Block on Trump's Asylum Ban Upheld by Supreme Court
Lisandro Patrick just lived out every parent's worst nightmare. After moving his wife and child to the United Kingdom from Puerto Rico, his wife absconded with the child and returned home.
Interstate custody disputes are difficult enough, but international? That's a whole different league of nasty, as Patrick would soon find out. The Hague Convention on the Civil Aspects of Child Abduction, along with a number of British and Puerto Rican laws, all intermingle to complicate the case. This doesn't even address the practical aspects, like finding and paying for counsel.
Once Patrick obtained pro bono counsel, the district court demanded a $10,000 bond before the case could proceed, citing the possible damage to the child's mother. Though Patrick correctly cited the Hague Treaty's prohibition on bonds, the most the court would do was to reduce the bond amount.
That's just one of many missteps the First Circuit corrected. There was also a surprisingly basic procedural gaffe, as well as the actual custody dispute.
The Hague Treaty provides that a removal of a child is wrongful when it is "in breach of rights of custody." Did Patrick have rights of custody? The ruling law, because of the residency of the child, is British law.
Understanding American law is bad enough, so we won't bore you with the details, but one statute says that Patrick doesn't have rights unless another statute applies, which itself refers to another statute, and another, and another. Seriously, U.K., it's time for some redrafting.
The final determining factor was legitimacy under Puerto Rican law. In 2013, we are actually asking that question in a legal case.
Under a number of statutes and cases, including one miscited by the mother for the proposition that the child was illegitimate, the rule is that if the parents are eventually married, the child becomes legitimized at that time. (Yep, she cited a case that went against her for the opposite of its actual holding. The lower court didn't catch it either.)
Note to the district court: You need another clerk - badly. Wouldn't a snarky blogger make for a fun and interesting change of pace?
Despite caselaw and statues providing that the child was legitimate, the lower court disagreed, as Patrick was not listed on the birth certificate and failed to file his affidavit of paternity with the Vital Statistics Registry. The court cited two cases that dealt with affidavits and narrow construction of vital statistics but neither had anything to do with legitimacy or child custody.
The child's legitimacy though marriage under Puerto Rican law means Patrick had rights and responsibilities in the U.K. and by further extension, rights under the Hague Convention. The First Circuit's decision corrected the numerous errors of the lower court, but does not guarantee victory - it merely allows him to take the case to trial and gives him home that some day soon, he might be reunited with his child.
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