Category Archives: Texas Family Law

HDE Attorney Kevin Segler – Board Certified in Family Law

Holmes, Diggs & Eames congratulates Kevin Segler, an attorney in our Dallas office, on becoming Board Certified in Family Law by the Texas Board of Legal Specialization!  Kevin Segler has been an attorney with HDE since 2012 and handles all manner of family law cases including cases involving international family law issues such as the Hague Convention on the Civil Aspects of International Child Abduction.

Kevin Segler Pic

TBLS - Board Certified - Family Law (Black)

If you need assistance with a family law matter in Texas please contact us at (214) 520-8100 or through our main website at www.texasfamilylawyers.com.

Leave a comment

Filed under Board Certified Family Lawyer, Hague Convention, Texas Family Law

HAGUE CONVENTION: Home State of Infants

The central tenant of the Hague Convention is the idea of the home state of the child. The home state is where the substantive custody determination should take place. The home state’s laws are used to decide whether the left-behind parent has a “right of custody,” which triggers the Convention, or merely a “right of access,” which does not. Retuning the child to his or her rightful home state is the goal of the Convention. But how do you determine the home state for a baby or an infant?

Some courts in the US focus on what was the parents’ last shared intention to determine habitual residence. These Courts include the First, Second, Fourth, Seventh, Ninth, and Eleventh Circuits. In these courts, determining an infant’s home state requires no different analysis than for an older child.

Other courts look to more objective standards, like whether the child has enrolled in a new school, made friends in the new country, joined extracurricular activities in the home country, etc. For these courts, the determination of the home state of an infant is more difficult. In many cases, the courts in these circuits have adopted the parent intent test for very young children (typically, under 18 months), while focusing more on the child for children older than 18 months. See Delvoye v. Leem 329 F.3d 330 (3d Cir. 2003); See Whitting v. Krassner, 391 F.3d 540 (3d Cir. 2004). However, this is not a hard and fast rule, as courts have also used a blended approach, combining both the parental intent approach and the child-based approach for children of different ages. See In re Application of Adan, 437 F.3d 381 (3d Cir. 2006); See Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006).

In courts that do not strictly follow the parental-intent approach, determining the home state of an infant is much more difficult, and the cases have not produced a clear answer as to how to make this determination.

Leave a comment

Filed under Hague Convention, Texas Family Code, Texas Family Law

Hague Convention is Jurisdictional Treaty

The Hague Convention is unique in that it is almost purely about jurisdiction. The drafters designed it “to restore the status quo prior to any wrongful removal or retention and to deter parents from engaging in international forum shopping.” Baxter v. Baxter, 423 F.3d 363, (3d Cir. 2005). The treaty does not set parameters for making a substantive, custody decision; instead, it outlines the procedures to decide where the case should be heard. In these cases, then, it determines under which nation’s laws, procedures, and judges will decide the ultimate outcome of the case.

Article 19 explicitly says, “A decision made under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.” Instead, the Convention focuses on whether or not a child “should be returned to a country for custody proceedings and not what the outcome of those proceedings should be.” Holder v. Holder, 392 F.3d 1009, 1013 (9th Cir. 2004).

Why did the drafters of the Convention focus on jurisdiction? In the text of the Convention itself, it is made expressly clear that one of the primary goals of the Convention is “to secure the prompt return of children wrongfully removed to or retained in any Contracting State.” Holder v. Holder, 392 F.3d 1009, 1013 (9th Cir. 2004) (Citing Convention, art. 1, 19 I.L.M. at 1501). One of the major reasons to return the child is to ensure that parents do not move the child to a different country in order to gain some sort of tactical advantage by picking and choosing which legal system to litigate the case. This underlying concern for forum shopping is why the Convention focuses on jurisdiction.

Bottom Line:  The Hague Convention treaty is not meant to resolve substantive custody issues.  It is used to determine where the custody dispute will take place.

1 Comment

Filed under Hague Convention, International Abduction, Jurisdiction, Texas Family Law

International Abduction Risk Factors

It is often the case that when a child is abducted internationally by a parent that the non-abducting parent looks back and wonders, “Should I have seen any warning signs?”  Also, if a case is already being litigated, courts will look at certain criteria to determine if there are any abduction “risk factors.”  In fact, the Texas Family Code actually specifies a number of these risk factors for the court to assess and these factors can also be helpful to an individual wondering if the other parent may be contemplating child abduction.   Specifically, Texas Family Code §153.502 sets forth Abduction Risk Factors and states as follows:
(a) To determine whether there is a risk of the international abduction of a child by a parent of the child, the court shall consider evidence that the parent:
          (1) has taken, enticed away, kept, withheld, or concealed a child in violation of another person’s right of possession of or access to the child, unless the parent presents evidence that the parent believed in good faith that the parent’s conduct was necessary to avoid imminent harm to the child or the parent;
          (2) has previously threatened to take, entice away, keep, withhold, or conceal a child in violation of another person’s right of possession of or access to the child;
          (3) lacks financial reason to stay in the United States, including evidence that the parent is financially independent, is able to work outside of the United States, or is unemployed;
          (4) has recently engaged in planning activities that could facilitate the removal of the child from the United States by the parent, including:
                      (A) quitting a job;
                      (B) selling a primary residence;
                      (C) terminating a lease;
                      (D) closing bank accounts;
                      (E) liquidating other assets;
                      (F) hiding or destroying documents;
                      (G) applying for a passport or visa or obtaining other travel documents for the parent or the child; or
                      (H) applying to obtain the child’s birth certificate or school or medical records;
        (5) has a history of domestic violence that the court is required to consider under Section 153.004; or
        (6) has a criminal history or a history of violating court orders.
(a-1) In considering evidence of planning activities under Subsection (a)(4), the court also shall consider any evidence that the parent was engaging in those activities as a part of a safety plan to flee from family violence.
(b) If the court finds that there is credible evidence of a risk of abduction of the child by a parent of the child based on the court’s consideration of the factors in Subsection (a), the court shall also consider evidence regarding the following factors to evaluate the risk of international abduction of the child by a parent:
        (1) whether the parent has strong familial, emotional, or cultural ties to another country, particularly a country that is not a signatory to or compliant with the Hague Convention on the Civil Aspects of International Child Abduction; and
       (2) whether the parent lacks strong ties to the United States, regardless of whether the parent is a citizen or permanent resident of the United States.
(c) If the court finds that there is credible evidence of a risk of abduction of the child by a parent of the child based on the court’s consideration of the factors in Subsection (a), the court may also consider evidence regarding the following factors to evaluate the risk of international abduction of the child by a parent:
      (1) whether the parent is undergoing a change in status with the United States Immigration and Naturalization Service that would adversely affect that parent’s ability to legally remain in the United States;
      (2) whether the parent’s application for United States citizenship has been denied by the United States Immigration and Naturalization Service;
      (3) whether the parent has forged or presented misleading or false evidence to obtain a visa, a passport, a social security card, or any other identification card or has made any misrepresentation to the United States government; or
      (4) whether the foreign country to which the parent has ties:
              (A) presents obstacles to the recovery and return of a child who is abducted to the country from the United States;
              (B) has any legal mechanisms for immediately and effectively enforcing an order regarding the possession of or access to the child issued by this state;
              (C) has local laws or practices that would:
                        (i) enable the parent to prevent the child’s other parent from contacting the child without due cause;
                       (ii) restrict the child’s other parent from freely traveling to or exiting from the country because of that parent’s gender, nationality, or religion; or
                      (iii) restrict the child’s ability to legally leave the country after the child reaches the age of majority because of the child’s gender, nationality, or religion;
              (D) is included by the United States Department of State on a list of state sponsors of terrorism;
              (E) is a country for which the United States Department of State has issued a travel warning to United States citizens regarding travel to the country;
              (F) has an embassy of the United States in the country;
              (G) is engaged in any active military action or war, including a civil war;
              (H) is a party to and compliant with the Hague Convention on the Civil Aspects of International Child Abduction according to the most recent report on compliance issued by the United States Department of State;
              (I) provides for the extradition of a parental abductor and the return of the child to the United States; or
                   (J) poses a risk that the child’s physical health or safety would be endangered in the country because of specific circumstances relating to the child or because of human rights violations committed against children, including arranged marriages, lack of freedom of religion, child labor, lack of child abuse laws, female genital mutilation, and any form of slavery.
If you notice these risk factors and are worried your child might be taken out of the country by the other parent then you could contact an attorney immediately to see how to best handle the situation.  Preventing an abduction before it ever occurs is always easier than trying to recover the child after the fact.

2 Comments

Filed under International Abduction, Texas Family Law