Category Archives: Family Law

03Feb/10

Australia Family Law

Australia Family Law

This office handles many international family law cases that have an Australian connection, working with counsel in Australia as appropriate, including:

prenuptial agreements with an Australian connection

divorce cases with an Australian connection

international child abduction to and from Australia

child relocation and child custody cases with an Australian connection.

Mr. Morley is quite familiar with Australia, having family in Melbourne and business interests in Victoria and NSW and having worked on many matters involving children and assets in Australia.

He has acted as an expert witness in Australia by telephone testimony.


AUSTRALIA AND CHILD ABDUCTION: Some Fact

International Social Service published a report on international parental child abduction in Australia and called for the establishment of a national support service.

There are approximately 170 reported cases of child abduction both into and out of Australia per year. This critical issue is however, not widely known or publicized throughout the general community. The ISS network comes into contact with an increasing number of cases, due predominantly to more family breakdown and the ease of international travel. The Federal Attorney-Generals Department has recently provided seed funding to enable ISS to undertake a short term research project into International Child Abduction with a central aim of identifying appropriate support models.

The Hague Convention on the Civil Aspects of International Child Abduction, of which Australia is a signatory, has as two central aims. Firstly, the restoration of the pre-abduction status quo, and secondly, to deter parents from crossing borders in search of a more sympathetic court. While these aims have significant merit, there is a perception that the Convention, operating within its legal framework, does not always focus on the welfare of the child as the paramount consideration. A key aim of the project is to identify mechanisms, apart from legal ones, which will provide the most effective support and alleviate the trauma, anxiety and powerlessness experienced by the parties.

Currently, families affected by child abduction are directed to the International Family Law Section of the Federal Attorney-Generals Department. The focus of assistance therefore tends to be on the legal and practical aspects of recovering and returning children. Unlike some other countries, Australia does not have a specialized service which is able to provide holistic support to the parties. A key component of the ISS Project is to develop a support service model which would meet the needs of, in the first instance, the left behind parent, but also the child/children and other parent. There are instances where the child has been abducted to Australia and there is a need to support the foreign left-behind parent when visiting Australia for court proceedings, to attempt resolution and to have contact with the child.

The common thread in all these cases is the sense of powerlessness experienced by the left behind parent whose right to access to the child/children often becomes impossible. In these instances, the temptation to resort to drastic steps may become overwhelming.

The overriding concern in any of these cases is to protect the child from harm. Children who have been abducted are often physically and almost always, psychologically harmed by the experience. The children are firstly dealing with the trauma of the breakdown of their parents relationship. They are then removed from all or much that is familiar to them. However resilient the child, the experience is confusing, frightening and in the long term, damaging.

ISS Australia is aware from experience that it can be extremely difficult attempting to negotiate the return of a child from a country with law and order issues and political unrest. Even where the courts in these countries vote in favor of the left behind parent, the local authorities do not always cooperate for fear of reprisal.

03Feb/10

Argentina Family Law

Argentina Family Law

ARGENTINA, CHILD ABDUCTION, AND THE HAGUE

From information supplied by Graciela I. Rodriguez-Ferrand

The Hague Convention on the Civil Aspects of International Child Abduction was ratified by Argentina effective June 1, 1991. The Central Authority for the Convention in Argentina is the Dirección General de Asuntos Jurídicos-Dirección de Asistencia Judicial Internacional of the Ministry of Foreign Affairs, International Commerce and Worship.

A. Return Requested from Abroad

The Central Authority addresses only the administrative and informational functions. The judiciary always decides on the return of a child or the visitation schedule. Once an application for return has been received, the Central Authority verifies that the petition complies with all the requirements provided for under the Convention. Before seeking a child’s return or voluntary visitation from the parent in whose residence the child is located, the Central Authority must obtain the prior approval of the requesting parent. If the childs return or voluntary visitation schedule does not take place at this first stage, the petition will have to be submitted by a private attorney to the competent court. The Central Authority will provide the appropriate court with a general background of the Convention and will also offer its assistance to the court during the proceedings. The Central Authority’s role is administrative and informative, whereas the judiciary decides on the feasibility of the application for return or access rights.

However, the Central Authority does not provide legal assistance to private individuals during the proceedings before Argentine courts. A private lawyer will have to be hired to carry out the judicial aspect of the request. Those who cannot afford a private lawyer, and who qualify, may obtain the assistance of a public funded attorney. Similarly, once the judicial stage has been instituted, the Central Authority will be at the Court and the parties’ disposal to provide any information necessary for the implementation or application of the Convention with regard for the best interest of the child. When the minor’s domicile has not been located, the Argentine Central Authority will inform Interpol, the agency which will be in charge of locating the minor in question.

B. Domestic Laws Regarding Child Abduction and Parental Visitation

Under the Criminal Code, the punishment for anyone who takes and hides a minor 10 years of age or younger from the control of his parents, guardian, or person in charge of him is imprisonment from 5 to 15 years. Scholarly opinion is not clear on whether a parent who takes a child from the other parent is guilty of this crime. However, a number of court decisions have suggested that any parent who takes and keeps a child out of the control of the parent who has been judicially assigned the custody of the child is guilty of this crime.

Law 24270 created the crime of Impedimento de Contacto de Hijos Menores con sus Padres no Convivientes (preventing minors from having contact with the non-custodial parent). Therefore, the parent or a third person who illegally prevents or obstructs contact between a minor and his non-custodial parent will be punished with imprisonment from 1 month to 1 year. If the child is younger than 10 years of age or handicapped, the punishment is imprisonment from 6 months to 3 years.

The same sanctions would apply to the parent or third person who, in order to prevent the parent not living with the child from contacting him, takes the child to another domicile without judicial authorization. If, with the same purpose, such a person takes the child out of the country, the punishment would increase up to double the minimum and half of the maximum.

In such cases, the court must take all necessary measures to restore the parent’s contact with the child within 10 days. The court must also establish a provisional visitation schedule to be applied for not more than 3 months, or if there is already a visitation schedule, the court must enforce it. Although articles 5 and 21 of the Convention guarantee some type of visitation schedule during the return proceeding, the courts have interpreted these provisions narrowly considering that the Convention does not expressly require member countries to establish or enforce a visitation schedule.

The Argentine Civil Code22 establishes that in some cases, express consent of both parents will be required in order for the minor to carry out certain actions. This provision refers to parents legally married and living together with the child, as well as parents that are separated or divorced, especially when one of the parents has physical custody of the minor, and the other has only visitation rights.

Authorization to leave the country is included among the actions for which express consent is required by both parents. This means that either the father or the mother may grant or deny this authorization, or grant it for a limited period of time, and therefore express his agreement or disagreement regarding a possible change of residence of the minor.

When a parent wishes to relocate with the child in a foreign country, he will need to acquire the court’s authorization when a legal custody arrangement has been settled. This is also the case when a parent has only physical custody of the minor, since according to article 264 of the Argentine Civil Code, consent of both parents is required in order to leave the country.

C. Court System and Structure of Courts Handling Child Abduction

When Argentina is the requested country and there is no voluntary return of the child, the competent court for return proceedings under the Convention will be either the civil ordinary courts in the Federal Capital and national territories or the provincial courts, which may be family courts in those provinces that have such, or the civil courts. The case may be appealed to the respective Court of Appeals and, if admissible, to the Supreme Court.

D. Law Enforcement System

Both the Central Authority and the courts have requested assistance from the police and Interpol to locate children and secure the enforcement of authorities orders. In Argentina children are sought by Interpol, not only in the cases derived from International Conventions, but also in those originated in countries where no conventions exist.

Both parents are required under the law to authorize, not only the minors travel abroad, but also the issuance of a passport to a minor. The withdrawal of such a passport, as well as the denial or restrictions on the issuance of visas, may only be ordered by a court. Therefore, in order for a minor, who is not traveling with both parents, to leave the country, he will have to present his valid passport, as well as the absent parents authorization to travel, before the border authorities. Administrative measures and court orders may become ineffective if border controls in the country are not duly carried out. This is the case for dry/land boundaries due to the length of the Argentine borders. However, border controls are highly effective with regard to air carriers and ferries. When a court orders a prohibition to leave the country, such an order is given to border authorities, including Federal Police, Immigration, Interpol-Argentina, and Aeronautic Police.

03Feb/10

Family Law

Egypt: Family Law

EGYPT AND CHILD ABDUCTION


Parental Kidnapping: The removal of a child by the non-custodial parent to or within Egypt is not a crime in Egypt unless the child is subject to Egyptian court-ordered travel restrictions.  Additionally, parents should be aware that they must work within the Egyptian court system in order to obtain legal custody of the child in Egypt.

Once the custody order is obtained, the parent must go to the district family court for its implementation.  The president of the court has the authority to request that the police enforce the custody order and/or impose a penalty on the noncustodial parent for noncompliance with the custody order.

Dual Nationality: Egypt recognizes the concept of dual nationality.  Under Egyptian law, children born to an Egyptian father are automatically considered citizens of Egypt.  Egyptian mothers of children born to a non-Egyptian father, however, should submit requests to the Egyptian Passports, Immigration and Nationality Authority, Egyptian Embassies or Consulates overseas, and/or the Civil Registration Office to register their children as Egyptian citizens.

Enforcement of Foreign Court Orders: A parent can request that a foreign custody order be recognized in Egypt, but enforcement will result only if the order does not contravene Shari’a law and “paternal rights.”  Therefore, as a practical matter, foreign custody orders are not generally automatically recognized in Egypt, and the parent must seek legal representation in Egypt.

Jurisdiction and Right of Custody: Egyptian Family Courts within the jurisdiction of each summary court have legal jurisdiction to hear child custody petitions.

Custody:

Presumptive Custody: Under Egyptian law, the courts generally favor the mother.  Mothers are most commonly considered to be the appropriate custodians of children up to age 15.  Normally, if custody disputes arise between parents, Egyptian courts uphold presumptive custody.  Courts in Egypt generally uphold presumptive custody for the mother if she is a “person of the book” (i.e., Muslim, Christian or Jewish) and if she is deemed to be a “fit” mother.  If the father is Muslim, the court generally requires that the mother commit herself to raise the child as a Muslim in Egypt.  If a non-Egyptian mother’s custody is upheld in court, she generally must still request the permission of the court to take the children out of Egypt.  Also, under Egyptian law, if the mother (Muslim or non-Muslim) remarries she may lose her claim to custody of her children, depending on the court’s determination based on the best interests of the child.  This law, however, does not apply to the father; he would normally retain custody rights if he remarries.

Order of Preference for Non-Parental Custody: The mother may lose presumptive custody due to remarriage or inability to counter court findings that she is an “unfit mother.”  In such cases, the courts recognize an order of preference of alternate adult custodians with priority given to the mother’s family in the following order:  maternal grandmother or great-grandmother; paternal grandmother or great-grandmother; maternal aunt; paternal aunt; maternal niece; paternal niece.  If these relatives do not exist, the right of custody shifts to a male in the following order of priority:  maternal grandfather; maternal brother; maternal nephew; paternal brother.

Right of Visitation: By law, visitation depends on the willingness of the custodial parent.  If a father has custody and does not voluntarily agree to visitation, the local authorities will generally not force the issue without a court order.  The parent will have to seek a court order to enforce visitation.

Egyptian Good Intentions Subcommittee: In February 2000, the Egyptian Government established an interagency committee consisting of representatives from several ministries to review international child abduction cases in Egypt.  This committee established the Good Intentions Subcommittee, which can act as a mediator between the taking and the left-behind parent.  U.S. Embassy personnel meet regularly with the Subcommittee which seeks the abducting parents’ cooperation in providing access to abducted children and keeping all parties informed of developments regarding abduction and custody issues.  As a result of these mediations, access and/or visitation for some children has been achieved.

Egyptian/American MOU on Parental Access: In October 2003, the U.S. and Egypt signed a Memorandum of Understanding (MOU) that confirms both countries’ commitment to facilitating parental access to children in the other country.  Both the U.S. and Egypt agree that a left-behind parent should have meaningful access to his or her child or children.  However, the MOU recognizes that facilitating parental access may occur in tandem with efforts to return children to their custodial parents.

Currently, however, there are no international or bilateral treaties in force between Egypt and the United States dealing with international parental child abduction.  Egypt is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.  Thus, this treaty cannot be invoked if a child is taken from the U.S. to Egypt by one parent against the wishes of the other parent or in violation of a U.S. custody order.

Travel: Currently, the father’s permission is not required for children to depart Egypt unless there is a custody order that explicitly grants custody to the father.  Egyptian fathers no longer have absolute control over their children’s right to travel abroad.  They can still prevent their children from traveling, but must do so by means of a court order.

Travel Restrictions (Wife): Due to a Supreme Court decision in March 2000, an Egyptian wife no longer requires the permission of her Egyptian husband to obtain a passport and depart the country.  In the case of a child custody dispute, however, either spouse may obtain a court order preventing the other spouse from traveling until the dispute has been resolved.