Appeal Court Says Judges Cannot Avoid Determinations of Grave Risk of Harm in Hague Convention Cases

GEO CASUALThe Ontario Court of Appeal recently reversed a Hague Convention order that a mother from England must return to England with her two children, failing which her British husband would have custody of their children. (Zafar v. Saiyid (2018) ONCA 352)

As is becoming typical in Hague cases, the mother and her two young children who had Canadian citizenship,travelled to Canada for a summer holiday, with the permission of her spouse, and the intention of returning to England by a prescribed date.

On August 23, the mother advised the children’s father that their marriage was over and that she would remain in Ontario with the children. He promptly filed a Hague Convention application seeking the return of the children.

At the court hearing the mother conceded that the children’s habitual residence was England, which is the primary question when a Hague application is brought. The law is very clear that children must be returned to their habitual residence where the question of their residence will be determined.

However, Article 13 (b) of the Hague Convention permits a removing parent to argue that the child should not be returned where the other parent poses a grave risk of physical or psychological harm to the child or the spouse. Ms. Saiyid alleged that her husband was “threatening, verbally abusive, financially controlling” and presented “intolerable behaviour towards the mother, smoke and drank”, which reflected an inability to create ” a safe environment free of danger for the children.”

The hearing judge ordered the mother to return the children to England by December 1, failing which the children’s father would have sole custody of the children. He said:

“In a Hague application, I am not to determine the best interests of the children, only jurisdiction. In any event, on affidavits I cannot determine who is telling the truth about Mr. Zafar’s conduct.”

On November 27 the mother obtained a stay of the judge’s order, however, shortly thereafter she voluntarily returned to England with the children and brought an application to the British court seeking orders that she may relocate to Canada with the children.

Nonetheless, she wished to continue with her appeal in Ontario on the basis that the judge’s alleged errors of law could be used against her in the new British proceeding.

The appeal court agreed that her appeal was not moot for the reason she identified and held that the hearing judge erred in stating that he could not determine whether the children were at grave risk of serious harm, delegating that issue to the English courts. The court held that the hearing judge ought to have made a decision based on the record; or considered whether it was appropriate to hear oral evidence from the parties. The hearing judge’s decision to explicitly decline to consider the matter was an error in law.

While the task is enormous, where conduct allegations are thrown back and forth haphazardly, it is a judge’s duty to sift the wheat from the chaff. Oral evidence, with cross-examination is often the best way of doing that. These cases are the most difficult, particularly when young children are involved, when the question becomes “which parent is most believable?”

Lawdiva aka Georgialee Lang

Kelly Rutherford Custody Case Rife With Misinformation

GEO#1Kelly Rutherford is an American actress who began her career in daytime soap operas, later moving to primetime network television in Melrose Place and Gossip Girls. However, she is much more famous today for her custody battle with ex-husband, Daniel Giersch.

Her court case has enraged media pundits who are slamming the family courts in California and New York, expressing outrage that Kelly Rutherford’s two American-born children were ordered to live in Europe with their father, an alleged breach of their constitutional rights. But if the television “experts” actually knew anything about custody law they would understand that it’s not the courts who are to blame, it’s Ms. Rutherford’s wrongheaded strategy.

A little background… Rutherford had a six-month first marriage and then married German businessman Daniel Giersch in August 2006. Their first child, Hermes Gustaf Daniel Giersch, was born in October 2006. Rutherford was two-months pregnant with their second child when she filed for divorce from Giersch on December 30, 2008

A custody battle immediately ensued with Mr. Giersch alleging his wife refused to tell him the expected birthdate of their daughter, Helena. After her birth she restricted his parenting time and also failed to register him as the father on her birth certificate. Rutherford either had bad legal advice, or more likely, ignored the advice she received. A sure way to sabotage a custody claim is to deny access and purposely decline to name the child’s father on the birth certificate.

But after seven months of legal wrangling in the California courts the couple agreed they would both live in New York City so Ms. Rutherford could continue with her work on Gossip Girls, an agreement that would expire in April 2010.

In 2012 the matter of final custody was adjudicated, resulting in an order that the two children live with their father in either Monaco or France. During the court proceedings, evidence was presented that showed that Ms. Rutherford contacted United States immigration resulting in Mr. Giersch’s expulsion from the United States. A wrongheaded strategy that clearly backfired on Ms. Rutherford. If her former husband had been permitted to remain in the United States it is unlikely she would have spent a million or more dollars fighting over custody and also avoided going personally bankrupt.

Trial evidence included reports that Ms. Rutherford’s work commitments, including twenty-hour work days, led to Mr. Giersch playing “Mr. Mom” in his wife’s absence. The judge also criticized Ms. Rutherford for misleading the court with respect to her work schedule and was unimpressed with her unwillingness to facilitate access. All good reasons to prefer Mr. Giersch as primary resident parent.

Ms. Rutherford went back to the California courts to change the custody order but the court ruled they no longer had jurisdiction. Neither of the parties lived there; Ms. Rutherford lived in New York while her ex-husband lived in Europe and neither of the children resided in California.

Happily for Ms. Rutherford, the children were with her for the summer of 2015.

Her lawyer then brought an application to the New York courts seeking an order that the children remain with her in New York. Unfortunately, the court declined jurisdiction on the basis the children were now habitually resident in Monaco, and only the Monaco court could make orders regarding the children.

In her latest strategic misstep, Ms. Rutherford refused to return the children to their father, causing the New York court to step in and order her and the children to appear in court where Mr. Giersch’s mother took custody of the children and returned them to her son.

It’s a familiar story: parents really have only one opportunity to obtain or retain custody or primary residence of their children. If they make mistakes, like Ms. Rutherford did, the chance of a change in residence is extremely remote. Her next best opportunity is when the children are able to speak for themselves, usually around the age of 13, but only if they want to live with their mother.

In the new world of shared parenting, mothers do not have a monopoly on child custody. That’s the past…this is the present…and the future.

Lawdiva aka Georgialee Lang

Parental Child Abduction Escalates World-Wide

GAL & PAL #2jpgIn the last decade, courts around the world have seen a proliferation of parental child abduction cases. Perhaps this can be accounted for by our increasingly global community, or is it a sign that families are increasingly disintegrating and some parents are willing to take draconian steps to ensure they get what they want… in abduction cases, it is the children, of course.

Today a case will be heard by the British Supreme Court involving an arranged marriage, four children, and a battle between a mother in England and her husband in Pakistan.

It began when a young woman entered into an arranged marriage with her cousin and moved to the United Kingdom. The couple had three children, all born in England.

Unfortunately, the marriage began to crack and eventually the father left his wife and children in England and returned on his own to Pakistan.

Some time later, mother and the children arrived in Pakistan for a vacation, but upon her arrival, her extended family began to pressure her to reconcile with her husband. She agree to do so on the basis that her husband return to England to resume their marriage.

It appears she fell into her husband’s trap, because before she knew it, the children were enrolled in school in Pakistan and her husband had hidden their passports. During this time she gave birth to a fourth child.

She finally escaped the clutches of her husband and his family and returned to England, but without her children. She applied in a British court for without notice court orders that the children be returned to England, orders that were later affirmed when challenged by her spouse.

However, her husband appealed the orders to the Court of Appeal. The court upheld the order that her three eldest children be returned to the U.K. but were split on whether the youngest child, born in Pakistan, should be returned as well.

Lord Justice Patten opined that a child born in Pakistan could not be said to be a habitual resident of England and therefore he could not make an order that included the youngest child.

Lord Justice Thorpe disagreed stating that the child took his mother’s habitual residence at birth as “the defeat of abduction must be supported” and that this case fell “narrowly on the right side of an important boundary.”

Britain’s highest court must now decide whether an infant is presumed to acquire the habitual residence of his or her custodial parent, despite being born in a foreign jurisdiction.

Yet, this may not be the end of the case, for a court order to some parents is just a piece of paper they are quite willing to defy.

Lawdiva aka Georgialee Lang

United States Supreme Court Takes on International Custody Dispute

GAL & PAL #2jpgIt is not often that the United States Supreme Court intervenes in a custody case, but this month the Supremes heard arguments in the case of Chafin v. Chafin, an international custody dispute between parents Lynne and Jeffrey Chafin.

The Chafin’s married in Scotland in 2006 and had a daughter in 2007. Mr. Chafin was a member of the United States military, Army Sgt. First Class, and the family lived in Germany until he was deployed to Afghanistan. At that time, Ms. Chafin and her daughter moved back to Scotland. In 2009 Mr. Chafin was transferred to Alabama where his wife and child took up residence with him.

However, with his lengthy absence from family life, he and his wife encountered marriage difficulties and the couple separated in 2010. Ms. Chafin wished to return to Scotland with their daughter, a move that was opposed by her husband.

In the meantime, Ms. Chafin’s irregular legal status in the United States was such that she was deported back to Scotland paving the way for Mr. Chafin to retain custody of his daughter.

Ms. Chafin applied to the Alabama Supreme Court for an order that their child be returned to her in Scotland.

The issue before the Court was a determination of the child’s “habitual residence”, a key concept in the Hague Convention on International Child Abduction. The law provides that where there is a contest over where a child should live, the child’s best interests favours the child’s “habitual residence”.

She was successful in the lower court and within hours of the court ruling, the child was on a plane to Scotland. Mr. Chafin applied for a stay of the order, an order that would put a hold on the child’s return to Scotland pending an appeal, however, the stay was denied. As a result when the Court of Appeal heard the case they held that the issue was moot as the child was already gone and was now outside the jurisdiction of the American courts.

On December 5, 2012, the case was argued in the US Supreme Court. Some of the judicial comments at the hearing were encouraging to Mr. Chafin, particularly when Chief Justice John Roberts voiced his concern that a parent could “leave immediately” thus thwarting the appellate jurisdiction of the US Courts. Madam Justice Ginsberg, however, suggested that this jurisdictional struggle was exactly what the Hague Convention was meant to address, thus the significance of a child’s habitual residence.

A decision is expected in the next six months. By that time, the child will have been in Scotland for more than two years.

Lawdiva aka Georgialee Lang