Small World, Big Problem: Divorces Involving Dual Citizenship

- 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...


Child Relocation to Brazil, Mirror Orders and Homologized Orders

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.


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]

Child Visits to China

Posted by Jeremy Morley | Jan 14, 2020 | 0 Comments

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...


Posted by Jeremy Morley | Jan 13, 2020 | 0 Comments

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...


Posted by Jeremy Morley | Nov 18, 2019 | 0 Comments

by Jeremy D. Morley 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...

Japan’s One-Parent Rule

Posted by Jeremy Morley | Oct 04, 2019 | 0 Comments

by Jeremy D. Morley 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...


Posted by Jeremy Morley | Sep 10, 2019 | 0 Comments

By Jeremy D. Morley  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 ...


Posted by Jeremy Morley | Aug 22, 2019 | 0 Comments

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...

Barbados Accedes to Hague Abduction Convention

Posted by Jeremy Morley | Aug 16, 2019 | 0 Comments

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...


Posted by Jeremy Morley | Jun 21, 2019 | 0 Comments

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...

Cite for Morley Kuwait Expert Testimony Case

Posted by Jeremy Morley | May 28, 2019 | 0 Comments

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). 

Practice Tip on Returning Abducted Children to Japan

Posted by Jeremy Morley | Apr 12, 2019 | 0 Comments

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 ...

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