Waived Spousal Support in Prenuptial Agreement of 1999, Cannot be Invalidated Based on the 2002 Law

San Diego, California, May 24, 2011: Court of Appeal of California, Fourth Appellate District, Division One held that a spousal support waiver in the parties’ 1999 premarital agreement cannot be invalidated based on the  Fam. Code, § 1612, subd. (c), enacted in 2002. The court of appeal held that § 1612, subd. (c), requiring legal representation by the spouse who waives the spousal support was a material change in the law as to enforceability of a spousal support waiver and the Legislature did not intend it to apply retroactively.
In addition, there was substantial evidence that the wife entered into the agreement voluntarily, was advised but refrained from obtaining  legal counsel, understood the agreement, and there was no evidence of  duress, fraud, or undue influence. Wife argued that she signed the agreement without the benefit of having an attorney,  under duress of having the preparation for the parties’ wedding was contracted and completed, and that canceling the wedding would have created great embarrassment.

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Islamic Mahr Is  Not Enforceable Against Afghani  Groom Who Did Not Read, Write, or Spoke Farsi

Washington, February 23, 2010: Husna (Wife, 19 ) from Canada, and Khalid (Husband, 26) from U.S., are children of Afghan immigrants. They married in an Islamic marriage ceremony in Washington, during which Khalid promised in writing to make an “immediate” cash gift of  $100.00, and a “future” gift of $20,000.00, to Husna as her Mahr (i.e. dowry a traditional Afghani-Islamic Bridal Gift).

Upon filing for divorce by Husna 13 months later, she requested, and the trial Court ordered Khalid to pay $20,000.00  as a valid contractual obligation to Husna.  Court of Appeals of Washington, Division Three, Case No. 27616-3-III, disagreed and reversed.

The Court found that Khalid did not speak, read, or write Farsi, and did not know about the Mahr until 15 minutes before he signed the agreement. An uncle explained the obligation to Khalid after he had signed it. The Court found that the agreement was not enforceable under neutral principles of contract law.

Trial Court Erred In Awarding Right of Religious and Cultural Upbringing Solely to the Custodial Parent

Louisiana, March 10, 2010: D.R.S. (Father) and L.E.K. (Mother) were not married, but had a child. The family Court gave Mother physical custody, with sole right of determining religious and cultural  upbringing of the child. Father was  awarded visitation only. On appeal by the Father, Court of Appeals of Louisiana, Third Circuit reversed.

The Court, in Case of D. R. S. v. L. E. K., Nos. 09-1274-09-1275, found “Though the custodial or domiciliary parent may raise the child in a legitimate religion of his/her own choosing, that parent may not force that religion or religious affiliation upon the noncustodial parent or preclude the noncustodial parent from pursuing his/her own religious affiliation and sharing same with the child provided doing so does not negatively affect the best interests of the child. There is no statutory nor jurisprudential authority to support the trial court’s ruling that the custodial or domiciliary parent has the sole authority to mandate “what belief system is presented to the child in . . . any home in which the child visits or resides.”

Judges Must Avoid Imposing Their Own Cultural Preferences in Hague  Convention Disputes

Washington, May 17, 2010: Mr. Abbot, British, married, Mrs. Abbot,  U.S. citizen, had a child, A.J.A.,  in Hawaii, and lived in Chili, where they got divorce. Under Chilean law, Mrs. Abbot received custody of A.J.A., and Mr. Abbot was granted the visitation with the right of stopping A.J.A. from leaving Chile without his permission (called “ne exeat”).

In violation, Mrs. Abbot removed A.J.A. from Chile to Texas, where Mr. Abbot (first through the State, and then the Federal Court for the Western District) sought to return A.J.A. under the Hague Convention on the Civil Aspects of International Child Abduction (Convention) and the International Child Abduction Remedies Act (ICARA), back to Chile.

Neither the State, nor the Federal District Court in Texas, sided with Mr. Abbot, that the “ne exeat” is a custody right. The U.S. States Court of Appeals for the Fifth Circuit affirmed.

The United States Supreme Court in an opinion filed May 17, 2010,  disagreed and reversed.

The Court in its opinion noted that  Mr. Abbot’s right to decide A. J. A.’s country of residence gives him rights to determine the shape of his early and adolescent years and his language, identity, and culture and traditions.

The Court found that few decisions are as significant as the language the child speaks, the identity he finds, or the culture and traditions she will come to absorb.

The Court observed that “Judges must strive always to avoid a common tendency to prefer their own society and culture, a tendency that ought not interfere with objective consideration of all the factors that should be weighed in determining the best interests of the child. ”

No Evidence That Expense Of The Cellular Phone Was Necessary for Children’s Cultural Development

Missouri, July 6, 2010: Father objected, but Mother asked and the trial court included payment for the children’s cell phone costs an extraordinary expense,as additional child support. Father appealed, and Missouri Court Of Appeals, Western District reversed.

The Court, in the Case of Pickering. v. Pickering, WD71489, noted that Mother did not provide any  evidence that the children’s use of cell phones is integral to, or even associated with, an activity intended to enhance the athletic, social or cultural development of the children.

Failure of Attorney to Raise Existence of Cultural Marriage No Basis to Reverse Criminal Conviction

Wisconsin(March 4, 2009) : Mong Lor was convicted for the crime of sexual assault on a child under sixteen.  Post conviction, Lor brought a motion for postconviction relief arguing that his trial counsel should have argued a cultural marriage defense.  He claimed that the minor, 14, was married to him by the elders of the Hmong families, but the marriage was not registered under the law of the State of Wisconsin.  The victim, according to Lor, brought the charge of sexual assault of a child after the marriage fell apart.

The Court of Appeals of Wisconsin, District II, found that Wisconsin did not recognize a cultural marriage defense and thereby Lor cannot seek relief due to the  ineffective assistance of counsel.

Moroccan Belief In Non-consensual Sex, Insufficient to Deny Restraining Order

Bayonne, New Jersey(July 23, 2010): S. D. (Wife) requested an order for final domestic violence protection order against M.J.R. (Husband).  Both Husband and Wife are  Muslims and Moroccans.

The Trial Court denied the order and found that  in punishing Wife and having non-consensual sex with her, Husband lacked the requisite criminal intent and believed is permitted to do so.  Wife appealed. The Court of Appeals of New Jersey, in an opinion filed on July 23, 2010, reversed the trial Court’s order, and found that Trial Court’s conclusion cannot be sustained because “Defendant’s conduct in engaging in nonconsensual sexual intercourse was unquestionably knowing, regardless of his view that his religion permitted him to act as he did”.

Chinese Father Who Did Not Involve Child in Cultural Activities Cannot Complain From Adverse Custody Order

Ohio (July 10, 2010): Father, Chinese, appealed from a domestic relations division order denying him shared custody time with the eight year child of the marriage.  Father claimed that denial of custody time, limits his ability to introduce the child to the Chinese culture.

In Case of Kong v. Kong, Court Of Appeal Of Ohio for the Eighth Appellate District, County Of Cuyahoga, disagreed. The Court noted that Father failed to testify or provide evidence at trial showing that the child was participating in any cultural or heritage-based activities that would be curtailed as a result of an order denying shared parenting.

Conflict in Qualification of Putative Spouse

In California, a party to an invalid marriage may receive the spousal support and one-half of  the community property, if the marriage is  ”putative”.  A “putative marriage” is created when both or either spouses believe in good faith that the marriage is valid.