India: Family Law

The Law Office of Jeremy D. Morley handles many international family law cases that concern India or Non-Resident Indians.

The cases concern marriage, prenuptial agreements, divorce, child custody, child travel to India, child abduction to and from India, and Section 498a cases.

We always act with Indian or other local counsel whenever appropriate or necessary.

Stutee Nag is an associate in our firm, resident in the State of New Jersey. She is duly licensed to practice law as an attorney in the courts of India. She graduated from UILS, Panjab University, India. She has six years of progressively responsible experience in law including litigation, advisory, negotiation, drafting, research and analysis. She was a law clerk to Justice M Jeyapaul of the Punjab and Haryana High Court in India. Thereafter, she worked as an associate with a well-recognized law firm in India.

We have enormous experience in counselling clients concerning such matters, especially as to international divorce jurisdiction; international child custody; international child abduction; the impact of Section 498a cases; and prenuptial agreements.

Jeremy Morley has frequently served as an expert witness on Indian family law and international child abduction to India in cases throughout the United States, as well as in Canada and Australia. 

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RULING ON MORLEY'S EXPERT TESTIMONY CONCERNING TRAVEL TO INDIA

Here is an excerpt from the transcript of a ruling in a case in Connecticut concerning Mr. Morley's expert testimony on Indian law:

We, normally in these matters, do not have the opportunity to hear from an expert witness, particularly someone as learned and as experienced in what I'll call international issues as Attorney Morley who was here this morning. As everyone knows Attorney Morley only testified for probably 15 or 20 minutes. We sometimes, lawyers and Judges will discuss people's testimony and sometimes we say it's the quality not the quantity of the testimony that is appropriate. In that 15 or 20 minutes Attorney Morley laid out what I'll refer to as both, I think, the social interaction between the parents and the political in India, the United States, the Hague Convention, their courts, our courts, that sort of thing in a very succinct, intelligent and sophisticated manner; the Court found Attorney Morley's testimony to be extremely credible .

The Court also in observing and reading about the Defendant Father's objection to the Plaintiff taking his daughter on this trip to India is aware of at least one prong of Attorney Morley's comments; he did indicate, my notes reflect this morning that there were two issues here. One would be the, in this case, the mother leaving, extensively staying in India with the child and the Defendant having no opportunity, A) to see the child or B) because of India's steadfast refusal to adhere to the spirit rules and law the Hague Convention having no opportunity to get her back….

But in analyzing the totality of this motion, the affects of this motion, I am brought back with, frankly, some frustration to Attorney Morley's analysis, of what I again will refer to the political aspects of this case.  While this Court is absolutely convinced that Ms. B… has no intention at this time to go to India and not return with her daughter , this Court finds, and I believe this is something that Attorney Morley said today that it is the Country, India, presenting the risk here, not the parent. ‘''

If god forbid, the Plaintiff were permitted to take her daughter to India and for some reason her daughter were kidnapped or something else happened, there is virtually no way, based on the credible testimony from Attorney Morley the Expert, that this Court or any other Court in the United States would be able to exert one iota of influence to get her back, which is, frankly, if that happened what this Court would be doing in a heartbeat.

India for whatever reason, according to Attorney Morley and, again, I found his testimony to be credible, both the written testimony that was offered and the oral testimony he gave here today, has indicated quite fully that India des not find it a crime … if for some reason this little girl … were snatched over there that the American courts would be able to do anything t get this young girl back to her parents. That is a risk that in the best interests of this young girl I am not willing to take, therefore ... [the] motion for permission to take the young girl to India is denied.”

CANADIAN COURT ACCEPTS MORLEY EXPERT OPINION ON INDIA

Abducted Children Returned From India

We have succeeded twice in securing the return to their homes in the United States of children who were abducted by a parent to India. 

The results were not accomplished through the Indian legal system, which is generally not helpful in this area.  Instead we used less formal means of applying appropriate pressure to achieve the desired result.

The outcomes are evident from our clients' unsolicited testimonials.  In one case: "Simple words cannot describe how Mr. Morley's experience and thorough knowledge in the subject of international law helped me get back my children to the U.S.A.  Now I am a very happy father enjoying every moment with my kids.  Guess what?  Now my wife and I are in the path of complete reconciliation with kids around both of us!" 

In the other case: “Thank you for informing me. …You made it possible for me…You saved my children from suffering very promptly. We can have a wonderful Christmas which I have been asking God every minute.”  It must be stressed that these positive results do not mean that a return of abducted children from India can be accomplished in most cases.  There were special circumstances in both cases that made our task very much easier.

As we have frequently argued, the best way to handle international abductions to India is to prevent them from occurring in the first place.  When parents argue that a child's proposed visit to India might lead to the child being wrongfully retained there, such concerns should be given great respect.

INDIA AS SAFE HAVEN FOR INTERNATIONAL CHILD ABDUCTION

By Jeremy D. Morley

India is a safe haven for international child abductors. 

India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. The Convention is the fundamental international treaty that protects the rights of abducted children and serves to have them returned promptly to the country of their habitual residence. It has been adopted by more than 90 countries. India's Law Commission expressly recommended that India should adopt the treaty but the Indian Law Ministry opposed it on the ground that it would hurt Indian parents who take their children to India.

Furthermore, no Indian legislation sets forth any helpful law on this issue.

In recent years there have been more child abductions from the United States to India than to any other non-Hague country.

The law in India was previously settled that foreign children taken by a parent to India without the consent of the other parent would normally be returned to their country of residence or nationality. However more recent decisions of courts in India changed that rule and held that foreign custody orders are merely items to consider as part of an overall custody review. The Law Commission reported that the Indian courts had followed an inconsistent and unpredictable pattern in international child abduction cases, which would make foreign judges wary of allowing child visits to India, and which should be remedied by signing the treaty. In its most recent ruling the Supreme Court of India capped five years of litigation with a ruling that ordered the return of a child to the United States, but subject to conditions that were difficult to fulfill. However, the abducting mother had - most unusually -- failed to start a custody case in India and the case would otherwise have taken an entirely different course.

The court system in India is extremely slow and inefficient so that an abductor has ample time to create "facts on the ground" in terms of getting the child sufficiently settled into life in India as to justify an Indian court in ultimately deeming that it is best to keep the child in India.

As a consequence, courts outside India should be extremely wary about allowing parents to take children for temporary visits to India over the objections of the other parents since there is a great likelihood that parents who wrongfully retain children in India will get away with their wrongful conduct scot-free in India.

In Katare v. Katare, 283 P. 3d 546 (Wash. 2013) the Supreme Court of Washington State, en banc, upheld in relevant part the trial court's ruling in a case involving an American mother and an Indian father. The trial court held that it was not convinced that there was a serious threat that the father would abduct their children to India. However, the potential consequences of any abduction to India were severe and "irreversible." Accordingly the court was warranted in imposing severe limitations on the husband's residential time with the children, including strict restrictions on the locations of such visitation, surrender of his passport, notification of any change of his citizenship status, and prohibition of his holding or obtaining certain documents (i.e. passports, birth certificates) for the children.

In several cases in several U.S. states and Canadian provinces, the author has testified as an expert witness on this issue.

It is the author's opinion that a court in a case concerning the prevention of international parental child abduction must weigh both the risk of abduction presented by the facts concerning the specific parent and the risk that is presented by the specific country. The more certain it is that the country to which the child might be taken is a fully compliant Hague Convention treaty partner with an effective legal system, the more evidence that the individual parent is likely to be an abductor is required.

Conversely, when the foreign country is one such as India -- which is not a Hague partner, has an ineffective, slow and even corrupt legal system and is a proven safe haven for international child abductors -- far less evidence of the parent being a likely international child abductor is required to be established in order to justify - and require - a court to take effective steps to prevent a potential child abduction.

In the latter case, because the risk is so great, a parent should normally be barred from taking a child to India if there is any significant evidence that the child might not be returned.

Providing wise and experienced legal counsel to international families for many years

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