On July 1, 2009, I received a decision on one of the more interesting cases I have worked on since embarking on my legal career.  The case started out as a custody case in Juvenile Court, but quickly spiraled into a full-scale federal trial; and subsequently, an appeal in the United States Court of Appeals for the Sixth Circuit.  It’s safe to say that this was not your typical custody case.  What made this case different, among other things, was that the family had moved to Ohio from Israel and the mother had returned to Israel.  While in Israel, she decided to pursue custody and filed a Petition for the return of the minor child under the Hague Convention on the Civil Aspects of International Child Abduction, claiming that our client, the child’s father, had kidnapped the child and wrongfully retained him here in the United States instead of allowing him to return to Israel.

The Hague Convention was ratified in 1980 and signed by the United States in 1986.  The primary purpose of the Hague Convention is to protect children from wrongful removal or retention from their nation of habitual residence and to put into place a procedure that promptly returns them to their place of habitual residence. The important considerations are that a parent must have established legal rights in their home nation, and there must have been a wrongful removal or retention from the child’s habitual residence.

“Habitual residence” is a concept that has not been clearly defined either by statute or by case law.  The concept can be tricky when the child has lived for extended periods of time in more than one country.  It is not as simple as where the child is presently residing, or domiciled,  but rather where the child has been present long enough to become acclimatized and where there is a degree of settled purpose from the child’s perspective.  There are certain factors that must be analyzed to make the determination of habitual residence.  These factors can include academic programs, sports, social engagements, excursions, and connections with people.  Additionally, when a child brings more personal possessions than usual, that can indicate settled purpose from the child’s perspective.

In our case, the child and his parents had been present in the United States for roughly six months when the mother decided to return to Israel.  At that time, the child was 2-1/2 years old.  The intention when they moved was for the family to remain in the United States permanently, and efforts were underway to obtain citizenship for the parents and the child.  They packed what they could and moved to Ohio from Israel to start their life together here.  Troubles arose in the marriage, and the mother left to return to Israel about six months later.  The father tried to convince her to stay and fight for custody here in the United States, but the mother left to return to her family in Israel.  There was a dispute over what efforts each parent made to have the mother to remain here, but ultimately, she returned to Israel where she filed for a divorce and for custody and child support.

In an odd wrinkle, the marriage in Israel was a religious marriage that was not officially recognized here in the United States as a legal marriage, so the father filed for custody rights in Juvenile Court in Ohio.  This was an ongoing battle until February, 2008, when the mother filed a Petition under the Hague Convention in the United States District Court for the Southern District of Ohio for the return of the child.  Those of you who think that the federal judicial system moves slowly are normally correct; but in this case, because it was on an expedited docket, we conducted extensive discovery and pretrial proceedings in less than two months (including depositions in Ohio, Israel and Kosovo).  Most of the depositions required us to find a translator who was fluent in Hebrew.  Finally, we had to secure a number of documents from Israel.

A three-day trial was conducted in federal court in Dayton with the eventual decision filed on April 30, 2008.  Click here to read it.   The Court decided that there was a wrongful retention on the day that the mother left because it was the last date that the child was present in the United States with both parties’ permission. It next determined that the child’s habitual residence was the United States, and more specifically, here in Ohio.  The basis for that determination was that the six months he had been in the United States and the brief period he visited the year prior had been sufficient to acclimatize him to the United States.  From the child’s perspective, the United States was his home where he had a degree of settled purpose.  The trial court noted that the child was in school full-time in the United States and had been since his arrival.  His English skills had surpassed his Hebrew skills.  He had made numerous friends at school and the Synagogue, and he attended numerous parties and other activities with these friends.  He took numerous excursions, regularly going to the local Air Force Museum.  He had regular contact with his father and paternal grandmother, as well as friends and teachers.  Finally, all of his possessions were here in the United States.

Some courts have considered the intent of the parents when moving, if the child is too young, in order to determine habitual residence.  The Sixth Circuit has not officially established this test, but the trial court did address the parties’ shared intent of permanently relocating to the United States as something that it would consider if permitted to do so.

The mother decided to appeal the trial court’s decision claiming that the trial court was incorrect in its determination.  She argued that the analysis was incorrect and the factual findings were not supported by the evidence.  She made several other procedural arguments which were not addressed based on the outcome of the appeal.

The Court of Appeals determined the case on the basis that there was no wrongful retention.  It stated that since both parents had equal rights of custody under Israeli and Ohio law, there was no wrongful retention.  There was no wrongful removal since both parties agreed to take the child to the United States, and there was no wrongful retention since both parties had equal rights.  At most, the Court determined that there may have been a breach in the rights of Mother’s access to the child.  That was not enough to overturn the decision of the trial court.  It determined that there was ample evidence on the record to support the trial court’s decision.  A dissenting opinion was filed that would have reversed the decision and remanded for a more thorough analysis of why Israel was not the habitual residence of the child, rather than focusing solely on why the United States was his habitual residence.  Click here to read the decision rendered by the United States Court of Appeals for the Sixth Circuit.

The mother has requested the Court reconsider the decision.  The increasing globalization of society makes it more likely that there will be an increase in these Hague Convention cases.  If you are moving to a new country, it is important to know what steps should be taken to guarantee that you are not jeopardizing your rights of custody or access to your child.  To read the Hague Convention Treaty, click here.  If you find yourself likely to become involved in an international divorce or custody case, these cases are very fact-specific and extremely complicated.  No two are the same, and it is most often necessary for a party to secure legal representation in both countries.  For a list of the approximately 75 countries that are members of the Hague Convention, click here.  Also, merely because a country is a party to the Hague Convention does not mean that it will enforce its treaty obligations. For example, the U.S. State Department has asserted that even our neighbor Mexico is “non-compliant” with the terms of the Convention.  Don’t try to navigate these waters alone!

Bookmark and share this to:

It is newsworthy that the State of Ohio has taken major “hits” in the job loss category and that our unemployment rate approaches 10%.  Recently, General Motors, aka Delphi, has closed most plants in Dayton causing a massive loss of jobs in the manufacturing sector.  Then, National Cash Register (NCR) announced the company was moving its headquarters and nearly fifteen hundred (1500) jobs to a suburb of Atlanta, Georgia.  The Dayton Daily News has reported that eleven (11) policemen are slated to “lose their jobs” due to budgetary constraints.  Also, businesses associated with supplying the auto industry with parts and services are feeling a financial “crunch” as their major or primary customer was General Motors, aka Delphi.

So, what is a parent (Father or Mother) to do when facing or experiencing a loss of employment?

Scenario #1:   Father is the Obligor (parent paying child support to the Mother/Obligee). He was employed by National Cash Register (NCR).  He does not want to move to the suburb of Atlanta, Georgia, wherein the new company headquarters shall be located.  He does not want to leave the Dayton community as he wants to remain in contact with his children and he has an “upside down” home (which means that he owes more money on the home’s mortgage than the home is presently worth).  So, he decides to remain here and seek alternative employment.  He has three children and his present child support obligation is $300.00 per month per child for a monthly total of $900.00.

Upon learning of his loss of employment, Father needs to file for unemployment compensation and notify the Child Support Agency of his job loss.  Further, Father should seek assistance from counsel in filing an immediate Motion to Decrease Child Support based upon a substantial change in circumstances (his loss of employment).  If he chooses to do nothing, the Child Support Enforcement Agency (CSEA) can be likened to a “running” taxi cab meter.  His support obligation will continue to accrue at the rate of $900.00 per month until it is reduced by a Court Order.  The Court can not retroactively reduce an accrued arrearage without the consent of the Obligee.  The Court can start the new lower amount from the date the Motion for the support reduction is filed.  Bottom line – file the Motion as soon as the job is lost.

Scenario #2:  Father is the Obligor (parent paying child support to the Mother/Obligee). He receives notice that his position of employment is going to be terminated within three months or ninety (90) days.  He also has a child support obligation of $300.00 per month per child for three children for a total monthly obligation of $900.00.

With the knowledge that his position of employment is going to be terminated or eliminated in the near future, Father has some advance notice that financial circumstances are about to change abruptly.  The Obligor, with the information that his employment position is about to be eliminated, has the opportunity to file a Motion to Decrease Child Support and to obtain a hearing before the job loss has occurred.  This action provides notice to the Court and to the Obligee that financial circumstances are about to change and that child support obligations must be revised or amended accordingly.  Again, as in Scenario #1, the Obligor’s inaction will only create bigger problems such as having to pay an arrearage which has accumulated and a possible contempt action for failure to pay support and even the loss of driving privileges and/or jail time.

Scenario #3:   Father is the Obligor and he loses his job, and as a result, is behind on his support.  Mother says that he cannot have any parenting time with his children until he is current on his support.

Support and parenting time are not dependent obligations under Ohio Law.  What this means is that Mother can not deny parenting time based upon non-payment of child support.  If she does, she could be held in contempt for the improper denial of parenting time.

The loss of employment can be a depressing and demoralizing event for anyone.  The Court is generally sympathetic to the request for a reduction of the Obligor’s child support obligation due to the loss of employment UNLESS the Obligor engaged in some sort of conduct causing the loss of employment.  In those instances, the Court has the authority to “impute” income to the Obligor even if he or she has no income due to the actions or behaviors leading to the loss of employment.  The loss of a job, like other changes in circumstances of the parties, can have a dramatic effect on child support and/or spousal support.  Contact an experienced family law attorney as soon as possible to discuss the specific implications when such an event occurs.

Bookmark and share this to:

I haven’t posted on this topic since October 18, 2008. My fellow blogger, Attorney Dick Price, publisher of the Divorce and Family Law Blog in Tarrant County, Texas, wrote an interesting post about trying to “force” a soon to be ex-wife into taking back her former name. The analysis under Ohio law would be the same as his under Texas law. Here is what Dick wrote on April 11, 2009:

A question that comes up occasionally is whether a husband can make his ex-wife change her last name so that she no longer uses his last name. The short answer is NO.

While adults can change their own names either as part of a divorce or as a separate action, the Texas Family Code does not provide a means to force someone else to change her name.

So, if you can’t force her to change her name, can you talk her into it? Maybe, but there are some difficulties associated with the name change. She would have to change her driver’s license and Social Security card. She would need to change over credit cards and loans. In other words, your ex-wife may not want to put up with the aggravation of changing everything just to make you happy.

One other factor is the presence or absence of children. If you and your wife have children together, and they have the same last name as you and your wife, she may not want to change her name. On the other hand, if your wife does not have children with your last name, she may be less tied to your name. Or, if your wife has children with a last name different from yours, she might be interested in changing back to that name.

Another factor is that if a husband is pushing hard for his wife to change her name as part of the divorce, she may decide not to go along with it just to annoy her husband. (Imagine such behavior during a divorce!)

Finally, everything else being equal, husbands should be aware that wives who have used another last name for a short period of time often will be more inclined to change their name.

Conclusion: You just don’t have much control over someone else’s name.

I took a bit of a different approach to the topic. Here is what I wrote:

Don’t forget to discuss with your lawyer before the final hearing if you want to be reinstated to a former name. This is the time to accomplish the name change with ease; and typically, without any additional costs! Procedures vary from court to court whether the name change can be submitted as part of the Final Decree or by way of a separate Court Order. Either way, it is easy, and the wife has the right to decide whether she wants to keep her married surname. No, husbands, you cannot require your ex to relinquish your surname. Ex-wives cannot pick a new surname; they can only be reinstated to a maiden or former name.

If you decide months after the divorce that you want to go back to a former name, it may be too late to have the Domestic Relations Court enter the name change for you. In that event, one would have to file a new action through the Probate Court to accomplish the name change. That Probate action would likely take several months and add filing fees and more costs.

Also remember, if you do change your name, be sure to report the change to the Social Security Administration. Otherwise, your earnings may not be recorded properly and you may not receive all the benefits you are due. Not changing your name with Social Security can also delay your income tax refund. It’s easy to do this by making a trip to one of their local offices. It usually takes about two weeks to have the change verified and the new card issued. The form is available on the Agency’s website, by calling toll free 1-800-772-1213 and at local offices. To accomplish this you will need to fill out an application for a Social Security card (form SS-5). For more information about this, including the documentation you need to bring, click here.

I think between the two of us bloggers, we have this topic pretty well covered. To take a look at Dick Price’s excellent blog, click here.

Bookmark and share this to:

England is trying to catch up with Ohio and the rest of the United States when it comes to Family Law.  Until a landmark case last week, the courts in England and Wales put little, if any, weight on the terms of prenuptial agreements.  Prenuptial agreements (also called antenuptial agreements) in one form or another have been around for a very long time.  The Supreme Court of Ohio in 1984 held in Gross v. Gross that, under certain circumstances, they are valid and the terms should be enforced by Ohio courts.

On July 2, 2009, I received an interesting phone call from a journalist from the BBC in London, England.  He wanted to know if I would be interested in commenting on the recent case holding and also sharing some insights about prenuptial agreements from the perspective of an American family law attorney.  I read the decision in the case of Radmacher v. Granatino and agreed to be interviewed a few hours later by “Big George” Wembly, the host of the live ‘Late Show’ on BBC-London radio station 94.9.

After a little research, I learned that “Big George” is an iconic broadcaster in London having had an extensive music career as a composer, producer and bandleader.  His radio show is promoted as being unlike any other radio phone-in show heard anywhere on the planet.  True to billing, I learned as I was being interviewed, how engaging and witty “Big George” is.  For any who are interested, I have attached a link to my nine-plus minute interview here. (MP3 Format, 3.9megs)

I think I did pretty well answering his questions about prenuptial agreements from A to Z until he threw me a curve ball about the custody of Michael Jackson’s children.  Not being current on the most recent MJ drama, I had to acknowledge I couldn’t share an informed opinion on that subject!  Oh well . . .

It was, however, an enjoyable experience.  A very different format from other interviews I have given in the past with National Public Radio, newspapers, and other media outlets.  Talking and listening to “Big George” reminded me of my all time favorite radio host as a kid:  Jean Shepherd, a writer and broadcast humorist also on late night.  Lying in bed at night intrigued by Shep’s storytelling and humor often made me tired for school the next morning.  Probably much the same situation for the flocks of listeners no doubt mesmerized by “Big George” in London since he broadcasts weeknights from 10PM to 2AM!  Perhaps I will get another call from him again if he is looking for some legal commentary from an American perspective.  Thanks for the fun “Big George!”

If you are interested in more information on prenuptial agreements in Ohio, please click here to read an article previously written by my partner, Joe Balmer, for our Ohio Family Law Blog.  If you want to read the Radmacher v. Granatino case, click here.

Bookmark and share this to:

It seemed appropriate that I should write something for the blog geared towards the “Birthday of America”. In the past, I liked to reflect upon the holidays and tried to find some correlation between the specific holiday and my family-law practice. Not always an easy task without becoming repetitive in discussing how to celebrate the day in the aftermath of a traumatic divorce.  So, as I pondered possible themes, I considered offering a bit of a twist on “Independence Day”. Or, perhaps, writing a patriotic post about America and the importance of family values.  In the end, I decided to go in a different direction.

As I think about this holiday, it brings back many fabulous memories. As a child, it was in my top two or three yearly holidays. I loved that it was the official start of summer and school was over. Warm weather was here and a family vacation was near. Having grown up in New Jersey, I loved cookouts with family,seeing friends at the pool, or even better, going ”down the shore”. Riding the waves, salt-water taffy, the boardwalk, and of course, sunburn.

Being 55 years old, I remember fireworks galore exploding in ways that were not safe in light of today’s standards. And I mean having to smack out live embers which landed in your hair or your lap. Oh, what memories…So you ask, what does the title of this post have to do with anything? Well, I will tell you. Now the greatest 4th of July memory for our family is synonymous with one particular Independence Day. Not at the Jersey Shore this time, but a trip to another of my childhood favorites – North Waterford, Maine, and the Five Kezar Lakes. Frog gigging, fishing, bonfires, fresh lobsters, water-skiing and swimming in the pristine, crystal-clear lakes. Absolutely remarkable!

While the serene natural pine tree-filled Maine environment is remarkable, it did not compare to the events of this one particular 4th of July evening.  My sons were probably 11 and 12 years old at the time. After a great day outdoors with our family, cousins, and my Aunt and Uncle, we drove to the Oxford Plains Speedway in Oxford, Maine. Not our family’s usual activity, but what the heck. We are always up for something new especially if it has a local flair.  As I recall, Shirley Muldowney raced in her jet-propelled pink dragster against “Big Daddy” Don Garlits that night. The intense heat generated from the dragsters could be felt throughout the grandstands! After that we then experienced the thrill of a sensational high-impact, collision-filled demolition derby. But the highlight of the night was to follow. We were immediately engulfed with fireworks literally exploding right on top of us launched from the infield of the speedway! You had to lie down in the bleachers to see the blasts since they were right over your head. My cousin, an honored Viet Nam veteran, must have had flashbacks at the time. The announcer then proceeded to give a “play by play” for each firework shot in the air, repeatedly exclaiming over the loudspeaker with his distinctive Maine accent, ”the red ones are the best!”  How right he was! To this day, my sons always repeat the story about the speedway fireworks every time they see any fireworks!

Thinking about this wonderful memory of Maine and Independence Day not only reminds me of that spectacular firework display but of the close relationship and love I enjoy with my Aunt Marion, who lived in Maine at the time.  She is a talented, feisty and independent lady, much like her sister, my Mom. While employed, my Aunt was, among other things, a passionate librarian who had a love for well-written children’s books. She enjoyed reading them to all the kids.  So in honor of her I say “Happy 4th of July, Aunt Marion. You will always be in my heart.”

Also, feeling that I must deliver some valuable information to our blog readers rather than just sharing my own memories, and as a tribute to my Aunt, please click here to see a wonderful list of children’s books written about the 4th of July compiled by James R. Heintze, author of “The Fourth of July Celebrations Database”.

Happy 4^th of July everyone! May it be truly memorable!

Bookmark and share this to: