BY: LORIE FOWLKE
(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)
Yes, I have handled international child custody cases. Recently, I handled a case that involved a mother who was from Brazil and a father who was from the United States. The parties had married in the US, had a child and then decided to move to Brazil. The father ended up filing for divorce in Brazil, which was followed by two years of litigation. The Brazilian court ultimately granted custody to the mother, but on the following day, the father kidnapped the child and fled to the United States through Paraguay. The mother did not know where the child or the father were for approximately four months. Finally, the mother located the father and child in Utah, where she filed a petition under the Hague Convention- an international court in the Netherlands under which the United States has treaties with other countries. One such treaty is the International Custody Treaty which is formalized by an act of congress called the ICARA. The mother filed the petition in state court and requested that the child be returned to her. Originally, the father’s family denied that the child was in their custody, but after the judge explained the consequences of perjury, the location of the child was revealed and deputies were dispatched to the residence. The judge gave the child back to the mother, and the father objected.
Under these circumstances, there are only two exceptions in which the court would not give the child back to the mother on a permanent basis: (1) there is a great risk of harm to the child, or (2) the child is well-settled. A child is usually considered well-settled if they have resided in the given location for over a year. There is also an exception for fundamental unfairness and violation of due process in the originating country, but that exception has never been successfully pursued. In this case, the father claimed that the child was under great risk of harm and a trial followed within one month. During that trial, the court found that the mother had abused the father, allowed abuse to occur and had potentially abused the child. Therefore, the mother lost the case. It was at that point that she sought the assistance of our firm. A lot of international custody cases end once having reached this point; however it became our job to determine the next steps to take. First, we filed a motion to attempt setting aside the finding of abuse, but the judge did not concede. Then, we directed the case into quite a technical legal dispute over which court had jurisdiction over the case; since the father had filed the petition to modify the Brazilian divorce in Utah, we objected that in fact Utah does not have jurisdiction to modify a foreign divorce decree. We filed the motion to register the foreign divorce decree in Utah so that Utah could enforce it. The important distinction here is the difference between having jurisdiction to enforce something and having jurisdiction to change something; it was our position that while Utah had jurisdiction to enforce the Brazilian divorce decree, but they did not have jurisdiction to change it. The judge agreed with us, dismissed the father’s petition to modify or change the divorce decree, and ordered temporary emergency jurisdiction under the finding of grave risk of harm.
Next, we used precedent and the legal theory of rehabilitating and helping to reestablish the connection between a child and an abusive parent rather than automatically terminating a parent’s rights to a child. At our request, the judge ordered an assessment of the mother for domestic violence and required her to abide by any recommendations the assessment made. The mother completed several years’ worth of therapy in just three or four months, and then we filed a motion to terminate Utah’s jurisdiction since the temporary emergency jurisdiction had ended.
After an oral argument and about a two week wait, the court ruled that the mother had complied with the assessment and that they had no reason to continue jurisdiction in Utah. Thus, they would terminate jurisdiction and allow the mother to return to Brazil. However, the father filed a motion for stay, which is a request for an injunction to keep the mother from leaving the state with the child until he could appeal. There was an oral argument on that as well, and the court denied the injunction, stating that the mother could pick up passports that Friday. On Thursday, however, the father filed a notice of appeal and filed a motion for an injunction with the Court of Appeals. The Court of Appeals denied the injunction as well, and the mother returned to Brazil with the child.
The whole process took approximately one year. The case was very interesting and legally complex, and we were very pleased with the outcome.
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