CritelliLawBarristers and Trial Lawyers Iowa/New York/London
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| CritelliLaw Barristers and Trial Lawyers Iowa/New York/London |
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Thursday, August 26, 2004 When Parents Abduct: Reflections on the Hague Convention on the Civil Aspects of International Child Abduction Nick Critelli, Tre Critelli Barristers, Middle Temple Attorneys at the Bars of Iowa, New York and the U.S. Sup. Ct. 1. As the world continues to get smaller and international travel more common, areas of the law once thought to be of primarily local jurisdiction are now turning out to have international complications. Nowhere is this more evident then in the area of family law. 2. Marriages between citizens of differing countries can be extremely beneficial and worthwhile, but when they break down the fight over child custody and visitation can quickly become quite complex. Simply serving a legal notice of a lawsuit on a party residing in a different country can be difficult and at times expensive. Often it requires familiarity with the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters. Further complications develop when one spouse decides to take matters into their own hands and simply disappears with the child, returning to their homeland. 3. In order to provide a remedy for such “abductions,” the international community came up with the Hague Convention on the Civil Aspects of International Child Abduction. This Convention aims to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence. 4. As of this date, some 55 countries are signatories to the Convention. Some of these countries, however, are more than reluctant to comply with the terms of the Convention. 5. Utilization of the Convention is fairly straightforward. Each signatory to the Convention has a Central Authority to which an aggrieved parent may apply for assistance. That Central Authority will contact the Central Authority of the country to which the child has been taken. An attempt will then be made to locate the child and obtain a voluntary return. In the event that the parent refuses to return the child, a lawsuit is brought on behalf of the aggrieved parent to compel the return of the child. 6. To establish a prima facie case of wrongful removal or retention under the Hague Convention, the aggrieved parent must show that: (1) the child was "habitually resident" in the country before being removed; (2) the child's removal was in breach of the "rights of custody" of "a person, an institution or any other body;" and (3) that those rights "were actually exercised at the time of removal or would have been so exercised in the absence of his removal." See Hague Convention, Art. 3. 7. As one would expect, there has been a significant amount of jurisprudence develop as it concerns the above terms. Courts have concluded that the term ““habitually resident" refers to a child's customary residence prior to his removal but focuses not upon a child's domicile or legal residence but rather where the child physically lived for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child's perspective. 8. "Rights of custody,”” meanwhile, include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence. These rights may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. 9. After the aggrieved parent has made a prima facie showing, the burden shifts to the opposing parent to show by clear and convincing evidence why the child should not be returned. Under the Convention, it is an affirmative defense if: (1) the person seeking return of the child consented to or subsequently acquiesced in the removal or retention; (2) the proceeding was commenced more than one year after the removal of the child; (3) the children have become settled in their new environment; and (4) there is a grave risk that the return of the children would expose them to physical or psychological harm. 10. Court decisions on this matter are quite clear that acquiescence under the Convention requires either an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written enunciation of rights; or a consistent attitude of acquiescence over a significant period of time. Acquiescence has been held to be a question of subjective intent. 11. Equally problematic is the ““one year”” defense. Commencement of proceedings, as used in Article 12 of the Convention, means the filing of a civil petition for relief in any court which has jurisdiction in the place where the child is located at the time the petition is filed. But Article 12 goes on to state that "even where the proceedings have been commenced after the expiration of the period of one year . . . , [the court] shall also order return of the child, unless it is demonstrated that the child is now settled it its new environment." Hague Convention, Article 12. 12. As for the "well settled" exception, it should be noted that the court retains the discretion to order the children returned even if an exception applies. Nor is a court obligated to take into account the child’’s wishes. 13. Finally, Article 13(b) of the Hague Convention allows a court to deny return of a child to the country of habitual residence if "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Generally speaking, such a risk arises in two situations: (1) imminent danger such as war, famine, or disease; or (2) when there is likely to be serious abuse or neglect and the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection. posted by bbk | Thursday, August 26, 2004 Critelli to make presentation to Bar of Gibraltar Nick Critelli has been invited to present a paper at the Gibraltar Human Rights Conference on 2nd and 3rd of September 2004. Over 170 delegates are expected to participate. Nick's presentation will cover the civil aspects of international child abduction. In attendance at the Symposium will be Chief Justices, senior judges, lawyers and law teachers from different parts of the Commonwealth as well as England and Wales. During the two days of the Symposium the delegates are expected to exchange ideas on different areas of human rights, including the right to a fair trial, legal aid in small jurisdictions, human rights and business and domestic violence. See the following Paper... "When Parents Abduct: Reflections on the Hague Convention on the Civil Aspects of International Child Abduction." posted by bbk | Thursday, August 26, 2004  Nicholas Critelli, pc wins InnovAction Leadership award. 
posted by bbk |
Thursday, August 26, 2004
Innovation Award granted to Chambers of Nicholas Critelli pc The Law Chambers of Nicholas Critelli, p.c., has been selected as the recipient of the College of Law Practice Management's First Annual InnovAction Award. This award recognizes innovation in law practices around the world. The InnovAction Award is a worldwide search for lawyers and/or law firms, of all sizes, currently engaged in extraordinarily innovative effort. The goal of the award is to demonstrate to the legal community what can be created when passionate professionals, with big ideas and strong convictions, are determined to make a difference. The Law Chambers of Nicholas Critelli, p.c. won in the "Leader Ships" category which was sponsored by Microsoft Corporation. The focus of the award was on those law firms who have taken the most innovative action toward improving their internal management or firm efficiency. As stated in the College of Law Practice Management in granting the award: "The Law Chambers of Nicholas Critelli, p.c., Des Moines, IA The Critelli firm is a boutique with lawyers practicing as both US litigators and UK barristers. In a departure from traditional law offices, Critelli has designed a high-tech setting without individual lawyer offices. They worked with their architect to conceive a studio setting in which each of seven "studios" is wired with an internal video cable network. Each room represents one of the seven general tasks inherent to any litigation practice. " More information about the College of Law Practice Management or the InnovAction Award may be found by clicking on their respective links. posted by bbk | Thursday, August 26, 2004 Sunday, August 15, 2004 President's Letter: August 2004 The front page of the June 23, 2004, edition of the Des Moines Register detailed a controversy surrounding the friendship between U.S. District Court Judge Mark Bennett and defense Attorneys Alfredo Parrish and Leon Spies. The article stated that "gossip about Bennett's relationship with Parrish and Spies trickled back to the federal prosecutors creating a rift between attorneys on the two sides of the case." Immediately, the public's focus was shifted from the facts of the trial to the "effect" of the social interaction between the judge and the attorneys. What happened to the notion that lawyers and judges were honest and would not violate the oath of their respective offices? Must the legal profession now accept the faulty presumption that the legal system in Iowa is nothing more than another arena of "influence peddling?" No one has claimed that the social contacts between Judge Bennett and the lawyers were related to the pending case. Yet now even casual observers conclude that the solution to this situation is to require that in the future, outside of professional settings, there be no further social contact between judges and lawyers. Is it appropriate to concede so readily that lawyers and judges can not be friends without jeopardizing the quality of justice in Iowa? Surely lawyers and judges do not believe that to be the state of affairs. So, is the public really incapable of accepting and understanding the level of professional behavior historically expected of both judges and lawyers? Who will be harmed if judges and lawyers are prohibited from being friends? Probably only these robbed of life time friendships would be harmed, but they knew what they were doing when they accepted the job. This might be acceptable if the public's lack of faith in the legal process ends as a result of the abolition of social relationships between lawyers and judges. But will it? What if, even after this forced professional segregation, the problem of the public's lack of faith persists? Will further measures need to be taken to alleviate the problem? What about the friendship between lawyers representing adverse parties? Will the public question whether a lawyer is able to represent a client effectively if she has played golf regularly with the attorney on the other side of the case? Is it possible that soon friendships with our fellow professionals will be viewed to adversely affect our judgment in court? If the public will not trust judges to put their professional duties and their friendships in the proper context, how can they possibly trust lawyers to be above reproach when they gather socially? If this sounds ridiculous, just take a moment and remember how your clients have become a little uncomfortable when you fail to share their venomous dislike for opposing counsel? Have you ever made the “mistake” of letting your client know you were friends with opposing counsel? How did they react when they observed that you were not allowing the issues of the case to interfere with your friendship? How far must we sacrifice the quality of our lives to restore the public's faith in the legal process? Or are we focusing on the wrong thing? There is indeed a problem with the public's perception of the legal profession and justice system. As lawyers and judges we know that we are held to a higher standard of conduct than the rest of society. Perhaps the real problem is that we have failed to educate the public about the expectations placed upon lawyers and judges as members of our profession. As a profession, we have allowed the public to remain uninformed about the professional code of conduct which at all times governs the behavior of judges and lawyers whether in the court room or in a golf cart. Lawyers and judges never escape the watchful eyes of ethical conduct. In Iowa the individual's guarantee of equal justice under the law has never balanced on who paid for the dinner or who knew the judge in law school. However, the public no longer truly "knows the Iowa lawyer." Instead their concept of the legal profession comes from the pages of fictional novels or the big screen adaptation of fictional lawyers. Unfortunately authors of legal fiction often cast their characters as unethical influence peddling sharks who break every rule or law ever written and always prevail. The problem is magnified when that fiction’s author is a lawyer. Have you ever had a friend ask you if Scott Turow's latest novel was "true to life?" Let's face it, the character of an honest, ethical lawyer does not translate well to the big screen. A twisted view of the legal profession based upon fiction can only be remedied through information. Perhaps if we provide the public with information on how the canons of ethics guarantee that judges and lawyers act appropriately, there will be no need to pretend that pre-existing friendships between judges and lawyers automatically foreclose justice. Instead of changing a system which operates well, we should recognize the benefits of maintaining an amicable relationship between the bench and the bar. Do we really want a justice system for the State of Iowa in which judges and lawyers are loathe to acknowledge each other outside the courtroom for fear of what a third party bystander might think of the encounter? Far better that we should stand together and recognize that for the past 150 years the judges and lawyers of Iowa have been able to maintain their professional and personal lives within the bounds of the Canons of Ethics. Those who have violated these rules have been dealt with. The justice system in Iowa, both state and federal, continues to be of the highest quality. If we over react to public panic based on a legal fiction and a lack of information, we will not serve the public's best interest. posted by bbk | Sunday, August 15, 2004 |
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