- Jeff Landers
Contributor, Forbes
The world is getting smaller and smaller. We live in a global society fueled by a global economy. International travel has never been easier. And now, thanks to the internet, we're all connected in new ways and with fewer barriers than ever before. These days, people meet and fall in love across international boundaries every day, and so it's no surprise that marriages involving dual citizenship are increasingly common. Read more...
by Jeremy D. Morley
A court order rendered outside Brazil, that authorizes the relocation of a child to Brazil from the child's current place of residence subject to certain specified conditions concerning the ongoing custody and access rights of the non-relocating parent, is not normally enforceable in Brazil. If the court order is not “homologized” in Brazil, the Brazilian courts will at best consider the foreign order as an item to consider in considering the best interests of the child under the principles of Brazilian law. Even if the foreign order is homologized in Brazil there is no guarantee that after the child has moved to Brazil the terms will remain in effect over time or, indeed, that they will actually be enforced.
A “mirror order” is an order that is issued by a court in another jurisdiction which contains the same terms as those that are contained in the order that is being mirrored. Inherent in the mirror order concept is the fact that the foreign court shall have the right -- and more importantly the obligation -- to enforce the terms contained in the order, specifically including the obligation to effectuate the prompt return of the child at the end of a designated period of time. Equally critical is that the foreign court should not be permitted to modify the original order. Mirror orders are unavailable in Brazil.
A “homologized order” is a court order that has been approved or confirmed by another court. In the case of Brazil, such a procedure is available by means of an application to Brazil's Superior Court of Justice (Superior Tribunal de Justiça) through a procedure called “homologação de decisão estrangeira” (known colloquially as “HDE”).
The responsibility to obtain the homologized order should normally be given to the party who seeks to take a child to Brazil and the other party should be required to cooperate fully with the process. The process can take a few months to complete if both parties jointly present it to the Superior Court of Justice, or otherwise it will take far longer.
If the Superior Court court is satisfied that due process was followed in the foreign country and that there was no breach of Brazilian public policy, a Brazilian order will be issued that will recognize the foreign order. However, a foreign order will not be enforced if it is deemed to violate the public policy of Brazil. Article 17 of the Introduction Act to Brazilian Law Rules specifies that:
“Art. 17. The laws, acts and judgments of another country, as well as any declarations of will, will not be effective in Brazil, when they offend national sovereignty, public order and morality.”
The mere fact that a foreign custody order is homologized in Brazil does not guarantee that the order will remain in effect and unchanged over time. Brazilian courts will have jurisdiction to hear an application to modify any such order once the child has relocated to and is resident in Brazil. Under Brazilian law, child custody orders are not final orders and are always subject to modification whenever a court finds that there has been a change in family circumstances.
The normal rule in Brazil is that custody should be joint custody and that there is shared financial responsibility. Such issues can be revisited whenever a parent alleges a change of circumstances. If the Brazilian court determines that such a change has occurred since the date of the foreign court's determination, it is fully authorized to modify the foreign order as it deems appropriate, taking into consideration the child's best interest.
Based on our experience with custody cases in Brazil, and in light of the jurisprudence and practices of the courts in Brazil, it must be anticipated when a parent of Brazilian origin is permitted to relocate a child to Brazil subject to specific rights of continuing access and decision-making for the “left-behind” parent, those rights may well be modified by a Brazilian court upon the application of the relocating parent. It is obvious that a child's circumstances will be dramatically affected by virtue of the relocation itself and the attendant changes in the child's that will inevitably result.
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Jeremy D. Morley, a New York attorney, has provided expert evidence on the child custody laws and procedures of Brazil for courts in Australia, Canada, and the USA (California, Colorado and New Mexico).
He has gained extensive knowledge and experience concerning Brazilian family law matters from handling numerous family law cases concerning Brazil, from numerous consultations with Brazilian family lawyers concerning the laws and practices of Brazil, and from extensive research over many years concerning Brazilian family law. He has consulted with many clients concerning Brazilian family law, most particularly as to international child custody and international child abduction, always acting with and through lawyers in Brazil whenever appropriate. He has represented several clients whose children have been abducted to Brazil. Contact him at [email protected]
Change in China's Passport Regulations By Jeremy D. Morley We have long raised concerns that China does not recognize foreign child custody orders, is not a party to the Hague Convention on the Civil Aspects of International Child Abduction (except for Hong Kong and Macau), is not a party to an...
Prenuptial agreements are enforceable under Hungarian law, as are post-nuptial agreements. Section 4.63(1) of the Civil Code of Hungary provides that, “The function of the marriage contract is to permit the parties to the marriage or the spouses to define a property regime - in lieu of marit...
by Jeremy D. Morley www.international-divorce.com The structure of the Hague Convention on the Civil Aspects of International Child Abduction requires a court in any case brought under the Convention to follow a step-by-step process in order to apply it logically and correctly. Those steps ar...
by Jeremy D. Morley www.international-divorce.com The Civil Code of Turkey (Article 336) expressly provides that, when parents divorce, only one parent may be given custody over their child to the complete exclusion of the other parent, either by agreement or by order of the court (Article 81...
by Jeremy D. Morley www.international-divorce.com Japanese law provides only for sole custody. The Civil Code of Japan expressly and unambiguously provides that, when parents divorce, only one parent may be given parental authority over their child to the complete exclusion of the other paren...
Jeremy D. Morley www.international-divorce.com A New York court today, in a hotly contested case between Japanese parents living in New York, relied entirely on my expert evidence concerning Japanese family law and procedure in dismissing the application of one parent to relocate the parties'...
From People Magazine, September 21, 2019 Bethany Vierra's daily routine begins at sunrise, when she gets up to make pancakes or scrambled eggs for her young daughter, Zaina, a curly haired 4-year-old. It's the familiar prelude to happy hours of coloring, reading inside their apartment and swimmi...
By Jeremy D. Morley www.international-divorce.com 1. China does not comply with international norms concerning the return of internationally abducted children. 2. China has failed to adopt the Hague Abduction Convention and has failed to enter into any bilateral arrangement with the United ...
Jeremy D. Morley [email protected] I have long asserted that India is a safe haven for international child abduction. See, e.g. I have frequently provided expert evidence on this issue, including in cases in many U.S. states, as well as Canada and Australia. In May 2019, the ...
My article, Preventing International Child Abduction in Divorce, which was originally published in the American Bar Associations's GPSolo Magazine, is now available here.
by Jeremy D. Morley The United Arab Emirates UAE does not adhere to any protocols with respect to international parental child abduction and has failed to adopt the Hague Abduction Convention. The U.S. State Department has determined and reported to the U.S. Congress that, in 2018, the UAE “d...
On 11 July 2019, Barbados deposited its instrument of accession to the HCCH Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“Child Abduction Convention”). The Child Abduction Convention, which now has 101 Contracting Parties, will enter into force for Barbad...
The U.S. State Department has recently released their annual report on International Child Abduction. Below is our ninth post in a series here focusing on the nine countries classified as “demonstrating patterns of noncompliance.” Today's country is United Arab Emirates. Country Summary:...
The U.S. State Department has recently released their annual report on International Child Abduction. Below is our eighth post in a series here focusing on the nine countries classified as “demonstrating patterns of noncompliance.” Today's country is Peru. Country Summary: The Convention...
The U.S. State Department has recently released their annual report on International Child Abduction. Below is our seventh post in a series here focusing on the nine countries classified as “demonstrating patterns of noncompliance.” Today's country is Lebanon. Country Summary: Lebanon does ...
The U.S. State Department has recently released their annual report on International Child Abduction. Below is our sixth post in a series here focusing on the nine countries classified as “demonstrating patterns of noncompliance.” Today's country is Jordan. Country Summary: Jordan does ...
The U.S. State Department has recently released their annual report on International Child Abduction. Below is our fifth post in a series here focusing on the nine countries classified as “demonstrating patterns of noncompliance.” Today's country is India. Country Summary: India does not ...
The U.S. State Department has recently released their annual report on International Child Abduction. Below is our fourth post in a series here focusing on the nine countries classified as “demonstrating patterns of noncompliance.” Today's country is Egypt. Country Summary: Egypt does not a...
The U.S. State Department has recently released their annual report on International Child Abduction. Below is our second post in a series here focusing on the nine countries classified as “demonstrating patterns of noncompliance.” Today's country is Brazil. Country Summary: The Conventio...
The U.S. State Department has recently released their annual report on International Child Abduction. The Department of State leads the U.S. government's efforts to prevent and resolve international parental child abductions, as part of the Department's mission to advance the interests and safe...
The Federal Circuit Court of Australia has issued a ruling denying a mother's application for overseas travel from Australia to India to attend her marriage ceremony. The decision was based in large part on my expert testimony concerning the child custody laws of India and the risks of interna...
The citation for the recent Arizona appeal case which accepted me as an expert witness on the laws and practices of Kuwait as to child custody in international matters, and relied on my expert testimony about Kuwaiti law, is Lehn v. Al-Thanayyan, 438 P.3d 646 (Ariz. App. 2019).
Jeremy D. Morley In Hong Kong, an unmarried father has no rights of custody over his son or daughter unless and until he brings a court case and succeeds in obtaining a court order that provides him with express rights. This appears to apply even if the mother has added the name of the father ...
Jeremy D. Morley We just won a Hague Abduction Convention case in Sweden, working with Swedish counsel, and obtained an order to return the abducted children to Japan. Of the greatest importance, the Swedish court granted our express application that our client, the left-behind parent, is the ...
On April 1, 2019, the 1980 Hague Convention on the Civil Aspects of International Child Abduction entered into force between the United States and Jamaica. The United States now has 79 partners under the Convention.
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