Defining “Habitual Residence” in the Hague Convention

In Monasky v. Taglieri, SCOTUS took the opportunity to define “habitual residence” and proclaimed a uniform legal standard for the first time. The decision alters the trajectory of U.S. Hague Convention jurisprudence on this issue.

By Amy Keating and Chris Reynolds, Family Lawyers*

On December 11, 2019, the United States Supreme Court (SCOTUS) heard oral argument in Monasky v. Taglieri,1 a case that hinges upon the definition of “habitual residence” for an infant under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“Convention”). In fact, this was only the fourth case that the Supreme Court has taken dealing with the Convention and the first time that the Court has spoken on the issue of habitual residence. The term “habitual residence,” which is not defined in the Convention itself, afforded SCOTUS the opportunity to consolidate jurisprudence in the United States.

Many family law practitioners find international issues daunting, even if they have a vague understanding of what the Convention is. So, what is it? Plainly, it is a multinational treaty, one of many under the “Hague Convention” umbrella intended to protect children from the harmful effects of international abduction. Its main goals include bringing about children’s prompt return, and it is designed to prevent parents from forum shopping in international custody disputes. Like the UCCJEA, the Convention is essentially a forum selection law, intended to be about who decides not what is decided.

The basic components of a Convention claim include:

  1. a wrongful removal/retention of a child;
  2. when the child was habitually resident in a contracting state;
  3. in breach of rights of custody;
  4. when the child is under the age of sixteen;
  5. within one year of the removal/retention (after one year, the Convention still favors returns but considers whether the child is settled in his/her new environment [Art. 12]).

The burden of proof is on the petitioner who must prove these elements by a preponderance of the evidence in the U.S. Establishing a prima facie case presumes a right of return to the child’s habitual residence unless one of the narrow defenses applies.

Defining Habitual Residence in the Hague Convention

 

Three Standards for Habitual Residence

Despite its critical importance, “habitual residence” is not specifically defined in the Convention – primarily because the drafters could not agree on a definition.2 As a result, prior to Monasky, different jurisdictions crafted different legal standards to determine this very key term of the Convention. For purposes of simplicity, there were three standards that developed in the U.S.:

  1. Acclimatization standard;
  2. Shared Parental Intent standard;
  3. A hybrid of both standards.

Acclimatization, the prior standard in the Sixth Circuit,3 focused on where the child has been physically present for an amount of time sufficient for “acclimatization” and which has a “degree of settled purpose from the child’s perspective.4 It looks for indicia of the child’s connectivity to a place through objective criteria such as school, extracurricular activities, social activities, and meaningful relationships with people in that place.

Shared Parental Intent focused on where the parents intend for the child to be raised.5

To determine a child’s habitual residence, we “look[ed] for the last shared, settled intent of the parents.” A court considered the parties’ subjective intent but also objective evidence of steps the parties took in furtherance of that intent – outward manifestations of where the parties intended for the child to be raised.6

Other circuits have adopted a hybrid standard that considered both Acclimatization and Shared Parental Intent, weighing them differently depending on the jurisdiction. Good examples of this exist in the 8th and 3rd Circuits, among others.7

Monasky v. Taglieri

In Monasky, the parties meet and marry in Illinois, but relocate to Italy, disagreeing as to how long they intend to stay. The parties’ marriage deteriorates, and there are credible allegations of domestic violence. Monasky becomes pregnant but, by the time of the child’s birth, the marriage is irretrievably broken. Due to an emergency cesarean section, Monasky cannot leave Italy due to her recovery and lack of a US passport for the child. Monasky tells Taglieri she intends to return with the child to the US as soon as possible; Taglieri alleges that the parties had reconciled. When the child is 6 weeks old, Monasky and the child are placed in an Italian domestic violence safe house. When the child is 8 weeks old – and as soon as her US passport is issued – Monasky and the child leave Italy for the US. After a four-day bench trial, the district court found that Italy was the infant’s habitual residence and ordered a return.

In the Sixth Circuit, acclimatization had been problematic for infants or children with cognitive disabilities. In other words, what should a court do with children that cannot acclimatize? This had been an “open issue” for some time, but the Sixth Circuit had not been forced to contend with it directly. Monasky – along with another case that hit the Sixth Circuit at the same time (Ahmed v. Ahmed, 867 F.3d 682, 2017) – made it impossible to sidestep any longer. Would the Sixth Circuit agree with the majority of other circuits that shared parental intent was the standard for this category of children? Ultimately, an en banc Sixth Circuit agreed that shared parental intent was the proper standard (907 F.3d 404, 2018).

Must Every Child Have a Habitual Residence?

Further, must every child have a habitual residence at all? One camp holds that, while rare, there are times when a child has not formed a sufficient connection to a particular place, either directly or through its parents. In those situations, the Convention simply does not apply because there is no status quo to return to. The other camp argues that a child always has a habitual residence; that it must always exist. In Monasky, our position had been that the child never acquired a habitual residence due to her young age and the parental discord about where the child would be raised – the absence of shared parental intent.

Despite agreeing that shared parental intent was the appropriate standard, the en banc Sixth Circuit found that habitual residence was an issue of “pure fact” subject to clear-error review. It refused to remand the matter so the trial court could apply the facts to the new legal standard and upheld the return by a vote of 10 – 8.

We identified two circuit splits that the Supreme Court agreed merited review. The questions were:

  1. Whether a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo…or under clear-error review; and
  2. Whether, when an infant is too young to acclimate to her surroundings, a subjective agreement between the infant’s parents is necessary to establish her habitual residence.

 

Is Habitual Residence an Issue of Pure Fact?

“Standard of review on appeal” may not seem like a “sexy” topic, but lawyers know that it can make a big difference in the outcome of cases. The Court must determine whether habitual residence is an issue of pure fact – calling for strong deference to the trial court on appeal – or a question of “ultimate fact” or “mixed question of fact/law” – requiring a de novo review.

Habitual Residence in the Hague Convention: SCOTUS’ Decision

On February 25, 2020, the U.S. Supreme Court issued its opinion in Monasky v. Taglieri. SCOTUS held that a child’s habitual residence depends on the totality of the circumstances specific to the case – providing one uniform legal standard for this key term for the first time, applicable to all children. The Court rejected Monasky’s “actual agreement” requirement in favor of a flexible and fact-driven standard. SCOTUS also held that habitual residence determinations should be subject to a “clear error” appellate review.

This decision has altered habitual residence determinations in the US and changed the language and the landscape of habitual residence going forward. Despite the positive effects of a now-unified habitual residence standard, we remain concerned about the practical impact of the Court’s adoption of a clear error standard of review.

This pronouncement – and the Court’s apparent trade-off of expediency over other considerations – makes it more likely that cases with similar facts will have disparate outcomes driven by the proclivities of the particular judge or court hearing the case with almost no basis for meaningful appellate review. “Prompt but wrong” is not a generally accepted legal norm, and it is especially pernicious when the well-being of children is at stake. While we certainly hope our fears don’t materialize, that is now the state of our law.


1 In the District Court of Appeals, the case is captioned Taglieri v. Monasky.
2 A more comprehensive of the Convention would necessarily include additional explanation of the other components. Because Monasky is focused on habitual residence, we are confining our discussion to only that term.
3 See Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993) and Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007).
4 Robert v. Tesson, 507 F.3d 981, 993 (6th Cir. 2007).
5 Valenzuela v. Michel, 736 F.3d 1173, 1177 (9th Cir. 2013).
6 The seminal case on this standard is Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001).
7 A slightly different version of this exists in the 7th Circuit in Redmond v. Redmond, which implements a totality of the circumstances approach that considers both Acclimatization and Shared Parental Intent as factors. The Supreme Court seems to have relied heavily on Redmond and similar cases in this line of reasoning in arriving at its decision in Monasky.


This article originally appeared as posted by Diana Shepherd on Family Lawyer Magazine.

*Amy Keating and Chris Reynolds are both OSBA Certified Specialists in Family Relations Law, and they tried Monasky v. Taglieri in the Northern District of Ohio. On both appeals in the Sixth Circuit and before the Supreme Court, they were co-counsel with Gibson Dunn in Washington, D.C. and Professor Joan Meier of George Washington University. Amy focuses her practice on family law matters, including child custody and issues concerning parental relocation. Chris has significant experience representing parents in international custody matters, including international child-abduction cases implicating the Hague Convention.

Why Courts Make It So Hard to Relocate with Your children… And How to Win…

Once upon a case, a woman from New York met a man from Cleveland and they fell in love. The man had a successful business in Cleveland and lots of family there. All of the woman’s family was in New York. The woman decided to move to Cleveland in order to marry the man and start a family. They had several children. The woman primarily raised the kids while the man worked. The years passed. The marriage failed. The woman wanted to return “home” to New York with the children. In the practice of Family Law, this sad story repeats itself over and over again.

These are complicated and emotional cases. Almost always the woman in this situation cannot “relocate” to New York with her children, even though the relocation is actually a return for her. There a several reasons for this. But to make a long story very short, here’s why:

Laws generally prevent the permanent removal of children from the jurisdiction of court. Ohio’s law is a perfect example. It is specifically biased against out-of-state relocations, requiring the moving parent to file a notice of relocation, and permitting the non-moving parent to demand a hearing to determine what sort of modification to the parenting plan is possible. While Ohio courts will not prohibit a parent from moving, they can, and sometimes will, find that the parenting arrangement should be modified to keep the children in Ohio. But it is theoretically possibly to relocate if the parent who wants to move can demonstrate that the move is in the child’s “best interest.” The “best interest test” is the heart and soul of nearly every custody or relocation case.
The laws of the United States vary from state to state but determining what is in a child’s best interest, from a legal point of view, has one constant. “Best interest” is in the eyes of the beholder. The beholder is, of course, the judge or hearing officer assigned to the case. No matter how laws defining best interest are written at the end of the day they are necessarily subjective.

An experienced Family Law practitioner knows that the subjectivity of these matters results in formulaic solutions and court outcomes. First, parents are encouraged to work with one another to co-parent after the parties split up, even if they were not able to do this when they were still together. Second, parents are required to foster positive interactions with the other parent (again, even when they could not do this while together.) This often means that geographic proximity is important. Third, parents are required to do things that maintain a stable and consistent environment for the children. Frequently this means prohibiting relocations because they are unsettling, not just for the child and his or her relationships with friends, family and acquaintances, but also because it separates children from a parent.

Thus, the truth is that without a truly compelling reason, courts generally do not allow parents to relocate or simply “go home” with children. Yet, courts do, from time to time, allow relocations. And a person who wants to move with a child can increase his or her chances of getting a court to allow such a relocation.

The takeaway is this: if you want to move with a child you must be able to clearly explain why relocation is not simply good for you or why it is fair. You can, by and large, forget about the reasons why the parents are no longer together. Instead, what the parent who wants to move must show is why the move is actually better for the child and why a move in no way compromises the child’s relationship with the other parent. The ability to persuasively answer these questions from the outset will significantly increase a parent’s chances of getting home.

2023-11-10T13:38:16-05:00March 5th, 2013|Best Interests of the Child, Relocation|

Halle Berry’s Violent Custody Battle: Domestic Violence and Child Custody

Halle Berry’s personal family saga continues to evolve (see our previous posts on Berry’s child custody case here and here, and a related one involving Kelly Rutherford.) Just a few days ago, on Thanksgiving Day, a fight broke out between Gabriel Aubry, the father of Berry’s daughter Nahla, and Olivier Martinez, Berry’s fiancée. Apparently, Aubry was arrested at Halle’s house after allegedly pushing Olivier and striking him in the shoulder. (Martinez apparently defended himself by punching Aubry in the face – and sources differ as to whether Aubry was rendered unconscious from the blow.)

This comes at a particularly interesting time for Berry as she just failed in an attempt to get a court to grant her permission to relocate with her daughter to France, where Martinez lives. Does this violent episode help her? Does it hurt Aubry in the eyes of the court with regard to child custody? If a court finds that Aubry committed domestic violence will it help Berry get out of the country?

Having worked with many domestic violence cases, the first question that must be asked is this: is this incident domestic violence? Domestic violence laws vary from state to state, but, generally speaking, they are designed to protect family members from violence that might be perpetrated against them by other family members. The laws generally can be enforced through either civil courts or criminal courts. Where a court finds domestic violence (“DV”) to have occurred, broad remedies are available to protect family members. This could mean that someone is summarily evicted from their home. Financial arrangements could be made to protect vulnerable parties. Temporary protection orders could be issued against alleged perpetrators prohibiting them from trying to be anywhere near protected parties. These remedies can be applied at an ex parte hearing (a hearing without the opposing party present to defend himself or herself.) Shortly thereafter, such orders can be made more “permanent” at a full hearing where the accused is given a chance to appear and defend himself/herself.

Back the Berry’s story, according to news reports Aubry is being charged with some sort of criminal assault. He is also restrained from going near Berry, Martinez, or Nahla. So, is this domestic violence? Or is this just a case of criminal assault and battery? The answer may turn on whether or not a court considers Martinez to be a family member. In answering this question, where Martinez lives is relevant. If he simply stays with Berry in Los Angeles when he is not in France, that may not be enough for protection under the relevant DV laws.

Does a DV hurt someone’s attempt to get companionship rights with their child? Will this hurt Aubry regarding getting access and time with his daughter if a court finds that this episode is DV? Maybe. Maybe not. A finding of domestic violence, whether civil or criminal, could detrimentally impact a court’s determination of custody and access. But a court should consider against whom the violence occurred. If the DV was perpetrated against the child at issue it will matter more than if the violence that (allegedly) occurred was against only the fiancée.

Here, it appears that the violence occurred between Aubry and Martinez, and the child was not involved. Therefore, even though news reports indicate that Aubry is restrained from being near Berry, Martinez, or Nahla, those restraining orders may have been issued on an emergency and temporary basis. The reality is that the temporary restraining orders (“TRO”s) may be dissolved soon, especially the one against Nahla.) However, it is also likely that the court will not only consider, but frown upon, Aubry’s behavior if it is established that he was violent towards Martinez. But because the violence was not directed toward the child this incident may well have no impact on the overall child custody case.

So, ultimately, is this event likely to hurt Aubry with regard to Berry’s attempt to leave the country? If this case had taken place in Ohio (interestingly, Berry is originally from the Cleveland area) a number of protections against Aubry could have been put into place. For example, Aubry could have been ordered into counseling. He could have been prohibited from contacting, even via a third party, Berry, and even his daughter. And, if an act of domestic violence is established under Ohio Revised Code 3113.31, the civil law controlling domestic violence, or its counterpart under the criminal codes, that act of violence should be considered by a court not only as a reason against finding that a shared parenting plan is appropriate but also as a major factor in determining an appropriate parenting schedule.

At our firm we have lectured to other lawyers and consulted with many clients about this exact issue, and we have handled many cases where domestic violence intersects with child custody and shared parenting issues. These are tough cases. Findings of domestic violence do not help people seeking shared parenting with their children, and can impair their access to their children. But a finding of domestic violence it is often not fatal. This reality is good or bad depending on your perspective, either as the accused or as the alleged victim.

Finally, as we discussed in another blog entry, the reason Berry was not permitted to relocate to France was because the move would limit Nahla’s access to her father. That is true whether or not Aubry acted violently toward Martinez. Therefore, at the end of the day it is unlikely that this event will help Berry relocate from the United States to France. But, it most certainly could come back to haunt Aubry if (or when) he seeks to expand his parental access to Nahla. A court might find – and perhaps reasonably so – that if one cannot avoid a violent outburst when one comes to pick up one’s daughter, he may not be able to effectively co-parent with the mother of his child.

What You Can Learn From Halle Berry’s Failed International Child Relocation Attempt

According to media reports Halle Berry sought a court’s permission to move with her daughter Nahla to France against the wishes of the child’s father, actor/model Gabriel Aubry. Berry is apparently engaged to another actor, Olivier Martinez, who lives in France. The court denied Berry’s request to relocate. For anyone considering relocating with their children against the wishes of the other parent, there are some important takeaways from Halle Berry’s failed relocation attempt.

Prior to issuing a ruling the court sanctioned a psychological evaluation. The evaluation concluded that Nahla’s best interests were served if her mother primarily cared for her. Reports indicated that although Aubry loved his daughter he was not as able to take responsibility for her day-to-day care. Psychological reports like these are commonplace in contested custody cases and in relocation cases. When they do not settle, relocation cases like this often turn into complex and expensive duels between mothers and fathers, their psychological experts and sophisticated family law attorneys.

Upon close examination, the Halle Berry/ Gabriel Aubry situation bears considerable similarities to another celebrity relocation case, that of the Kelly Rutherford (see our previous blog entry on the Kelly Rutherford custody order). In both cases the respective courts found that keeping the parents in close proximity to one another was the most important aspect of furthering the best interests of the children involved. In the Rutherford case that meant the children were required to move to France. In the Berry/Aubry case the court determined that the child should not move to France. Although Berry could move to France without her child, such an outcome is unlikely. Thus, as a practical matter, Berry was ordered to stay in Los Angeles even though the court determined that her parenting best served Nahla’s interests.

Without explicitly ruling so, the Berry/Aubry court is implicitly prohibiting Halle Berry’s relocation, contrary to her wishes. Does it matter that Halle is engaged to a man in France? Not so much. What should one take away from this? Of course every case is different and there are many nuanced issues subject to consideration on many levels. But there are also several immediate takeaways for anyone interested in issues like this:

1.) A parent’s desire to relocate children against the will of the other parent often fails. Courts are loath to separate children from their parents. This is true even when the parent wanting to move is the “better parent.” Experience suggests that this is also usually true even when the not-as-good parent is a human train wreck. Children should be in close proximity to their parents whenever possible.

2.) Children, by the time they are 6 or 7, have their own social network. Disturbing that network is not just disruptive, but it is considered unhealthy for children. Therefore a party that wishes to relocate with the children needs a persuasive reason to move them. Moving a child across a city to a different school system is traumatic. Moving a child to another state is even more traumatic, especially when it negatively impacts the amount of time a parent can spend with their children. Relocating overseas is a dramatic change of environment. Therefore the reason for the move must be of a similar magnitude. The reason must be truly compelling.

3.) If you want to relocate, as a general rule, you better have a damn good reason! The greater the distance the more compelling the reason should be. Getting married usually is not enough. A court might say that the remarrying parent should make the new spouse move. Getting engaged just isn’t enough. Halle Berry also tried this as a reason: the paparazzi were creating danger for Nahla. The paparazzi are too dangerous?? Halle Berry is hardly the only celeb in LA. A court would tell her to move to a smaller town in CA before it allowed a move for this reason (or perhaps she could try to move somewhere not quite so far away, like back to her hometown of Cleveland). Or it could tell her to quit her profession and lower her profile. But the danger created by paparazzi is not enough to warrant separating a girl from her father.

4.) None of the above should suggest that a parent can never relocate with a child. People come to us all the time to help them move. It can be done. We have represented people whose children would fly overseas between parents. This example illustrates our contention that every case needs to be considered on its individual merits. A winning approach is to spell out solid reasons for the move from the outset of the case and propose workable solutions to the problems that the move creates. If you can do this then you are then on your way to persuading the court to allow you to relocate.

2023-11-10T13:38:17-05:00November 15th, 2012|Child Custody, International Custody, Relocation|

The Kelly Rutherford Case: International Child Custody, or Revenge Gone Bad?

Many have read, or watched broadcasts, about Kelly Rutherford’s (the star of Gossip Girl) child custody case. Her children were sent off to live with their father, Daniel Giersch, in France. Rutherford maintains that the judge’s ruling is both unjust and inexplicable. Television talking heads and other commentators have agreed. But when Rutherford speaks she may as well be playing basketball against an opponent who is not even on the court because Giersch is not sitting next to her on the couch in the TV studio. He is in France with the children. As in most divorce and child custody cases the truth is that there is more to this story than meets the eye. This case may prove the old adage that there are two sides to every story.

In 2009, while two months pregnant with their second child, Rutherford filed for divorce. According to reports in the media what followed over the next three years was a list of what not to do when attempting to successfully co-parent. Rutherford delivered their second child without informing Giersch until the following day and refused to include Giersch’s name on the birth certificate, even when ordered to do so by the court. After Giersch began to teach his son German, Giersch’s native language, Rutherford attempted to prevent Giersch from leaving the country citing her fear that Giersch would abduct the children. Rutherford sought to relocate the children to New York City so that she could film the next season of Gossip Girl, and Giersch moved to New York City in order to be able to spend time with their children. Then, Rutherford restrained Giersch from contacting her, her mother, and the nanny claiming that Giersch was harassing her family. When asked to provide proof of the harassment, Rutherford withdrew her request for the restraining order. But most notably, Rutherford, through her attorneys, had conversations with the State Department regarding accusations of criminal activity against Giersch’s “businesses” that led to him being expelled from the United States.

There are numerous fascinating aspects to this story. For many, the most troubling aspect of the story is probably why the judge ordered the relocation of the children to France. What stands out for me, however, is that the Rutherford case proves what I have told innumerable clients: revenge doesn’t pay. Apparently, the father was expelled from the United States because of actions that Rutherford took. Was she after revenge? Whatever the answer to that question is, the result of the father not being allowed in the United States speaks for itself.

People are betrayed all of the time. To a greater or lesser extent, we are unfortunately betrayed by our friends, our families, our business partners, and of course, our spouses. It is always hurtful. The impact and significance of the betrayal varies from case to case. But, always, how one responds to the betrayal matters; it matters a lot.

When the lawyers in our practice meet with new clients we are often regaled with stories about how our clients were done wrong. Despite the fact that there are two sides to every story usually the clients telling us about their betrayals are telling the truth. People experience the breakup of their families and need to process through the pain. They need to know that we, their lawyers, understand what it is they are saying, what happened, and where they are coming from.
Yet, even those who were betrayed have to temper their desire for revenge. Although people are loathe to admit it, they often want to strike back at the ones who hurt them. Perhaps that is what happened in the Rutherford case. Why else would Rutherford have taken actions to have her husband’s visa revoked? She may have thought that if he was kicked out of the United States, her case would be a slam dunk. But as it turned out, her actions backfired. The ways that revenge can backfire are far too numerous to imagine. It could involve income, jobs, friends, property, or, most of all, children. Experience teaches the good family law attorney that seeking revenge, instead of seeking the best possible results, often backfires. While it is difficult to know without having been at the trial, it appears that Giersch may have received better advice. This is apparent in the way he has conducted himself with the media during the entire trial. And as most recently reported, during Rutherford’s trip to visit the children in France, Giersch and the children were at the airport to greet her with a sign that said “Welcome Super Mama” and a bouquet of Hello Kitty balloons.

Different lawyers handle their clients differently. When confronted with clients making sense of their situations too many lawyers allow the client to wallow in their misery or to use the legal system as a means to exact revenge. Sometimes lawyers themselves use the legal system for revenge on purpose. Other times they merely carry their clients’ ax and do whatever the client wants. But the feeling of betrayal is better redirected into something positive: how to help reinvent the client’s life. What happens the “day after” the case is something that the client has direct control over. And their lawyer should have some influence on that outcome.

Family law attorneys are sometimes ribbed about being their client’s psychologists and social workers. There is some truth to this. To best represent a client a lawyer in this situation needs to help the client maximize his or her results. Put another way, that means helping the client determine their best outcome the day after the legal wrangling ends. The single best way for a lawyer to do this is to make sure that these clients remember to love themselves, and their children, more than they hate their ex-spouses. That way the very real feelings of betrayal are directed in the positive direction, not of revenge, but of building a better “day after.”

2023-11-10T13:38:17-05:00November 1st, 2012|Child Custody, International Custody, Relocation|

Relocating to “Dangerous” Places

Often the most contentious of family law matters are child custody cases. When one parent wants to relocate with a child the other parent may fear they could lose their child forever, and will fight long and hard to prevent the move.

A relocation case is always difficult when one parent disagrees with the potential move. But perhaps the most difficult type of case is that where a parent wishes to relocate to a “dangerous” place. The definition of “dangerous” varies immensely by jurisdiction, state, and country. It could be a domestic city or a country far away.

Family law attorneys know well that the outcome a client receives often reflects the predispositions and prejudices of the judge who hears the case. Although state law governs the judge’s ruling, there is tremendous room for subjective determinations in all cases, especially difficult ones involving relocation. Cases such as these are supposed to be determined by what is in a child’s “best interest.” However, “best interest” is a term open to interpretation and the court has wide latitude to define its meaning. As a result, what is ultimately decided to be in a child’s best interest may be heavily influenced by the personal biases of the judge hearing the case.

Many years ago I represented a woman who, among other things, wanted to move with her children from a small town in Ohio to Cleveland. She was already divorced and was the sole legal custodian of these children. The father, although he loved his kids, was not overly involved with raising them. My client wanted to pursue better career opportunities and better opportunities for her children, in a bigger city. The facts were on our side. But the judge was not.

The judge in this case would not accept the possibility that Cleveland might be a better place to raise these children because he thought it was too “dangerous.” His prejudice towards the “big city” closed his mind to any outcome that would allow my client to move with her children to Cleveland. In this case we managed to craft a strategic settlement that was favorable for my client, but she could not relocate and she felt she lost. But the kids were the real losers.

Americans can exhibit profound paranoia and xenophobia for places and communities that differ from their own. Sometimes this behavior is simply irrational. A person living in Chicago or Los Angeles might not consider a trip abroad because the risk of terrorism is too high. Yet, that same person might go about their daily business completely oblivious to their exposure to violent crime. There is something off about this situation, especially in a place like the United States, which directly experienced a massive terror attack on September 11, 2001.

In early October 2010, the United States issued an unprecedented travel advisory conveying the threat of terrorism across all of Europe. The New York Times, on October 4, 2010, published an article entitled, “U.S. Travel Alert Aimed To Inform But Not Stir Panic.” In it, the paper quotes Jonathan Evans, the director-general of Britain’s MI5 internal security agency, as saying that the British have “…imported from American media the assumption that terrorism is 100 percent preventable and any incident that is not prevented is seen as a culpable government failure.” In the article Evans went on to state that such an attitude was “nonsensical.” And he is right.

Today, no place is “safe” and every place is a “war zone.” It is unreasonable to believe that in the age of 21st century terror, any place is free from danger. Moreover, the thought that some places are “war zones” is comical and provincial considering the fact that some who hold this attitude are far more susceptible to being a victim of a violent crime in their own city than they are of being a victim of terrorism in the city to which the litigant is asking to relocate.

In spite of all of this, divorce litigants continue to make “war zone” arguments wherever they can if they think it advances their legal case. Opposing litigants, their lawyers and courts need to take a wider and more cosmopolitan view of the world and recognize that today any place and every place is a potential “dangerous place.” Instead of allowing personal bias and ignorance determine whether a move is in a child’s best interest, it is vital we set aside knee-jerk judgments regarding places and cultures simply because they are different from our own.

Tiger Woods and Al Gore: What the Average Person Can Learn From Celebrity Divorces

1. Consider Pre-Divorce Planning: it may not feel “romantic” to discuss the possibility of divorce with your spouse. But if the two of you can appreciate the practicality of such a conversation now, it can save you money and heartache in the future should divorce become a reality.

2. Be Proactive: If you or your spouse is considering divorce, don’t put your head in the sand and hope it goes away. Use this time to find an attorney you are comfortable with so if the time to split comes you have a knowledgeable ally at the ready.

3. Choose your lawyer carefully: Even for people who are not celebrities or high net worth individuals, the choice of a divorce lawyer is critical. It is difficult enough having to deal with divorce and child custody issues. Compounding those problems are the difficulties of being a consumer of domestic relations law services. It is therefore imperative that the law firm you choose is one that is familiar with the law and getting things done. The lawyers at the law firm you choose may get involved in many intimate aspects of your life. Make sure that the lawyers at your side are ones with whom you feel you have good “chemistry.” You need to click with them. And finally, the law firm you choose to represent you should have the resources, human and otherwise, to support the uniqueness and complexities of your case. Otherwise, in a time of crisis you may feel stranded or outgunned.

4. Work Together to Preserve Your Estate: As hard as it may be (especially if an extramarital affair is involved), working with your spouse to create an amicable resolution saves time and money. If children are involved this is even more critical. For example: while it may feel good to “out” a spouse for an affair, in some cases this could jeopardize his or her job. If (s)he is the breadwinner of the family, this could compromise your ability to receive support for years to come. Of course if you suspect your spouse is hiding assets, this may not be possible. But if you are able to work openly and honestly with your spouse, the payoff will outweigh the initial emotional hurt tenfold.

If international custody issues could arise, it is even more critical that you are proactive when considering divorce. Perhaps the Woods discussed the children moving with their mother back to her home country upon a divorce. Perhaps not. But now, less than a year after his scandal broke, Tiger has a tarnished image, hundreds of millions less in his bank account, and may find himself living in a country without his kids. Learn a lesson by his example: if divorce is on your horizon, be proactive, find competent counsel, and set aside emotion while working with your spouse to preserve the marital estate.
Finally, people often think they need a “tough” lawyer or a “shark.” There is a legitimate time and place for being tough. Being tough all the time, however, often leads to useless and counterproductive fighting. And in the field of family law there are lots of fights not worth having. Instead, what most people really want is a results-oriented lawyer. Such a lawyer is tough when necessary, but also capable of resolving conflicts. In a word, a results-oriented lawyer is one who can modulate; one that can adapt to any given situation and resolves cases in ways that make sense for their clients. To familiarize yourself with the results-oriented family law attorneys at Zashin & Rich, please visit http://www.zrfamilylaw.com

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