The petitioner was a mother who moved with her husband, the respondent, to Canada with their three minor children in 2009. The respondent moved back to Lahore, Pakistan and the children stayed with the petitioner in Canada. The respondent wanted the entire family to move back to Lahore. To this end, he approached the Guardian Court in Lahore and declared himself as the guardian of the person and property of his children. When they came to visit him, he refused to let the children go back to Canada. Under the Guardians & Wards Act of 1890, the Guardian Court is any lower court that can hear an application for custody and guardianship of children. The respondent proceeded to file an application for custody of the children before the Guardian Court. The petitioner was in Canada when she received the notice of the proceedings for custody and unable to immediately enter Pakistan as her visa had expired. In her absence, the Guardian Court passed an order giving the custody of the children to the respondent until the petitioner could appear before the Guardian Court. The petitioner filed an application to the High Court for custody of her children, which was dismissed as the matter was still pending before the Guardian Court. The High Court’s reasoning was that because the Guardian Court is where the evidence and witnesses are evaluated, it is the appropriate forum for the case to be heard for custody of children. The Supreme Court of Pakistan considered whether the High Court had jurisdiction to hear the petition on custody matters pending a final decision by the Guardian Court. The Supreme Court observed from previous case law that the Guardian Court is the final arbiter on questions of custody of a child. However, this should not disadvantage a person illegally deprived of custody of a minor child from a remedy to regain custody pending adjudication by the Guardian Court. On this basis, the Supreme Court held that the High Court has the right to pass orders where it would be in the best interest and welfare of the minor. The Supreme Court also held that the High Court has jurisdiction to restore custody to the person lawfully holding such custody while the Guardian Court gives its final orders. After considering that the children wanted to move back to Canada with their mother, the order was passed in her favor.
Women and Justice: Keywords
Domestic Case Law
Here, the Court held that the termination of a marriage should lead to the division of matrimonial property between the two spouses. This rule applies when both spouses have contributed, financially or otherwise, toward the acquisition of the property. In this case, even though the marriage between the two partners was declared void, the Court held that the two matrimonial properties should be divided between the partners. The Court also held that custody arrangements should not excessively restrict the access of one parent to the child.
The General Master of Family Court granted custody of a child to the defendant because the plaintiff received public assistance. The issue on appeal was whether receiving public assistance was a legitimate criterion for the denial of child custody. In reversing the Family Court’s ruling for the defendant, the Supreme Court of Rhode Island reiterated the rule that any custody determinations must be based on the best interests of the child and delineated a non-exclusive test to determine the best interest of the child. The factors include, but are not limited to: (i) the wishes of the child’s parent or parents regarding the child’s custody; (ii) the reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding and experience to express a preference; (iii) the interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings, and any other person who may significantly affect the child’s best interest; (iv) the child’s adjustment to the child’s home, school and community; (v) the mental and physical health of all individuals involved; (vi) the stability of the child’s home environment; (vii) the moral fitness of the child’s parents; and (viii) the willingness and ability of each parent to facilitate a close and continuous parent-child relationship between the child and the other parent.
In this case, the Rhode Island Supreme Court held that a parent seeking to relocate out of the country with children in his or her custody need not make a showing that his or her reasons for relocation are “compelling.” Rather, the court cited the “time-honored axiom that the primary consideration and paramount concern in all matters relating to custody is the best interests of the child.” In determining the child’s best interests, requiring a parent to demonstrate that the reason for moving was compelling would overly burden a parent’s ability to relocate for legitimate reasons. Accordingly, the court held that the family court had incorrectly applied a “compelling reason” test in denying a mother’s motion to relocate with her children, failing to consider the children’s best interests.
The appellant and respondent are divorced parents of three children. At the time of the divorce, custody of the children was awarded to the respondent. The appellant then moved for an interim protection order, claiming that the respondent physically abused their minor children. A court granted the interim protection order on October 3, 2011, and awarded the appellant interim custody of the children, subject to visitation by the respondent, and ordered respondent to cease abusing the children. The Magistrate’s Court subsequently discharged the interim order on October 24, 2011, based on Section 12 of the Combating of Domestic Violence Act 4 of 2003, reasoning that the beatings were an isolated incident and were only meant to punish the children for bad behavior. The appellant challenged the discharge. The appellate court agreed with appellant and granted a final protection order effective through July 2013, which awarded the appellant custody of the children with visitation for the respondent on alternate weekends and holidays. In its decision, the appellate court stated the importance of rooting out the “evil that is domestic violence in order to give effect to the protection of the constitutional value of human dignity.”
Following the separation of the plaintiff, Ms. L. del V., from the defendant, Mr. G., the defendant failed to pay their daughter’s school tuition or English lessons, took all of the family’s working vehicles, and sporadically paid no more than 40% of stipulated child support. The plaintiff further alleged that the parties’ attempt at a negotiated solution constituted extortion given that she would not receive any support until they reached an agreement. The parties subsequently negotiated an agreement, which the plaintiff later found to be inadequate. In finding for the plaintiff, the court found that the defendant’s conduct constituted economic violence defined as the failure to provide required assistance, particularly where the woman has dedicated herself to childrearing at the time of separation and that the repeated failure to provide required support following separation would have a severe effect on the mother and child.
Luego de la separación del demandante, la Sra. L. del V., del demandado, el Sr. G., el demandado no pagó la matrícula escolar o las clases de inglés de su hija, tomó todos los vehículos de trabajo de la familia y esporádicamente no pagó más del 40% de la pensión alimenticia estipulada. La demandante además alegó que el intento de las partes por una solución negociada constituía una extorsión, dado que ella no recibiría ningún apoyo hasta que llegasen a un acuerdo. Posteriormente, las partes negociaron un acuerdo, que luego el demandante consideró inadecuado. Al encontrar al demandante, el tribunal determinó que la conducta del acusado constituía violencia económica definida como la falta de asistencia requerida, en particular cuando la mujer se habia dedicado a la crianza de los hijos desde el momento de la separación y que la falta reiterada de proporcionar la asistencia necesaria después de la separación tendría un efecto severo en la madre y el niño.
In 2004, the common-law marriage between Dalibor Perić (“Perić”) and his wife was terminated. Perić’s ex-wife was granted custody of their two-year-old son, and Perić was ordered to pay BAM 100 per month in child support. Over the next three years, Perić never paid child support, he verbally abused and physically assaulted his ex-wife and her parents resulting in two domestic violence charges. In addition, he beat the child on several occasions. In 2007, the mother of the child filed a motion to terminate Perić’s parental rights. Two years later, the Basic Court in Bijeljina stripped Perić of his parental rights pursuant to Article 106 of the Family Law of the Republika Srpska. The County Court of Bijelina dismissed Perić’s appeal and upheld the lower court’s ruling. Perić then appealed to the Constitutional Court of BiH, arguing the ruling of the County Court violated his right to a fair trial and right to private and family life. Because no draft decision received a majority vote, the Constitutional Court of BiH dismissed Perić’s appeal.
Decision available in English here.
A mother, on behalf of her infant child, filed a lawsuit for a declaratory judgment for absence of parent-child relationship with the appellant––a man to whom the mother was married when the child was born. The request for the judgment was based on the fact that a DNA test result showed that, with 99.99 percent probability, the infant was a child of a different man, with whom the mother was having an affair. By the time of the trial, the wife and the child had left the appellant to live with the child’s biological father. Article 772 of the Japanese Civil Code, in general, presumes a man to be the father of a child if the man is married to the mother of the child at the time of conception. While Article 774 allows the husband to file a proceeding to rebut such a presumption, the wife or the child does not have standing to initiate such a proceeding. The Supreme Court, stressing the importance of maintaining legal stability pertaining to familial status, found that the facts that (i) there was scientific evidence that clearly denied a biological father-child relationship and that (ii) the child was currently raised––without any problem––by the biological father does not negate the presumption of the father-child relationship under Article 772 of Japanese Civil Code, as the importance of maintaining the legal stability pertaining to familial status would not be undermined by such factors. Therefore, the Supreme Court found that there was no legal ground to deliver the requested declaratory judgment.
This case concerns the custody of a Japanese couple’s son who was born and raised in the United States until the mother, without the father’s consent, took him to Japan when he was 11 years old. Pursuant to the Japanese implementation of The Hague Convention on the Civil Aspects of International Child Abduction, the father, whose life was still based in the U.S., petitioned for the return of the son to the U.S. A family court in Tokyo granted the petition. However, the attempt to enforce the order of the court failed as the mother strongly resisted when a court execution officer approached her––the son also voiced his desire to stay in Japan at the time. Subsequently, the father requested habeas corpus relief seeking release of the child. The High Court dismissed the request. In this appeal, the Supreme Court of Japan reversed the High Court’s ruling and remanded the case. In its reasoning, the Supreme Court first recalled its old ruling that care for a child is tantamount to “restraint” within the meaning of the Habeas Corpus Act and the Habeas Corpus Rules in special circumstances where it cannot be deemed that the child is staying with the care provider based on the child’s free will, even if the child is capable of making her/his own decisions. The Supreme Court found such a special circumstance––undue emotional influence from his mother––existed with respect to the son in light of the fact that he was not capable of making decisions regarding his life when he was taken to Japan, he appeared to have had less than sufficient opportunities to communicate with his father, and he had been largely dependent on his mother. Furthermore, the Supreme Court found that the restraint at issue was unequivocally unlawful, taking into account that the mother had refused to follow the family court’s order to return the child to the United States, and that there was no special circumstance in which removing the child would be significantly unjust. This Supreme Court’s unanimous decision may be an indication that the Court will put significant weight on compliance with The Hague Convention on the Civil Aspects of International Child Abduction.
This legal advisory opinion found that a divorced woman is not entitled to the typical social allowance provided to married individuals by their employers. The woman, unnamed in the opinion, applied for the allowance because she has custody of her minor son. The opinion states that the allowance can be only provided to married women with children whose husband is unemployed, jobless, or incapacitated. A divorced woman cannot benefit from this support even if she is the sole custodian of her child. Nonetheless, this Advisory Opinion requests that the Qatar Legislator revisit this situation a “with a view to cure the unreasonable position of a divorcee employee who has children, because her situation resembles the situation of a widow in jurisprudence.”
This is a child custody case involving a father (the applicant) seeking custody of his minor child because the child’s biological mother, the respondent, sought to take the child to Sri Lanka without the applicant’s permission. The applicant and respondent were never legally married and the respondent had custody of the child. The Court found that Section 31 of the Constitution abolishes the status of illegitimacy of children but that Section 31 is silent on the status of the father of a child born out of wedlock. The Court held that until Parliament enacts the necessary laws under Section 29(7) of the Constitution (which specifically provides for the enactment of laws by Parliament to ensure children’s rights) the legal effects flowing from the fact that the child was born out of wedlock apply and the Court cannot grant guardianship of the minor child to the applicant. Section 31 of the Constitution relates, in part to the rights of children born out of wedlock to inherit from their father. The Court was satisfied that the mother showed careful preparation in her decision to move to Sri Lanka for better career opportunities. The application failed.
The appellant was the maternal grandfather of two minor children (the subject of the application). The appellant was appealing a decision of the trial court which ordered that the children be placed the custody of their biological father (the respondent). The children stayed with the appellant for a period of time while the respondent pursued his education in South Africa. Upon the respondent’s return, he fetched the children from the applicant’s residence. One of the appellant’s arguments was that because the marriage between the appellant’s deceased daughter and the respondent was invalid under Swazi law, the custody of the children should be with the maternal family (in accordance with Swazi law and custom). The Court stated that Section 29(4) of the Constitution removes the distinction between legitimate and illegitimate children as it states that children whether born in or out of wedlock shall enjoy the same protection and rights. The Court found that the most important considerations were the welfare, interests and happiness of the children. The Court found that no evidence was adduced to prove that the respondent was not fit to have custody over the children and the appeal was dismissed.
The petitioner requests a divorce from the respondent and money to care for the parties’ daughter, for whom the petitioner is the sole caregiver. The parties were married in July 2008 in Uganda and then moved to Woburn, Massachusetts, USA. The respondent husband physically abused his wife, especially when intoxicated. During the time they lived together, the respondent usually slept in the sitting room. For three years they lived apart, but were reconciled by relatives. During the reconciliation, the parties had a daughter. The respondent was never involved in caring for the child and eventually left the family home to live with his mother 45 minutes away. The petitioner returned to Uganda where she is the sole parent and provider for her daughter. The court granted the request for a divorce on the grounds of cruelty and desertion. The court explained that the best interests of the child control all determinations relating to children. The court granted the petitioner custody of the daughter and $400 (USD or the USh equivalent) per month from the respondent for their daughter’s maintenance.
The petitioner father filed for divorce from the respondent mother and custody of their child. After the birth of their child in 2007, the respondent left the matrimonial home without returning. After over two years of absence, the petitioner filed for divorce. The two elements of desertion are the actual absence of a spouse and their intent to abandon the union. In this case, the respondent travelled internationally with the child at the petitioner’s expense and refused requests to move to Uganda once she obtained citizenship. In 2011, she moved back to Uganda. In 2012, the respondent requested an Islamic divorce, which she was granted, citing problems with the government of Saudi Arabia. After the Islamic divorce, the parties continued to cohabitate with petitioner as the sole provider for the family, but the marriage was over. Respondent moved to the United Kingdom for the child’s education and the petitioner paid the costs. The petitioner also complained of physical assault, which he did not report to the police to protect his reputation. He submitted documentation of his payments for living and education expenses, their marriage, the Islamic divorce, and his unanswered inquiries to respondent about their child. The court agreed that these facts demonstrated an irretrievably broken marriage. Citing the Children Act, which requires courts primarily consider the best interests of the child in custody determinations, the court granted custody of the child to the petitioner because the petitioner functioned as the sole provider for the family.
Mrs. Petlane, the plaintiff, sued her husband, alleging that he abused her regularly and caused her to leave their marital home. The plaintiff sought relief from the physical abuse, custody of the parties’ minor child, spousal support, and child support. The defendant did not allege an inability to provide for his wife and child, but insisted that they live together if he was going to provide that support. First, the High Court found that it had jurisdiction because the parties had a civil marriage rather than a customary marriage, as the defendant claimed. Then the Court held that Mr. Petlane could not compel his wife to return home, which would risk more physical abuse, by refusing to support her financially. Because his abusive behavior drove her out of the marital home, the court ordered Mr. Petlane to make regular spousal and child support payments to Mrs. Petlane.
A Burkinabe woman (T.M.) sought legal separation from her husband (S.Y.) on the grounds of adultery. Legal separation was granted on the grounds that S.Y. had committed adultery (it had been agreed that the marriage would be monogamous). The judge concluded that the sole responsibility for the separation lay with S.Y. Custody of the children was given to T.M. The principle of legal separation is rarely considered by the Burkinabe courts. The judgement provides that legal separation can be requested on the same grounds as divorce, namely mutual consent or the fault of either spouse. The effect of legal separation is to end ‘cohabitation duties.’ However, certain marital duties such as loyalty and support continue. Legal separation allows a woman to formally separate from her husband while leaving the possibility of reconciliation (information provided in academic commentary).
A woman was being divorced by her husband on the grounds that her testing HIV-positive endangered his life. Although her salary contributed to the mortgage payments for the house, the High Court ordered that she be consigned to the servants’ quarters and denied custody of her children, pending the hearing for her husband’s petition for divorce. She sought a stay of execution of the High Court’s order in her application. The Court of Appeal noted that it is trite law that children be placed with their mother unless there were good reasons not to do so. It also ruled that it was inconceivable that a woman be turned out of a house for which she is a 50% holder. The Court decided in favor of the application and granted a stay of execution.
The appellate court affirmed a family court’s grant of sole custody to the mother of three minor children. According to Ariz. Rev. Stat. Ann. § 25-403.03, a significant history of domestic violence is sufficient to render joint custody inappropriate. In addition, Ariz. Rev. Stat. Ann. § 25-403.03.D further states, “there is a rebuttable presumption that an award of custody to the parent who committed the act of domestic violence is contrary to the child’s best interests.”
Father and Mother were divorced in 2003 and were granted joint custody of their son, Z. In January 2008, Mother sought an order of protection against Father covering her house, her mother’s house, and Z’s school, claiming that Father, a police officer, had committed domestic violence against her, and had intimidated Z to a point where he left a suicide note. After an evidentiary hearing, the family court found sufficient evidence to support an order protecting Mother. The court found, however, evidence was insufficient to cover Z in the order, and thus removed Z’s school from coverage. Father appealed, arguing that the order was wrongly entered because only Mother’s side of the story “had been heard,” to which the court responded that the family court was entitled to resolve conflict in evidence. The court determined that Mother’s account was more convincing, and thus rejected Father’s argument. Father also argued that because of the protective order, he must check his service weapon at the end of every shift and asked for it again at the beginning of every shift. As a result, he could not perform security work in off-duty hours. The court did not consider the argument because Father failed to cite any legal authority in support of a need for him to perform off-duty security work. Finally, Father argued that the protective order would diminish his right to participate decision-making about Z. The court found the argument unconvincing because father was free to reach Mother via e-mail or phone. Accordingly, the court affirmed the family court’s grant of a protective order covering Mother.
The family court abused its discretion when awarding joint custody without considering evidence of domestic violence, and when awarding Father parenting time when there was a valid order protecting the child from Father.
Here, the plaintiff had obtained a protective order against the defendant in Kentucky because she feared that the defendant would abuse her and the parties’ daughter. Subsequently, the defendant threatened to kill the plaintiff, and the plaintiff fled to Maine, where she filed for a protective order. The district court granted a temporary protective order. Subsequently, the plaintiff filed for custody of the parties’ daughter. The district court found that it could not grant the plaintiff custody as Maine was not the daughter’s home state. On appeal, the court noted that under 19-A M.R.S.A. §§ 1731-1783, where Maine is not the child’s home state, a Maine court does not have jurisdiction unless the child’s home state declines to exercise jurisdiction. However, where a parent and child flee their home state due threats of abuse, Maine may exercise jurisdiction over the child’s interests under § 1748. The court affirmed the district court’s denial of custody though. The court found that the court properly exercised jurisdiction to issue a protective order which would not expire until a custody hearing in Kentucky. Because the child’s interests would be protected until the matter was adjudicated, there was no need to act further to protect the child by issuing a more permanent order.
The petitioner-wife sought dissolution of her marriage on the grounds of abuse by the respondent-husband, who repeatedly physically abused her and threatened her with physical force when she tried to stop him from drinking. She also asked for maintenance for the couple's daughter. The Court granted the dissolution of marriage and noted that the types of mistreatment the petitioner suffered at the hands of her husband constituted gender-based violence as defined by the Declaration of the Elimination of Violence Against Women because it was based on the unequal power relations between the husband and wife and caused the petitioner serious psychological suffering.
The Matrimonial Causes Ordinance governs the jurisdiction of Hong Kong courts over divorce and legal separation proceedings. It also contains provisions providing for how to determine child custody.
The full title of the Abolition of Marital Power Act 34 of 2004 is “An Act to provide for the abolition of marital power, to amend the matrimonial property law of marriages, to provide for the domicile of married women, to provide for the domicile and guardianship of minor children and to provide for matters incidental thereto.” The Act provides for equal powers in property ownership for spouses. It also gives women equal powers to assume guardianship of minor children and in determining the domicile of their children. Furthermore, it removes the common law position of the husband as head of the family. Its effect is limited to common law marriage; it has no effect on customary or religious marriages (couples may marry under customary or common law).
In making custody and visitation decisions, Pennsylvania courts look to various factors in determining what is in the “best interest of the child.” The factors weighed by the court include: (1) the well-reasoned preference of the child, based on the child’s maturity and judgment; (2) the need for stability and continuity in the child’s education, family life and community life; (3) which parent is more likely to foster a relationship between the noncustodial parent and the child; (4) each parent’s history of violent or abusive conduct; and (5) specific criminal convictions. The court will only award sole custody when it is in the best interest of the child. Shared custody will only be awarded if: (1) one or both parents apply for it; (2) the parents have agreed to shared custody; or (3) the court determines it is in the best interest of the child. It is within the court’s discretion to require the parents to attend counseling sessions. Further, the court may review and consider recommendations from the counselor in making the final custody decision.
The Maintenance Act (the “Act”) imposes equal rights and burdens in relation to the payment of child support (and enforcement of child support orders) on both parents and abolishes customary laws to the contrary. The Act also states that husbands and wives are equally responsible for each other’s maintenance.
Among other things, the Children’s Status Act gives children born out of wedlock the same legal privileges as children born to married couples (e.g., inheritance rights, custody, guardianship, etc.) and provides various legal mechanisms (e.g., court orders) to protect these rights.
The Rape Survivor Child Custody Act ("RSCCA") authorizes the U.S. Attorney General to make grants to states that pass legislation terminating the parental rights of men who father children through rape. States must use the "clear and convincing evidence" standard, which is the predominant standard in the U.S. for termination of parental rights, to determine whether the father committed rape.
This paper explores some of the ways in which violence against women relates to the imprisonment of women. It focuses on the role of gender-based violence as a pathway to and consequence of women’s incarceration, as these connections have generally received less attention than violence against women as a prison condition. The paper also considers how these pathways and consequences implicate states’ international law responsibility to eliminate violence against women and offer suggestions for how states might more effectively realize that obligation.