May 06, 2012 ( Comments Off )
Judge Richard Posner’s recent opinion in Khan v. Fatima considers the obligations of a trial court judge under Fed.R.Civ.P. 52(a)(1) to make findings of fact in a Hague return proceeding. The Seventh Circuit reversed and remanded the return order in a case in which the district court judge held a one-day evidentiary hearing and ordered return without making findings concerning allegations that return would expose the child to a grave risk of harm. Judge William Bauer joined the opinion, but Judge David Hamilton dissented, noting the importance of making prompt decisions in cases under the Convention and suggesting that the more appropriate course was to “allow the Canadian courts to do their difficult job in dealing with this child and her family.”
This opinion wrestles with important procudural questions under the Convention – which are not addressed in either the Convention itself or in the implementing legislation in the United States — and the persistent problem of how courts should evaluate evidence of domestic violence in 13(b) cases. Judge Posner has previously addressed the domestic violence problem in Van de Sande v. Van de Sande, 431 F.3d 567 (2005), and he cited that opinion in the Khan decision. (This makes at least fouropinions for Judge Posner in Hague cases. See also Kijowska v. Haines, 463 F.3d 583 (2006) and Altamiranda Vale v. Avila, 538 F.3d 581 (2008).)
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The Conclusions and Recommendations adopted by the Hague Conference General Affairs Council at its meeting in April 2012 include two interesting new projects in connection with the Child Abduction and Child Protection Conventions. The Council authorized a new Working Group to develop a Guide to Good Practice on the interpretation and application of Article 13(b) of the Abduction Convention which allows a court to deny a return order where there is a showing that return would involve a grave risk of harm to the child.
In addition, the Council decided to establish an Experts Group to ”carry out further exploratory research on cross-border recognition and enforcement of agreements reached in the course of international child disputes, including those reached through mediation, taking into account the implementation and use of the 1996 Convention.” More specifically, the Council indicated that the work “shall comprise the identification of the nature and extent of thepractical and legal problems, including jurisdictional issues, and evaluation of the benefit of a new instrument, whether binding or non-binding, in this area.”
The Council also decided that the Permanent Bureau should circulate questionnaires to member countries on issues surrounding the status of children, including parentage determinations and international surrogacy, and on cross-border recognition and enforcement of civil protection orders.
The Council noted that the current Secretary General, Hans Van Loon, would reach retirement age in April 2013, and considered a procedure for succession. The retirements of both William Duncan and Hans Van Loon within the space of two years marks an enormous transition for the Conference!
April 19, 2012 ( Comments Off )
Controversy over several cases of Hindu women converting to Islam in order to marry Islamic men has reached the Pakistani Supreme Court, which resolved the cases by sequestering the women from their families and their husbands in a shelter for several weeks and then having a court registrar record their statements privately regarding their decisions to convert. See Salman Masood, Pakistani Judge Upholds 3 Women’s Conversions (NY Times April 18, 2012).
April 18, 2012 ( Comments Off )
An article in the Washington Post discusses the controversy in Morocco sparked by the suicide last month of a teenager who was raped and then married off to the man who had raped her. The current law allows a rapist to avoid prosecution if he marries the vicitm.The story reports that although the current law sets the legal age for marriage at 18, more than 35,000 exceptions are granted by judges every year. See Edward Cody, New Arab Order: In Morocco, Uproar Over Marriage Law Tests Islamist Government (April 15, 2012).
April 14, 2012 ( Comments Off )
I’m delighted to announce publication of my book, written for lawyers, judges, students and scholars working in the area of International Family Law. Ordering information is available here from ABA Publishing. If you have comments, suggestions, or other feedback, please feel free to get in touch with me: ann-estin@uiowa.edu.
April 13, 2012 ( Comments Off )
An inquiry has begun in Spain into allegations of infant snatching beginning during the Franco regime in the 1950s and continuing into the 1990s. Children were alleged to have been given or sold for adoption; at least 1500 claims have been made with some cases confirmed by DNA testing after children were grown. See Raphael Minder, “Spain Opens Court Inquiry on Newborn Abductions” (NY Times April 12, 2012).
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This piece by Alexei Barrionuevo, “Divorce, Oligarch Style” (NY Times, April 5, 2012) describes some of the international real estate and financial issues in dispute in the Swiss divorce of Dmitry Rybolovlev and Elena Rybolevleva.
April 09, 2012 ( Comments Off )
According to this piece by Sarah Lyall in the New York Times, recent comments by Justice Nicholas Wall, presdient of the Famly Division of England’s High Court, and Justice Matthew Thorpe of the Court of Appeal suggest that the time has come to change the law to allow no-fault divorce. See Tuna Again? In Fault-Finding England, It’s a Cause for Divorce (April 8, 2012). Here’s a link to coverage in the Daily Mail of Rae v. Rae, the case that prompted Justice Thorpe’s observations.
April 05, 2012 ( Comments Off )
With the accessions in March of Montenegro and Rwanda, the number of Contracting States to the Hague Intercountry Adoption Convention has reached a total of 87. For details, see the Hague Conference web site at www.hcch.net.
Information from the U.S. State Department indicates that the governments in Laos, Bhutan, Cambodia and Senegal have recently announced suspension of intercountry adoption until appropriate regulations and procedures can be implemented. Cambodia and Senegal have acceded to the Adoption Convention, but Laos and Bhutan have not. See the “News and Alerts” section of the State Department adoption web page at http://adoption.state.gov/country_information/alerts_notices.php.
April 04, 2012 ( Comments Off )
A story this winter in the New York Times, based on a Pew Research Center report, suggests that rates of interracial marriage have increased over the past thirty years and that Americans now view interracial marriages more positively. Using data from the U.S. Census Brueau, the Pew Center Report indicated that 15% of all new mariages in the United States in 2010 were between spouses of different races or ethnicities, more than double the rate in 1980. In 2010, 8.4% of all married couples were intermarried, compared with 3.2 % in 1980. See Susan Saulny, Interracial Marriage Seen Gaining Wide Acceptance (February 16, 2012). While the Pew study showed that rates of intermarriage were highest for Asian women, it also indicated that intermarriage rates for Asian-Americans had dropped between 2008 and 2010, as a larger pool of Asian immigrants had increased the numbers of potential Asian marriage partners. See Rachel L. Swarns, For Asian-American Couples, a Tie That Binds (March 30, 2012).
