Activists argue the Hague Convention on International Child Abduction is unfair to mothers fleeing abusive relationships
Even as the U.S. prepares to push India to join the “Hague Convention” that deals with international child custody cases, during consular talks next week, the government held a series of hearings from activists demanding that it does not give in to what they called “First World pressure” on the issue.
While the government announced in November 2016 that it would not sign the convention, officials have conceded that there has been a rethink, and an “inter-ministerial process” is under way to discuss the repercussions of the convention.
Ahead of the India-U.S. Consular dialogue between officials from the Ministries of External Affairs, Women and Child Development and Home and their counterparts in Washington on September 27, a special committee heard from lawyers, women survivors and child rights activists over the weekend whether or not they should consider the Bill that would align Indian law with the international convention.
“Indian law has enough provisions to accept foreign judgments and jurisdiction,” activist and lawyer Suranya Aiyar says. Several groups have been campaigning against any rethink by the government.
“The Hague Convention is circumventing the Indian system, and India can’t abdicate its responsibility to Indian parents, mostly mothers, and their young children,” she says.
Passed in 1980, the Hague Convention on International Child Abduction, which came into force in 1983, rules that in any child custody case, the court of the country where the child is a “habitual resident” will adjudicate who will get custody.
American officials say the problem arises when one parent is in the U.S., while the other brings the child to India (their home country) to avoid an adverse decision in the U.S. court.
“There are at least 94 such cases pending with us today, while many more simply lapse once the child turns 16,” an official told presspersons in Delhi, adding that they “will make a presentation to Indian officials about why accession to the convention is a good thing”, during the Washington meeting.
A total of ninety four countries, mostly developed nations in the Americas, Europe and Australia, are signatories to the Hague Convention so far.
‘Women worst hit’
In rejecting the convention last year, Minister of Women and Child Development Maneka Gandhi said the worst affected in the cases covered by the convention are women, who form 68% of the parents that take or “abduct” their children to their home countries, and must be protected.
“It is unfair that the mother, who is recognised in India as the primary caregiver, and is often fleeing an abusive marriage, is branded an abductor by the Hague Convention,” says Shivangi Misra of the Lawyer’s Collective, the group spearheading the campaign.
However U.S. officials said there are several provisions to protect women in the U.S., should India choose to accede to the Hague Abduction Convention, as it is called, and women had no reason to “run away to India with their children”.
They added that the “ball is now in India’s court” to join the convention.
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A large number of women married to Indians residing abroad are compelled to return to India with their children when the spousal relationship turns sour. The moral minefield embedded in the shifting landscape of marital discord moves to the much complicated terrain of a custody battle. When children are abducted by their own parent, it results in their being traumatised and their parents being destroyed.
The complicated pitfalls of crosscultural relationships, and the inadequacies of international law to serve justice in the interests of the most vulnerable, even makes it tricky for the judiciary to decide such cases. There is a rise in such cases of cross-country battles which often take an ugly shape. Though “abduction” is a strong word for an act by loving parents, but legally speaking that is what it is. Confusingly for children innocently loving both parents, it’s also often the case of parents putting their own needs above those of their children.
Worldwide, about 70 per cent of children are taken by their mothers. Australia witnesses between 250 and 300 children being abducted by a parent. At present, there are about 80 cases where Indian parents have removed a child from the US and brought him or her to India and in some cases where parents have taken the children to the US from India.
In the absence of a domestic law on “inter-parental child abduction” in India, very often children of such NRIs’ who have grown up abroad become silent victims of their parents’ marital dispute when they are forcibly brought back by one of them. Currently, there is no specific Indian legislation addressing issues related to abduction of children from and into India. However, the Law Commission of India had submitted its 218th report titled ‘Need to accede to the Hague Convention on the Civil Aspects of International Child Abduction 1980’ on 30 March 2009, though there has not been much development on this front.
Recently, the Commission has also suggested some modifications in “The Protection of Children (Inter-country Removal and Retention) Bill, 2016”. It recognizes the issue of interspousal child removal on breakdown of diverse family units, in a situation where children are abducted by their own parents to India or to other foreign jurisdictions, in violation of interim/final orders of competent Courts.
In the US and Europe, interparental 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 or she was removed.
Hague Convention is a multilateral treaty which came into existence on 1 December 1983. It seeks “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.” It seeks to return children abducted or retained overseas by a parent to their country of habitual residence and for the courts of that country to decide on matters of residence and contact.
The convention applies to any child up to the age of 16 years, who is a habitual resident of any of the contacting states. If the country of destination is a signatory to the Hague convention on the civil aspects of international child abduction, the “left-behind parent”, as they come to be known, can seek legal recourse.
Ninety-four countries are party to this convention and there are procedural rules that apply to the cases including a timeline and how they should be handled. 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 and soon India is going to have a domestic law on it.
According to the Ministry of Women and Child Welfare, the matter of ratifying the Hague Convention was taken up following lobbying by groups in the United States and certain European nations. The pressure from the developed countries to get India to be a signatory to the treaty was based on gender equality and the idea that the father should have equal rights to the child as the mother.
Unfortunately, that doesn’t apply here given the reality of Indian marriages. In some of the cases, husbands have procured orders from US courts which could translate into the woman being arrested the minute she goes back to the foreign country. If the convention is ratified, India has to send the woman and the child back immediately as the act of escaping with the child is treated as abduction. This strips them of the protective cover they have in their own country.
Since India is not a signatory, presently the father has to come to India to take legal recourse in Indian courts if he wants to claim custody of the child.
Judicial Response in India
The Supreme Court had several occasions to deal with such complex emotional issues and it has repeatedly held that repatriation of the child to the foreign land should not (a) cause any moral, physical, social, cultural or psychological harm to the child; (b) cause any legal harm to the parent with whom the child is in India; (c) violate the fundamental principles of human rights and freedoms of the receiving country, i.e., where the child is being held and; (d) considering the child welfare principle, due importance must be given to the primary care-giver of the child.
In the latest case of Surya Vandanan v. State of Tamil Nadu (2015), it has held that primary importance is to decide whether the foreign court has jurisdiction over the child in question if the child is ‘ordinarily resident’ in the foreign court’s territorial jurisdiction and, then the order of the foreign court must be given due weight and respect.
Most children who are abducted by a family member suffer tremendous emotional consequences. The parents should prioritise the welfare of the children and the impact on the children due to such action. After Mexico we have more abductions from India than from any other country. The Mexican cases get resolved, the Indian cases don’t.
Unfortunately, women involved in cross-jurisdictional divorces, ‘holiday marriages’ or ‘limping marriages’ have to face additional challenges in the custody battle, which also relate to the problem of jurisdiction, access to judicial recourse and resources. This may be viewed as a bias against the interests of women.
The woman must not be put in a situation where she has to make the impossible choice between her children and putting up with an abusive relationship in a foreign country.
Parental child abduction is a calculated, malicious act committed by a disgruntled spouse/ex-spouse, who may be forum shopping to avoid a fair and timely child custody determination, and who may be in violation of already existing custody orders. This is a violation of a child’s rights as per the law in many jurisdictions. The abducting parent inflicts emotional, psychological pain on the parent left behind without regard to the child’s well being, often with the backing and support of the abductor’s family and legal advisers. Such act deprives the children of parental love and affection, robs them of their family, friends, their home, their identity, and systematically alienates them from a familial atmosphere.
If you have any questions or concerns regarding parental parental child abduction to, or from India feel free to contact us 24 / 7. We are always available at email@example.com or by calling our offices – +1 (805) CHILD-11 (+18052445311
The family of Marie Eleni Grimsrud – the young girl who was snatched by her estranged father and who is still missing – have succeeded in getting a court in Norway to recognise her case as an abduction.
The ruling in the Scandinavian country is seen by legal experts as a blow to the efforts of her father – 49-year-old Leif Torkel Grimsrud – to take her legally back to Norway. Legal representatives of the mother had made the motion at the Oslo District Court.
Four-year-old Marie was abducted on April 27 as her mother, 43-year-old Greek Cypriot Lena Ioannou, was dropping her off at nursery in Nicosia. Police say the father had orchestrated the abduction and an international arrest warrant is out against him.
Several people had been arrested at the time but have since been released due to lack of evidence.
Back in July, investigators in Cyprus had said that the six-year-old girl had been sighted with her father on a boat at the Antalya marina in Turkey.
“If Marie is sighted in Norway, then the authorities there will be forced to intervene and get her returned safely to her mother in Cyprus,” said Laris Vrahimis – the lawyer representing the mother in Cyprus.
“We believe we know where Marie is, but we will not be making that knowledge public. We are doing everything we can to get her back.”
If you have any questions or concerns regarding parental abduction to or from Cyprus or Norway feel free to contact us 24 / 7. We are always available at firstname.lastname@example.org or by calling our offices – +1 (805) CHILD-11 (+18052445311)
Hannah Mills was 15 when two strangers woke her in a hotel room. One waved handcuffs in her face while taunting her: “We’re not afraid to use them on children.”
The two strangers, who had taken Hannah from a Shiawassee County courtroom to the motel, then drove her to the Detroit airport where they held a towel over her head and escorted her to an airplane.
Hours later, she landed in California where she joined her father and younger brother at a reunification program – called Family Bridges – designed to repair Hannah’s relationship with a father she says she hated, but who was given sole custody of her after a bitter custody battle with her mother.
“They showed us dumb videos that said your mom is wrong and dad is right,” Hannah said. “They threatened to send me to a housing unit in Utah until I was 18. I was only 15. I had to say, ‘I love you, dad’ and participate. … They said if I did, I could see my mom.”
Hannah’s father, Kurt Mills, of Owosso, sees it differently. He believes the reunification program was a necessity to address “the parental alienation” tactics his ex-wife, Candy Mezey, used to poison Hannah’s attitude and feelings toward him.
Parental alienation describes a situation where a child chooses not to have a relationship with one parent because of the influence of the other parent.
Kurt Mills said the program helped his relationship with his now-17-year-old daughter. He admits that he hasn’t seen Hannah in months, because she left his home when she turned 17 and hasn’t told him where she is living.
“Candy always tells the kids bad things about me and my family,” he said, adding that comments included how his family doesn’t love the children. “The first couple years, my ex-wife denied (visitation).
“After enough brainwashing, the kids said they didn’t want to go with me. … After a while, my kids were referring to me as ‘sperm donor,’ ‘deadbeat dad,’ (and) ‘loser,’” Kurt Mills added. “The judge labeled (ours) the worst case in the courthouse.”
Michigan still follows the Child Custody Act of 1970, which puts the power of which parent receives custody in the hands of the court. The decision is determined based on what is known as “best interest” factors for the child, including financial resources and education.
But, addressing child custody in Michigan has become a hot topic button as lawmakers consider House Bill 4691, the Michigan Shared Parenting Act, which passed the House Judiciary Committee in June and is headed for the House floor in the fall.
The proposed bill establishes a presumption of shared parenting – both legal and physical – that means neither parent would have more than 200 days per year, or about 54%, with the child. If passed, HB 4691 would not make custody an automatic right as exceptions in cases of domestic violence, child abuse or unfitness would still apply, and those custody decisions would revert to the 1970 law.
Advocates of the bill say it would fix an ineffective family court system across Michigan that pits parents against one another. Opponents argue it assumes that one sort of custody is best for all families and could create more conflict that places children in the middle of their parents’ fight.
In June, Judges Kathleen Feeney and Brian Kirkham of the Michigan Judges Association wrote in testimony prepared for the judicial committee that the presumption of an established custodial environment by both parents “disregards the actual facts as to which parent provides day-to-day support, maintenance and nurturing of the child and instead substitutes mere presence of a parent.”
Linda Wright, chairperson of the Michigan chapter of the National Parents Organization, said it is difficult to ascertain who is the better parent based on the best interest factors when “a lot of custody cases” are decided after “10 minutes in front of a judge,” who cannot get an accurate picture of the family dynamics in such a short time.
“The current law is not working,” she said. “… Without there being a standard, it really doesn’t depend on who is the best parent. It depends on what judge you have and what county you’re in.
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“There is a wide discrepancy between counties on what parents may get – joint custody or equal parenting time,” Wright added.
Statewide, joint custody ranged from a high of 70% in some counties to as low as 14% in others. Livingston County ranked in the middle with mothers awarded custody in 50.4% of the cases while 7.3% of fathers receive custody, according to statistics from the NPO. Joint custody is awarded in 41.7% of the cases.
In Michigan, an estimated 85% of divorce cases involving children end with one parent receiving sole custody. Of those parents awarded sole custody, an estimated 83% are women, the NPO reports.
“That is not enough time to establish the bonds and maintain the parent role for children,” Wright said.
Candy and Kurt Mills married June 28, 2003.
According to court documents, the couple had an apparently tumultuous relationship that led to multiple filings seeking a divorce. The couple reunited several times, until December 2009, when their final judgment of divorce entered.
At the time, Candy Mills had custody of the couple’s two children while Kurt was given parental visitation rights on alternate weekends from 6 p.m. Friday to 6 p.m. Sunday and one overnight each Wednesday. The couple alternated major holidays with Kurt Mills having the children on Father’s Day and for three consecutive weeks in the summer.
However, about two months after the divorce was final, Candy Mills filed court documents alleging her former husband “has never exercised” his rights to see the children, and she asked the judge to stop the Wednesday overnight visit.
“She is doing everything possible to keep them from me,” Kurt Mills told the court, according to court records. “I have always been a good, involved dad and have always taken good care of my kids.”
That latter statement remains true today, Kurt said.
She remembers “my dad was not around a lot.” She said there “was a lot of violence and hostility” and that her father was physically and verbally abusive toward her mother. She said she witnessed her father “throw” her mother off beds and “shove her into walls.”
Hannah remembers her father would leave during the arguments, sometimes to stay at another house he owned or to travel for work. She also remembers her father telling her “you’re a mistake” and that she “should never have been born.”
“The hostility was so high,” she said.
Court records show both parents hurled accusations at the other.
Candy Mills accused her ex-husband of driving without a license with their son in the vehicle and of excessive alcohol consumption in front of the children. She also alleged Kurt Mills’s family members taught the children how to roll cigarettes, showed porn to the children and offered the children alcoholic Jello shots at a family gathering.
Kurt said a family member did roll cigarettes in the children’s presence but did not teach them. He also acknowledges there were Jello shots at a party but said none were offered to the children, and he admits “driving drunk once” when he went to Candy Mills’s home at her request.
Kurt Mills said ex-wife continually made false allegations to Child Protective Services, which could “not substantiate” Candy’s claims.
Hannah said she complained her father denied her food as punishment, but CPS gave her father a warning they would visit, which prompted him to stock the house with food. She said CPS told her that, since “he didn’t use a stick or weapons,” his treatment of her “wasn’t child abuse.”
“Obviously, you’re not going to leave your house bad if you know they’re coming,” she said.
CPS does not comment on investigations.
Court records show that Kurt’s son threatened to “break everything (Kurt) owns” if he was forced to visit his father, and Hannah told her father, “I hate you.”
Hannah, then a freshman in high school, threatened suicide and began cutting herself.
As the custody dispute, which centered on the children’s unwillingness to visit their father, raged on, the judge and CPS appeared to get frustrated.
CPS, tasked with investigating allegations of child abuse and neglect, asked the judge to force Candy Mills to give her ex-husband his parenting time, and they asked that Candy Mills receive a 20-hour community service sentence.
Kurt Mills said it was CPS who suggested “parent alienation” was at play. He said that clicked, explaining the children’s disrespect and hostility, and his ex-wife’s denial of his parenting time.
“I simply wanted to be a consistent part of my kids’ life,” Kurt said.
In August 2015, Judge Matthew Stewart had apparently had enough and awarded Kurt physical and legal custody of both children.
Hannah said she and her younger brother were told they were going to court on Aug. 10, 2015, to tell the judge their opinion about where they should live.
Instead, Hannah was ordered to go with “these people,” two strangers Hannah now refers to as “psychos.” They told her she could no longer have contact with her mother, patted her down and escorted her to a hotel.
Candy Mills had been ordered by the judge to immediately leave the courthouse and to stay 5 miles away until close of business that day. She learned her children were in California when a pharmacist called to discuss refilling a prescription for Hannah.
“I call it kidnapping,” Candy Mills said. “Two people took off with my child. They were strangers.”
In California, Hannah said she was forced to participate in the Family Bridges program operated by Randy Rand, who has since had his license as a psychologist revoked because of misconduct in Florida and California.
Programs like Family Bridges, which bills itself as a multi-day educational program, have sprung up in the past decade to address parental alienation.
Opponents argue the programs, which can cost upwards of $40,000, are shams that provide a way for lawyers, psychologists and social workers to profit from parents in a bitter custody battle. Proponents say parental alienation is psychologically damaging and reunification programs like Family Bridges are the best way to reunite an estranged parent and children.
Kurt Mills said he felt he had no choice.
“I had concerns for a year because of what was happening to my kids was absolutely horrific,” he said. “This was the only hope there was. … I was trying to open their minds up and not be tunnel vision by just what their mom said.”
Hannah said her father had pre-arranged her “escort” as he had purchased her airline ticket before the conclusion of a custody hearing. Kurt said it was necessary due to Hannah’s hostility toward him.
He believes the program helped. Hannah disagrees.
Candy Mills’s attorney, William Mollison, filed a motion in January 2016 seeking to return custody of Hannah and her younger brother their mother. The judge denied the request.
Changing the law
Kurt believes Michigan’s Legislature needs to seriously consider HB 4691.
“The laws have to change in the state of Michigan,” he said. “I would think when children are being damaged so severely someone should stand up and do something about it. … I think both parents need to put their hate and anger aside and think about the kids.”
Research shows that shared parenting is best for children. NPO reports that children without shared parenting are two times more likely to drop out of high school and four times more likely to have emotional or behavioral problems.
“That is the promise of this bill,” Wright said. “It’s to allow the children to keep both parents and both extended families. There’s a trickle-down effect to this that when one parent is eliminated … (children) also lose that whole other side of their village – the grandparents, aunts, uncles and cousins.”
Hannah left her father’s home at 17. She arranged with a family she met at church to live with them and attend Brighton High School.
She said she’s been advised that, as long as she emails her father at least once a month to let him know that she is OK, he cannot report her missing or as a runaway. She has denied his requests to meet for dinner at a restaurant, and she’s revoked permission for school officials to give her father information.
“Not once has he asked me to come back,” Hannah noted.
She visits her mother, but only on her mother’s court-ordered weekends because she fears, if she detours from that schedule, her mother could be accused of violating court orders.
“She went to jail for a night because we refused to visit our dad,” Hannah said. “She was threatened with 30 days. I don’t want to be the one who puts my mom in jail.”
Hannah said is waiting for the day she turns 18 so she can have her mother back in her life 100% of the time.
She works at a local Subway store to support herself and is planning a mission trip to Africa with her church. She entered her senior year of high school and has found a renewed interest in dance, which she lost when “I was taken away from my mom.”
“I’m glad he’s out of my life,” Hannah said about her father.
“I was so depressed for so long, obviously. I was cutting myself and attempting suicide, but at this point, I see the light at the end of the tunnel,” she said. “I remember when I was 13 and counting the days to 18. … I can make something good out of all of this. I want to save other children.”
Thankfully, sexual abuse allegations against parents do not often arise in the context of a divorce typical. However, when those scenarios do arise, they bring lawyers, litigants and judges alike in to unchartered territory where they sometimes have to sift through various accounts to get at the truth of the matter.
Twenty years ago, the Appellate Division succinctly described the dilemma Courts often face when dealing with sexual abuse allegations:
This case is an example of a tragic but recurring dilemma in certain family court cases involving allegations of child sexual abuse. On the one hand, there are clearly cases of imagined or even fabricated charges against a parent, especially when raised during the pendency of divorce proceedings. For a parent to stand accused of such an offense is devastating both to that individual, and to the child’s lifelong relationship with the parent. On the other hand, proof of such abuse, especially involving a very young child, is rarely clear, and the potential danger to a child from a reoccurrence, if the suspicions and accusations are well-founded, is enormous.
In a subsequent case several years later, the Appellate Division in Segal v. Lynch, 413 N.J.Super. 171 (App. Div. 2010) even carved out a cause of action wherein one parent can sue the other for money damages on the grounds of parental alienation when one makes false sexual abuse allegations against the other:
[W]e are not blind to scenarios in which one parent intentionally or recklessly imbues a child with such calumnious accounts of the other parent, so wicked in their intent and so destructive in their effect, that the situation necessitates civil redress. For example, a case in which one parent falsely and intentionally accuses the other parent of sexually abusing the child is so despicable on its face and so destructive in its effect on the innocent parent that it cries out for compensation which is not available in the Family Part or even in the criminal courts. The same can be said of cases involving parental abduction, where one parent, unlawfully and without the knowledge or consent of the other parent, removes the child to a foreign jurisdiction with the intent of frustrating any lawful means for returning the kidnapped child to the aggrieved parent. In such cases, sound public policy demands that the aggrieved parent and, by extension the innocent abducted child, be given compensation beyond just reunification. Id. (emphasis added).
The recent published decision of E.S. v. H.A., A-3230-14T2 and A-3256-14T2, speaks to a different kind of scenario involving sexual abuse; one where the allegations have been sustained and the parent-child relationship hangs in the balance.
In E.S. the parties had a long history of contentious litigation, involving various domestic violence claims, motions, and the like. Ultimately, the Division of Child Permanency and Placement (DCPP) became involved with the family when allegations were made of sexual abuse against the father as to the parties’ child, Richard.
After various proceedings by the DCPP, at least some of the sexual abuse allegations against the father were sustained. Thereafter, the mother moved for a suspension of the father’s parenting time.
Following a hearing, the trial court found, by clear and convincing evident, that the father had sexually abused Richard, granted the mother sole legal and physical custody of Richard and denied the father parenting time. The resulting order further required the father to “comply with certain requirement prior to making any application for parenting time with his some”, including the following:
a. Admission of wrongdoing;
b. A psychosexual evaluation by a professional specializing in same; and
c. Individual therapy.
The father’s subsequent appeal primarily concerned the above requirement that the be required to make an “admission of wrongdoing” prior to making an application for parenting time. The father argued that requiring him to do so would violate the right against self-incrimination.
Indeed, the right against self-incrimination, although not protected by the New Jersey constitution, is deeply rooted in our jurisprudence and codified in N.J.S.A. 2A:84A-19, which states that every person in New Jersey “has a right to refuse to disclose in an action…any matter that will incriminate him or expose him to penalty…”
Both the United States Supreme Court and our New Jersey courts have consistently held that the state may not force an individual to choose between his or her Fifth Amendment right and another important interest because such choices are deemed to be inherently coercive. It does not matter whether the particular proceeding is itself a criminal prosecution. Rather, “the Fifth Amendment is violated ‘when a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered.’” State v. P.Z., 152 N.J. 86, 106 (1997).
After a full examination of the case law and surrounding circumstances, the Appellate Division in E.S. reversed the trial court’s decision requiring the father to admit to the sexual abuse allegations prior to making an application for parenting time. Its reasoning was as follows:
Here, the November 2013 and January 2014 orders conditioned any future request by defendant for parenting time upon his admission of “wrongdoing,” which we presume, based on [the expert’s] testimony, means defendant must admit that he sexually abused Richard. Such a requirement compels defendant to waive his privilege against self-incrimination and violates his rights under the Fifth Amendment and our State Constitution.
The Appellate Division further vacated the remaining preconditions that the trial court imposed on the father “prior to any application for parenting time”, reasoning that, “imposition of these other preconditions violated defendant’s right to invoke the equitable powers of the Family Part to modify its order denying him any parenting time.” While the Appellate Division noted that these application may fail absent the father’s efforts to address the issues that the court saw as vital to the reintroduction of parenting time, it made clear that the court should not reach that conclusion in advance of such a request.
Cases involving sexual abuse pose special problems and considerations for our courts. But this decision makes clear that it is important to note that our judiciary is required to preserve and protect the due process rights of everyone involved in the litigation.
If you have any questions or concerns regarding parental alienation or parental child abduction feel free to contact us 24 / 7. We are always available at email@example.com or by calling our offices – +1 (805) CHILD-11 (+18052445311)
You may think medieval texts on Islamic law have no relevance in the 21st century.
In fact, international child custody cases today are often entangled in modern statutes that draw upon that historical tradition, and which are insulated by a technical legal claim of “jurisdiction” – something Muslim jurists wrestled with in the classical period of Islamic law (circa ninth to 14thcenturies), as empires expanded trade routes and clashed over territory and competing world views.
Those legal traditions, insulated by claims of jurisdiction, are why children are so difficult to get back when a parent takes them to certain Muslim majority countries, explained Professor Anver Emon, a leading scholar of Islamic law from the University of Toronto’s Faculty of Law.
Today, he and five other emerging scholars at the University of Toronto have been named as members of the Royal Society of Canada’s College of New Scholars, Artists and Scientists. (See the full list of recipients below.)
“Being inducted as a member is an honour. It means a lot to know that my colleagues see value in the scholarship that I’ve done,” said Emon (pictured left), who is also the Canada Research Chair in Religion, Pluralism and the Rule of Law.
Three years ago, the society decided it needed to create a special college to recognize and foster scholarly leadership and interdisciplinary collaboration among Canada’s “new” generation of scholars, artists and scientists who have received their PhD within the last 15 years.
“The University of Toronto is proud of our six new members joining the Royal Society of Canada College of New Scholars, Artists and Scientists. They represent some of our most exciting up and coming researchers in a variety of critically important fields in the sciences and humanities,” said Vivek Goel, U of T’s vice-president of research and innovation.
Emon, a father of two young children who moved to Canada from the United States a few years ago, said it’s “so unexpected and reinvigorating” as a legal historian to receive the honour, especially since we’re “living in a post-fact world” filled with recent disheartening news, from the Trump travel ban and the violent white supremacist demonstration in Charlottesville to the rise of the anti-Muslim “Three Percent” chapter in Alberta.
“This recognition by the Royal Society of Canada shows that knowledge matters, scholarship matters. In a world where we can limit people’s movements across borders, it’s important to remember that we can’t limit the movement of ideas, whether across space or time,” he said.
In addition to his teaching at the Faculty of Law, Emon has acted as a consultant for the federal government on Islamic law and private international law in child custody cases involving the Muslim world. Several high-profile Canadian cases demonstrate how difficult these negotiations can be, such as the ongoing Alison Azer saga.
Muslim majority states can invoke their commitment to Shariah to justify why they refuse to accede to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, Emon said. But as his research shows, jurisdiction lies at the heart of both the convention and the diplomatic gap between signatories and non-signatories to the 1980 Abduction Convention.
The multilateral treaty seeks 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 rights of access.”
Muslim-majority states are concerned the treaty violates Shariah-based rules on child custody. For many of these countries, such rules inform domestic statutes on family or what is often called personal status law, Emon said.
“Medieval Muslim jurists saw the world through as a duality [split into] Muslim and non-Muslim regions,” he explained. “They saw the [issue of jurisdiction] as a zero sum game. Either we won’t take jurisdiction, or we’ll take it and judge it according to our domestic laws, namely Shariah. To them, there was no law outside the Muslim world.”
This position, he said, draws on a similar, exceptional world view that informed U.S. legal policy toward China. From the late 19th century into the early 20th, the U.S. administered the Federal District Court of Shanghai, which served to legally protect the interests of American financiers and traders operating in the region. At that time, Americans believed China had no law.
The goal of Emon’s research is to find a way forward to overcome the current political stalemate. In recent years other holdouts such as Japan, which was a “black hole” for many years in parental child abduction cases, has now acceded to the 1980 Abduction Convention, as have Morocco and Iraq.
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An Orono woman discovered dead with her 5-year-old son Monday left a suicide note lamenting her long-running court battle with the father over custody that ended with them having joint parenting rights, according to a search warrant filed Wednesday.
Police have called the hangings of Gina Ilene Summers, 46, and her son Jude a murder-suicide. It appears to follow a lengthy custody dispute between Summers and the boy’s father, 51-year-old Jeff Sandberg, of Minnetonka.
Officers first stopped by the home Monday, after Sandberg notified police that he could not reach anyone there to arrange for picking up his son at 5 p.m., Police Chief Correy Farniok said. Summers and Sandberg have joint custody of the boy.
The home was locked and no one answered the door, Farniok said. Sandberg was advised to call back later if the situation remained the same, the chief said.
After the father called again, a relative who lived nearby and had keys let police in about 8 p.m. That’s when the bodies were found in the basement and a preliminary determination of murder-suicide was made, the chief said.
Summers’ typed and signed note, which was discovered nearby, “talked about prior domestic abuse and issues with the system and allowing a child to be ripped from his mother,” and it ended with, “Don’t let this happen to another child and mother.”
Sandberg released a statement late Thursday through his attorney pointing out how he went from enjoying a family fishing trip a week ago to the Boundary Waters with his 5-year-old son and others to now “planning the funeral for Jude, murdered by his mother, Gina Summers, when he was getting ready for his first day of Ready Start Kindergarten.”
Sandberg challenged the mother’s allegations, writing that Summers “since the onset of the case in January 2015 when she falsely accused the father of domestic abuse, never missed an opportunity to disrupt the established father-son relationship, both inside and outside of the Family Court paternity proceedings.”
He said Summers traumatized him and his family over the past 2½ years with “her actions and inactions, including her scheduling of multiple motions before the court, not only before but also after the trial, and subsequently to the Court of Appeals, and her absolute refusal to participate in ordered mediation.”
Police searched Summers’ house and found documents, including court and mental health papers. A camera system was also installed at the property.
According to court documents in their disputes over Jude’s custody and care, Summers and Sandberg began a romantic relationship in 2008, and the next year discussed having a child through in vitro fertilization. After several failed pregnancy attempts, Jude was born in August 2012.
By July 2015, the relationship had become toxic. Summers received an order for protection against Sandberg, saying he had been physically abusing her since 2009. That petition was eventually settled and dismissed.
But the two continued to fight over the pregnancy costs and how to care for the boy. They filed court motions against one another over which school district he should attend. On Friday, Hennepin County District Judge Edward Wahl ruled in Sandberg’s favor.
The court records include many of the boy’s report cards, pictures and assessments. His preschool teacher wrote that the boy is “doing great in class! He is such a smiley and loving boy!”
Summers worked as a Realtor in the west metro. In an online biography, she spoke at length about activities with her son, that ranged “from reading to painting, from racing cars to swimming with them, from gardening to building, all ball sports, and not to mention teaching him to downhill ski at 17 months old; the list of fun goes
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