IICLE Family Law Flash Points - August 2015

3.         Seventh Circuit upholds District Court’s ruling that evidence of sexual abuse falls within the ‘grave risk’ exception to the Hague Convention’s mandatory return rule.   Defendant mother, who was a Mexican-citizen, wrongfully removed two minor children from Mexico and Plaintiff father sought their return.  However, the District Court found that although the children were wrongfully removed, clear evidence of daughter’s sexual abuse by father fell under the ‘grave risk’ exception to the Hague Convention’s mandatory rule which requires a child be returned to his or her country of habitual residence.  The Appellate Court upheld the ruling noting that the mother, daughter, and court-appointed psychologist’s testimony all supported a finding of sexual abuse and that the evidence of sexual abuse was substantial and sufficient to meet the clear and convincing standard.  Ortiz v. Martinez, 2015 WL 3650649.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D06-15/C:14-2048:J:Ripple:aut:T:fnOp:N:1569433:S:0

4.         UCCJEA home state jurisdiction does not exist until birth of child.  In a Parentage action, father filed a claim for paternity, custody and visitation in Illinois prior to the birth of the minor child.  Mother was residing in Colorado at the time he filed his petition and mother thereafter filed a competing petition in Colorado.  The Illinois trial court denied mother’s motion to dismiss the custody portion of father’s petition utilizing the significant-connection analysis under Section 201(a(2) of the UCCJEA. The Appellate Court reversed.  The home state determination of a child must be deferred until the child’s birth and the birth state will ultimately become the home state of the child. UCCJEA jurisdiction does not exist prior to a child’s birth. In this case, Colorado had proper jurisdiction over the custody of the child because during the case the child was born there.    Fleckles v. Diamond, 2015 IL App (2d) 141229.

5.         Husband’s concealment of three previous marriages to current wife did not amount to fraud, requiring annulment of marriage.  Wife was not entitled to an annulment after she discovered that husband had not disclosed three prior marriages to her.  Husband was still married when the couple participated in a religious ceremony in Atlanta. The ceremony was held without a marriage license because husband had told wife they could not obtain a marriage license because he had left his identification documents in Dallas.  At the time of the ceremony husband was still married to his prior wife.  He subsequently divorced, unbeknownst to the wife in this case, and the couple later married with a proper marriage license.  Wife discovered the prior marriages after attending an immigration interview with husband and filed a petition for annulment.  The trial court granted the annulment but the Appellate Court reversed holding that the fraud necessary to annul a marriage must be such as to go to the very essence of the marriage contract.  The Court also relied on other jurisdictions which have held that concealment of a prior marriage which has been dissolved by death or divorce does not amount to fraud. The Court reversed and remanded for the case to proceed on husband’s counter-petition for divorce. In re the Marriage of Igene, 2015 IL App (1st) 140344.