2nd Circuit Family Law News - U.S. Second Circuit
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What is incest, really? Back in February, we mentioned that the Second Circuit had certified that question to the New York Court of Appeals. Huyen Nguyen became a conditional permanent resident of the United States in 2000 thanks to her marriage to Vu Truong, a U.S. citizen. Nguyen petitioned to have the conditions removed.

USCIS did some investigating and found out that Troung was Nguyen's half-uncle. It declared the marriage incestuous and void. On appeal, the Second Circuit wasn't so sure.

Manuel Lozano and Diana Alvarez met in London, and the following year had a child together. The couple had the characteristic "he said/she said" version of their relationship; Alvarez characterized the time with instances of rape and violence, while Lozano characterized their time together as having "normal couple problems."

When their child was 3, she began exhibiting signs of distress, with her school nursery manager noting that she was "very withdrawn" and that "the home 'environment obviously had a negative effect' on her." As a result, Alvarez took the child to a women's shelter, where they remained for seven months. Thereafter, Alvarez took the child from the UK to France and then to New York, to live with Alvarez's sister.

For anyone who is a parent, one of the most frightening things always in the back of our minds is child abduction. But, what happens when the abductor is the child's other parent? And, what if she takes your child out of the country?

This term, the Supreme Court will interpret the Hague Convention on the Civil Aspects of International Child Abduction -- and will determine whether the "now settled" defense is subject to equitable tolling.

Second Circuit Considers 'Now Settled' Defense in Custody Case

The Second Circuit Court of Appeals made it harder for foreign parents to win an international custody dispute in federal courts this week.

Diana Lucia Montoya Alvarez and Manuel Jose Lozano, two now-separated parents, disputed whether courts in the United States or the United Kingdom should decide who has custody of their five-year-old child. To resolve the case, the Second Circuit Court of Appeals answered two questions of first impression regarding the interpretation of Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction: (1) whether the "now settled" defense to the return of an abducted child is subject to equitable tolling; and (2) whether a child who lacks legal immigration status in the United States can be found to be settled within the meaning of the Convention.

Duran v. Beaumont, No. 06-5614

Denial of Hague Petition Convention

In Duran v. Beaumont, No. 06-5614, a petition for an order compelling respondent to return petitioner's and respondent's daughter to Chile under the Hague Convention, the court vacated the denial of the petition where the district court needed to consider, in the first instance, whether any of the Hague Convention exceptions applied.

Doe v. CIA, No. 07-0797

Dismissal of an action by the wife and children of a covert-status former CIA employee, following the district court's exclusion from evidence of classified information covered by the state-secrets privilege, is affirmed where: 1) plaintiffs' rights of access to the courts were not compromised by the government's refusal to provide plaintiffs' counsel with secure facilities that would allow counsel to prepare an opposition to the government's assertion of the state-secrets privilege as plaintiffs have no right to use material that is alleged by the government to contain state secrets in order to participate in the district court's review of the bona fides of the government's allegation; and 2) plaintiffs have established no infringement of their right to communicate with counsel.    

Read Doe v. CIA, No. 07-0797

Appellate Information
Appeal from a judgment of the United States District Court for the Southern District of New York.
Argued: February 3, 2009
Decided: August 5, 2009

Judges
Before: SACK and PARKER, Circuit Judges, and COTE, District Judge.
Opinion by Sack, Circuit Judge.

Counsel
For Plaintiff: MARK S. ZAID, Mark S. Zaid, P.C., Washington, DC.

For Defendant: SARAH S. NORMAND, Assistant United States Attorney, New York, NY.

Hallingby v. Hallingby, No. 08-1866

District court judgment dismissing action to enforce divorce settlement provision for waiver of spouse-survivor benefits is vacated and remanded where plaintiff's claims should be resolved on the basis of state law principles rather than ERISA, as plaintiff's claims are under the group annuity contract rather than pension plans and annuities are not governed by ERISA.    

Read Hallingby v. Hallingby, No. 08-1866

Appellate Information
Appeals from the United States District Court for the Southern District of New York.
Submitted April 28, 2009
Decided July 24, 2009

Judges
Before KEARSE, SACK, and HALL, Circuit Judges.
Opinion by KEARSE, Circuit Judge.

Counsel
For Plaintiff: Richard H. Dolan.
For Defendant: James G. McCarney.