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Can I Appeal a Family Court Judge’s Order in Illinois?

The Family Court will make decisions related to divorce, divorce mediation, civil unions, child custody, child support, orders of protection and more. But did you know if you disagree with the judge’s decision from trial, you can file an “appeal”? Here’s everything you need to know about applying for an appeal in the state of Illinois. 

Do you need help seeking an appeal from an unfavorable ruling in a divorce, child support case or other family law related matter? Judges can sometimes make an error that adversely affects the outcome of your case. In that situation, you may have a solid legal base for an appeal. An appeal is a request to have a higher court change or reverse a judgment of a lower court.

When you appeal, the entire case is reviewed by a higher court. Here are some points to note if you’re considering appealing a family court judge’s order.

Appealing a judge’s decision in family court

In some states, family court rulings can be appealed. This type of request is made to a higher court that will involve a judge, or panel of judges, to review the decision made by the lower court. This is not a rehearing, and you will not be able to present new evidence. The court of appeals’ objective is to review the trial record and determine whether or not the judge acted within their discretion. If the appeals court finds the judge acted accordingly, the decision will be upheld regardless of the appellate judges’ opinion on the matter.

In a majority of states, final orders given by the family court are the only cases that can be appealed. For example, in a divorce, a final order may include the final divorce decree, which might address asset distribution, child custody, and more. Temporary orders are pending and can only be appealed when you ask the appellate court to review them. It’s important to note that not all family law cases can be appealed. Grounds for an appeal are solely limited to:

  • Errors in law: A mistake in a court proceeding. For example: when state law requires a parent who has been convicted of domestic violence to complete counseling before being awarded visitation rights, but a judge grants visitation without any proof of counseling.
  • A mistake in fact: When a judge reached a final conclusion that no other person could have reached based upon the evidence. For example: when a parent is awarded sole custody even though they have been convicted of sexual abuse of a minor and the other parent has demonstrated to be a fit parent with no criminal record.

Appeals in Illinois

Because each state differs in law, you need to do your due diligence to ensure you follow the correct steps for the state you live in. In Illinois, a Notice of Appeal needs to be filed within 30 days of a final order, so if you don’t act quickly, you lose your right to an appeal. The appeals process can be lengthy and difficult. Should you decide to appeal your case without an attorney, you will need to follow the Rules just like those parties who have an attorney.

As of July 1, 2017, all documents filed in the Illinois Appellate Court and Illinois Supreme Court must be filed electronically (“e-filed”). If you need assistance, you may take your documents to the appellate court clerk’s office, where you can use a public terminal to e-file your documents. You can bring your documents on a flash drive or on paper. The terminal will have a scanner where you can scan, save, and then use the computer to e-file your documents.

IllinoisCourts.gov released a guide for appeals here which includes a full checklist of items to cover, along with a timeline of events in an appeal and where it is best to consult a family law attorney in this often-complex process.

Process for appealing a case

As mentioned, if you want to appeal a circuit court decision, you have 30 days after the final judgment to file a Notice of Appeal with the appellate court. This notice states what decision you are appealing and what you want to happen. Your Notice of Appeal must contain:

  • The court you are appealing to. 
  • The court you are appealing from. 
  • The name and number assigned to the case by the circuit court.
  • Who is filing the appeal (the appellant) and who will be responding to the appeal (the appellee).
  • What orders of the circuit court you are appealing from and the dates they were entered.
  • What you want the appellate court to do. For example, reverse the decision of the circuit court.

Next Steps

Each year in Illinois, thousands of families seek answers to questions regarding divorce, legal separation, allocation of parental responsibilities, support and other matters of family law. If you are thinking about appealing a decision related to divorce, child custody, child support, or another family law issue, you should really schedule a consultation with Masters Law Group immediately. 

If you or your loved ones are looking to appeal a family court judge’s order, contact the attorneys at Masters Law Group for guidance on these matters.

Learn more about the U.S. Courts of Appeals here. 

 

Preparation for a Family Court Trial

Your divorce and/or custody has been set for trial. With so much at stake, being well-prepared can help you feel more confident and calm. Here are some useful steps that can help you to prepare your case effectively in family court.

When parents divorce in the state of Illinois, their divorce settlement must outline a plan for different issues regarding their children. This plan should include child support, custody and visitation. Some parents are able to utilize mediation or work together to determine where their children will live and how much time will be spent with each parent.

There are some cases in which parents are unable to resolve custody disputes without legal intervention. In that situation, it is best to get a family lawyer to advise parents to prepare themselves for a potential child custody evaluation. Here’s some ways to prepare for a family court trial.

Preparing For Trial

Attorneys will guide you through the preparation process and help you gather evidence. Your job is to provide everything your attorney asks for and be 100% honest so they can prepare for arguments the other party may be compiling. 

If you plan on representing yourself, most legal experts would recommend consulting with an attorney to ensure you’re ready for court. This is different from hiring a lawyer to represent you since they will provide you with advice during meetings.

You’ll need to present evidence to support your case, which includes exhibits and witnesses. It’s always important to review the Illinois Rules of Evidence, and remember that witnesses cannot testify to hearsay.

Examples of Evidence You Can Provide

  • Bills and medical reports 
  • Photos/Videos of you and your child
  • Phone logs and visits with your child
  • A calendar showing when you care for your child
  • Anything that proves you to be fit as a parent and meets evidence requirements

It’s important to be prepared and have the judge know your stance on what is best for your child. You can do this by providing a parenting plan and parenting time schedule to trial. Along with all documents, bring a copy for the court, one for the other parent and one for yourself.

Witnesses can be anyone with knowledge relevant to the case. Parents almost always testify as witnesses. A child is more likely to do an interview with the judge outside of the courtroom, since the probability of them testifying is low. Expert witnesses provide professional opinions and are appointed by the court or hired by a party. Examples of expert witnesses are child custody evaluators or psychologists. Lay witnesses do not offer expert opinions, but they testify about their personal knowledge of a situation. These witnesses include family members, friends, and teachers.

Trial Scheduling

Trials usually take place several months after the initial filing. If the case is not progressing 18 months after filing, the judge may decide to issue a ruling at that time. Trials typically tend to be a few hours and will often be done in one sitting. 

Longer trials may be broken up into sessions spread out over days, weeks or, in some complicated cases, months. Be aware that the court may delay your trial date due to requests for more time from the other parent.

Trial Procedures

The parent who requested parental responsibilities, also known as the petitioner, may give an opening statement to explain how they see the case. The other parent, also known as the respondent, can then follow. 

If you are represented by an attorney, they will speak on your behalf. The petitioner calls witnesses and presents exhibits first. Any number of witnesses can be called to testify, as long as they were on the list that was filed with the court and provided to the other parent. 

Following Procedures:

  • Next, the respondent calls their witnesses and presents their exhibits.
  • Later, each side can submit additional evidence (called rebuttal evidence) to disprove the other side’s claims.

Finally, both parties give closing arguments to summarize their points. Judges announce rulings immediately following closing arguments, but they can take several days or weeks to decide. The final judgment replaces temporary orders previously put in place. Your options for changing a final judgment include appealing to a higher court or applying for a modification.

Final Thoughts

Masters Law Group understands that preparation for a family court trial can be a stressful situation. Our firm makes sure they are with you every step of the way. We currently handle family law matters in Cook County and surrounding counties and concentrate in the area of domestic relations, which includes divorce, allocation of parental responsibilities, child support and related family matters.

We offer a wide range of services tailored to our clients’ unique legal needs and have a unique depth of knowledge, experience and talent in the Family Law and Divorce field. Click here to set up a consultation today.

What Does a Family Law Attorney Cover?

Most people will use the terms “Family Law” and “Divorce Lawyer” interchangeably with each other.  The truth, however, is that Divorce Law is only one aspect of Family Law. 

What is family law and what do family lawyers do? Family law is a legal practice area that focuses on issues involving family relationships, such as adoption, divorce, and child custody, among others. Therefore, family law attorneys are legal professionals that specialize in these specific matters. Family lawyers can also act as mediators when family disagreements develop and represent litigants in family conflicts that end up in courts.

Below are some of the things that an experienced and reputable family law attorney can do for you.

Child Custody/Child Support agreements

In the hardest of times when a couple separates, one of the most challenging problems to solve is children.

Court orders and settlement agreements involving both custody and support usually are included in the larger divorce case, but may be revisited as conditions change. For instance, child support may be altered after the non-custodial parent’s financial situation changes.

A child support order is determined by what is reasonable and necessary for the support of the child or children. It is presumed that the guideline support amounts represent the amount of support that is reasonable and necessary, unless it can be demonstrated to the court that circumstances exist that would make the guideline amount inappropriate.

Divorce and Divorce Mediation

Undergoing a divorce is probably one of the most draining experiences that a family can face, and divorce cases involving substantial assets or complex estates require specialized knowledge. A good divorce attorney is skilled at dividing marital property, calculating spousal support, and proposing a plan for child custody, visitation, and support (if applicable).

Attorneys can also cover divorce mediation. Divorce Mediators work with a couples involved in family break-ups to make arrangements, either to plan for a separation or divorce, or after the split has taken place, without the need for court intervention.

Domestic Violence Protection

Domestic violence is described as abusive behavior when a family or household member uses physical or mental maltreatment toward another family or household member. The IDVA uses the following terms as abuse:

1. Physical abuse
2. Harassment
3. Intimidation of a dependent
4. Interference with personal liberty
5. Willful deprivation
6. Exploitation
7. Stalking

An Order of Protection is a court order made in writing which prohibits, by law, further abusive behavior.

Who are persons considered to be family or household members?
The IDVA defines members to include:

1. A spouse
2. Ex-spouse
3. Girlfriend/boyfriend who have or have had a dating or engagement relationship
4. Parents
5. Children
6. Stepchildren
7. Significant other/partner
8. Persons who share or allege to have a blood relationship through a child
9. Persons who live together or formerly lived together
10. Persons with disabilities and their personal assistants

International Child Abduction (Hague Convention)

Although not a common practice for most family lawyers, some specific attorneys have the knowledge, experience and skills in Hague Convention cases to take on international parental child abduction cases. 

The Hague Convention is a treaty that many countries, including the United States, have joined. Its purpose is to protect children from the harmful effects of international abduction by a parent. Proving claims in international child abduction cases under the Hague Abduction Convention requires analysis and careful development of all evidence and testimony that may support or defeat defenses to claims of wrongful abduction or retention. Therefore, choosing an attorney who has extensive experience in cases involving international child custody disputes is vital.

Reasons to Hire a Family Law Attorney

Now that you know what a family law attorney is, you’re probably wondering how hiring legal representation in your family law case would benefit you. Here are the major benefits that come with hiring a family lawyer.

Legal Protection

How realistic are the claims coming from the other party? Can the other party actually receive what they’re stating they’ll receive? A family law attorney knows the law, as well as the outcomes of past verdicts, and can use that knowledge to help you receive the best possible outcome.

Legal Knowledge

There’s a lot of red tape and substantial paperwork when it comes to family law proceedings. And that’s before it goes to trial. By hiring a family law attorney, you can rest assured the t’s crossed and i’s dotted. Consequently, you will not have to sweat about your case being thrown out as early as possible.

Court Experience

If a case goes to court, experienced attorneys can make sure that their client is prepared for everything that is going to happen when they enter the courtroom room, and will know exactly how to handle any particular situation that arises during the pendency of a family law case. This will keep the judge happy and the proceedings running smoothly and efficiently.

Peace of Mind

Ultimately, one of the best benefits of hiring a family law attorney to represent your interests in a case is the fact that you will be able to trust your legal issues are being duly dealt with. Whenever you have an issue or a family matter that requires legal representation, it’s essential to seek the assistance of a knowledgeable and experienced professional.

Last Words

There are areas of Family Law that involve people who are involved in Civil Unions, Domestic Partnerships, and same-sex relationships.  As a Chicago-based Family Law practice, we can ensure that the appropriate contracts and agreements are in place to help to avoid any issues in the future.

If you are facing a family law issue, contact the family law attorneys at Masters Law Group. Our firm handles family law matters in Cook County and surrounding counties. Masters Law Group concentrates in area of domestic relations, which includes divorce, allocation of parental responsibilities, child support and related family matters.

We offer a wide range of services tailored to our clients’ unique legal needs. Masters Law Group LLC has a unique depth of knowledge, experience and talent in the Family Law and Divorce field. Click here to view our practice areas. And click here to set up a consultation today.

Illinois Super Lawyers Recognize Masters Law Group Attorneys

Masters Law Group is proud to announce the firm’s Attorneys named by Super Lawyers in  both ‘Rising Stars’ and ‘Super Lawyer’ categories. 

Masters Law Group attorneys Erin Masters was named Super Lawyer list by Illinois Super Lawyers Magazine in 2020 and now 2021. Additionally, the firm’s Illinois-based attorney, Anthony Joseph was also granted the 2020 Illinois Rising Stars list as well.

The Super Lawyers designation, conferred upon the most respected legal practitioners in the state, is based upon peer recognition and professional achievement. No more than five percent of the lawyers in each state are selected by the research team to receive this honor. Rising Stars are those up-and-coming attorneys who are 40 years of age or younger and have practiced law for 10 years or less. No more than 2.5 percent of the lawyers in the state are selected by the research team to receive this honor.

About Erin Masters

Erin E. Masters is the principal of Masters Law Group, located in Chicago, Illinois. The firm handles family law matters in Cook County and surrounding counties. Masters Law Group concentrates in area of domestic relations, which includes divorce, allocation of parental responsibilities, child support and Hague Convention/ international child abduction matters.

Ms. Masters earned her Bachelors of Arts degree in Psychology from the University of California, San Diego, where she attended on a merit based scholarship, was a member of the Athlete Honor Roll, a participant of the NCAA Division II Track and Field Team and graduated in three (3) years with Provost’s Honors.

Ms. Masters received her Juris Doctorate and Certificate in Child and Family Law from Loyola University of Chicago, School of Law, in May of 2004. She was admitted to the Illinois Bar in November 2004 and to the General Bar for the United States District Court for the Northern District of Illinois in 2005 and the United States District Court for the Eastern District of Wisconsin in 2020. Ms. Masters was admitted to the United States Supreme Court in March 2009.

In addition to representing clients, Ms. Masters is also a court-appointed Child Representative and has experience advocating for children in these high-conflict matters. Further, she has also been appointed by the Circuit Court of Cook County to mediate complex family law cases. Since 2016, Ms. Masters has been named “Rising Star” by Illinois Super Lawyers and has been named as an “Emerging Lawyer” by Leading Lawyers.

About Anthony Joseph

Anthony G. Joseph is an attorney at the firm of Masters Law Group, LLC. Mr. Joseph received his B.A. degree in Global Economic Relations from the University of the Pacific in Stockton, CA.

He obtained both his J.D. degree and Certificate in Trial Advocacy from The John Marshall Law School. He was admitted to the Illinois Bar in November 2010, the Federal General Bar and Trial Bar for the United States District Court for the Northern District of Illinois in 2012 and the United States District Court for the Eastern District of Wisconsin in 2020.

Mr. Joseph is an active trial lawyer. Mr. Joseph publishes in the area of civil litigation. Mr. Joseph has also served as an adjunct professor at DePaul University. Mr. Joseph is “AV” Preeminent Rating from Martindale-Hubbell Peer Review, which is the highest peer review rating available and has been named a “Rising Star” by Illinois Super Lawyers in both 2019, 2020 and 2021.

Mr. Joseph concentrates his practice in area of domestic relations, which includes divorce, allocation of parental responsibilities and child support. Mr. Joseph has also successfully litigated matters concerning modification and enforcement of child support, allocation of parental responsibilities and parenting time as well as prosecuted and defended Orders of Protection. Ms. Joseph has also successfully litigated matters concerning modification and enforcement of child support,. Mr. Joseph has also litigated cases in both state court and multiple United States Federal Courts involving The Hague Convention and international child abduction issues.

About Super Lawyers

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations.

According to Super Lawyers, the “Rising Stars” and “Super Lawyers” selection process is a comprehensive, good-faith, and detailed attempt to produce a list of lawyers who have attained high peer recognition, meet ethical standards, and have demonstrated some degree of achievement in their field.

Selection Process

Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.

For more information about Super Lawyers, visit SuperLawyers.com.

Contact Masters Law Group

Masters Law Group LLC has a unique depth of knowledge, experience and talent in the Family Law and Divorce field. Schedule a consultation here to speak with an attorney regarding your family law matter today.

Divorce or Legal Separation: What’s best for you?

During the inevitably stressful time of going through a break up, it’s important to go through your options. To best determine what type of separation is best for you and your family, let’s first understand the difference between divorce and legal separation.

Divorce vs. Legal Separation

Your first thought may immediately go to divorce, and that is understandable due to it being the most common approach to seemingly irreconcilable differences. However, you have another option that is less permanent that is worth considering. There is a large difference between deciding to be physically separated from your spouse and legally separated from them.

A divorce means your marriage is 100% legally over, the court can assist in determining the allocation of parental responsibilities, parenting time, and child support. The court can also determine spousal support and divide property. Couples that have decided they can’t reconcile may be ready for an immediate divorce. However, even if you believe you will ultimately file for a divorce, a legal separation is worth to consider.

A legal separation is a less permanent option, meaning you’re living apart but still legally married. If you don’t think you can live with your spouse, you can file for legal separation. Obtaining a legal separation does not prevent you or your spouse from obtaining a divorce later. Legal separation is less emotionally taxing than divorce because the permanence of a divorce isn’t there which still allows for the legal relationship to exist between the married couple. The court can order a separation between you and your spouse, and it would include similar aspects to a divorce such as allocation of child support and custody arrangements.

When is a legal separation the better option?

Divorce may be the best option for you, it often is for many couples. However, there are some situations where a legal separation rather than divorcing straight away would make the most sense.

  • You’re not sure if your partnership is ready for a divorce, you just need some separation
  • Your religion doesn’t permit divorce
  • Certain benefits are at risk such as health insurance, social security, and others

As much as you may feel differently now, most couples are capable of making a compromise or would agree to a specified time to attempt to reconcile their differences. For troubled marriages, a legal separation is a solution that is often overlooked, but proven very effective for many couples that give it a go. The separation may ultimately lead to a divorce, but at least you can rest assured that you did everything that you could to try to repair your marriage.

Additional common questions about legal separation in Illinois

– Can I still get a Legal separation if my spouse does not live in Illinois?

Yes, you can still get a legal separation granted by the court when your spouse doesn’t live in Illinois, or never has lived there. Something the court may potentially not be able to decide upon in this scenario is custody of children.

– Can custody be decided in a legal separation?

Yes, custody can be decided between the partners if the child has lived in Illinois for over 6 months.

– How long do you have to live in Illinois to file for a legal separation?

You have to be living in Illinois for at least 90 days.

– Where should you begin with this overwhelming decision?

Hiring an experienced legal advocate that is well-versed in family law will be the best option for you moving forward. They can help explain this process to you and is the greatest way to ensure the best possible outcome that is custom and unique to your family’s situation.

At Masters Law Group, we provide divorce and legal separation services and also represent clients involved in these matters. If you are looking to explore your options on divorce or legal separation with professional and experienced advisors, contact Masters Law Group to schedule an appointment here.

 

 

Divorce Disputes: Know Your Rights

Divorce can be an extremely emotional time. On top of this, couples need to decide how to split their assets, including money, the marital home and the custody of the children.

The divorce process is stressful and can easily bring out the worst in people. Although divorce can get you out of an unhappy marriage, it can also leave you high and dry if you don’t know your rights.

Emotional vs Financial Decisions

Divorce professionals will tell you that it’s best to approach your settlement discussions as a business discussion; but how do you take your emotions out of your divorce negotiations?

Fear, anger, sadness, loss. While you should let yourself feel all of these emotions and seek out the support you need to get through the hurt, when it comes to the divorce process itself, controlling your emotions is key to getting the outcome that you are looking for.

Reasons why these discussions need to be more about business than emotions include:

  • The legal system is not set up to resolve disagreements based on moral arguments, but bound by statutes and case law and these likely will not provide resolution for the wrongs you’ve experienced.
  • Decisions based on emotions are not the best long term or even short term decisions. For example a fight over a home you can’t afford to upkeep will only harm your financial future.
  • You could easily end up regretting your emotional decisions further down the line. For example you realize something you are fighting for is harming the welfare of the children.

Letting go of those feelings during the divorce process not only helps keep the focus on protecting your legal rights, but it also gets rid of those old hopes and dreams so you can start building new ones for the future.

If your marriage has any complicated issues to settle (see below), a family law attorney can be an invaluable resource.

Spousal Support/Alimony

While divorce may end a marriage, it doesn’t necessarily end the obligations of one spouse to another. Oftentimes, one spouse is able to receive spousal support, or alimony, to help them establish a new, post-divorce life.

The court will award financial assistance based on factors such as the duration of the marriage, each person’s earning capacity, contributions to the household and physical health of the recipient.

There are five different types of alimony that may be awarded:

  • Rehabilitative Alimony: Granted for a specified time period. It provides the recipient with the funds to obtain the job skills and education needed for him or her to become self-sufficient.
  • Lump-Sum Alimony: A one-time, fixed payment and is often granted in lieu of a property settlement. The amount awarded is equal to the total of future monthly payments.
  • Permanent Alimony: Which continues until the recipient remarries or either payor or payee dies. The payments may be adjusted due to changes in financial circumstances.
  • Reimbursement Alimony: The dutiful spouse who works full time to put her partner through school and is divorced shortly after is a candidate for reimbursement alimony. As the name implies, this support reimburses one spouse for expenses incurred in helping the other complete an education or training program.
  • Temporary Alimony: Temporary alimony is sometimes paid when a couple separates but the divorce is not final. The parties execute a written marital separation agreement stipulating how much and when payment will be made.

Property Disputes

When the court grants a divorce, property will be divided equitably (not always equally) between the two spouses. This is decided under the Equitable Distribution Law. During the divorce both spouses have to tell the court about their income and any debts they owe. There are two different types of property for the purposes of a divorce. Property that the couple bought during the marriage is called “marital property”. Property that belonged to you before the marriage or was a gift to just you from someone other than your spouse is called “separate property”. Marital property can be divided between the two spouses. Rather than using an automatic 50/50 split, an Illinois judge will consider all relevant factors in deciding what kind of property division is fair.

There’s no hard and fast rule for who gets the house in an Illinois divorce. In cases where a couple can’t afford to keep the marital home, a judge will order the house to be listed and sold as soon as possible so that the couple could divide the proceeds.

Child Custody

Probably the most contentious and emotionally difficult aspect of a divorce is deciding on custody of the children.

In an Illinois divorce or custody case, either parent may request custody, or both parents may agree to joint custody.

You may also ask the court to determine custody in other situations, including:

  • If you are not married to the other parent but need to determine custody of a child.
  • If you want to be the legal guardian of a child.
  • If you need to determine who the parent of your child is.

Parents may share legal custody, or legal custody may be vested in one parent (i.e. sole legal custody). While it is possible to share residential custody, such arrangements are oftentimes impractical or would impose too much stress on their children.

Child custody cases are intensely fact specific, and it is important to speak to an experienced family law attorney before letting emotions or fear dictate your decisions should you be faced with a custody battle.

Alternative Dispute Resolution (ADR) and Divorce

Despite what you hear and see on television, most legal disputes never make it to court and are usually resolved by a settlement outside of court proceedings.

Resolving divorce issues listed above can happen without lengthy and expensive litigation. More couples are now going with alternative dispute resolution (ADR) to end their marriages. The popularity of mediation has shifted the role of divorce attorneys from representing their clients in a legal battle to acting as divorce mediation lawyers to help clients achieve mediation success. In this new role attorneys can serve as a lawyer coaches, legal consultants, and legal advisers in the divorce mediation process.

ADR may prove to be a beneficial tool in resolving your divorce and related issues, depending on factors such as the degree to which you and your spouse are in dispute on key issues, and your willingness to work together to resolve those issues.

Get the help you need

Unfortunately, while it is always possible to represent yourself in a divorce case, it may not always be advisable.

Masters Law Group understands that divorce is a stressful situation and that our clients want to move on with their lives. As such, we move through settlement negotiations, mediation or litigation with our clients assurance and well-being in mind.

Whether you are facing a contested divorce, uncontested divorce, or civil union divorce, our firm’s attorneys are ready to skillfully advocate for your position and provide your voice when you need it most.

Divorce cases involving substantial assets or complex estates require specialized knowledge. Masters Law Group is skilled at identifying and valuing assets and wealth, including real estate, securities, business interests, retirement funds, pension plans, tax shelters (domestic and foreign), overseas accounts, stock options, trusts and other actual or potential sources of wealth.

Schedule a Consultation today to learn more about how we can assist as your Divorce Mediators and Attorneys.

 

Masters Law Group Case Review: Hague Convention on Civil Aspects of International Child Abduction.

The Hague Convention on the Civil Aspects of International Child Abduction is a treaty between signatory countries (or “contracting states”) that provides for the prompt return of an abducted child to his or her country of habitual residence. Here, Masters Law Group fought, and won a landmark ruling in favor of our client.

CASE OVERVIEW

The husband filed a petition for the return of his two children, (a two year old and eight-month old) who were taken from their residence in Mexico to Wisconsin, USA by his wife – the mother of the two children – represented by Masters Law Group LLC in the Eastern District of Wisconsin United States District Court where the Law Firm of Conway, Olejniczak & Jerry, S.C. served as local counsel.

This case arises under the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq., which implements the Hague Convention on Civil Aspects of International Child Abduction.

The Act entitles a person whose child has been removed from his custody in another country and taken to the United States to petition in federal or state court for the return of the child.

CASE DETAILS

In this case, the mother removed the children from where the family was living in Mexico, and took them to Wisconsin.. The father then commenced an action for the return of the children under the Hague Convention. For the reasons that follow, the Court denied the father’s petition.

CASE RESULTS

ICARA AND THE HAGUE CONVENTION Under the ICARA, a petitioner seeking return of a child must establish by a preponderance of the evidence that the child has been wrongfully removed or retained within the meaning of the Convention.

The removal or retention of a child is to be considered wrongful where – (a) it is a breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

But “[b]ecause children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers,” the Monasky Court noted that “the intentions and circumstances of caregiving parents are relevant considerations.” Id. at 727. Importantly, with respect to children, the Court explained that “an infant’s ‘mere physical presence’ . . . is not a dispositive indicator of an infant’s habitual residence.” Id. at 729. “No single fact, however, is dispositive across all cases.”

Based on the foregoing case details (found here),details the court found that the grave risk exception applied and held that returning the children to Mexico and separating them from their mother would expose them to a grave risk of psychological harm or otherwise place them in an intolerable situation. Case 1:20-cv-01028-WCG Filed 10/16/20 Page 9 of 10 Document 102.

CONCLUSION

In sum, the court found that the father has failed to meet his burden of establishing by a preponderance of the evidence that his children were habitual residents of Mexico. In addition, the court found by clear and convincing evidence that returning the children would subject them to a grave risk of psychological harm or otherwise place them in an intolerable situation.

Accordingly, the retention of the children in the United States was not wrongful within the meaning of the Convention. The petition is therefore denied, and this action is dismissed.

HAGUE CONVENTION – INTERNATIONAL CHILD ABDUCTION LAW WITH MASTERS LAW GROUP

Erin Masters and Anthony Joseph have extensive experience in cases involving international child custody disputes in both courts located in the State of Illinois and the United States federal court system.

Erin Masters and Anthony Joseph have extensive knowledge and experience with The Hague Convention on Civil Aspects of International Child Abduction (“The Hague Convention”) that was enacted into law through the International Child Abduction Remedies Act (“ICARA”) which provides that a parent whose child has been wrongfully removed from or retained in the United States may petition for the child’s return to his or her country of habitual residence.

SCHEDULE A CONSULTATION

If you are faced with instituting or defending child abduction proceedings under the Hague Convention on the Civil Aspects of International Child Abduction in the United States, work with the experienced lawyers at Masters Law Group. Contact us here today to schedule a consultation.