children currently residing with her in Ohio, which return the district court found was required under the Hague Convention on Civil Aspects of International Child Abduction (“the Convention”) and its implementing legislation, the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. Because of evidence of serious abuse to both Mrs. Simcox and the children at the hands of Mr. Simcox, the district court conditioned return of the children on certain “undertakings” designed to ameliorate the risk of harm to them upon their return to Mexico. Although we agree with much of the district court’s legal analysis of the Hague Convention, its ordered undertakings are problematic on the facts of this case, particularly its command that Mrs. Simcox herself return to Mexico. We therefore REVERSE and REMAND to allow the court to reconsider what conditions, if any, could ensure the safety of the children in Mexico during the pendency of custody proceedings.
Jeffery Morley at International Family Law calls this case a highly significant ruling on the grave risk of harm defense to a Hague Convention international child abduction petition.

The post Simcox v. Simcox (6th Circuit) Hague Abduction, Grave Risk Of Harm appeared first on Goldberg Simpson - Family Law Group.

Jeremy Morley in Top Ten Tips for Expats at International Family Law gives us some gems of wisdom in these categories:
Before you move overseas
If you make a deal
Before you switch residences
Before leaving home
If you’re overseas
If you’re feeling stuck overseas
On the other hand
If you’re overseas and pregnant
Don’t assume
Local divorce lawyers
It’s an outstanding post to have at your fingertips when that call comes.

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