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Interpreting and Applying the Hague Convention
Last month, we discussed the law in the U.S. and beyond pertaining to the establishment of a child's habitual residence. The next issue to cover, once habitual residence of the child has been established, is whether or not the petitioning party has a right to custody of the child in question.
A parent need not have a custody order to invoke the Convention, but to apply for the return of a child, a parent must be actually exercising 'rights of custody' under the law of the country where the child was 'habitually residing' at the time of the abduction or wrongful retention. The rights of custody may arise, according to Article 3 of the Convention, by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Although the Hague Convention defines 'rights of custody,' there has been substantial litigation as to whether a party has a right of custody or merely a right of access. This is a key distinction. 'Access rights,' which are synonymous with 'visitation rights,' are protected by the Convention but to a lesser extent than custody rights. The remedies for breach-of-access rights are enunciated in Article 21 and do not include the return remedy provided by Article 12. Article 5(b) defines 'access rights' as including 'the right to take a child for a limited period of time to a place other than the child's habitual residence.' A parent who takes a child from the country of its habitual residence to another country that is a party to the Convention for a summer visit pursuant to either an agreement between the parents or a court order is exercising his or her access rights.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?