Saturday, September 19, 2009

Hague Convention in Ohio

I thought Ohio Family Law Blog's International Custody Cases In Federal Court Are Complex might be of some interest. This is certainly not our usual sort of family law case.

In an odd wrinkle, the marriage in Israel was a religious marriage that was not officially recognized here in the United States as a legal marriage, so the father filed for custody rights in Juvenile Court in Ohio. This was an ongoing battle until February, 2008, when the mother filed a Petition under the Hague Convention in the United States District Court for the Southern District of Ohio for the return of the child. Those of you who think that the federal judicial system moves slowly are normally correct; but in this case, because it was on an expedited docket, we conducted extensive discovery and pretrial proceedings in less than two months (including depositions in Ohio, Israel and Kosovo). Most of the depositions required us to find a translator who was fluent in Hebrew. Finally, we had to secure a number of documents from Israel.

A three-day trial was conducted in federal court in Dayton with the eventual decision filed on April 30, 2008.  Click here to read it.   The Court decided that there was a wrongful retention on the day that the mother left because it was the last date that the child was present in the United States with both parties’ permission. It next determined that the child’s habitual residence was the United States, and more specifically, here in Ohio.  The basis for that determination was that the six months he had been in the United States and the brief period he visited the year prior had been sufficient to acclimatize him to the United States.  From the child’s perspective, the United States was his home where he had a degree of settled purpose.  The trial court noted that the child was in school full-time in the United States and had been since his arrival.  His English skills had surpassed his Hebrew skills.  He had made numerous friends at school and the Synagogue, and he attended numerous parties and other activities with these friends.  He took numerous excursions, regularly going to the local Air Force Museum.  He had regular contact with his father and paternal grandmother, as well as friends and teachers.  Finally, all of his possessions were here in the United States.


The mother has requested the Court reconsider the decision.  The increasing globalization of society makes it more likely that there will be an increase in these Hague Convention cases.  If you are moving to a new country, it is important to know what steps should be taken to guarantee that you are not jeopardizing your rights of custody or access to your child.  To read the Hague Convention Treaty, click here.  If you find yourself likely to become involved in an international divorce or custody case, these cases are very fact-specific and extremely complicated.  No two are the same, and it is most often necessary for a party to secure legal representation in both countries.  For a list of the approximately 75 countries that are members of the Hague Convention, click here.  Also, merely because a country is a party to the Hague Convention does not mean that it will enforce its treaty obligations. For example, the U.S. State Department has asserted that even our neighbor Mexico is “non-compliant” with the terms of the Convention.  Don’t try to navigate these waters alone!

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