Gender Bias in Family Law

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Gender Bias in Family Law

By: Gia M. Conti and Cora Gennerman

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Gender bias can be implicit or explicit and occurs in our daily lives whether we are privy to it or not. We continue to see gender bias in our day-to-day lives, and family law is no exception.

The question becomes, how do we identify gender bias, and what can we do to mitigate or overcome it?

While this article is not exhaustive, it is intended to provide fellow family law attorneys and litigants with tips to navigate gender biases in divorce.

Gender bias occurs when we treat people differently for their perceived gender identity. A common gender bias is that women are more “nurturing” and men are naturally “better leaders” or “bread-winners.” These biases are dangerous in the sense that they sometimes lead peers, judges, neutrals, and attorneys to improperly believe that women should have greater parenting time than men, especially with younger children. Oftentimes, people, including judges, do not realize that they have a bias, much less realize that their biases often play a role in the decisions that they make. Even the law is inherently biased. The Tender Years doctrine was a presumption in common law that mothers should have custody of children in their “tender” years. However, despite the fact that the doctrine has been abolished, we continue to encounter this bias in cases.


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Published in Family Advocate, Volume 44, Number 3, Winter 2022. 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

How Courts Hear Children

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How Courts Hear Children

By: Molshree A. Sharma / December, 2021

The Hague Convention aims to expeditiously return children who have been unilaterally removed from their habitual residence by an abducting parent. But what happens when more mature children have their own preferences?

WHEN REBECCA RECEIVED A PHONE CALL FROM HER EX-HUSBAND DAVID,

she knew her life had changed forever. David informed her that he was not returning their 13-year-old son, Howard. Rebecca and David had married in Israel, where Howard had been born and raised. Since their divorce, David had moved to the Midwest while Rebecca raised Howard in Israel having received sole custody pursuant to an Israeli judgment. To facilitate David’s parenting time, Rebecca had agreed that Howard could spend a few weeks in the U.S. and a return ticket was purchased. Now, she was told, he was never returning. What could Rebecca do? Which court, in Israel or the U.S., had jurisdiction to determine where Howard should live? How long would the process take to determine it? Was Rebecca’s judgment awarding her sole custody enforceable in the U.S? What weight would Howard’s wishes have in the court’s eyes?


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Molshree “Molly” Sharma Named to Crain’s Chicago’s 2020 Notable Women in Law

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Molshree "Molly" Sharma Named to Crain's Chicago's 2020 Notable Women in Law

By: Feinberg Sharma / Setpember 14, 2020

 

 

Congratulations to Molshree Sharma, of Feinberg Sharma, who was chosen for the 2020 Notable Women in Law list by Crain’s Chicago Business. It was a competitive field, with over 200 nominations received.

 

For more information about Crain's Chicago's 2020 Notable Women in Law, visit https://www.chicagobusiness.com/awards/crains-2020-notable-women-law.

Gia M. Conti joins FS as newest partner

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Gia M. Conti joins FS as newest partner

By: Feinberg Sharma / June 1, 2020

 


 

Feinberg Sharma is pleased to announce the addition of Gia Conti as our newest partner. Her focus began in general civil litigation and has transitioned over the years to the complexities of high net worth asset divisions, business valuations, maintenance, as well as the intricacies of parental decision making (custodial issues) and parenting time disputes.

 

Gia Conti’s edge comes from her unparalleled understanding of the recently overhauled Illinois domestic relations laws. Her strong litigation skills give her an advantage over other practitioners, especially those in family law. She has successfully tried and settled issues in multi-million dollar estates as well as those holding top management positions. She is comfortable representing those in the “C” suite or their spouses. Gia has a robust record of success in domestic and international child custody issues. Gia has noteworthy expertise in maintenance disputes, valuation work and income imputation.

 

Although she is a skilled litigator, Gia believes in the value of resolution before trial. She is a certified mediator who wraps her dispute resolution skillfulness into her panoply of solution-oriented techniques.

 

Gia’s analytical skills and creativity allow her to think outside the box, providing clients with the tools necessary to settle the toughest issues collaboratively—or, alternatively, to strategically litigate the most complex estates. She takes pride in working closely with her clients. She continues to be recognized as an impressive advocate by opposing counsel. Gia’s success stems largely from her steadfast devotion to her clients and their cause.

 

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Joy M. Feinberg Named To The Top 100 USA Family Law Trial Lawyers

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Joy M. Feinberg Named To The Top 100 USA Family Law Trial Lawyers

By: Feinberg Sharma / October 16, 2019

 

 

Feinberg Sharma (FS) is pleased to announce that partner Joy M. Feinberg has been elected as a Diplomat of the American College of Family Trial Lawyers (ACFTL). The ACFTL is a select group of 100 of the best family law trial lawyers in the country. Fellowship is extended by invitation only to those who have mastered the art of advocacy and whose careers exemplify the highest standards of ethical conduct, professionalism, civility and collegiately. Excellence in family law trial practice is a prerequisite for fellowship. Admission is limited to those family law trial lawyers who are regarded as the best in their state.

 

“I am honored to receive this prestigious selection from ACFTL,” said Joy M. Feinberg. “I have focused my career on providing exemplary client service with integrity and professionalism as well as delivering crucial continuing education to family law colleagues. I am deeply grateful and humbled to be recognized for my commitment to clients and professional achievements. ”

 

Feinberg is not the only FS partner to be honored this year. Molshree A. Sharma has been invited to speak at the Chicago Humanities Festival in 2019. Her talk will focus on one area of her expertise – International Child Abduction. The Chicago Humanities Festival has been in existence for almost 30 years. It is very rare for a divorce lawyer to have the honor of speaking at the festival.

 

Feinberg Sharma is a renowned divorce and family law firm serving Chicago, its suburbs and surrounding counties. Our attorneys specialize in resolving complex family law issues by trial or alternative dispute resolution methods such as mediation and collaborative law.

 

So You’re Getting Divorced: What to Expect and How to Proceed

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So You’re Getting Divorced: What to Expect and How to Proceed

By: Jennifer S. Tier / September 16, 2019

 

 

Can I stop the divorce?
If you are not the spouse who filed for divorce, you probably cannot stop the proceeding. If your spouse wants to get a divorce, he or she has a right to do so—no state will force a spouse to remain married.

 

If you are the spouse who filed for divorce, you can usually stop the process by withdrawing your petition for a divorce as long as your spouse has not filed his or her own petition for divorce.

 

Can one lawyer represent both of us?
No. Under every state’s rules of professional conduct, divorce lawyers cannot represent both parties in a divorce. A lawyer is your advocate, and he or she has a duty to represent you and your interests only. The ethics rules for lawyers prohibit them from representing clients with conflicting interests—which are especially common between divorcing spouses. Parties to a divorce have opposite interests (even if both of you want to resolve the case amicably). Divorcing spouses cannot “waive” the conflict of interests and engage the same lawyer. It is also important that your lawyer be your champion, and anything you say must remain confidential. This can only be true when you talk to your attorney alone and not with your spouse present.

 

How long will a divorce take?
How long a divorce takes depends on many different factors and legal requirements that vary by state. For example, states may have a residency requirement (the length of time one or both parties must be a resident of the state). Some states also have a separation requirement (an amount of time you and your spouse must be separated in order to qualify for a divorce) and/or waiting periods (a fixed amount of time between filing for divorce and scheduling a hearing or entering a final judgment). The amount of time couples must be separated prior to finalization of a divorce ranges from sixty days to five years.

 

The amount of time your divorce takes will also depend on your location (that is, how crowded the court system is); the complexity of the issues involved; whether or not you have children; and how complicated your assets are. Generally, however, if you and your spouse are able to reach agreements, your divorce will be completed quickly.

 

If you are in a state where you can contest the grounds, or reasons, for a divorce, your divorce process may take longer. Depending on the state, your spouse can either file for a no-fault divorce or on fault-based grounds. Other issues that delay resolution are marital property division and parenting issues.

 

Should I move out of the house?
You should move out immediately if your physical, mental, or emotional well-being is seriously endangered and you are unable to have your spouse removed from the house (that is, by obtaining a court order for exclusive possession of the house or an order of protection). However, if you have children and you move out before you have a visitation schedule in place, you will be jeopardizing your ability to see them regularly. Once you move out, moving back in will typically be harder. Prior to leaving, you should consider inventorying all the property and removing your personal property. An inventory can be a video on your cell phone. If you want to move out, it is important to have specific court orders detailing your rights, who pays household expenses, and a visitation schedule.

 

Can I read my spouse’s mail or email or tape our telephone conversations?
This is not recommended, and it is illegal in most situations. No individual is allowed to open anyone else’s mail—being married does not provide an exception to this law. Exceptions arise only when the mail is addressed jointly to you and your spouse or one party has a power of attorney or similar legal power. Similarly, hacking into your spouse’s email account is a violation of the Federal Wiretap Act. State rules vary regarding the taping of telephone conversations, and you should check to make sure you are not violating your state’s rules. However, under federal law, unless you obtain permission, you cannot tape conversations between you and your spouse or your spouse and others.

 

Can I change the locks on the house?
You may change the locks, but you may not be able to prevent your spouse from entering the house. Even if you change the locks, your spouse will still have the right to enter the house unless you have “exclusive possession” of the house—that is, unless you have a court order excluding your spouse from the house. The other way to prevent your spouse from entering the house is by obtaining an order of protection if your physical, mental, or emotional well-being is seriously endangered.

 

What about my prenup?
If your prenuptial agreement complies with the laws of your state, it should be validated by the court and the terms of the prenuptial agreement incorporated into your final divorce decree. A valid prenuptial agreement will typically comply with the following rules.

 

  • It must be a written agreement (not oral).
  • It must be signed by both parties prior to the wedding.
  • It must be signed voluntarily without pressure from one side. 4. Both parties must be given enough time to review and understand the agreement.
  • Each party must make a full and truthful disclosure of income, assets, and liabilities.
  • It must not be unconscionable (grossly unfair such that one side suffers severe financial hardship).
  • Each party should be represented by his or her own attorney, as the parties must each defend their own interests. As discussed in more detail above, one attorney can never represent both parties.

 

But please exercise caution: the rules on prenups vary greatly state by state.

 

Can I change the judge?
Every state court system handles requests to change judges differently. Many states will allow a change of judge so long as the request is made early in the proceeding. Once the proceedings have begun and the judge has heard issues relating to your specific case, it becomes much more difficult to change the judge. If the request is not made early in the proceedings, you will need to give a clear reason why the judge would not be able to give you a fair trial. Some of the most common reasons are:

  • The judge has a financial interest in your case;
  • The judge is related to the one of the parties; or
  • The judge represented one of the parties previously when practicing as a lawyer.

 

If one of these reasons applies, the judge can also voluntarily remove him- or herself from the case in a process known as “recusal.”

 

What should I wear to court?
You should look professional. It is important you make a good impression and put your best foot forward. You are not required to wear a suit, but you should treat a court appear- ance as you would a job interview. You will be treated more seriously and with more respect if you are dressed appropri- ately for the environment.

 

What if I don’t show up to court?
If you have a lawyer representing you, the lawyer will tell you when it is necessary for you to personally appear at court. If you are representing yourself, it is essential that you show up for all court dates. Appearing in court will ensure that you are not held in default for failing to appear—which would mean that you could automatically lose your case. You would not be able to participate in the proceedings, and orders could be entered without your consent or knowledge. If you are representing yourself, you will also be the only person advocating on your behalf. It is essential that the judge hear your side of the issues and arguments. Please note that if you choose to represent yourself, the court will usually hold you to the same standards as an attorney for the practice of law.

 

Will my spouse be required to return to work?
Whether spouses are required to work will depend on:

  • How long they have been unemployed;
  • Their educational background;
  • Their work history; and
  • Their job training.

 

If your spouse has been unemployed during your marriage and is unemployed when the divorce proceeding is filed, he or she will most likely not be required to work while the divorce case is pending. Generally, state laws preserve the financial status quo during a divorce proceeding. If your spouse is ultimately awarded “rehabilitative alimony” (also referred to as “limited” or “short-term” support), there is an expectation he or she will eventually work. The purpose of this type of alimony is to provide your spouse with enough support to enable a return to school or development of job skills or training that will result in a job and self-sufficiency. If your spouse is older and if you have a long-term marriage, your spouse may be past a point where return to work will be expected.

 

What happens to credit card debt in a divorce?
Responsibility for credit card debt will depend on which state you reside in, whether it is joint credit card debt, and if the debt was incurred before or after the divorce proceed- ing was filed. In some states, credit card debt incurred during the marriage is the joint responsibility of both parties so long as both parties are co-signers on the credit card. In other states, both spouses are responsible for all credit cards even if only one spouse is a signer. However, even if your spouse is responsible for your credit card debt in your divorce decree, credit card companies are not bound by your agreement. It is important that you take additional steps to protect yourself, as the credit card companies can still pursue you if your spouse fails to pay. Additional protections can include putting indemnification language into your decree or ensuring there will be sources of funds to pay off the credit card debt completely.

 

What about wedding gifts?
Wedding gifts are unique in that they are gifts (which normally are considered separate property belonging to the individual who received them), but, by their very name, wedding gifts are intended for both spouses. Most judges will take a commonsense approach to wedding gifts and divide them in what they consider to be a fair way. In determining how to award wedding gifts between spouses, the judge may consider who gave the gift (which spouse’s family or friend), whether the gift has sentimental value for one party (for example, a family heirloom), and the gift’s original value.

 

Can I make a spouse sign a joint tax return?
A court will not order an unwilling spouse to sign and file a joint tax return. If failing to file a joint tax return results in additional taxes or liabilities, the judge may require the spouse who refused to sign the joint return to be solely responsible for the additional taxes. This is more likely if the judge believes the refusal was unreasonable. However, if a spouse has doubts about the accuracy of the information contained on a joint tax return, that spouse has every right not to sign and to prepare his or her own tax return.

 

Should I hire a private detective?
A private detective can be useful in many different circumstances when getting divorced. A private detective may or may not be able to confirm your suspicions about your spouse’s behavior with a significant other. A private detective can provide you with actual evidence that can be used in court. A private detective, however, will not be able to prove how much money your spouse is spending. You will need to do this by looking through your spouse’s financial records and potentially hiring a financial expert to assist you. A private detective, however, may also help you find hidden assets or income. The detective will know what records to look for and how to access the information, including information related to off-shore bank accounts, and how to look for hidden income or employment.

 

Finally, a private detective can help provide crucial evidence in custody proceedings. For example, a private detective can help determine how attentive your spouse is to your children’s needs and safety while the children are in his or her care. Private detectives are usually very expensive, and you should speak with your attorney about whether hiring one is necessary or worth the time and effort.

 

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So You’re Getting Divorced: What to Expect and How to Proceed; GP Solo eReport (September 2019)
©2019 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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.

 

READ FULL ARTICLE

 

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/.