Status conference

[flafi]

Hello.

I have a question and need some help... There are so many legal sources online that I'm a bit overwhelmed. My question is concerning a court proceeding in Lake County, Illinois.

My ex-husband filed a Complaint against me with the Court, stating that I abducted his child (according to the Hague Convention on the Civil Aspects of International Child Abduction - HCCH). Of course, I didn't. I filed a verified Answer to his Complaint (stating all facts and presenting all evidence) and a Motion to dismiss due to lack of jurisdiction. The Court denied my motion (in my opinion, unfairly, since the U.S. Courts don't have jurisdiction in this case), and set a date for a status conference.

Do I need to file any additional Briefs before that conference? Do I need to do anything at all? The problem is that I'm not currently located in the U.S. and will thus not be able to physically be present at the status conference.

Thank you for your help!

 

[flafi]

I figured I needed to add some more info.

So, the thing is that my ex-husband was abusive, which is why I informed him I'm leaving him and taking our son to my home country in Europe (which is a Hague Convention Treaty Partner). He agreed, so I left.
Later, he met another woman, who couldn't have children of her own, which is why (I assume at least, considering that he never wrote/called/sent any letters to our son) he decided he wanted our son back. He filed a complaint for return of the minor child with the U.S. Courts a bit less than two years after we've been living in my home country in Europe.

I filed a verified answer to his complaint, and a bit later a motion to dismiss, stating that the U.S. Courts don't have jurisdiction in this case (he should have filed his complaint in my home country, as per my understanding of the Hague Convention), that the child already has habitual residence in my home country, that there is grave risk of harm for the child if the court orders his return. I included all the facts, supported by evidence (including his e-mails, in which he clearly tells me that our son and I should stay in my home country).

The U.S. Court denied my motion to dismiss. I wasn't present at the hearing (the U.S. is half a world away and I can't afford to go there + I can't leave my kid here alone, and I'm not taking him to the U.S. just for the sake of a court hearing), but the order I recieved had no explanation as to why the Court decided to deny my motion to dismiss due to lack of jurisdiction (I am unused to this as in my country everything has to be in writing).

Now the status conference is coming up and I'm not sure what to expect. I know that it is supposed to be merely a procedural thing, but I don't know... I won't be present (I notified the Court that I can't afford to leave my home country in all the briefs that I filed) and I'm a bit nervous, especially considering the fact that I was so sure that the Court will dismiss his complaint.

I'm afraid that the Court will rule in his favor, because I won't be present and I come from a small and politically rather unimportant country.

By our laws, the Courts in my home country aren't supposed to execute court orders if they have exclusive jurisdiction... Which, considering the Hague Convention, they do. So this gives me a bit more peace. But I would still prefer to pin the american procedure in the butt, if you know what I mean.

 

[FlyingRon]

We can't deal with the laws in your unspecified country. You'll need a lawyer there.

You're wrong however that he doesn't have standing to file custody matters in the Illinois regardless of where in the world YOU are. He is within the venue of the court. Your understanding of Hague is wrong. First, NOTHING prohibits him from filing here regardless of Hague. Further, he is OBLIGED to file here if he wishes to make use of the Hague procedures. He is going to assert (probably quite rightfully), that the US is the habitual residence of the child.

I suggest you obtain the services of a lawyer in Illinois.

 

[flafi]

We can't deal with the laws in your unspecified country. You'll need a lawyer there.

You're wrong however that he doesn't have standing to file custody matters in the Illinois regardless of where in the world YOU are. He is within the venue of the court. Your understanding of Hague is wrong. First, NOTHING prohibits him from filing here regardless of Hague. Further, he is OBLIGED to file here if he wishes to make use of the Hague procedures. He is going to assert (probably quite rightfully), that the US is the habitual residence of the child.

I suggest you obtain the services of a lawyer in Illinois.

Thank you for your answer FlyingRon. I still don't quite understand the decision of the court to deny my motion to dismiss, so I really appreciate your input (and the chance to figure out where I got it wrong).

I have legal representation in my home country. I can't afford a lawyer in the U.S. I contacted one, and he told me I would need to pay 2.500$ in advance for him to only look over the case. If I wanted him to do something else, I would need to pay more. Sadly, I don't have that kind of money.

He is indeed claiming that the child had habitual residence in Illinois, but I've found caselaw that suggests that the child's habitual residence changes if the parent that is left behind agrees that the other parent takes the child to another country for good (which, at least to me, seems quite a logical explanation).

Furthermore, I researched jurisdiction matters regarding Hague and found as follows.

42 U.S.C. � 11603 (b) states �Any person seeking to initiate judicial proceedings under the Convention for the return of a child or for arrangements for organizing or securing the effective exercise of rights of access to a child may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed�.
Article 8 of the Hague Convention furthermore states: �Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the Child�. Moreover, Article�9 states that: �If the Central Authority which recieves an application reffered to in Article 8 has reason to believe that the child is in another Contracting State, it shall directly and without delay transmit the application to the Central Authority of that Contracting State and inform the requesting Central Authority, or the applicant, as the case may be�.

I understand this in a way that my ex-husband should have filed his petition with the U.S. central authority (which is not the Court of Illinois, but the U. S. Department of State, Office of Children's Issues, in Washington, DC!). The Central Authority, which recieves an application for the return of a child, then transmits this application to the Central Authority of the Contracting State where the child is located. That would mean that the U. S. Department of State, Office of Children's Issues, in Washington, DC, would transmit this application to the Central Authority in my home country.

I also found a magazine, titled General Practice, Solo & Small Firm Division Magazine (issued periodically by the American Bar Association). The October/November 1999 issue (vol. 16, nr. 7) of this magazine was titled �Beyond the border� and featured an article called �International Child Custody Cases�. This article, concerning abductions from the United States, stated as follows: �If your client is in the United States and the child has been taken to another country that is a member of the Hague Convention, your client must contact the U.S. State Department's Office of Children's Issues (OCI) to start the process of filing a �petition for return� under the Hague Convention. The petition is transmitted from the OCI � this country's �central authority� for such cases � to the foreign country's central authority, and is then heard in the foreign country's courts in the locality where the child has been taken." Furthermore, the same article states that �The Hague Convention case is not heard in the place the child was taken from�.

Taking into account everything I wrote above, I feel really conflicted about this whole situation

Could you perhaps tell me about the consequences of not showing up for the status conference (or direct me towards a specific act about this)?

 

[Paul84]

Hello.

I have a question and need some help... There are so many legal sources online that I'm a bit overwhelmed. My question is concerning a court proceeding in Lake County, Illinois.

My ex-husband filed a Complaint against me with the Court, stating that I abducted his child (according to the Hague Convention on the Civil Aspects of International Child Abduction - HCCH). Of course, I didn't. I filed a verified Answer to his Complaint (stating all facts and presenting all evidence) and a Motion to dismiss due to lack of jurisdiction. The Court denied my motion (in my opinion, unfairly, since the U.S. Courts don't have jurisdiction in this case), and set a date for a status conference.

Do I need to file any additional Briefs before that conference? Do I need to do anything at all? The problem is that I'm not currently located in the U.S. and will thus not be able to physically be present at the status conference.

Thank you for your help!

You should be able to attend the conference via phone. Contact the judge's chambers about that--via phone if imminent, via email if they provide an address, or via fax if not, cc'ing the other side's counsel.

I've been involved in a U.S. court case from overseas for over 3 1/2 years and have not had to appear in court at all.

 

[LdiJ]

We can't deal with the laws in your unspecified country. You'll need a lawyer there.

You're wrong however that he doesn't have standing to file custody matters in the Illinois regardless of where in the world YOU are. He is within the venue of the court. Your understanding of Hague is wrong. First, NOTHING prohibits him from filing here regardless of Hague. Further, he is OBLIGED to file here if he wishes to make use of the Hague procedures. He is going to assert (probably quite rightfully), that the US is the habitual residence of the child.

I suggest you obtain the services of a lawyer in Illinois.

Sorry Ron, but I really disagree with you on this one. While its not quite been two years since the OP and the child moved to her home country, they did so with the father's blessing and therefore I would certainly argue, and argue fiercely, that the OP's country is the state of the child's habitual residence and therefore would have jurisdiction under the Hague Convention.

At the same time however, I understand why the IL court did not dismiss the case...again, because its not quite been two years, and also, because US state courts are notorious for getting it wrong on Hague Convention cases. Therefore I also agree that the OP very badly needs an Illinois attorney.

The facts remain however are that if the OP's country does not agree with the IL court's ruling the child isn't going to be leaving the OP's country. US court orders have no weight in another country unless said country agrees to assist in enforcement.