Archive for January, 2011

International Parental Abduction: The US Government should be able to do more

January 9, 2011

As you may have read in my prior postings, International Parental Child Abduction remains an unfortunate issue, which continues today.  There are certain countries, which tolerate and even allow International Parental Child Abduction as evidenced by their laws.  Japan is the only “First World” nation, which can be placed in this category.  Japan is not signatory to The Hague Convention on International Parental Abduction.  This means that Japan allows its citizens who live abroad to return to Japan with their children regardless of foreign child custody orders in place from foreign jurisdictions.

There are many instances in the United States where, for example, an American citizen marries a Japanese citizen, they have children, but in the end divorce.  They part ways and the Japanese Mother decides to return to Japan taking the children.  The Hague Convention would require the Japanese Government to return the children to their home jurisdiction.  Since Japan is not a member of the Hague Convention it is under no obligation to listen.

Over the past decade there has been a movement to encourage Japan to become  signatory to the Hague Convention on International Parental Child Abduction.  Time and time again Japan has stated that they will “consider it.”   Again the Yomiuri Shinbun today stated that Japan will sign the Hague Convention – http://www.crnjapan.net/The_Japan_Childrens_Rights_Network/itn-japwsthc.html

If Japan continues on their path of  “considering signing” Left Behind Parents are left with little to no recourse.   I think it is fair to examine what role the United States Government has in this process.  The United States and Japan are allies and have close ties.  The United States Government has had military bases within the country of Japan since the end of World War II and continues to protect Japan by stationing troops within the country.

The US State Department’s Mission Statement is as follows: Create a more secure, democratic, and prosperous world for the benefit of the American people and the international community.   Although these Left Behind Parents have not lost legal custody they have in fact lost the ability to see their children and therefore are actually denied custody.  It appears that the State Department understands the problem as it does communicate with left behind American parents through quarterly round table meetings.  However, the State Department has not been able to bridge the gap and continues take action.  It has been unable to take any action to convince the Government of Japan that it should become a Member of the Hague Convention and enforce child custody orders issued by American Courts.  Japanese Courts simply do not recognize American child custody orders and therefore refuse to enforce these court orders.

It certainly seems that the United States Government, and specifically the State Department, should be able to do more.  The mission of the State Department is to protect and secure American people.  The State Department’s inaction on this matter results in non-compliance with its Mission Statement.  The children are American citizens (presumably born in America) and they are being deprived of their right to frequent and continuing contact with their American parent as well as compliance with an American Court child custody order.  Furthermore, the American parent usually loses all child custody rights when the Japanese parent returns to Japan with the children.

So what can the State Department do?  It certainly seems that given the status quo, the State Department can and should take action to do everything in its power to prevent the abductions from occurring.  The State Department should have a process to screen parents on international flights who are departing with children and without the other parent.  This seems like a common sense first step. Perhaps they can have the departing parents sign an agreement promising to return to the United States with the children.  This seems that a signed agreement would assist the United States Government with its request to return children.  There are other options which the Department of State can and should take.  It is clear that the State Department needs to take a more proactive role in an attempt to reduce the number of International Parental Child Abductions. Hopefully the State Department will take steps to further abide by its Mission Statement and make the world a more secure place for American citizens in 2011.

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California Divorce Blog Temporary Spousal Support

January 1, 2011

As a divorce attorney, I often find the need to obtain temporary court orders for spousal support for my clients.  When a divorce or legal separation action is pending, the court may order either spouse to pay any amount necessary for the support of the other spouse pursuant to California Family Code Sections 4320(i), (m), and 4325.  An action is “Pending” from the time the petition is filed until its final adjudication on appeal or until the time for appeal has ended.  The Court may make a temporary spousal support order retroactive to the date of filing of a petition requesting spousal support.

DETERMINING TEMPORARY SPOUSAL SUPPORT

So, how does a court determine who will pay and how much spousal support should be paid?  There are two basic factors for the court to consider in awarding temporary spousal support.  First, the court evaluates the applicant’s need for support and the other party’s ability to pay.  (See Marriage of Stich (1985) 169 CA3d 64, 74, 214 CR 919.   Temporary spousal support may be ordered in any amount based uon the party’s need and the payor’s ability.  Findings of the trial court on need and ability are reviewed under the abuse of discretion standard.  (See Marriage of Wittgrove (2004) 120 CA4th 1317, 17 CR3d 489)

Generally, courts take the view that the purpose of temporary spousal support is to enable the supported spouse to live in his or her accustomed manner pending disposition of the action (See Estate of Fawcett (1965) 232 CA2d 770, 784, 43 CR 160.  See also Marriage of Wittgrove, supra; Marriage of Winter (1992) 7 CA4th 1926, 1932, 10 CR2d 225) However, courts do recognize that incomes are often insufficient to support two separate households and still maintain the same standard of living during a pending divorce.

Courts typically refer to “Guidlines” in an effort to determine temporary spousal support. A trial court’s use of guidelines based solely on affirmed income is appropriate.  See Marriage of Winter (1992) 7 CA4th 1926, 1933, 10 CR2d 225.  However, the Court may not use “Guidelines” when determining long term spousal support.

A temporary spousal support order is terminated by the issuance of a judgment, dismissal of the pending action or expiration under its own terms.  An order for temporary spousal support may be modified  or terminated by the court at any time.  Modification or termination may not, however, affect the payor’s liability for payments that accrued before the notice of motion or order to show cause to modify or terminate was filed.  (See California Family Code Section 3603)

Temporary spousal support may be modified without a showing of a change of circumstances (unlike post judgment spousal support).  See Sande v. Sande (1969) 276 CA2d 324, 329, 80 CR 826.

Current circumstances: In evaluating the parties’ respective needs and abilities to pay, the court cannot engage in speculation. Its order must reflect the present facts and circumstances, based on evidence in the record and inferences reasonably drawn therefrom at the time of the hearing. [Marriage of Prietsch & Calhoun (1987) 190 CA3d 645, 656, 235 CR 587, 590;Marriage of Baker (1992) 3 CA4th 491, 498, 4 CR2d 553, 557; seeMarriage of Rosen (2002) 105 CA4th 808, 824, 130 CR2d 1, 10—abuse of discretion to fix spousal support on basis of self-employed obligor’s average income 2 years before support hearing where evidence at time of hearing showed substantially lower income]

“[A]n order for spousal support must be based on the facts and circumstances existing at the time the order is made.” [Marriage of Tydlaska(2003) 114 CA4th 572, 575, 7 CR3d 594, 595(emphasis added; internal quotes omitted)—request to modify spousal (and child) support properly denied for failure to file current income and expense declaration.
Special rule for modifications based on unemployment:A modification or termination of spousal support based on a spouse’s unemployment “shall be” made retroactive to the laterof the date of service of the OSC/motion to modify or terminate or the date of unemployment, “unless the court finds good cause not to make the order retroactive and states its reasons on the record.” See California Family Code § 3653(b).  What amounts to§ 3653(b) “good cause” for nonretroactivity is left to case law development. The only case law on the point to date, however, involves a child support modification and the court’s analysis placed heavy emphasis on the policy underpinnings of the statewide child support guideline which would not factor into a strictly spousal support modification; quite the contrary, the policy concerns underlying spousal support are entirely distinct from those associated with child support. Undoubtedly cognizant of that, the court in this case expressly stated it was not offering any opinion on the § 3653(b) “good cause” issue in instances not involving child support. [SeeMarriage of Leonard (2004) 119 CA4th 546, 560, 14 CR3d 482, 492, fn. 10]
I hope this blog regarding temporary spousal support has been informative. Please do not hesitate to contact Attorney Keith F. Simpson to discuss your divorce case today at (310) 297-9090.  The Law Offices of Keith F. Simpson, A Professional Corporation is located in Manhattan Beach, California.  Please also visit http://www.simpsonlaw.net or caldivorce.net for further information.