International Child Custody & the Hague Convention

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International Child Custody & the Hague Convention

By: Molshree “Molly” A. Sharma / November 19, 2018

 

What remedies are available to left-behind parents when one parent unilaterally removes a child from the child’s place of habitual residence to another country?
The world is becoming a smaller place. With globalization, employment opportunities, interdependent economies, and developing markets, it has become common for people to move or be transferred to a foreign country. While living abroad, they may marry and have children – which can result in complex issues around competing jurisdictions should there ever be a custody issue. The outcomes vary depending on how the term “custody” itself is defined and interpreted in various countries.

 

There has been an increase in the number of cases where a parent unilaterally removes a child from the child’s place of residence to another country in an attempt to become the child’s sole custodian. This article looks at the remedies available to left-behind parents – especially in light of recent case law in the Seventh Circuit of the United States Appellate Court regarding custodial rights of unmarried fathers.

 

International Child Custody & the Hague Convention
The Hague Convention on the Civil Aspects of Child Abduction (“Convention”), a multilateral treaty ratified by 98 countries as of May 2018, provides an expeditious protocol for the return of a child unilaterally removed by a parent from one member country to another.1

 

Article 3 of the Convention requires signatory countries to promptly return children to the country of their habitual residence when they are wrongfully removed or retained in another country in breach of the custody rights of the left-behind parent. The law of the state or country from which the child was removed determines custody rights; this adds some fluidity as in some countries an unmarried father may have rights upon the birth of the child, while other countries require a declaratory order to bestow custody rights. Even when the court of habitual residence has placed a non-removal clause on the custodial parent, whether this bestows custody rights per the Convention or is simply an assurance of a continuous right to access is subject to debate.

 

International Child Custody: a Child’s Habitual Residence is Crucial
Mary Redmond left her home in Orland Park, Illinois when she was 19 years old to study in Ireland.2 She and Derek Redmond (the parties’ having the same last name is a coincidence) never married but cohabited in Ireland where they decided to reside and raise a child. The parents further agreed that Mary would give birth in Illinois, where Derek was named as father on the birth certificate and signed a Voluntary Acknowledgement of Paternity (“VAP”) before they returned to Ireland. The relationship deteriorated and Mary went back to Illinois with their son against Derek’s wishes.

 

Despite being named on the birth certificate and VAP, Derek had no custody rights: when a child is born out of wedlock, a father has no custody rights under Irish law until he petitions the Irish Court for custody or guardianship.3 Since the child’s habitual residence was Ireland, where Derek had no custody rights, the Convention did not apply. Based on these facts, the Seventh Circuit did not return the child to Ireland.

 

Custody rights are typically determined by the law of the country from which the child was removed. In Redmond v. Redmond, even though Derek petitioned the Irish Court and finally received custody rights, three years had passed. Mary and the child had resided in Illinois for those three years, only returning intermittently to Ireland for Court appearances. When Derek received custody, Mary represented to the Irish Court that she would return to Illinois to pack up belongings and then return to Ireland on a specified date. She later admitted to the 7th Circuit Court that she gave this undertaking with no intention of ever returning to Ireland.4

 

Since the child had resided lawfully in Illinois for three years, Illinois was now the child’s habitual residence. In deciding whether Ireland or Illinois was the child’s habitual residence, the Court held that while it was clear the parents’ last mutual intention was to reside in Ireland, the trial court had given that factor too much weight as that intention had last been shared several years ago. When Mary first removed the child from Ireland, she had the right to do so, and since then, the child had become fully rooted in his life the United States. He had spent three of his four years in Orland Park; he attended daycare and preschool there, and was enrolled in a local school for kindergarten.5

 

International Child Custody and Unmarried Parents
This is not an isolated case. In Garcia v. Pinelo, Raul Salazar-Garcia (Salazar) and Emely Galvan-Pinelo (Galvan) never married but they had a son (D.S.) together.6 When Galvan married, she and her husband decided to move to Illinois, and Salazar agreed that the child could go with her for one year only. After a year, when Galvan refused to return their son to Mexico, Salazar filed his petition under the Convention to return D.S. The Seventh Circuit Court found that Salazar had custody pursuant to the Mexican law convention of patria potestad (parental authority), and held the child must be returned to Mexico.

 

However, the reverse outcome happened in Martinez v. Cahue.7 The parties were never married, but had a private arrangement for custody and visitation of their son, A.M., in Illinois. After seven years, Jaded Martinez, a Mexican citizen, moved to Mexico with her child. The father, Peter Cahue, persuaded Martinez to send A.M. for a summer break visit in Illinois, then refused to return the child to Mexico. In reversing the Northern District, the Seventh Circuit found that before Martinez moved to Mexico, she had sole custody of A.M.; unless there is a court order, Illinois law presumes a mother has sole custody of a child born to unmarried parents.

 

Therefore, Cahue did not have any custody rights and A.M. was returned to Mexico.
Unmarried parents (especially fathers) must be extremely careful when it comes to international child custody. While some countries may provide custodial rights to unwed fathers, many countries do not. Review the definition of custody in the country in question. If fathers do not have custodial rights, practitioners must advise clients not to go there. If they must go for employment, advise them to petition for guardianship and custody rights immediately even when, as in Redmond8, they are on the United States birth certificate.

 

1Convention on the Civil Aspects of International Abduction, 1343 U.N.T.S. 89 (Oct 25, 1980), T.I.A.S No. 11,670 (entered into force December 1, 1983, enacted into federal law through the International Child Abduction Remedies Act (ICARA), 22 U.S.C. § 9001 et seq.
2Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013).
3Id. at 19-21.
4Id. at 6.
5Id. at 7.
6Garcia v. Pinelo, 125 F.Supp.3d 794 (7th Cir. 2015).
7Martinez v. Cahue, 826+ F.3d 983 (7th Cir. 2016).
8Supra, n. 2.

 

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All Over the Map

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All Over the Map

By: Molshree “Molly” A. Sharma / September 2018

 

 

 

The Hague Convention on Civil Aspects of Child Custody provides for an expeditious return of children wrongfully taken from their habitual residence. Different interpretations of the Convention’s key terms have led to inconsistent applications by the federal circuits. This article discusses these differences and the recent efforts of the seventh circuit to clarify and synthesize the caselaw.

 

GLOBALIZATION, EASE OF TRAVEL, emerging markets, and greater mobility make it easier for people to work, live, marry, and establish homes in different parts of the world. When a marriage dissolves between spouses from different countries or when a couple resides in a foreign country, competing foreign jurisdictions can add complexity to an already messy situation, especially in child custody matters. For example, there has been an increase in the number of cases in which a parent unilaterally moves a child from the child’s place of residence to another country in an attempt to become the child’s sole custodian.

 

The Hague Convention on the Civil Aspects of Child Abduction (“the Convention”), a multilateral treaty currently ratified by 93 countries as of March 2016, provides an expeditious protocol for the return of a child unilaterally removed by a parent from one member country to another.1 That is, the jurisdiction with which the child has the most intimate connection gets to determine custody rights.

 

Habitual residence, undefined
Barring situations where the return of the child may result in an intolerable situation or carry a grave risk of harm, the Convention provides that a child wrongfully taken must be returned to her place of “habitual residence.” The Convention emphasizes the primary issue before a court when deciding to return the child is one of jurisdiction and not of the merits of the underlying custody matter. Emphasizing the best interest of the child, the Convention holds that the substantive custody matter should be decided by a court in the place where the child has resided most recently, attended school, and made friends.

 

The Convention purposely does not define habitual residence, which is more often than not a fact-intensive inquiry. Thus, by not defining this term, the Convention provides the courts with discretion to determine this primary question. However, an unintended consequence is that various U.S. Circuit Courts of Appeals have developed different definitions of “habitual residence.” Essentially, some circuits are following a “child-centered approach” while others are applying a “parental-intent” analysis.

 

In Redmond v. Redmond, the seventh circuit has attempted to resolve these differing approaches.2 The Redmond court also has held that variations in different countries’ definitions of “custody” may significantly impact the court’s determination of the child’s habitual residence.

 

In this article, I will examine the “child- centered” and “parental-intent” approaches and show how Redmond’s synthesis of them paved the way for more predictable outcomes. I also will provide an analysis of the seventh circuit’s determination of the term “custody,” which can block a return even when a child has been removed without consent of the left-behind parent.

 

The child-centered approach
The Court of Appeals for the Sixth Circuit was the first federal appellate court to determine whether a child was wrongfully removed from his or her habitual residence.3 In this case, Jeana Friedrich, a U.S. armed forces member stationed in Germany, unilaterally moved her son Thomas from Germany to the U.S. without his father Emanuel’s consent.

 

The sixth circuit granted Emanuel’s petition to return the child to Germany, which, the court held, was Thomas’s habitual residence.

 

The court was unpersuaded by Jeana’s argument that she and Thomas were U.S. citizens and that various documents consistently listed Ohio as her permanent residence. Having no precedent, the court formulated a standard for determining habitual residence. The court noted that a child can only have one habitual residence at a time and the court must look back in time to determine his habitual residence rather than rely on parental intent regarding future plans. Otherwise, the court reasoned, a parent could abduct a child and claim that the removal was simply a change of habitual residence. The key factor is where the child resided prior to the unlawful removal, not the parental perspective of where the parent(s) intended to reside in the future. Therefore, the sixth circuit decided that Thomas must be returned to Germany, where custody would be determined by a German court.

 

In 1995, the third circuit also followed a child-centered approach in Feder v. Evans-Feder.4 In that case, two U.S. citizens lived briefly in Pennsylvania after moving from Germany, where their son Evan was born. The family then moved to Australia. The court held that Australia was Evan’s habitual residence after Mrs. Feder left Australia and did not return from a purported vacation in Pennsylvania. The court granted the father relief and returned the child to the jurisdiction of an Australian court.

 

The court specifically held that although Mrs. Feder intended to leave her marriage and did not intend to permanently reside in Australia, her intentions ultimately were irrelevant. The court found that Evan’s habitual residence was Australia because he attended preschool there and was enrolled in kindergarten there for the upcoming year. While the Feder court weighed parental intent much more than did the Friedrich court, Feder ultimately focused on the child’s experience prior to the removal and adopted a child-centered approach.

 

Similarly, the eighth circuit found in Barzilay that while some weight should be given to parental intent, the ultimate analysis must focus on the child.5 In Barzilay, the parents were Israeli citizens. Mr. Barzilay and his family moved after receiving employment visas (not per- manent resident status or green cards); therefore, parental intent was ambiguous. But because their children had resided in the U.S. for all, or at least a majority, of their lives, the court determined the U.S. was their habitual residence.

 

Parental intent
The second most-common approach is for courts to favor mutual parental intent over the experience of the child. While the child-centered approach tends to look backward in time, the parental-intent approach looks forward and considers where the parents planned to reside in the future.

 

Generally, the second, ninth, and eleventh circuits apply the parental-intent test more frequently. In the second circuit case of Gitter v. Gitter, Mrs. Gitter agreed to move from the U.S. to Israel on a trial basis when their son was three months old.7 Mrs. Gitter lived in Israel for nearly a year, returned with the child to the U.S., and came back to Israel a second time— with assurances from Mr. Gitter that she would be able to leave if unhappy. She did, returning to the U.S. five months later. The court found that there never was a settled, mutual intent between the parents to reside in Israel. Notably, the court held children “[n]ormally lack the material and psychological wherewithal to decide where they will reside, thus it is more useful to focus on the intent of the child’s parents or others who may fix the child’s residence. ...Informed by these holdings, we will presume that a child’s habitual residence is consistent with the intentions of those entitled to fix the child’s residence at the time those intentions were mutually shared.”8

 

Similarly, the ninth circuit in Mozes—a significant parental-intent decision—held that, where there is only a mutual intent of the parties to allow a child to live in a foreign country for a limited period of time, the focus should be on where the parents intended to base the child’s ties and development. 9

 

The most significant example of this split in analysis is demonstrated in the eleventh circuit case of Ruiz, where the parties resided in the U.S. for seven years prior to moving to Mexico with their children for what they agreed would be a trial period.10 They lived in Mexico for a little more than two years and 10 months and the children attended school and made friends there. When the mother returned with the children to the U.S., the father persuaded her to return to Mexico with the children and reconcile, which she did for a short period before the relationship deteriorated. She then left for the U.S. without telling the father. The eleventh circuit held that, while the case was “close,” there was no evidence the parents intended to abandon their U.S. residence; therefore, the children were habitual residents of the U.S.

 

Had the case been in front of the sixth circuit, the outcome would have been the exact opposite. In fact, the sixth circuit criticized the eleventh circuit, stating “a child who lives in Mexico, attends Mexican school, makes Mexican friends for three years builds an attachment to Mexico that would lead any child to call that country home.”11

 

The seventh circuit’s balancing act
The 2013 seventh circuit case of Redmond v. Redmond attempts to synthesize the two approaches and provide a settled and predictable test to determine habitual residence.12 In Redmond, the court acknowledges that a majority of the circuits have adopted the approach closer to those of the ninth and second circuits, which sharply focused on parental intent.13 However, in Redmond, the court holds that while the two approaches may be different, in fact all circuits consider both the parental intention and a child’s acclimation. The difference is how much weight each circuit gives to these factors.

 

Specifically, the Redmond case states “conventional wisdom thus recognizes a split between the circuits that follow Mozes and those that use a more child-centric approach, but we think the differences are not as great as they might seem.”14 Although the third, sixth, and eighth circuits focus on the child’s perspective, they also consider parental intent. In Feder, the third circuit observed that an inquiry into a child’s habitual residence must “focus on the child and [consist] of an analysis of the child’s circumstances in that place and the parents’ present shared intentions regarding their child’s presence there....”15

 

Similarly, although the Mozes frame- work focuses on the shared intention of the parents, the child’s acclimation in a country plays an important role. Indeed, the ninth circuit also stated that a “child’s life may become so firmly embedded in the new country as to make it habitually resident even though there be lingering parental intentions to the contrary.”16

 

Redmond further held that while the court has not yet had the opportunity to show how to balance the parents’ and the child’s perspectives, it determined that weight must be given to both—especially in instances where the evidence may be
inconsistent. Therefore, Redmond holds that both parental intent and the child’s acclimation must be examined and then weighed to determine a child’s habitual residence.

 

Trickier: Children born out of wedlock
The seventh circuit also provides a serious warning to parents whose children were born out of wedlock. When a young woman from Orland Park, Illinois, moved to Ireland and had a child with a native Irishman, whether the father had any legal custody rights had to be addressed and the answer impacted the determination of habitual residence. Even though the unmarried couple came back to Illinois for the birth and the father was listed on the Illinois birth certificate and signed an Illinois Voluntary Acknowledgment of Paternity (VAP), the parents agreed to raise their child in Ireland, where they returned shortly after the birth. In Ireland, the relationship deteriorated and the mother went back to Illinois with their son against the father’s wishes. The father, however, notwithstanding the Illinois birth certificate and VAP, had no custody rights as Irish law does not recognize the parental rights of unwed fathers (unless he petitions an Irish court for custody or guardianship).18

 

Article Three of the Convention requires member countries to promptly return children to the country of their habitual residence when they are wrongfully removed or retained in another country in breach of the custody rights of the left-behind parent. However, custody rights are typically determined by the law of the country from where the child was removed.

 

In Redmond, when the father finally received custody rights in Ireland three years later, the mother and child had resided in the U.S. for all that time and only returned intermittently to Ireland for court dates. Although the father ultimately received custody rights in Ireland and the mother was ordered to return to Illinois only for the purpose of winding up her affairs and packing her and their son’s belongings—she admitted to agreeing to this undertaking but with no intention of complying—the Redmond court still held that Illinois was the child’s habitual residence.19

 

The first removal was undoubtedly against the father’s wishes. But the father did not have custody rights then. The second—in breach of the Irish court’s order, in 2011—was not the removal of a child from his habitual residence, because Illinois was the child’s habitual residence. Indeed, in reviewing whether Ireland or Illinois was the child’s habitual residence, the court held that, while it was clear the parents’ last mutual intention was to reside in Ireland, this was given too much weight by the trial court as that intention last had been shared several years ago. When the mother removed the child, she had the sole right to do so and, since then, the child had become rooted in his life in the U.S. He had spent three of the four years of his life in Orland Park, attended daycare and preschool there, and was enrolled in a local kindergarten program.

 

Advising clients
The circuits’ split on how to analyze habitual residence makes counseling clients difficult. However, the Illinois- based seventh circuit appears to be synthesizing the child-centered and parental-intent approaches.

 

If a client is worried that a partner may remove a child to a foreign country, put the objection into writing so it is clear there is no consent and no intention of the client residing elsewhere. If the parent is experiencing marital discord, the best option is to immediately file a petition for dissolution and obtain an emergency order prohibiting taking the child outside the country. The order should simultaneously be transmitted to the U.S. Department of State’s Office of Children’s Issues, which can assist in putting the child on a no-fly list.

 

A parent often will remove a child by claiming he or she is visiting family and friends in another country for a vacation. Prior to counseling clients, a practitioner must consider whether that country is a signatory of the Convention and consult the State Department’s annual review of that country to determine if it is in compliance with the Convention. Several countries may be signatories but are deemed non-compliant for lack of actual returns, bureaucracy, and length
of litigation. Advise clients to not take children to these countries. If they insist, then obtain a written agreement that the trip is a vacation and the habitual residence remains the U.S. In court, provide judges the information they need, such as statistics, caselaw, and U.S. Department of State reports.

 

Parents who are not married (especially unwed fathers) must be extremely careful. Review the definition of custody in the
country in question. If fathers do not have custodial rights, advise clients to not travel there. If they must go for employment, advise them to petition for guardianship and custody rights immediately—even when, as in Redmond, they are on the birth certificate in the United States.

 

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Reprinted with permission of the Illinois Bar Journal, Vol. 106 # 9, September 2018. Copyright by the Illinois State Bar Association. isba.org

Molshree ‘Molly’ Sharma Named to Crain’s Chicago’s Notable Women

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Molshree ‘Molly’ Sharma Named to Crain’s Chicago’s Notable Women

By: Feinberg Sharma / August 15, 2018

 


 

Sharma, a partner at family law firm Feinberg Sharma, received the honor which recognizes legal industry leaders in Chicago

 

Molshree “Molly” A. Sharma, a partner at family law firm, Feinberg Sharma, was recently honored by being named to the 2018 Chicago’s Notable Women Lawyers list by Crain’s Custom Media, a subsidiary of Crain’s Chicago Business.

 

This is the second year for the award, which is recognizing 150 women who are considered to be Chicago-area legal industry leaders that serve with distinction as advocates for their clients.

 

“I am delighted and grateful to be recognized for the work I feel so passionate about, as I assist my clients during some of the most difficult times in their lives,” Sharma said. “My ultimate goal is always to achieve the best possible outcomes for them, whether they are parents, business owners, professionals or homemakers.”

 

Among Sharma’s legal specialties are international jurisdictional issues in sensitive matters relating to parental abduction and custody. She is a published author who has organized numerous conferences on the Hague Convention regarding civil aspects of child abduction, and has given lectures in Washington D.C. for lawyers, parents, and professionals on international custody matters.

 

Sharma also has expertise in the financial intricacies of high-net-worth divorces, which require high-level financial experience with assets in real estate, investment accounts, business valuations, tax and retirement benefits.

 

Other accolades of Sharma’s include being consecutively named as an Illinois Super Lawyer, in addition to an Emerging Lawyer, and a Rising Star Attorney by Chicago Magazine. She is a contributor to the American Bar Association’s Family Advocate publication, as well as Family Lawyer Magazine.

 

Sharma believes strongly in giving back to the community and provides pro bono legal services to in-need Chicago residents on an ongoing basis. She has been recognized by the Chicago Bar Association during its pro bono week, received the Chicago Volunteer Legal Services Distinguished Service Award, and the Cook County Department of Corrections Volunteer Award.

 

Sharma began practicing law in 2004 and joined prominent Chicago family law attorney Joy Feinberg to form Feinberg Sharma in December of 2017. Feinberg Sharma serves the Chicagoland area with an office in the Chicago Loop.

 

For more information about 2018 Chicago’s Notable Women Lawyers, visit http://www.chicagobusiness.com/custom-media/notable/women-lawyers/.

Maintenance and Cohabitation

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Maintenance and Cohabitation

By: Molshree “Molly” A. Sharma / October 11, 2017

 

 

What happens if a maintenance recipient does not marry but simply cohabits?

 

In the vast majority of cases, a divorcing party is entitled to maintenance or spousal support if they earned significantly less than their spouse or were primarily a home-maker during the marriage. Across the country, the law is quite consistent that if a maintenance recipient remarries they can no longer receive maintenance from their former spouse. However, the issue of a continuing obligation to pay support to a cohabiting ex spouse is more complex. The question, of course, is what happens if a maintenance recipient does not marry but simply cohabits? In many states, cohabitation is a terminating event for receipt of maintenance, but courts have been interpreting cohabitation much less literally and focusing instead on the financial aspects of the relationship to be a determining factor in whether to terminate support based on cohabitation.

 

The rationale for terminating a maintenance award when a resident, continuing conjugal cohabitation exists, is to avoid the supposed inequity created when the recipient spouse is essentially involved in a marriage-like relationship with all its benefits, but does not formalize the relationship through a legal marriage. At the same time, legislatures in the majority of states have made it clear that they did not intend to create a moral standard for people involved in less traditional relationships. Therefore, the courts consider several factors and the inquiry is an intense, fact-based one. Some of the most common factors are:

 

  • The length of the relationship;
  • The amount of time the parties spend together;
  • The nature of the activities they engage in;
  • The interrelationship of their personal affairs;
  • Whether the parties’ vacationed together; and
  • Whether the parties’ went on holidays together.

 

The case law previously focused on all these factors without outlining if more weight was being given to one or another. However, in the last decade there appears to be a discernible shift where courts are consistently less concerned about the length, frequency or intimate aspect of the new relationship, and more with the actual financial intertwinement of the recipient and new significant other. In fact, there are several instances of cases where the new couple spent holidays and vacations together, even several overnights a week. In some instances the parties, while actually living together, each paid their own expenses, and courts have found that the ex-spouse seeking termination based on cohabitation has failed to meet his burden as the need for financial support continued where the ex -spouse was not receiving financial benefits from a new relationship. Essentially, the need of the recipient spouse has become the biggest factor in determining whether the maintenance payments continue. In re Marriage of Herrin, 262 Ill.App.3d 573, 577

 

This shift in analysis can be evidenced from cases all over the country. In Illinois the case law indicates that even when a recipient ex-spouse is living with her significant other, or he is with her multiple nights a week, they vacation together, and in some instances have joint club membership, it is not a basis for termination unless there are economic factors such as equitable contribution to household expenses, loan of funds, purchases of significant items such as cars for one another and payment of bills on the others behalf, and an intended permanence to the relationship. Essentially, the courts are differentiating between a significant dating relationship and actual cohabitation in the sense of financial intertwinement and expectation of long-term commitment akin to a marital relationship.

 

Further, a seminal new Illinois Appellate Court ruling in May 2015 from the Second District adds to this analysis in a significant manner. The case of In re Marriage of Miller held that the key factor in determining cohabitation was economic intertwinement. In re Marriage of Miller, 2015 Il App (2d) 140530, 40 N.E.3d 206 (2015).

 

On the West Coast, which has notably had a long history of focusing on the economic aspect of the new relationship, the 2nd District California Appellate Court noted that an order for permanent alimony may be modified only when a change in the former husband’s ability to pay or the former wife’s need is shown. The court, in Double v Double (1967, 2d Dist) 248 Cal App 2d 650, 56 Cal Rptr 687, held that the former wife’s meretricious conduct, in living with a man to whom she was not married, was not sufficient to terminate the husband’s obligation to pay alimony.

 

On the East Coast while as evidenced by cases such as Gavet v. Gavet, there was a line of case law that focused on the economic aspect of the relationship, holding “while cohabitation constitutes changed circumstance that may justify modification of alimony, such modification is proper only if cohabitant supports or subsidizes alimony recipient under circumstances sufficient to entitle supporting spouse to relief,” Gayet v Gayet (1983) 92 NJ 149, 456 A2d 102. While the application of this holding was inconsistent before it is in fact much more consistent in the last decade.

 

There are instances where the court focusing on the financial need has not terminated maintenance but reduced it after determining the average monetary value of the benefit received by the new significant other. The New Hampshire Court in Bisiq v. Bisiq reduced maintenance to the recipient ex-wife because there was evidence her new paramour contributed to some expenses such as rent, utilities and travel, but his contribution was not significant enough to justify anything but a decrease in the amount. Bisiq v Bisiq (1983) 124 NH 372, 469 A2d 1348.

 

In Hawaii, a trial Court could not terminate the husband’s duty to pay spousal support since (although the statute terminated the payor’s duty to pay spousal support upon the recipient’s remarriage) the rule is not the same for cohabitation, inasmuch as in a marriage situation, where a recipient’s spouse assumes statutory responsibilities and obligations to recipient. This is not the same as cohabitation, and the recipient’s cohabitation is not relevant to the payor’s duty to pay spousal support unless the decree specifically authorizes or requires a reduction or termination upon cohabitation, and where (as cohabitation was not illegal) its alleged or perceived immorality was not relevant to the payor’s duty to pay spousal support. Amii v Amii (1985, Hawaii App) 695 P2d 1194

 

The main factors that seem to determine between a finding of one or the other is the existence of an intention of permanence akin to a level of commitment assumed in a marriage and the comingling of finances. Therefore, to avoid termination of maintenance it is imperative to advise clients to not co-mingle finances and avoid discussions leading to marriage, etc. Further, the consideration of whether to file a petition for termination of maintenance should focus more on financial intertwinement than other factors.

 

As a practitioner representing a client in a dissolution proceeding, it may be strategic to consider a lump sum buyout of maintenance depending on the circumstance of the client. For example, take a younger client, someone who is actively dating or has already embarked on a serious relationship. This client may be an excellent candidate for a buyout of maintenance so that they are free to move on with their lives without economic hardship. It may even be attractive to the payor client to agree to a buyout as it provides certainty (no reviews of maintenance), and completely resolves the financial support obligation to the spouse. I have also negotiated agreements where maintenance continues for a period of time even after remarriage or cohabitation so as to incentivize the recipient spouse to cohabitate or remarry. It is also useful to take the advice of an accountant when negotiating these agreements because maintenance is tax deductible to the payor and includable in the payee’s income for tax purposes, but a buyout of maintenance is considered to be an asset division and therefore not deductible to the payor nor included as the payee’s income. It is indeed still a developing body of law, but per best practice, it is essential for divorce practitioners to ensure their clients are fully aware of the repercussions of how they develop a new relationship, and conversely, when it is an appropriate time to seek relief and termination of support obligations.

 

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Inter-country Child Abduction – Indian Legal Response

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Inter-country Child Abduction - Indian Legal Response

By: Molshree “Molly” A. Sharma / January 20, 2017

 

 

As the world shrinks and people travel all over the world to work and live so do they establish families and roots where they go. International marriages are becoming increasingly common as immigration and vast diasporas’ becomes a reality of the world. As a result, the development of a body of private international family law has been crucial to resolving the inevitable issues that arise. A significant issue is that of child custody where parents may not only be of different nationalities but also may simply live or be present in different countries for what become crucial periods of time. Before, the issue of custody and best interest of the child can even be addressed the first matter of inquiry is which country can rightfully adjudicate the custody matter. To avoid, competing jurisdictions and purposeful wrongful removal of children by a parent attempting to divest the other parent of any custody rights, the Hague Convention on the Civil Aspects of International Child Abduction serves as the comprehensive body of law that first establishes which country has the right to adjudicate custody which is crucial as stated above, to avoid, multiple jurisdictional fights, and entanglement of politics on what become emotional issues of nationhood, cultural standards for children and issues surrounding parental kidnapping. There has been a strong push by practitioners for India to sign the Convention. To be a part of the global community, the case is made, that India must be seen as a place where standard international Conventions especially as they relate to child custody will be honoured. In fact the Indian Law Commission in 2009 completed its report authored in part by Justice Lakshmanan, concluded that India must accede to the Convention and sign it rather than become a haven for parental kidnapping. This is however controversial for a number of reasons where realities of spousal abuse, fraudulent marriages and lack of ability to litigate are cited. Further, so far, the judiciary in India has been extremely quick to adjudicate custody disputes even when the child has not resided in India for any substantial period or arguably has been “wrongfully removed” per standards of the Convention. The chapter will explore the case law generated specifically in the Indian case law and also changes in it, while at the same time explore what reasons Court’s have applied to resolve these issues.

 

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Affidavits of Support: Another Option for Divorcing Immigrant Spouses

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Affidavits of Support: Another Option for Divorcing Immigrant Spouses

By: Molshree “Molly” A. Sharma / April 2015

 

 

In addition to seeking spousal maintenance, divorcing immigrants who moved to the United States to get married might have another, and perhaps better, way to seek support - suing to enforce the affidavit of support signed by their sponsoring spouses.

 

In Illinois, spousal maintenance is a complicated issue with a vast body of interpretative case law. As a result of the inconsistent outcomes from the circuit courts, the Illinois General Assembly recently passed statutory maintenance guidelines, which judges can only deviate from if there is a strong justification for doing so.

 

But in addition to traditional maintenance, another option might be available for immigrants who move to the United States for the specific purpose of getting married. Sponsors of these immigrants must sign an affidavit of support, agreeing to support them at an annual rate of not less than 125 percent of the federal poverty line.

 

As courts are beginning to enforce these affidavits in concert with divorce proceedings, family law practitioners need to be aware of their impact. This article will first take a brief look at Illinois' new maintenance guidelines, then explore this additional support option for immigrant spouses.

 

Illinois' maintenance guidelines
Illinois' new statutory maintenance guidelines took effect on January 1, 2015. (For more about the guidelines, see Brian A. Schroeder, The New Illinois Spousal Maintenance Law: Retroactive or Prospective?, III. B.J. (Jan. 2015).)

 

Under the guidelines, which apply to couples with a combined annual gross household income under $250,000, the court must first determine whether it is appropriate for either party to receive maintenance. For example, if both parties have a comparable income and are well educated, young, and healthy, the court may decide maintenance is not necessary.

 

If, however, the court deems it a "maintenance case," the guidelines provide a formula for determining the amount and duration of the maintenance award. Under the formula, the payee receives the difference between 30 percent of the payor's income and 20 percent of the payee's income. Maintenance may not exceed 40 percent of the sum of the parties' combined gross income and the payee's gross income.

 

The duration of support is calculated by multiplying the number of years of marriage by the appropriate guideline factor. Specifically, the factor is .2 for marriages of 0-5 years, .4 for marriages of 5-10 years, .6 for marriages of 10-15 years, .8 for marriages of 15-20 years, and for marriages of 20 years or longer, maintenance may be permanent.

 

If the parties' combined annual gross household income is over $250,000, the court considers the length of the marriage, the needs of the recipient party, the earning capacity of each party, the duration of the marriage, and other factors.*

 

The problem for immigrant spouses
Under both the new maintenance guidelines and pre-guidelines case law, the longer the marriage, the higher the likelihood of a maintenance award. The length of the marriage is a key factor in determining both the amount and duration of maintenance, and a short marriage generally results in minimal maintenance. For example, a woman married for two years could receive little or no maintenance if she is young, healthy, and well educated.

 

For an immigrant marriage, this has serious consequences. A young woman moving from overseas may not know anyone in the U.S. Her husband is likely sponsoring her immigration application, and she might not be legally permitted to work (depending on her visa) or might need to retrain and complete credentials that are more acceptable in the U.S., requiring her to make the necessary contacts in a foreign land. Women who move to join their husbands already living here often find themselves totally beholden to their spouses financially.

 

Moreover, due to cultural pressures, these women may be reluctant to return to their countries of origin. Young women in particular may be subject to abuse and isolated without access to the resources they need. While the same could apply to immigrant men, statistics indicate that the majority of people affected are young women.

 

Illinois' new maintenance guidelines provide little relief for an immigrant spouse whose marriage doesn't last long, because the duration of the maintenance is directly related to the length of the marriage.

 

Enforcing an affidavit of support
Importantly, in addition to pursuing traditional maintenance awards, immigrant spouses can also seek to enforce their sponsoring spouse's affidavit of support under contract principles. Pursuant to the Immigration Nationality Act ("INA"), the affidavit of support is a legally enforceable contract that the sponsored alien can sue to enforce in any state or federal court."

 

By filing an affidavit of support, a sponsor agrees to support the sponsored immigrant at an annual rate of not less than 125 percent of the federal poverty fine. The support must continue until a triggering termination event occurs - e.g., the sponsored immigrant becomes a naturalized citizen, completes 40 qualifying quarters (approximately 10 years) of work, dies, or becomes capable of providing for himself or herself. Divorce, however, is not a terminating event.

 

Since the INA explicitly grants subject matter jurisdiction over affidavit of support enforcement actions to any court, claims are often raised in divorce proceedings. One of the seminal cases in this area is Naik v. Naik, decided by a New Jersey appellate court.

 

The case involved parties who were married in India. After the marriage, the husband, Sumeru, first returned to the U.S. and then sponsored the immigration application of his wife, Urvi. The parties had contact solely via telephone for 15 months and had only met in person briefly before their wedding.

 

When Urvi came to the U.S., she discovered that the parties were completely incompatible, and the marriage broke down shortly thereafter. In fact, the Naiks contend that the marriage was never consummated, and each alleged severe mental cruelty against the other.

 

The New Jersey trial court entered a dual judgment of divorce and denied Urvi any maintenance. Specifically, after hearing testimony, the trial court contended that maintenance was unwarranted based upon "the very short duration of the marriage; the young ages of the parties; the fact that no children were born of the marriage, and that both parties are in good physical and emotional health."

 

The judge found the wife to be a well-educated person, who had a diploma in mechanical engineering and was fluent in Hindi and Gujarati and practically fluent in English. The marriage did not keep the wife from the job market, and she demonstrated no plans to return to school or to rehabilitate herself in any way.

 

Urvi successfully appealed the trial court's judgment and (remarkably) argued the appeal pro se. Urvi contended on appeal that Sumeru was bound by the affidavit of support that he filed when petitioning to sponsor Urvi's permanent residence, or green card, application. The appellate court agreed and, in determining how much support Urvi was entitled to, wrote as follows:

 

the sponsor is not necessarily required to pay the sponsored immigrant 125 percent of the Federal Poverty Guidelines.... Rather, considering the sponsored immigrant's own income, assets and other sources of support, the sponsor must pay any deficiency in order to meet this minimum level or floor. In short, the sponsored immigrant is expected to engage in gainful employment, commensurate with his or her education, skills, training and ability to work in accordance with the common law duty to mitigate damages. When the sponsor and sponsored immigrant are married, alimony, child support (if any) and equitable distribution of income-producing assets must be included in the sponsored immigrant's available support. Therefore, although (the Affidavit of Support] is an independent obligation, it is impacted by other monetary obligations set by the court in a matrimonial action.

 

Therefore, after setting spousal and child support and equitable distribution, the court should only consider (an Affidavit of Support] if the sponsored immigrant's sources of support fall below 125 percent of the Federal Poverty Guidelines....

 

In that case the sponsor is required to pay the deficiency only. If the sponsored immigrant's sources of support exceed this level, then no [additional) support is mandated by the INA. Moreover, the duration of standard alimony and (support pursuant to an Affidavit of Support] may differ. The [divorce court] sets the amount and duration of spousal support pursuant to N.J.S.A. 2A:34-23b and its interpreting case law. The obligation to pay...support (pursuant to an Affidavit of Support] continues until one of the statutory terminating events occurs....

 

Illinois precedent
A 2011 Rule 23 opinion from the Illinois Appellate Court, Second District, arguably supports the notion that an affidavit of support is relevant to awarding maintenance.in Amin, the trial court awarded an immigrant wife 18 months of maintenance, and she was allowed to seek further maintenance upon filing a petition for review within the 18-month period.

 

Note that the maintenance lasted roughly as long as the marriage itself (it began in January 2006 and the parties separated in September 2007). This could be construed as a nod to the extenuating circumstances of an immigrant spouse, who leaves a home thousands of miles away to start afresh in a new country.

 

On appeal to the second district, the immigrant spouse argued that the trial court failed to properly consider the affidavit of support that her husband had completed when applying for her green card. Ultimately, the second district held there was no abuse of discretion since the trial court did consider the affidavit of support and awarded $1,200 per month in maintenance when 125 percent of the federal poverty guidelines was only $1,128 per month.

 

The court stated that "[t]he record clearly reflects that the trial court considered the Affidavit of Support, in addition to the statutory factors and the applicable case law in discussing and ruling on the issue of maintenance."10 While the court did not elaborate on the mechanics of how the trial court should consider an affidavit of support, it nonetheless supports the proposition that consideration is proper.

 

Conclusion
Despite the new Illinois maintenance guidelines and the other statutory factors, the affidavit of support should bind the sponsor. The amount of support awarded should not be less than 125 percent of the poverty guidelines, and the duration of support can be up to 10 years.

 

Ironically, the same immigration sponsorship system that has held so many women financially hostage might now give them a way to leave a marriage by choice. Interestingly, these cases have not only been brought by immigrant women but, in some instances, argued - in appellate courts, no less - pro se by immigrant women themselves.

 

The challenge for practitioners is how to counsel both clients who intend to marry and sponsor an immigrant and those who plan to immigrate and be sponsored. A prenuptial agreement might be the best way to define parties' obligations. In the meantime, matrimonial lawyers who serve immigrant clients should monitor the developing case law.

 

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Reprinted with permission of the Illinois Bar Journal, Vol. 103 # 4, April 2015. Copyright by the Illinois State Bar Association. isba.org

Family Law Support Awards for Adult Disabled Children in Illinois

News + Insights

Family Law Support Awards for Adult Disabled Children in Illinois

By: Molshree "Molly" Sharma / December 2012

 

 

As social-service resources grow more scarce, parents will increasingly be called on to support disabled children past the age of majority. This article looks at the factors that affect support awards under 750 ILCS 5/513 and discusses national trends.

 

Parental support for disabled children past majority is a moral duty, but is it a legal one? Many states have established divorce statutes that obligate parents with the means to do so to provide for their disabled children well past the age of majority.

 

Yet this has always been an issue of split opinion in the United States. The opposition reasons that society is responsible for supporting the adult disabled members of our population instead.

 

This article looks at the statutory factors Illinois courts consider when deciding whether to award support to adult disabled children and reviews selected decisions from other states.

 

Supporting disabled adults: low marks for Illinois
Indisputably, the weak economy is hurting public programs that serve the disabled adult population. While the need for financial support for disabled adults is increasing, funds are less available. For example, in 1985 2.2 percent of American adults ages 25-64 received disability insurance through the Social Security Administration, a percentage that grew to 4.1 percent in 2005 and is predicted to continue to grow with no foreseeable increase in funding. This could result in strict screening for SSI applicants that could deny much-needed support to disabled adults.

 

In Illinois the crisis is especially severe. Illinois has historically received low marks for how it cares for disabled individuals. Within the last five years, the National Mental Health Association (NAMI) has ranked Illinois 51st in the United States3 and United Cerebral Palsy (UCP) has placed Illinois 48th in the country in serving those with developmental disabilities.4 As for housing adults with developmental disabilities, Illinois ranks last nationally in the availability of residential settings with six persons or fewer.

 

This means Illinois families must rely even more on personal resources for expensive private services, while more and more Illinoisans are unemployed (state employment rates are in the bottom half nationally).

 

Most states require parental support
With no foreseeable change likely in the quality or availability of public support services for disabled adults in Illinois, how will existing disability and divorce law be applied to meet the needs of this aging population? As litigation in this area increases, what test will the courts apply to achieve consistency?

 

Nationally, on the question of parental support for post-majority age children, states remain split along public policy lines. A handful of states do not mandate that parents support their adult disabled children as part of a dissolution agreement or otherwise. In New York, for example, courts have consistently upheld that the financial burden for adults with disabilities belongs to the state.

 

However, most states have followed the common law that developed in accordance with the Poor Law Act statutes that were generally in place at the end of the 19th century. These statutes allowed for the support of disabled children with special needs, except when parents were unable to provide any such support.8 Divorce statutes in the majority of states adopted this perspective in favor of parental responsibility.

 

Illinois gives courts equitable power to order support
In Illinois, the common law rule is that parents are not obligated to support their adult children.9 However, The Illinois Marriage and Dissolution of Marriage Act at 750 ILCS 5/513 gives the court powers of equity to provide support past majority in cases of need due to a child's disability or post-secondary education.

 

According to section 513(a)(1), "When the child is mentally or physically disabled and not otherwise emancipated, an application for support may be made before or after the child has attained majority."10 Although not specified in the statute, Illinois case law consistently supports the majority view that the disability must begin before the child reaches age 18.

 

A child's disability must be specified in a dissolution order and accompanied by a provision allowing for modification after the child reaches majority. Illinois courts then consider the factors identified in the statute to determine an appropriate amount for continuing support. Section 513(b) provides as follows:

 

In making awards under paragraph (1) or (2) of subsection (a), or pursuant to a petition or motion to decrease, modify, or terminate any such award, the court shall consider all relevant factors that appear reasonable and necessary, including:

 

  • (1) The financial resources of both parents.
  • (2) The standard of living the child would have enjoyed had the marriage not been dissolved.
  • (3) The financial resources of the child.
  • (4) The child's academic performance.12

 

Parents are not liable if they can prove they cannot support the child.13 Note, however, that Illinois courts have ruled that third-party income can be considered as a financial resource when calculating child support.14

 

The effect of a disabled child's income
Although the financial resources of parents are central to calculating post-majority support for adult disabled children, the financial resources of the child are also a factor. Because adults with disabilities are often unable to work, their financial resources are usually minimal and do not figure as prominently in support calculations as do the financial resources of the parents. But they are part of the calculus.

 

There is no definitive rule in Illinois that dictates how child support will be determined for a disabled adult child. Therefore, courts have discretion to apply the child support guidelines outlined in section 505 of the Illinois Marriage and Dissolution of Marriage Act or, alternatively, to apply a needs-based analysis to individual cases.15 There is no indication that Illinois would buck the national trend in favor of awarding support to disabled adult children.

 

Also, courts that follow that trend would not allow supplemental benefits from the government to offset standard support calculations. Additional benefits, such as Social Security and Medicaid, would still be awarded independently of judicially determined post-majority parental support.

 

What does "emancipation" mean?
Although the meaning of section 513(a)(1) appears transparent, two factors inherent in the statute, emancipation and employment, remain open to inconsistent interpretation. In Illinois, the age of emancipation is 18. Legal emancipation occurs when one is not only permitted to live apart from parents but has the intent to do so.16 A look at rulings in other states is instructive.

 

The intent to be self-sufficient is typically manifested by marrying, moving out, and taking employment, among other things. Emancipation cannot be presumed, but must be established by evidence.17 As long as a child is still under the care, custody, and control of his parents he or she is not emancipated.18

 

Courts look to the law to determine the criteria for emancipation, and they look to the facts to determine if it has taken place.19 For example, adult children who reach the legal age of majority and live away from home are not necessarily emancipated. If a parent enables independent living by providing a high level of financial support, there is no emancipation.

 

Presumed emancipation is particularly unsuited to cases involving disabled children. The legal age of majority is an artificial benchmark for most.21 Disabled children who reach majority do not suddenly become self-sufficient. Some may be legally able to marry or live away from home but still require substantial parental support.

 

Disabled-but-employable = ineligible for support
Emancipation is an implied element of 513(a)(1) in the same way that employability is also inferred by the wording of the statute. Case law suggests that, in Illinois, the term "disability" is most frequently interpreted to mean "the inability to pursue an occupation or perform services for wages because of physical or mental impairment."23 In addition to the ability to work, many courts in other states also consider whether employment is available to a disabled person at a supporting wage.

 

Although courts differ from state to state concerning relevant and convincing evidence as proof of (un) employability, the majority of states apply a reasonableness standard25 and place the burden of proof on the person claiming the disability.26 In Illinois, courts have ruled accordingly. Without proof that the disabled adult child is incapable of or ineligible for employment, a court will not order parental support.27 In the absence of clear evidence, such as expert testimony regarding diagnosis or work experience, courts will abuse their judicial discretion if they approve an application for support.

 

Constitutional challenges
Illinois will struggle with the same issues related to post-majority support for adult disabled children that challenge the nation as a whole. Alternative approaches bypassing dissolution statutes altogether, like those in Florida that encourage disabled adults to file individually for support,29 raise problems of their own. Such approaches create an extra procedural complication for disabled adults and delay much-needed support.30 Additionally, requiring 10 million disabled adults across the country to sue their parents to receive support is not a reasonable solution.31

 

Furthermore, statutes such as 513 continue to face constitutional challenges in various states. If a married parent has no legal obligation to support a disabled adult child, can a divorced parent constitutionally be ordered to provide support?32 In the Pennsylvania case Curtis v. Kline, post-majority support was ruled unconstitutional because it violated the Equal Protection Clause33 by treating similarly situated children unequally.34 The distinction between children of divorced parents and children of married parents was found to be inequitable.35

 

However, South Carolina's law withstood constitutional challenge when a court found no equal protection violation because the statute treated divorced parents like all other parents.

 

In 1978, the Illinois Supreme Court reversed the judgment of a trial court that declared section 513 unconstitutional.37 The supreme court said the imposition of a support obligation on divorced parents, such as the one created by section 513, is constitutional because it is "reasonably related to a legitimate legislative purpose."

 

However, a recent decision illustrates that the constitutionality issue continues to concern at least one member of the Illinois Supreme Court. In Clark v. Children's Memorial Hospital, Justice Freeman wrote in dissent that "if divorced parents may be required to provide support which married parents have no obligation to provide, this presents serious, potential constitutional questions concerning both equal protection and due process."

 

Regardless of this larger legal issue, Justice Freeman's dissent includes the following observation about the disabled child in question: "Timothy will never become emancipated; he will never be able to care for himself...It is beyond question that Timothy's condition will not improve once he achieves the age of majority."40 This gives hope to those who think section 513's minority/majority age analysis overlooks the fact that nothing changes in a disabled condition at the age of majority.41 Supporters of this view feel that "[t]he arbitrary age chosen for the age of majority should not override...policy" and that "inconsistency and inequity" will follow.

 

Molshree Sharma of the Chicago firm Feinberg Sharma is experienced at negotiating the impact of special needs on all areas of family law.

 

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Reprinted with permission of the Illinois Bar Journal, Vol. 100 # 12, December 2012. Copyright by the Illinois State Bar Association. isba.org