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Breach of DutyTarzan has taken Junior back to

The Jungle in a faraway land—against US Citizen Jane’s wishes, and perhaps indefiance of a US Court order for joint custody. Jane and Tarzan were quite ami-able about the divorce—no hard feelings.Tarzan was happy and settled in the US with a great job in Hollywood. Henever said he wanted to go back to live in The Jungle.

Despite an apparently amiable partingof ways, a malpractice claim lurks for any family law practitioner who fails to: 1) ask a new divorce client where all parties (including children) were born, 2) ascertain in what countries the partiesmay claim citizenship, and 3) advise theclients where any party is a citizen ofanother country as to the custody rights and obligations of both parties in order to avoid the nightmare of international parental abduction for the“left-behind” parent.

Top Malpractice PitfallsThe danger of international parental

abduction is at the top of the list of issuescritical to understanding the intersection ofImmigration Law and Family Law. Whenan “e-mail-order” love affair ends indivorce, it can generate hot issues not onlyof abduction, but also of financial supportabove and beyond the state or court’sguidelines.

In order to sponsor a family member’simmigration, a US citizen or LawfulPermanent Resident must sign a contrac-tually binding Affidavit of Support fromthe US Department of HomelandSecurity’s Citizenship and ImmigrationServices (USCIS). Sponsors promise toprovide basic support to immigrants theysponsor at 125 percent of the US povertylevel. Without undertaking this obligation,USCIS will not grant Permanent Residentstatus (green card) to the foreign spouse.Under federal law, immigrants who arelikely to become public charges are ineligi-ble for admission (8 USC 1182(a)(4))

International Parental AbductionThe US Department of State1 and the

National Center for Missing and ExploitedChildren (NCMEC)2 are the most helpfulorganizations in understanding and offer-ing resources regarding internationalparental kidnapping. The internationaltreaty that addresses civil and criminalaspects of the topic is the HagueConvention on the Civil Aspects ofInternational Child Abduction.

Of many US legal measures dealingwith the issue, the principal law is theUniform Child Custody Jurisdiction andEnforcement Act. Others include: MissingChildren Act (28 USC 534), NationalChild Search Assistance Act (42 USC5779 & 5780), International ChildAbduction Remedies Act (42 USC 11601 etseq.), Parental Kidnapping Prevention Act(28 USC 1738A), International ParentalKidnapping Crime Act (18 USC 1204),Fugitive Felon Act (18 USC 1073), andExtradition Treaties Interpretation Act of1998 (Note 18 USC 3181).

By Kathleen Harvey, Attorney

Immigration &Family Law

It’s a Jungle Out There

Jane and Tarzan swingin’ in a tree…K-I-S-S-I-N-G.First comes love, then comes marriage, then comes Junior in a baby carriage.

Jane and Tarzan fightin’ in the tree…Y-E-L-L-I-N-G.First come the lawyers, then comes the Judge, then comes Junior’s international parental abduction and a malpractice complaint against Jane’s lawyer because he failed to ascertain thecitizenship of all parties, neglected to caution Jane about the warning signs of internationalparental abduction, and was derelict by not describing, in writing, the recommendations for parents when international marriages collapse.

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The State Department and NCMECprovide a wealth of resources for seekingredress after the “taking” parent has leftthe US with the child. The left-behindparent, alas, is faced with dismal prospectsalong with immense obstacles and costs.

Practitioners must advise separating ordivorcing clients in the strongest terms toanticipate warning signs and prevent suchabductions. However, when a marriageseems problem free, unsuspecting US citi-zens may be caught completely unaware.

The ongoing case of David Goldman isa clear example of international child abduc-

tion by a foreign-born parent who left theUS on the pretense of a short trip to herhomeland of Brazil. When David Goldmansaw his wife and four-year-old son off at theNewark airport, he thought it was for avacation and was unaware that she had nointention of ever returning to the US.

After four long and painful years,David Goldman was finally allowed a briefvisit in February 2009 with his son inBrazil.3 This is despite the fact that hiscase falls squarely within the spirit as wellas the letter of the Hague Convention.

Abduction—Always UglyThere are basically three categories of

international parental kidnappings: 1) the“not-so-good,” 2) the “really-bad,” and 3)the “hideous.” None of them are remotely“good.” David Goldman’s case is in thefirst category. The US and Brazil areHague Convention signatories, yet theGoldman battle has persisted for morethan four years.

According to an April 2008 US StateDepartment assertion (Report onCompliance with the Hague Convention onthe Civil Aspects of International ChildAbduction) there have been 821 childrenabducted by parents to other HagueConvention countries. Only 341 have beenreturned to date.

A “really-bad” case is where the for-eign country has not signed the HagueConvention and the left-behind parentmust rely on self-help and his or her owncivil petitions. A truly “hideous” case isdepicted in the 1991 MGM movie NotWithout My Daughter, based on the truestory of a US citizen who married a manfrom a country where women have fewrights and are not entitled to custody oftheir children. This is the ultimate tragicsituation to be guarded against in any mar-ital split with children involved.

Prevention Is KeyPrudent divorce attorneys must pro-

vide clients whose spouses are citizens ofother countries with “standard” informa-tion on how to guard against internationalparental abduction. This must be donewhether it is requested or not.

This information should includestressing the importance of a well-writtencustody decree with strict visitation rules,warning against allowing the spouse toobtain a passport for the child, and noting“red flags” that are common predictors ofpotential parental abduction. According tothe American Bar Association, the chancesof an international parental abduction mayincrease when a parent has:

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• Previously abducted the child or threat-ened to do so

• No strong ties to the child’s home country• Friends or family living abroad• A strong support network abroad• No job, can earn a living almost any-

where, or is financially independent• Recently quit a job, sold a home or ter-

minated a lease, closed a bank accountor liquidated other assets

• A history of marital instability or a lackof parental cooperation

• A criminal record

A child born in the United States isautomatically a US citizen (with very nar-row exceptions), but under internationallaws concerning dual nationality, such achild may also be a citizen of the foreignparent’s home country. Preventing theissuance of a US passport can be arrangedthrough the State Department, but thisprecaution will not prevent the child frombeing abducted into another country. TheUnited States has no exit controls and can-not prevent other embassies from issuing apassport to its own citizen children.

Support & FinancialResponsibility

If Tarzan were to stay in Hollywoodafter divorce from Jane, he would only oweher what the court ordered for mainte-nance and child support. Jane, on the otherhand, sponsored Tarzan for immigration,and the affidavit of support is enforceableagainst the sponsor until Tarzan:

• Becomes a US citizen, or• Is credited with 40 quarters of work in

the United States (usually 10 years), or• Leaves the United States permanently, or• Dies.

Family courts are increasingly recog-nizing the USCIS I-864 Affidavit ofSupport as legally binding outside the context of the immigrant winding up as a burden on the state. Divorce or annul-

ment does not relieve the sponsor from the obligation. In fact, if Tarzan really isunable to work (having fallen out of toomany trees), Jane may be required to payhim 125 percent of the annually increasingpoverty level—perhaps for life.

In 2009, for a family of three that figure would be $22,888. If Tarzan neverapplies to become a US citizen or hasnever earned the equivalent of 10 years’wages under the US Social Security sys-tem, Jane could be supporting him “untildeath do they part.”

A real-life example of this situation isNauman Farooqi, a US citizen who spon-sored his Pakistani wife, Hina Younis, toimmigrate to live with him in Maryland in2003. The couple separated three years laterwhen Nauman left the marital home. Hinapetitioned the Maryland court for additionalsupport based on the 125 percent amountas contracted in the Affidavit of Support.

Nauman conceded that the obligationwas valid, but should be reduced by alimo-ny, child support, wages, and cash giftsafter the separation. He further contendedthat Hina failed to mitigate her losses byfinding paid, full-time employment. Withlimited education and skills, and despitereasonable efforts, she was only sporadical-ly working at very low wages.

The court noted that both partiesagreed that the plaintiff’s alimony or anywages earned should offset the obligationunder the affidavit. The issue was whetherthe child support should do so as well.The court further noted, “No federal courthas yet examined whether child supportpayments should mitigate a defendant’scontractual obligation under the affidavit.”

The court denied Nauman’s requestfor summary judgment, finding that thepurpose of child support was to ensurethat children enjoyed the same standard ofliving had the parents remained together—not to benefit the other parent.

In Younis v. Farooqi (MD, 1/10/09)the court ruled that:

Mr. Farooqi contractually agreed to

support the plaintiff at 125 percent of thefederal poverty level, and he cannot nowavoid that obligation because his immi-grant ex-wife—who has no driver’s licenseand only limited education, experience,and command of the English language, inaddition to the responsibility of caring fora young child—has been unable to findfull-time, paid employment within a cou-ple of years of their divorce.

The court said the defendant couldseek state court modification of the childsupport award if the defendant’s obligationunder the affidavit was not originally con-sidered. However, past support at over$20,000 for 2006-08 was ultimatelyawarded, and continuing obligations at thefuture current poverty level was ordereduntil his obligation expires by law. It wasalso explained that the plaintiff could filefor reasonable attorney’s fees.

This case dramatically illustrates theimportance of considering divorce pro-ceedings involving an Affidavit of Supportfor an immigrant spouse. This is rapidlybecoming the next pitfall for Family Lawpractitioners and assisting paralegals whofail to ascertain what ongoing financialobligations were undertaken to sponsor animmigrating family member.

ConclusionJane’s law firm would do well to

revise their intake questionnaire for newdivorce clients. Citizenship outside theUnited States and immigration sponsor-ship obligations should alert the firm tocritical issues of international parentalabduction and financial support. Clientsrely on the attorney experts to protecttheir best interests. Breaching that duty byfailing to ask the right questions, seekingadvice outside their area of expertise, andadvising clients accordingly, not only failsthe clients, but the profession as well.

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1www.travel.state.gov/family/abduction/abduc-tion_580.html.2www.ncmec.org/missingkids/servlet/PageServlet?LanguageCountry=en_US&PageId=604.3www.bringseanhome.org. David and Sean’sstory has been chronicled by NBC’s Dateline.http://insidedateline.msnbc.msn.com/archive/2009/02/11/1790785.aspx.

Kathleen Anne Harvey, JD, is a solo prac-titioner of immigration law in Overland Park,KS, focusing on business nonimmigrant andimmigrant visas, I-9 compliance, undocument-ed juveniles in foster care, family immigration,

adoption of non-citizen children and politicalasylum issues for clients throughout theUnited States. She haswritten previously forFacts & Findings andhas presented semi-nars at the NALAannual convention.

She is an honorsgraduate of theUniversity of Missouri-Kansas City School ofLaw, and has anundergraduate degree

in Human Resources Management fromOttawa University, KS. She is a member of theAmerican Immigration Lawyers Association,Missouri and Kansas Bar Associations,Christian Legal Society, and the KansasWomen Lawyers Association.

kathleen@harveyimmigration.com

He had no name. Could she be happy with this jungle waif?Could she find anything in common with a husband whose life had been spent in the tree tops

of an African wilderness, frolicking and fighting with fierce anthropoids; tearing his food fromthe quivering flank of fresh-killed prey, sinking his strong teeth into raw flesh, and tearing awayhis portion while his mates growled and fought about him for their share?

Could he ever rise to her social sphere? Could she bear to think of sinking to his? Would eitherbe happy in such a horrible misalliance?

—Edgar Rice Burroughs, from Tarzan of the Apes, 1914

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