Tearful mom pleads for return of abducted daughter


September 27, 2016

Source: timescolonist.com

Monday was Kaydance Etchells’ second birthday and her mother, Tasha Brown, had no idea where she was. Brown has not seen her daughter since May 7, the day before Brown’s estranged partner, Lauren Etchells, boarded a plane with Kaydance, travelling from Vancouver to London, England. Saanich police and international authorities are treating the case as a parental abduction.
tasha_brown

Saanich police, working with Interpol, have determined that Etchells, a dual Canadian and U.K. citizen, and Kaydance left England for France on May 22, but they have not been spotted since. It’s unclear where in Europe they might be as U.K. citizens can travel through Europe’s Schengen area without passport checks.

At a news conference at Saanich police headquarters, Brown made an emotional plea for Etchells to return to Canada with their daughter.

“Kaydance, I love you and I miss you and your love. Everyday I wonder where you are and I wonder if you are all right. I wonder if you’re walking more, if you’re talking more, if you’re laughing or crying. How much have you grown and what have you learned? If I had one birthday wish for you, Kaydance, it would be that you would be found and brought back to Canada,” Brown said. “Instead, her life is being hidden away, somewhere in the world.”

kaydance-lauren-and-tasha

Brown reported the suspected abduction on May 14 to Saanich police, the day after Etchells failed to bring Kaydance for her visitation. Brown went to Etchells’ parents house in Saanich and they said they couldn’t tell her where Kaydance was.

“I knew right then and there, by the look in her dad’s eyes and the shakiness in his voice, I knew she was gone,” Brown said.

Through the police investigation, Brown discovered that on May 8, Etchells, Kaydance, Etchells’ new partner, Marco van der Merwe, and their newborn child, Marcus, boarded WestJet Flight 22 from Vancouver to London Gatwick Airport.

“You can never begin to know the suffering of not knowing where your child is,” Brown said.

The same-sex couple married in August 2012 and, one year later, decided to have a child through the sperm donor process.

Kaydance was born Sept. 26, 2014, in Edmonton, where the couple were living at the time. An Alberta birth certificate originally listed both women as parents, but Brown said her name has been removed.

The couple separated in July 2015 and have been locked in a custody battle since.

Etchells, who gave birth to Kaydance, had full custody and Brown had visitation rights, but was fighting for joint custody.

Brown has had fears Etchells would leave the country with Kaydance since last year when she discovered Etchells bought one-way plane tickets for Qatar, where the couple previously lived. Brown hired a lawyer and, in August 2015, a provincial court order was issued stating that Etchells needed to surrender Kaydance’s U.K. passport and not apply for a Canadian passport or leave Vancouver Island.

Despite the court order, Etchells obtained a Canadian passport for Kaydance.

On May 19, Saanich police requested a warrant for Etchells’ arrest and on June 8, a Canada-wide warrant was issued. Etchells faces one count of abduction by a parent, which carries a maximum sentence of 10 years in prison, and two counts of disobeying a court order.

Brown addressed Etchells directly during the news conference, saying: “Lauren, this is not how I envisioned our separation. And although Kaydance is only two, this will without a doubt be something that will impact her future. As good parents I am begging you to work with me to ensure Kaydance’s best interest is our No. 1 priority and that she is part of both her parents’ lives.”

Saanich police do not believe Kaydance is at risk of physical harm.

Saanich police spokesman acting Sgt. Jereme Leslie said Etchells has taken away Kaydance’s freedom. “Kaydance will be unable to grow up knowing her mom and her family.”

Leslie was questioned as to why an Amber alert was not issued about a missing child and why it took more than four months to report the abduction publicly. Leslie said police have investigative avenues to follow before they make information public. He said police were also cautious not to broadcast the details in case Etchells was in Qatar, where same-sex marriage is illegal.

Brown said van der Merwe, the man who accompanied Etchells on the flight to London, was a friend of Etchells’ who had agreed to be a sperm donor for their second child. He is a South African national living in Qatar. “To be betrayed in such a way just added to my misery,” Brown said.

Investigators have contacted van der Merwe, who did not carry on to continental Europe with Etchells and the two children. He is believed to be back in Qatar and Leslie said when contacted he was “less than co-operative.”

Saanich police are asking anyone with information on the whereabouts of Etchells or Kaydance to call 1-888-980-1919 or anonymously through CrimeStoppers at 1-800-222-TIPS (8477).

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‘Inter-parental’ child abduction may soon become an offence in India


July 29, 2016

Source: hindustantimes.com

Anita Singh (name changed), a non-resident Indian woman who forcibly brought her six-year-old daughter to India from the United Kingdom against the wishes of the father, was ordered by the Delhi high court last week to return with the child.

Parental-abduction-India

A UK court earlier directed Singh, who is involved in a marital dispute with her husband, to repatriate. Singh, however, ignored the order.

This was one of the few cases where an Indian court has held that removal of a child from the place of her habitual residence was against her best interest.

In the absence of a domestic law on “inter-parental child abduction” in India, very often children of such NRI’s who have grown up abroad become silent victims of their parents’ marital dispute when they are forcibly brought back by one of the parents.

But this is set to change.

Like 90 countries that are signatory to the 1983 Hague Convention on the Civil Aspects of International Parental Child Abduction, forcible removal of a child from a country where they are habitually residing to India may soon become an offence.

The Hague Convention seeks “to protect to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for the rights of access.”

India is not a signatory to the Hague Convention. A country has to have a domestic law in place before it can become a signatory.

The Union ministry of women and child development (WCD) has drafted the Civil Aspects of International Child Abduction Bill, 2016, that once approved will facilitate prompt return of any child under 16 who has been “wrongfully removed to or retained in other state which is not his/her habitual residence.”

“We have put the bill on the ministry’s website (www.wcd.nic.in) and invited suggestions. Once the process is over, the bill will be finalised and taken to the cabinet,” a ministry official said.

The draft bill was readied following a reference from the Punjab Haryana high court to the WCD ministry and the Law Commission of India to examine the issue. The Law Commission recommended that India should frame a domestic law and sign the Hague Convention in its 218th report.

“But nothing happened. Issues related to children welfare are not a priority for us. It’s about time now. The intention is not to punish parents but to rebuild the family,” Anil Malhotra, international family law practitioner who has argued a number of inter-parental child abduction cases, said.

“In a majority of the cases, such children who have adapted to the culture of the country they are residing become very miserable once they are uprooted from their and brought to India,” he added.

The bill, Malhotra says, will provide an enabling legislation to implement the provision of the Hague convention that provides an expeditious method for returning a child.

“Signing the convention will ensure enforcement of custody orders of foreign courts. Presently, a parent takes advantage of the absence of a domestic law and knows if he/she brings the child to India it will be difficult to enforce the custody order of a foreign court,” he said.

The draft law mandates setting up of a central authority, to be headed by a joint secretary level officer, where an aggrieved parent can approach for the return of a child. The authority would have the power to decide all such cases.

In the US and Europe, inter-parental child abduction is a serious offence where the accused parent can go to jail on charges of abduction. Closer home, Sri Lanka, which is a signatory to the Hague Convention, has framed its own rules that allow the court to decide if a child should be sent back to the country from where he was removed.

“As of now, in most of the matters decided by the Indian court, the criminal offence and its penalties are often not pressed by the aggrieved parent to enable a settlement in the matter in the best interest of the child,” Malhotra added.

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Parents of abducted kids seek justice from US President Barack Obama


April 20, 2016

Source: oneindia.com

Washington, Apr 20: Parents of abducted kids, including Indian-Americans, will converge in the US capital this week to meet lawmakers and hold a candle light vigil near the White House to seek justice for their children some of whom are allegedly taken to India following their kidnapping.
Obama-White-House
Parent-led groups ‘Bring Our Kids Home’ and ‘Coalition to Stop International Parental Child Abduction’ will reach out to lawmakers to advocate the US and foreign governments, including that of India, to address the growing issue of International Parental Child Abductions, a report said.
Each year over 1,000 cases of American children abducted to other nations are reported and many more go unreported. “India is the top non-Hague signatory destination of child abductions from the United States and top three overall from the US,” the report said yesterday.
Last year, the US State Department cited India as one of the 22 nations showing patterns of non-cooperation in resolution of child abduction cases originating from America. “This is the second year we will be participating in advocacy efforts along with other parent groups from all over the United States,” said Ravi Parmar, one of the parents whose kid has been abducted to India. “We want to impress upon our governments that parental child abduction is not a ‘child custody’ issue, and just because a parent wrongfully removes their children from the United States, it does not make it right,” he said. “India does not recognise parental child abduction as a crime, despite decades of evidence that show the detrimental impact on victimised children and left behind families, children rights groups, and legal experts urging India to do so,” he added.
The coalition will conduct a Congressional briefing for on April 20, urging legislative changes to address gaps in the US laws and enhancing Congressional oversight on key Federal agencies, including the US Justice Department for its failure to fully implement the International Parental Child Kidnapping Crime Act, which makes parental child abduction a federal felony.
Later in the evening, the parent-led coalition will hold a Candle Light Vigil at the White House, to urge Obama to intervene and seek cooperation from nations, including India, who have shown patterns of non-cooperation in return of abducted American children, the statement said. On April 22, Bring Our Kids Home will join other coalition partners on the 3rd annual Embassy Walk in Washington, DC for a peaceful march to protest the lack of concerted action by foreign governments where US children have been abducted to.
It will also meet with Indian embassy officials to discuss updates since their last meeting in November 2015 and make a humanitarian appeal to Prime Minister Narendra Modi, requesting urgent action to give left behind parents in the US access to their abducted children in India.

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The terrifying reality of international custody disputes


April 1, 2016

Source: globaltimes.cn

International divorce cases in which one member is Chinese involve even greater custody challenges than normal due to legal and cultural differences. 

Parental-Kidnapping 

It’s been 15 years, but Susan Blumberg-Kason still remembers vividly the sleepless nights after her now-ex-husband, Cai Jun, first threatened to take their infant son Jack back to China. 

Blumberg-Kason, an American, first met Cai in Hong Kong while both were attending graduate school. After a whirlwind courtship, the two married in Cai’s hometown in Hubei Province, and several years later moved to California to settle down. By that time, though, the cracks in their marriage had already started to show; in addition to cultural clashes, Cai revealed himself to be abusive.

When, after giving birth to their first and only child, he began making noises about sending him to live with his parents, Blumberg-Kason became terrified that she might lose Jack forever. And so she began divorce proceedings, ultimately escaping the marriage and winning full custody of Jack.

Now a writer, Blumberg-Kason chronicles the ordeal in her 2014 memoir Good Chinese Wife: A Love Affair with China Gone Wrong, and says that, since then, among the most passionate responses she’s received are from other people dealing with international custody disputes.

While custody disputes are never pretty, international couples in which one member is Chinese present an especially tricky case – because China hasn’t signed the Hague Convention on the Civil Aspects of International Child Abduction, a multilateral treaty that allows for the expeditious recovery of abducted children, there remains little legal recourse when a child is carried off.

It’s not as rare a situation as you might think. According to 2014 statistics reported by iRead Weekly in August 2015, China is now home to 47,000 cross-national marriages, which in turn are showing an increasing rate of divorce.

“Since China hasn’t signed the Hague Convention, which protects parents from losing their children to international abduction, foreign parents have no rights to ask for the return of their children if their spouse takes the child to China,” Blumberg-Kason  said.

 

The fact that China has not signed the Hague Convention on the Civil Aspects of International Child Abduction means that when either parent in a mixed Chinese-foreign marriage abducts their child, the other has little legal recourse. Photos: IC
No protection under the Hague Convention

Before the Hague Convention, which was signed in 1980 and put into force in 1983, parental kidnapping was a poorly defined concept, with authorities referring to it variously as “legal kidnapping” and “custodial interference.” In addition to providing a name for this phenomenon – international child abduction – the treaty drew up guidelines for what constituted violations of custodial rights and provided mechanisms by which children could be returned home, which is defined as the country of “habitual residence.” Abduction, meanwhile, is defined as a parent without sole custody taking their child to another country and refusing to return the child or let the other parent visit. To date, 94 countries and regions have joined the convention.

The rub, of course, is that both countries involved must be signatories of the convention in order for it to work. The convention depends on the establishment of central authorities in each signatory country that communicate with one another and with domestic courts to facilitate the return of abducted children to their home countries. Without that, victims of abductions can find themselves dead in the water.

According to Jeremy D. Morley, a New York-based family lawyer and author of The Hague Abduction Convention: Practical Issues and Procedures for the Family Lawyer, this is one reason which makes China an inviting destination for international childhood abduction.

“There is often a legal vacuum that encourages one parent to take children away from the other, and to deprive the children of access to the other parent,” Morley says. “It not only hurts foreign parents [if the Chinese partner takes the child to China], it also hurts Chinese parents living in China because if the other parent takes their child to a foreign country from China, the courts in that foreign country are unable to order the child’s return to China under the terms of the convention.”

Parents’ only recourse in situations like this is domestic courts. Beijing-based family lawyer Li Peixuan, who’s been dealing with international divorce cases, many involving custody, for 15 years, recalls one case involving a Chinese woman, Zhang Ya, her British ex-husband Matthew and their son, Rick (all pseudonyms).

After divorcing in 2009, Zhang moved to Malaysia for two years to work while Matthew remained in Beijing, but the two established an agreement by which Rick would stay with his mother for the first year and then return to Beijing to live with Matthew for the second. When the time came, however, Zhang refused to let Rick return, and Matthew decided to file a lawsuit against her for international child abduction.

“As China is not a signatory of the Hague Convention, Matthew would have faced a lot of challenges in terms of procedures and execution,” said Li, who represented Zhang. “This is the kind of case that could have dragged on for years, even until Rick was grown up.”

In the end, Matthew and Zhang were able to avoid litigation by making a new compromise, under which Rick would remain in Malaysia, but Matthew could visit and bring him back for holidays.

According to Li, the other major complication is the fact that custody rights are defined differently in China than they are in other countries.

In China, joint custody effectively doesn’t exist; instead one parent is awarded sole custody, which not only means that the child lives with them, but that they have the right to make all important decisions related to the child’s well-being. By contrast, in most Western countries, even if one parent is awarded sole custody, he or she must still consult the other parent when it comes to major decisions related to the child.

Different approaches to negotiation

Cultural differences may not only have a bearing on the success or failure of a marriage – they can affect the outcome of custody cases as well.

Li believes that this was key in the escalating tensions between Zhang and Matthew. While Zhang wanted to negotiate the problem, Matthew immediately opted for legal action, hiring three lawyers and informing the British Embassy of the situation.

“This kind of cultural difference between Chinese and Britons was one of the major reasons for their dispute,” Li said. “In China, there’s much more of a tradition of solving things through negotiation before resorting to legal action, while Britons hold firmly to the importance of contracts.”

Blumberg-Kason agrees that many disputes in international divorces arise from cultural differences.

This was a source of conflict in her own marriage – Cai wanted to send their son back to his hometown to live with his parents, an idea that Blumberg-Kason couldn’t bear.

“This isn’t an American custom,” she said. “Americans live with their children and don’t send their children away to live with their grandparents. I felt if that happened to me, I would miss my son very much.”

Where to go from here?

According to Yang Xiaolin, a lawyer who specializes in family law and a partner at Beijing Yuecheng Law Firm, one of the biggest reasons why China hasn’t signed the Hague Convention is that the legal terms required to enforce it are not sufficiently defined in Chinese law.

“In our judicial system, there are no clear laws governing joint custody,” Yang says. “We focus more on custody by one parent. So there is a conflict between joint and sole custody. If we sign the convention, it will conflict with the current laws. So first we need to build a system and regulations for joint custody.”

He said that he hopes China will eventually sign the convention, but added that officials from the Ministry of Foreign Affairs recently said that such a move is not imminent.

So where does that leave mixed Chinese-foreign ex-couples? Li suggests that both sides should start out by educating themselves on the laws of both their countries. Which laws apply, Li says, depends on the child’s nationality.

“If your child has Chinese nationality, you should go to Chinese courts for a lawsuit, but if he or she is of foreign nationality, you should go to the court of that country, the laws of which may be quite different,” she said.

Li added that foreigners shouldn’t be afraid of any bias against them in Chinese courts; the courts’ only “bias” is toward protecting the custodial rights of women. With very young children, for example, mothers almost always get custody.

They should also, she said, be prepared for the difficulties involved with enforcing any judgment.

One example is the widely publicized divorce case of American Kim Lee from her ex-husband Li Yang, the founder of famed English-teaching method “Crazy English.” After a very public divorce following allegations of physical abuse, Lee was awarded full custody of the couple’s three daughters; Li, meanwhile was ordered to pay 100,000 yuan ($15,350) of alimony for each child every year until they turn 18. But after giving them an initial 150,000 yuan in 2013, Li stopped paying, according to a Beijing News report in 2014.

Likewise, Blumberg-Kason says that a law professor in California once told her that even countries that have signed the Hague Convention often don’t comply with it, and cases can take 10-15 years to resolve, by which time the children are already teenagers. “Mutual respect of differences and negotiation are the best way.”

She said she knows other divorced international couples in which one spouse lives in China. The kids live overseas with one parent during the school year and go to China to see the other parent in the summers.

“It works because the former spouses respect one another, maintain a good relationship, and put their children first,” Blumberg-Kason said. “If people can get to that point, it can work out very well.”

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Can a father be extradited if accused of abducting his child?


March 15, 2016

Source: thehindu.com

Can a person challenge a red corner notice in an Indian court? This question came up in a division bench of the Bombay High Court on Monday.

Highcourt-Bombay.jpg

The context was a case of alleged parental abduction of a child from Lithuania to India, in which Interpol had issued a ‘red corner’ notice — usually issued to seek the arrest and extradition of a wanted person —against the father of the child, Kanishk Lodh.

Kanishk-Lodh

Mr Lodh had brought his child to India against his estranged wife’s wishes, and she had launched an abduction offence against him. He had married a Lithuanian national, Renata Katinaite, in the USA in 2012, and they had a daughter, who died. The couple subsequently separated after marital trouble, but reunited in 2014, and in June 2015, had a son in the USA. Lodh argued that his wife was a negligent and uncaring mother, and he brought the baby to Mumbai in the interests of the child.

Renata-Katinaite-Lodh

The division bench, Justices Naresh H Patil and AM Badar, pondered over several related questions, and asked about the procedure to be followed in cases where India has and does not have an extradition treaty with a foreign country. Observing that “In family matters you have to be sensitive,” the court wondered about the advisability, in such matters, of arresting alleged abductors, and sending them into custody along with the minor children pending a magistrate’s enquiry. The judges also asked whether the courts had powers to intervene in such matters, and at what stages this might be warranted.

Amicus Curiae (‘friend of the court’ which means a person with experience or expertise in a subject, but no interest in the specific legal case being heard) advocate Rui Rodrigues told the court that in cases where India and the other country had a treaty, India could arrest a person against whom a red corner notice had been issued and produce them before a magistrate. Where no treaty existed (India does not have a treaty with Lithuania), the government was not obliged to act unless a request was made by the foreign government for the person to surrender.

In such cases, the CBI, which would be the concerned authority, would merely inform Interpol if they knew of the wanted person’s whereabouts, but need take no further action until an official request was made. The bench then asked Mr Lodh’s lawyer, RA Shaikh, to add the central government as a party in the proceedings and for a brief written submission from amicus Rodrigues. The matter will next be heard on April 13.

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Child custody in UAE: Big battles over children


February 24, 2016

Source: gulfnews.com

DUBAI: The mother of a 14-year-old girl is worried sick. Since her daughter is 13-plus, she does not have automatic custody or any guardianship rights over her in the UAE. But the father, who has these rights, has an alcohol problem and poses a serious risk to the girl’s safety.

Parental_Abdcution_UAE_Emirates

The daughter has even expressed fears about his violent outbursts when she is around. The mother, who sought legal advice to find a way out, has been advised to make an application to the court so she can take care of her daughter.

In another case, a non-Muslim mother has threatened her husband that she will take their only daughter out of the UAE. Denying him his right of guardianship over the girl, she is set to leave the country without his consent. The father, who holds the child’s passport, also availed the services of a legal consultant to make an urgent application to the court to place a travel ban on his daughter so she cannot exit the country with her mother.

Ugly battles

In a shocking trend, instances where children are caught in ugly battles for custody and guardianship are becoming increasingly common in the UAE, claim legal experts. But many of them, they add, are avoidable as they result from lack of awareness about the laws of the land and the failure to take timely legal recourse.

According to Tina Thapar of Al Midfa & Associates Advocates and Legal Consultants, which deals with a number of such cases in the Dubai Courts, issues of child custody and guardianship come to the fore when the parents seek divorce as there is no concept of separation in the UAE.

“Custody and guardianship of a child are defined by Federal Law No (28) of 2005 concerning Personal Status. The biological mother of the child is the custodian and the father the guardian (unless there is a court order appointing someone else as custodian or guardian). Custody means day-to-day upkeep and taking care of the child, which is usually granted to the mother without interfering with the right of guardianship awarded to the father at all times since he is responsible for providing for the child financially, morally and physically.”

Nita Maru, managing partner and solicitor, TWS Legal Consultants, said: “The courts here will always act in the best interests of a child. Custody and guardianship are two separate issues which must be addressed individually as parents do not share equal responsibilities for a child in the UAE, as compared to, say, England.”

She said she was recently approached by a woman who was acting as the mother of a child who was not biologically hers, but her husband’s from a previous marriage. “Although she wanted full rights of custody and guardianship over the child, she was advised that in a divorce in Dubai, she would not have such rights since she was not the biological mother of the child. A woman in this situation actually carries no rights to the child, even before divorce, whilst the couple is married.”

Claiming custody can be a tricky matter.

Thapar said Article 156 of the Personal Status Law provides that women’s custody of the children ends when a boy reaches the age of 11 and when a girl turns 13. The father being the guardian can claim the custody of the male child when he reaches the age of 11 and the female child when she reaches the age of 13.

“The mother also has the right to claim the extension of the custody period until the boy finishes his education and the girl gets married and to ask for extension of the custody, the mother has to prove that she has been good with the children i.e. through their school performance reports, good medical health history etc. Nonetheless the father can claim the custody of the male child if he feels the boy is being too soft in nature by staying with the mother and he would want him to grow up to be more courageous and responsible. In both circumstances, it will be the judge who will keep the best interests of the child in mind and decide the case.”

Travel bans

Another common misconception among conflicting couples is that they can keep the children away from the spouse by fleeing with them out of the country.

“It is important to note that a custodian cannot travel without the guardian’s approval and vice-versa,” said Nida Chaudhry, solicitor at TWS Legal Consultants. “There are situations when a divorce is pending, and either parent suddenly decides to flee Dubai with the child without the consent of the other parent, without realising that this amounts to child abduction.”

Saudi Arabia MAP

She said: “This is a very sensitive and serious situation. Even the home country where the parent has fled to is likely to return abducted children to their country of residence. In addition, the parent abducting the child can face serious consequences for such action.”

Maru said if either parent has concerns that their permission will not be sought for travel, they can obtain a travel ban preventing the child from leaving the airport. If there is a dispute the matter can be referred to a judge. “In such situations it is prudent to speak to a family lawyer about the arrangements and safeguards that can be put in place if it is felt there is a potential risk of child abduction.”

There are any number of cases involving travel bans.

Thapar said a Muslim mum with a foreign passport recently approached her country’s embassy to seek a passport for her children based on a court judgment that she was their sole custodian. The guardian father, also a Muslim, living in another country, insisted that the mother come to his country with the children and refused to give his consent for a change of passport. The embassy requested the mother to produce an NOC from the father or get a court order to go ahead with the passport change.

“Since there was no convincing the father, the mother had to procure a court order and hand over the judgments issued in her favour to the foreign embassy which sought legal opinion from us before they could issue the passport. We informed them that we have noticed from the said judgments that the husband does not reside in the UAE and to that extent, there is a Court of Cassation ruling which we referred to, which orders that in the event the guardian is abroad, his consent is not required for the custodian to take the children abroad,” said Thapar.

Maru cited another instance involving a divorced couple with a 16-year-old boy and a 15-year-old girl. “The mother had received information that the father was planning to leave Dubai and return to Canada. She was also informed by the children that the father was abusive and violent. She decided to obtain a travel ban in order to prevent his move with the children. The court granted the travel ban since the mother provided strong documentary proof that the children would be unsafe with their father and a move abroad would not be in their best interests.”

At the end of the day, Thapar said parents mulling divorce have a responsibility to separate gracefully for the sake of their children. “If as couples you cannot live together, you have the right to go separate ways. But remember when you have children, especially minors, they do not understand why this is happening and are torn apart between the parents. Take care and deal with such difficult transitions by seeking professional help from elders, psychologists, family counsellors and family lawyers.”

What the law says

As set out in Article 143 and 144 of the Federal Law 28 of 2005 (Personal Status Law, a custodian must be:

1. Rational

2. Mature enough and have attained the age of puberty

3. Honest

4. Able to bring up and take care of a child

5. Free from infectious disease

6. Not have been sentenced for a crime of ‘honour’

If the custodian is the mother she must:

1. Not re marry unless the court decides it’s in the best interests of the child and

2. Share the same religion as the child

If the custodian is the father, he must:

1. Have a suitable woman living within his home to care for the child (such as a female relative)

2. Share the same religion as the child.

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Court Places Child Returned to Denmark in Limbo


January 28, 2016

Source: Family Law Reporter

By Julianne Tobin Wojay

Jan. 25 — A judgment granting a father’s Hague child abduction convention petition for his child’s return to Denmark must be reversed and the matter remanded for a full evidentiary hearing on the mother’s domestic violence claims, the California Court of Appeal, Fourth District, has ruled.

Parental-Abduction-Denmark

The court said that because the mother alleged that the child faced a “grave risk” of harm if returned to Denmark pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, the judge below erred by not fully considering her evidence on that issue.

Road Map

In a Jan. 25 e-mail to Bloomberg BNA, Sudha Shetty, Director of the Hague Domestic Violence Project and Assistant Dean for Global Programs at Goldman School of Public Policy, University of California, Berkeley, noted that the court did not originally certify this case for publication. However, she said that Hague DV joined amicus Family Violence Appellate Project in requesting publication, which “is an essential step to establishing clear guidance for these cases—building a road map—for judges in California state courts” who are not necessarily trained in Hague matters.

Turning to the court’s decision, Shetty pointed out that Articles 2 and 11 of the Convention direct Contracting States to use “expeditious procedures” and instruct courts to “act expeditiously.” Thus, she said, the “expedited nature of Hague Convention cases have a significant impact on the structure and management of these cases and case law suggests that courts do have discretion to limit discovery, limit witnesses, or limit witness testimony to affidavits in an effort to expedite these cases.”

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“Expedited proceedings, however, should not come at the expense of a party’s right to due process—and this is precisely what the Noergaard decision correctly addresses,” Shetty stated, adding that “[t]his is an important question in Hague Convention cases because [ ] courts often limit discovery or relax evidentiary standards to some degree due to the expedited nature of Hague proceedings, but there is sporadic guidance to courts as to how far they can go in limiting or expediting a hearing.”

“Importantly,” she continued, the Noergaard court cites to Danaipour v. McClarey, which “explains in its discussion of the grave risk analysis that ‘[t]he Convention assigns the duty of the grave risk determination to the country to which the child has been removed. . . . Generally speaking, where a party makes a substantial allegation that, if true, would justify application of the Article 13(b) exception, the court should make the necessary predicate findings’.” 286 F.3d 1, 18, 28 FLR 1243 (1st Cir. 2002).

The Noergaard decision, Shetty concluded, provides “important guidance to future courts handling Hague Convention cases involving allegations of domestic violence and the grave risk defense, where they must balance the expedited nature of these proceedings with a party’s due process rights.”

Returned to Denmark

In January 2014, Orange County (Cal.) sheriff deputies removed 11-year-old Mia from her mother’s care and turned her over to the county social services agency. The agency relinquished physical custody to the father, who was armed with two Danish custody orders.

Parental-Kidnapping-Denmark

According to the mother, the agency conducted only a cursory review of her claim that the father engaged in a pattern of domestic violence against the family after he lost in job in Germany and that he had unilaterally taken Mia from Germany to his native Denmark.

The mother claimed that the father’s history of spousal and child abuse had caused Mia to run away from his care in Denmark and flee to Orange County with her maternal grandmother.

The state trial court in the father’s Hague case likewise paid little due to the mother’s abuse claims, which she raised as an affirmative defense under the Convention’s Art. 13(b) “grave risk” provision. It conducted a “summary trial,” and admitted only two documents into evidence—the 2012 Danish court orders vesting custody of Mia in the father.

The court declined to resolve the mother’s claim that the father had recently sent her an e-mail containing death threats, saying it lacked the technical expertise to determine the e-mail’s authenticity. It also denied her requests to testify, to call witnesses (lay and expert) to support her abuse claims, and for a psychological evaluation of Mia.

Additionally, the court would not allow the mother to cross-examine the father, and would not consider her supporting documents and exhibits concerning the e-mail, her abuse allegations, the Danish custody proceedings, and a European Union investigation concerning the alleged failure of Danish courts to take allegations of domestic violence seriously when brought by a non-Danish parent.

After interviewing Mia in-camera, the court concluded she did not fear the father or flee from him. Saying that Denmark was a “civilized country” whose courts were capable of dealing with the mother’s claims, it granted the father’s Hague petition on Mar. 6, 2014, and he returned to Denmark with Mia.

The mother appealed, arguing that the court erred in granting the Hague petition without an evidentiary hearing on her domestic violence and abuse claims, including the death threats.

‘Puzzling’ Decision

Justice Richard M. Aronson cited Chafin v. Chafin, 133 S.Ct. 1017, 39 FLR 1190 (2013), in explaining that Mia’s return to Denmark did not moot the appeal or further proceedings below. That being said, he agreed with the mother that a full evidentiary hearing was required and that the return order must be reversed.

The trial court’s decision not to address the death threat issue “is puzzling,” Aronson said, pointing out that, “[a]s Judge Posner has observed, ‘the judge can’t just throw up his hands [ ] because he can’t figure out what is true and what is false’.” (Khan v. Fatima, 680 F.3d 781, 785, 38 FLR 1321 (7th Cir. 2012) (reversing Hague return order for evidentiary hearing).

Patently Material

“Death threats are patently material to the grave risk analysis, and therefore the trial court erred by leaving the matter undecided,” Aronson said, citing Van De Sande v. Van De Sande, 431 F.3d 567, 32 FLR 1076 (7th Cir. 2005).

Noting that the Danish custody orders predate the 2013 e-mail, he ruled that due process required the court to decide the material issue of the alleged death threats and afford the mother the opportunity to offer evidence on that issue. (The father claims that she falsified the e-mail and is being criminally prosecuted in Denmark for doing so.)

There are also “manifest flaws in simply leaving” the issue for Danish authorities “potentially to address,” Aronson added, saying that a Hague court must consider such issues in deciding whether to impose undertakings in the return order and must itself “ascertain and protect the child’s safety.” See Khan; Danaipour.

“As with the alleged death threat e-mail, mother is similarly entitled on remand to an evidentiary hearing on her other claims” regarding the father’s alleged domestic violence, he continued.

Alacrity Doesn’t Always Control

Aronson recognized that both the Convention and its federal implementing legislation, the International Child Abduction Remedies Act, authorize courts to forego a plenary evidentiary hearing “[w]here circumstances warrant” (West v. Dobrev, 735 F.3d 921, 929, 40 FLR 1005 (10th Cir. 2013)), and that the Convention directs courts to resolve proceedings expeditiously.

“But alacrity in Hague proceedings is not an objective for its own sake. Rather, an overriding issue remains the child’s safety,” he asserted, saying that here, “we have no confidence mother received a fair or adequate hearing.”

The “trial court could not simply ignore to decline to hear mother’s evidence or proposed testimony and deem the matter fully heard and fair resolved,” Aronson said, observing that “[i]t is no surprise the trial court reached the conclusions it did based on admitting only father’s exhibits [the custody orders] and excluding all of mother’s[.]”

‘Unfortunate Irony.’

After preventing the mother from calling witnesses or presenting evidence “the court could not make an informed and fair decision,” he stated, noting that the “unfortunate irony in this case is that mother claimed the Danish courts failed to afford her a full and full hearing on her claims father abused her and the children.”

Further noting the mother’s claim that the Danish courts ignored and never decided her Hague petition (alleging that the father abducted Mia from Germany) and custody petition, he found that the father contests the veracity of this allegation.

Thus, Aronson instructed, on remand the trial court must “determine what was adjudicated in the Danish custody proceedings. [ ] More to the point, the trial court must determine in this case whether the Danish court that awarded the father custody actually heard and adjudicated mother’s claim of abuse.”

Noting the father’s claim that he was acquitted of one of the abuse charges and that Danish authorities declined to prosecute the others, Aronson tasked the trial court with also determining whether the Hague Convention required it to extend comity or a collateral estoppel effect to the alleged acquittal and decision not to prosecute.

Due Process

He gave two reasons why it must make such findings: “[f]irst, clearly ascertaining what has been decided in Denmark will resolve what mother can litigate in her claim of grave risk,” and will impact whether Denmark is Mia’s place of habitual residence in light of the father’s alleged abduction of her from Germany.

Secondly, Aronson said, the court must determine what occurred in the Danish proceedings so it can assess the mother’s claim under Art. 20 of the Convention that her or Mia’s fundamental rights will not be protected there.

Asserting that “due process requires we reverse and remand the matter so mother may have her day in court,” he acknowledged that post-return proceedings in Denmark or the EU may have now “outstripped our discussion,” and directed “careful inquiry” into what has occurred and its collateral estoppel or comity effect, if any.

Justices William F. Rylaarsdam and Eileen C. Moore concurred.

The mother was represented by Merritt McKeon, Laguna Hills, and the father by Stephen B. Ruben and Diana L. Leonida, of Ruben/Huggins, San Francisco.

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NAPTIP quizzes Davido over alleged child abduction


January 7, 2016

Source:

Samson Folarin

The National Agency for the Prohibition of Trafficking in Persons and other related matters on Wednesday quizzed embattled artiste, David Adeleke, aka Davido, over the allegation of child abduction levelled against him by his erstwhile lover, Sophia Momodu.

davido-n-sophie

PUNCH Metro learnt that Davido was at the office of the agency on Oba Aladejobi Street, Ikeja GRA, Lagos, to state his own side of the story.

This is just as 27-year-old Sophia wrote the Clina-Lancet Laboratories, demanding the original copy of the result purportedly issued by them, indicating she tested positive for cannabis.

Our correspondent had reported that Sophia had petitioned NAPTIP alleging that Davido had abducted her daughter, Imade.

She further said the artiste was planning to take Imade to the United States of America without her consent, urging the agency to act fast.

The Adeleke family had been intercepted at the Murtala Muhammed International Airport on December 29, 2015, where immigration officers seized the baby’s passport, and prevented them from travelling out of the country.

Davido had denied the allegation of abduction, saying he was only taking the seven-month-old to the American Hospital, Dubai, for treatment after she was infected with cannabis which she reportedly sucked from her mother’s breast.

Sophia Momodu

He later released a test result purportedly issued by a Lagos clinic indicating that Sophia was infected with cannabis.

NAPTIP summoned Davido over the incident and he reported to the office on Wednesday.

Davido’s manager, Kamal Ajiboye, while confirming the development, said his boss was at the NAPTIP’s office to state his side of the story.

He said, “They just asked him to state his side of the story. I know he was there today to sign his statement through his lawyer. I cannot say to what extent the matter is going or if it is going to court.”

The Zonal Coordinator, NAPTIP, Lagos State, Mr. Joseph Famakin, who refused to be specific on Davido’s visit, said all the parties involved in the case had honoured the agency’s invitation.

He said, “All the parties were invited and they have been honouring our invitations. We are investigating the case.”

Meanwhile, Sophia has written the management of Clina-Lancet Laboratories, demanding the original copy of the result showing she tested positive for cannabis.

The letter, written by her lawyer, Gbolaga Ajayi, of S. O. Ajayi & Co, and dated January 5, said Sophia saw the result for the first time on the Internet.

Read: We can recover your abducted child

It read in part, “Our client gained knowledge of this pathology report that your company issued concerning her for the first time on the social media on Sunday, January 3, 2016. We have our client’s instruction to request you to promptly furnish her with the original copy of the pathology report, as the said report was never given to her.

“In view of the sensitive issues that have emanated from the said report, which are still trending on social and print media, we have our client’s instruction that you should also provide a detailed report on the process/procedure that your company adopted in carrying out the medical check on our client, which yielded the report that was issued about our client by your company.”

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International Parental Abduction specialists team up with left behind parents to present educational conference


January 5, 2016

Source: Washington Square Institute

International Parental Abduction specialists team up with left behind parents to present conference on “The Loss of a Parent to the Child And the Loss of the Child to the Parent: Investigation of Relocation, Parental Alienation, and Parental Child Abduction.

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Please register no later than February 10, 2016 since seating capacity is limited. Register Here: Registration form

Washington Square Institute

Friday Feb. 26, 2016, 8:30 am – 5:00 pm
Washington Square Institute  
41 E. 11th St. (between Broadway and University Pl), 4th Fl., NYC

Conference Fee: $150*
Full-time students with school ID: $75
*(Limited number of partial scholarships available – please email Linda Gunsberg for further information, lindagunsberg@yahoo.com )
PRESENTATIONS

Relocation
Philip Stahl, PhD, ABPP
Complexities of Relocation in Separation and Divorce
Relocation cases are among the most difficult in family law. This presentation will focus on both risk and protective factors, as well the limited research available regarding relocation. Dr. Stahl will also address how Courts, mediators, evaluators, consultants, and attorneys can work together to help parents solve difficult problems regarding relocation. 
Hon. Helen Sturm
Relocation from the Judicial Perspective
This presentation will begin with a brief summary of the Tropea case, which sets forth the factors that are to be considered in New York State relocation cases. Judge Sturm will then discuss two cases she decided, one an application by a parent to relocate to Texas with 2 young children, and the other an application to relocate to Australia with an infant.

Parental Alienation
Linda Gunsberg, PhD  
Parental Alienation: Clinical Issues
It is essential for psychotherapists of children, adolescents and adults to understand both the parental influences and the child/adolescent contributions to the destructive phenomenon referred to as Parental Alienation. Therapists who work with adults need to be familiar with how a mother or father may be fostering or stimulating alienation of the child from the other parent. The adult patient may be the alienating parent or the alienated parent. Dr. Gunsberg will discuss techniques that can help therapists elicit information about the parent’s contribution to Parental Alienation, as well as treatment and psychoeducational interventions that are useful in Parental Alienation cases.

Melissa Fenton, MBA
Resilience in the Face of Parental Alienation
This presentation will focus on Ms. Fenton’s experience of being an alienated parent, and the knowledge she has gained of the New York City Family Court System and the Uniform Child Custody Jurisdiction and Enforcement Act laws (UCCJEA).

Parental Child Abduction
Colin Jones, JD, LLM
Family Law for Whom? Why Japan is Different
This talk about Japanese family law will likely challenge some basic Western assumptions about the role of law and courts in family-related matters, and will offer a better understanding of the problems of child abduction in Japan.
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Samuel Lui, JD
Dead Dad Walking: Moving on in Life without Your Child Who Depended 
on You
Child abduction coupled with parental alienation is one of the worst kinds of domestic violence against both the child and the left-behind parent. The left-behind parent continues to think and care about his child, but there is nothing he can do. He never gets any news about the welfare of his child, causing continuous anxiety. Other people are expecting him to function and work on a regular basis like a normal person. However, the trauma of losing his child lingers in his mind. He is like a man whose purpose in life has been stolen from him.  Mr. Lui will share what it is like to live like this for the past 16 years.

Brian Prager, MA
Erasure of the Father: Coercive Practices, Corrosive Effects in Japanese International Parental Child Abduction
Erasure of the father, the expulsion of a caregiving natural parent from the lives of young children, is epidemic in Japan. Today, roughly three million children in Japan have meager-to-no contact with one parent after divorce, due to the absence of parental rights and protection of the parent-child relationship in family law. This induces parental child abduction, and also the disappearance of parents who despair the loss of the close bonds they previously had with their children. Mr. Prager will highlight factors contributing to the devastation and bereavement suffered by overmatched parents who lose their children to parental abduction in an unresponsive institutional environment.



Ellen B. Holtzman, JD Moderator


Conference educational objectives 
  • Be able to define and describe relocation, parental alienation, and parental child abduction in nuanced legal and psychological terms 
  • Understand the specific losses in the parent – child relationship as a result of relocation, parental alienation, and parental child abduction 
  • Become knowledgeable regarding the legal, treatment, and psychoeducational options available to families facing relocation, parental alienation, and parental child abduction
Bios of Presenters

Philip Stahl is a forensic psychologist in private practice, living in Maricopa County, Arizona. His current area of specialty is relocation cases, including complex international relocations . He provides consultation and expert witness testimony in child custody litigation throughout the United States, and conducts child custody evaluations. His teaching includes trainings throughout the United States and internationally for attorneys, child custody evaluators, and judges. He is on the faculty of the National Judicial College, is a Specialist Provider in Family Law for the California State Bar, and is Adjunct Faculty at Arizona Summit Law School (Phoenix). Dr. Stahl is an Invited Speaker at the Family Law and Family Forensics Training Program, Washington Square Institute. Dr. Stahl has written extensively in the area of high conflict divorce for over 25 years. His latest works are: Forensic Psychology Consultation in Child Custody Litigation: A Handbook for Work Product Review, Case Preparation, and Expert Testimony (2013); Emerging Issues in Relocation Cases (2014); and Analysis in Child Custody Evaluation Reports: A Crucial Component (2014). Dr. Stahl’s child custody evaluation was cited by the California Supreme Court in its landmark decision modifying 8 years of relocation case law following Burgess (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 12 Cal.Rptr.3d 356, 88 P.3d 81).

Judge Sturm received her JD, with Honors, from Brooklyn Law School in 1976, and began her career in the New York County District Attorney’s Office. In 1983, Judge Sturm relocated to New Mexico where she was Chief of the Medicaid Fraud Unit in the New Mexico Attorney General’s Office. In 1988, Judge Sturm returned to New York and to the District Attorney’s Office where she remained until she was appointed to the bench in 1999.
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During the years she served as an Assistant District Attorney, Judge Sturm was the Bureau Chief of the Juvenile Crimes Bureau, created the first Child Abuse Unit, and tried numerous homicide and related cases. As a judge, she was assigned to Family Court where she presided over thousands of custody, visitation and family offense matters. Judge Sturm is currently the Administrative and Compliance Manager for the Mt. Sinai Hospital Adolescent Health Care Unit, maintains a private practice in Divorce Mediation and Consultation, and is an Administrative Law Judge with the New York State Comptroller’s Office where she hears and determines matters relating to pension entitlements.

Linda Gunsberg is Chair of the Family Law and Family Forensics Training Program at Washington Square Institute. She created this program almost 20 years ago, with the goal of training mental health professionals, attorneys for children, matrimonial attorneys, and judges from an interdisciplinary perspective. Within family litigation, Dr. Gunsberg has served as a forensic expert on issues such as divorce, child custody and parenting plans, grandparents rights, relocation, parental alienation, parental child abduction, child abuse (sexual, physical, and emotional), battered woman syndrome and domestic violence, Hague Convention cases, and adoption. She works within the United States and internationally. Dr. Gunsberg conducts and supervises forensic evaluations, consults with attorneys for children regarding child interviews, is a trial consultant to legal teams (domestic and international) and conducts work product reviews of child custody evaluations. She also is a parent coordinator, parent – child facilitator, and facilitator for a support group for alienated parents. Dr. Gunsberg was past Clinical and Research Director for Take Root, the only organization in the United States for adults who were parentally abducted as children. She is Co-Chair since 1999 of the Psychoanalysis and Law Discussion Group of the American Psychoanalytic Association. Dr. Gunsberg has co-edited and written chapters in the volumes, A Handbook of Divorce and Custody: Forensic, Developmental, and Clinical Perspectives (2005), and Fathers and Their Families (1989). She has co-edited and contributed to the monographs for Psychoanalytic Inquiry, The Psychoanalyst in the Courtroom (2009), and The Adoption Journey (2010). She has lectured on numerous forensic topics, most recently the best interests of the child, parental alienation, factors critical to the child/adolescent’s paradoxical preference to live with the batterer in child custody cases, and complex issues regarding overnights for infants and toddlers. Dr. Gunsberg is also in private practice where she sees children of all ages, and adults. She feels very fortunate that her work as a psychotherapist and psychoanalyst is informed by forensic issues.

Melissa Fenton is a Fundraising, Event and Communications consultant within non-profit and corporate sectors.  She has served as the Chief Development and Communications Officer and interim Chief Financial Officer with charter schools; and a Principal Strategy Consultant with PricewaterhouseCoopers, assisting Fortune 500 companies and higher education. She was the Executive Director of City Lights Youth Theatre, a non-profit organization that offers after-school, in-school and summer theater classes and productions to young people in New York City, ages 3-19. She has produced several theater based discussions on topics facing youth such as gun and school violence, persecution for sexual orientation, and the challenges of assimilation after immigration. Ms. Fenton has worked in the Frauds Bureau in the Manhattan District Attorney’s Office as a trial preparation assistant, dealing with white collar crime, sex crimes and racketeering cases.

Colin Jones is Professor of Law, Doshisha Law School, Kyoto, Japan. He is author of the book, The Child Abduction Problem: How the Japanese legal system tears parents and children apart ( 2011). He also has written the following academic articles: 19th century rules over 21st reality – legal parentage under Japanese law, Family Law Quarterly (2015); Will the child abduction treaty become more “Asian”? A first look at the efforts of Singapore and Japan to implement the Hague Convention, Denver Journal of International Law & Policy (2014); No more excuses: Why recent penal code amendments should (but probably won’t) stop international parental child abduction to Japan, Whittier Journal of Child and Family Advocacy (2007); and, In the Best Interests of the Court: What American lawyers need to know about child custody and visitation in Japan, Asia-Pacific Law and Policy Journal (2007).

Sam Lui has a B.A. in Japanese Language and Literature from University of California, Irvine and his J.D. from Hofstra University School of Law. He is currently working for Manhattan Legal Services as an attorney in the areas of family and immigration law.

Brian Prager has an M.A. in Applied Linguistics and Education from the University of Texas at Austin. He is a Left-Behind-Parent whose young son disappeared into Japan in a scripted, pre-meditated parental abduction in June, 2010. He participated in the United States Department of State Town Hall Meetings in 2011 and 2012 on Japanese International Parental Child Abduction (JIPCA). Mr. Prager submitted testimony to the United States House of Representatives Committee on Foreign Affairs in 2011 regarding International Child Abduction. He also has been a participant in left-behind-parent organizations such as Bring Abducted Children Home (BAC-HOME) and Kizuna – Child Parent Reunion (Kizuna-CPR). Presently, he teaches at the City University of New York.


Ellen B. Holtzman concentrates her practice in domestic relations and has represented clients in all aspects of matrimonial and family law, including parental alienation, relocation and parental child abduction. Recently she was successful as the lead attorney in a Hague Convention case, and the decision was upheld on appeal. Ms. Holtzman has frequently lectured at Continuing Legal Education programs on Representing Domestic Violence Victims in Matrimonial Actions. For the Center for Safety and Change, she also educates attorneys in the techniques of representing battered women in divorce proceedings. Ms. Holtzman was a panelist at the American Psychoanalytic Association on The Intersection between Legal, Psychological and Judicial Concepts of Best Interests of the Child’ (2012), and a panelist at the New York University Postdoctoral Program in Psychotherapy and Psychoanalysis on Where are We Now Regarding the Best Interests of the Child Standard? – The Interface between Legal, Judicial and Psychoanalytic Perspectives (2013). Ms. Holtzman is a past President of the Women’s Bar Association of the State of New York (WBASNY) and is presently President of the Women’s Bar Foundation of WBASNY. She is the 2007 recipient of the Association’s Joan E. Ellenbogen Founder’s Award and she was honored by the Rockland County Women’s Bar Association with the Belle Mayer Zeck Award . She is Director of Legal Training at the Family Law and Family Forensics Training Program, Washington Square Institute.
Family abductions

Registration  

Please register no later than February 10, 2016 since seating capacity is limited

You can download the registration form here.
Registration is by check only, payable to Washington Square Institute. Mail your check with the registration form to:
Linda Gunsberg, PhD
130 W. 56th St. (Fl. 2)
New York, NY 10019

Refund & Cancellation Policy
Full refund of registration fee will be granted if cancellation request is prior to February 19, 2016. No refunds for no-shows on the day of the conference.


 Continuing Education Credits: 6.5 hrs
  • Washington Square Institute for Psychotherapy & Mental Health is recognized by the New York State Education Department’s State Board for Social Work as an approved provider of continuing education for licensed social workers (#0269). 
  • WSI is approved by the  APA (American Psychological Association) to sponsor continuing education for psychologists.
  • Application has been submitted and is pending for CLE credits for lawyers    (6.5 hrs-skills)

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Mexican parents’ right over son lands in Knoxville federal court


January 1, 2016

Source: knoxnews.com

An international battle over the alleged parental abduction of a Mexican boy is playing out in a federal courtroom in Knoxville.

Mexican-American-Child

The case involves the Hague Convention, the U.S. State Department, the U.S. Marshals Service, the Mexican government, Facebook, Knox County Juvenile Court, Chief U.S. District Judge Tom Varlan, a Mexican father, a Mexican child and a Mexican mother illegally living in Knoxville.

PDF: Temporary restraining order ruling

The basics as outlined in court records are these: Eugenio Garduno Guevara and Alma Soto Soto had a baby boy out of wedlock in Mexico in 2010. For three years, the couple lived together and jointly raised the boy. In March 2013, the parents split up, but the father didn’t go far. He insists he continued to visit the boy and provide financial support. A month later, the boy and his mother disappeared.

Since then, Guevara has been on the hunt for his son, engaging Mexican police and the Mexican government, scouring Facebook and, ultimately, invoking the Hague Convention of 1980 on international child abduction and engaging the State Department and the U.S. judicial system.

Two years later, Guevara finally found mother and son via a photograph posted on Facebook, showing Soto and the boy at the Wichita Falls Park in Wichita Falls, Texas. He notified the State Department, which sent Soto a letter in April to the Wichita Falls home of her brother. The letter advised Soto about the provisions of the Hague Convention invoked by Guevara that require the return of the boy to Mexico.

Soto and the boy again disappeared, according to court records. The pair resurfaced — on paper, at least — in late May when Knoxville attorney Tom Slaughter filed a petition in Knox County Juvenile Court seeking to establish custody of the boy by the mother and listing an address for mother and son on Suburban Road in Knoxville.

The petition did not allege either were here legally and instead also invoked the Hague Convention’s international child abduction provisions. Slaughter argued the Hague Convention tenets don’t apply anymore because the boy has “habitually resided in the United States with (Soto) for over two years” and, therefore, is no longer a resident of Mexico subject to the international child abduction agreement, by which the U.S. and Mexico agreed to be bound.

Slaughter contended in the petition Guevara did not financially support his son when the parents split as Guevara insists — although the separation had spanned only a month when mother and child disappeared. He sought child support on behalf of Soto.

Child Recovery Services

The State Department once again stepped in, serving notice on Knox County Juvenile Court of the father’s claims under the Hague Convention and provisions of the agreement that usurp the court’s authority. A Memphis law firm specializing in immigration issues then filed a federal complaint in U.S. District Court in Knoxville on Dec. 11 seeking emergency action to bar the mother from again fleeing with the boy and a finding by Varlan that the boy must be returned to Mexico.

Read: The Hague Convention is not enough to recover your child

Earlier this week, Varlan issued a temporary restraining order against the mother and ordered the Marshals Service to track her down and serve her with all the court records filed in the federal case so far, including a notice that she and the boy are required to appear in his courtroom Jan. 12 for a hearing.

“Based upon the allegations in the verified complaint, the court finds there is a risk that defendant could continue to conceal the child’s location, and thus (father Guevara) will likely be irreparably harmed in the absence of the requested relief to maintain the status quo,” Varlan wrote.

Noting it is unusual for the court to issue a restraining order before Soto has been located and the father’s complaint formally served on her, Varlan cited as just cause the danger Soto would flee once informed of the federal court action. That flight risk also serves as the basis of his justification in turning to the Marshals Service for help.

“Notice would defeat the purpose of the relief plaintiff seeks,” Varlan wrote. “The court finds that the risk that defendant may leave the jurisdiction once she has notice of plaintiff’s verified complaint warrants issuing a (temporary restraining order) without notice.”

The Marshals Service, although primarily known for its fugitive-hunting duties in criminal cases, plays many lesser-known roles in the federal court system. The agency, for instance, is a key player in the civil process of seizing property and goods acquired through illegal means. But it is rare for the agency to be tasked with serving court records in a lawsuit between private parties.

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