Articles Posted in Family Law

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Petitioner, a German citizen, sought the return of his children from the United States to Switzerland under the Hague Convention on the Civil Aspects of International Child Abduction. Respondent, a French citizen who moved with the children from Switzerland to Georgia, opposed the children's return. The Eleventh Circuit affirmed the district court's denial of the petition to return the children to Switzerland and held that, although petitioner established that the children's habitual residence at the time of removal was Switzerland, he failed to demonstrate that respondent's removal of the children violated his custody rights under Swiss law. In this case, the divorce judgment constituted a decision of the Swiss court and under the divorce judgment, respondent had the sole rights of custody as they pertained to determining whether to move the children to the United States. View "Pfeiffer v. Bachotet" on Justia Law

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In September 2017, Calixto filed a petition, seeking the return of his 5-year old daughter, M.A.Y., to Colombia, under the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act, 22 U.S.C. 9001. Calixto had signed a travel consent form allowing M.A.Y. to travel from Colombia to the U.S. with her mother, Lesmes, from November of 2015 until November of 2016. Calixto alleged that Lesmes had wrongfully retained M.A.Y. in the U.S. and away from Colombia, her country of habitual residence, beyond November of 2016. The district court denied the petition, finding that the parents had shared an intent to change M.A.Y.’s habitual residence from Colombia to the U.S. and that M.A.Y.’s habitual residence had subsequently become the U.S. through acclimatization. The district court did not address whether Calixto’s intent to change M.A.Y.’s habitual residence was conditioned upon his joining Lesmes and M.A.Y. in the U.S. or whether that intent was vitiated once Calixto was unable to come to the U.S. The Eleventh Circuit remanded, stating that the answers to those questions are critical and that shared intent is a factual determination. View "Calixto v. Lesmes" on Justia Law

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Based on Article 18 of the Hague Convention on the Civil Aspects of International Child Abduction, a court can order the return of a wrongfully removed child who is settled in his new environment. The Eleventh Circuit vacated the district court's denial of a petition for removal, holding that the district court abused its discretion by not ordering the children returned to Panama after the mother's second abduction of the children to the United States from Panama. The panel remanded to the district court to grant the petition and enter a judgment ordering the children returned to Panama so custody proceedings could continue. View "Jacinto Fernandez v. Bailey" on Justia Law

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The Eleventh Circuit affirmed the judgment of the district court ruling that the Alabama Unborn Child Protection from Dismemberment Abortion Act “constitutes an undue burden on abortion access and is unconstitutional” and granting as-applied injunctive relief to Plaintiffs, holding that, under Supreme Court precedent, the Act is unconstitutional. At issue was a method of abortion referred to as dilation and evacuation, or dismemberment abortion, which involves tearing apart and extracting piece-by-piece from the uterus, at the fifteen to eighteen week stage of development, what was until then a living unborn child. The State sought to make the procedure more humane by enacting the Act, which required the one performing the abortion to kill the unborn child before ripping apart its body during the extraction. See Ala. Code 26-23G-2(3). Plaintiffs brought this complaint claiming that the Act was unconstitutional on its face. The district court ruled that the Act was unconstitutional because it would place substantial obstacles before women seeking pre-viability abortions. The Eleventh Circuit affirmed after applying the undue burden test, holding (1) the methods of fetal demise that the State proposed were not safe, effective, or available; and (2) neither the Act’s health exception nor its intent requirement saves the Act. View "West Alabama Women's Center v. Miller" on Justia Law

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The Eleventh Circuit affirmed the district court's judgment in favor of petitioner in an action under the International Child Abduction Remedies Act to recover fees and costs. The court held that respondent failed to establish under the Act that an award of necessary expenses could be clearly inappropriate. In this case, the record developed on the merits of the wrongful removal petition was replete with evidence contradicting respondent's good faith argument. Therefore, the court affirmed the award of attorney fees, costs and expenses in the total amount of $89,490.26. View "Rath v. Marcoski" on Justia Law

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The money that a homosexual man paid to father children through in vitro fertilization—and in particular, to identify, retain, compensate, and care for the women who served as an egg donor and a gestational surrogate—was not spent "for the purpose of affecting" his body's reproductive "function" within the meaning of I.R.C. 213. In this case, the Eleventh Circuit held that it was constrained by I.R.C. 213's plain language where taxpayer's own function within the human reproductive process was to produce and provide healthy sperm, and because taxpayer was and remained capable of performing that function without the aid of IVF-related treatments, those treatments did not affect any function of his body and did not qualify as deductible "medical care" within the meaning of Section 213(a). The court also held that the IRS's disallowance of taxpayer's claimed deduction neither violated any fundamental right nor discriminated on the basis of any suspect (or quasi-suspect) characteristic. View "Morrissey v. United States" on Justia Law

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The plain reading of the Pregnancy Discrimination Act (PDA) covers discrimination against breastfeeding mothers. Plaintiff filed suit against the police department under the PDA and the Family and Medical Leave Act (FMLA) after her reassignment and constructive discharge. The Eleventh Circuit affirmed the jury verdict in favor of plaintiff and held that there was sufficient evidence of intentional discrimination when plaintiff was reassigned from the narcotics task force to the patrol division; the denial of accommodations for a breastfeeding employee violated the PDA when it amounted to a constructive discharge; a reasonable person in plaintiff's position would have felt compelled to resign; and the City's remaining arguments were unavailing. View "Hicks v. Tuscaloosa, Alabama" on Justia Law

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Defendant filed suit against his former employer under the Family Medical Leave Act (FMLA), 29 U.S.C. 2601-2654, alleging that the employer interfered with the exercise of his FMLA rights and later retaliated against him for asserting those rights. The district court granted summary judgment for the employer. Because plaintiff likely waived his FMLA right to reinstatement by taking an additional 30 days of medical leave, because he failed to submit a fitness-for-duty certification by the end of his FMLA leave, and because the record was devoid of proof challenging the employer's contention that its fitness-for-duty certification policy was implemented in a uniform fashion, plaintiff lost the right to be reinstated after failing to comply with this policy. Therefore, the court concluded that plaintiff failed to show that he was denied a benefit to which he was entitled under the FMLA, and the district court properly granted summary judgment as to the interference claim. The court affirmed as to this claim. The court held that temporal proximity, for the purpose of establishing the causation prong of a prima facie case of FMLA retaliation, should be measured from the last day of an employee's FMLA leave until the adverse employment action at issue occurs. In this case, plaintiff has met his burden of raising a genuine dispute as to whether his taking of FMLA leave and his termination were casually related. Therefore, the court reversed the judgment as to the retaliation claim and remanded for further proceedings. View "Jones v. Gulf Coast Health Care of Delaware, LLC" on Justia Law

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After ending their marriage, Ex-Wife and Ex-Husband commenced proceedings in the Moscow Court for division of marital assets. In the Russian Dispute, Ex-Wife claimed that Ex-Husband was concealing and dissipating marital assets through and with the assistance of “offshore companies” around the world. In the United States, Ex-Wife sought information from Gabriella Pugh and her employer in Atlanta, Georgia - Trident - that she expected would reveal Ex-Husband’s beneficial ownership of Bahamian corporation, Tripleton. On referral, the Magistrate Judge granted Ex-Wife's ex parte Application for Judicial Assistance and authorized service of two subpoenas. In these consolidated appeals, Trident challenges the district court's order allowing discovery pursuant to 28 U.S.C. 1782 (Appeal No. 15-13008 (“First Appeal”)) and imposing contempt sanctions (Appeal No. 15-15066 (“Second Appeal”)). The court agreed with the district court that the location of responsive documents and electronically stored information - to the extent a physical location can be discerned in this digital age - does not establish a per se bar to discovery under section 1782; having rejected the Extraterritoriality Argument, the court agreed with the district court that significant “circumstantial evidence” established that Trident Atlanta had “control” over responsive documents in the physical possession or custody of Trident Bahamas; and therefore the court affirmed as to the First Appeal. The court rejected Trident Atlanta's frivolous jurisdictional argument; the Contempt Order is supported by the evidence; and therefore the court affirmed the Second Appeal. View "Sergeeva v. Tripleton Int'l Ltd." on Justia Law

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Plaintiff, M.N.'s mother, made several threats against M.N.'s father during a contentious custody battle in Venezuela. At issue is whether significant threats and violence directed against a parent can constitute a grave risk of harm to a child under the Hague Convention on the Civil Aspects of International Child Abduction through the International Child Abduction Remedies Act of 1988 (ICARA), 22 U.S.C. 9001–9011. The district court ruled that, although plaintiff had made a prima facie case for return by showing that M.N. had been wrongfully removed from Venezuela, return would be inappropriate because an exception to the Convention applied where the district court found by clear and convincing evidence that there is a grave risk that M.N.’s return to Venezuela would expose her to physical or psychological harm. The court held that the district court correctly found that the grave risk of harm exception to the Convention applied in this case. Here, although a pattern of threats and violence was not directed specifically at M.N., serious threats and violence directed against a child’s parent can, and in this case did, nevertheless pose a grave risk of harm to the child. Accordingly, the court affirmed the judgment. View "Gomez v. Fuenmayor" on Justia Law

Posted in: Family Law