The 9th Circuit recently ruled that the “habitual residence” of a child is based on the “shared, settled intent of the parents.” In other words, where did the parents intend for the child to live. The habitual residence is important in Hague international custody cases for a number of reasons including that if a parent wrongfully removes a child from the habitual residence country, the court must order that child be returned to that habitual residence country for adjudication of custody and visitation rights An earlier Supreme Court Hague case is discussed here.
In Murphy v. Sloan, even though the child had spent several years in Ireland, the parties intended the time away to be a trial period. The parties last agreement was that the child’s home country was the U.S. and the time in Ireland was a trial only. While one party (the parent in Ireland) may have changed her mind, the Court looked back to the final “shared settled intent of the parents.”
Acclimatization (“Certain circumstances related to a child’s residence and socialization in another country”) by the child in the new country may overtake deference to the habitual residence. However, the necessary acclimatization to Ireland was not found in Murphy, and the mother’s request to have the children returned to Ireland was denied. (Note: Mother can still attempt to regain custody; however, she must do so in a California and not Irish court.)
International custody disputes may involve California, federal, and international law. Be sure to speak to an experienced family law attorney who is familiar with the Hague convention as well as state and federal law.
US parents who are fighting for the return of their children to the United States received some legal help with the passage of the Sean and David Goldman International Child Abduction Prevention and Return Act of 2014.
The law, signed by President Obama on August 8, 2014, was named for and written in response to a New Jersey’s father custody dispute when his child was wrongfully kept in Brazil. He argued in US and Brazilian courts for many years before his son was returned to the US. According to this article, the bill will “help the State Department put increasing pressure on foreign governments to send home American children who were abducted overseas.”
Congress found that “more than 1,000 outgoing international child abductions are reported every year.” The bill provides the assistance of the United States government to US based parents in international custody disputes by requiring “better reporting and support from the State Department so that left-behind parents are not on their own in overseas battles to win the return of their abducted children.”
Whether your custody dispute is domestic or international, be sure to speak to an experienced family law attorney who can advise you as to your rights as to the proper forum to adjudicate custody and visitation issues.
When a judge makes an order, it is not optional. A party can certainly appeal a decision, but an order is an order – even if the judge orders you (or your attorney) to meet and confer to discuss an issue. Failure to talk to opposing counsel may result in sanctions as it did in this case.
The link provides a summary of the family law litigation (re child support arrears). In addition to the general rule to comply with a court’s order, the story also provides a reminder that many (though admittedly not all) issues can be resolved between the parties (or their attorneys) without court intervention, if the parties are reasonable and wish to avoid unnecessary litigation.
Certain marriages are void at the start; it’s as if they never happened. Incestuous and bigamous marriages are void at the outset. Family Code §§ 2200, 2201.
But just because the marriage “never happened”, it’s still possible that the parties may have acquired the rights of a putative spouse and property acquired during the relationship (what would have been community property if the marriage wasn’t void) can be subject to equal division as quasi-community property.
If you think your marriage is void, be sure to speak to an experienced family law attorney to discuss what rights you (or your putative spouse) may or may not have as it comes to quasi-community property.