Women and Justice: Keywords

Within Chapter 6, certain prohibitions related to marriage and clarifications related to the rights of children are outlined in the Criminal Code. If a woman is forced to marry under duress the marriage is voidable under Section 100. Likewise, compulsion of marriage is criminalized in Section 109. It states that a person who causes another to marry against his or her will shall be guilty of a misdemeanor. Section 110 pertains to the custody of children. It states that if a parent or guardian is guilty under Section 108, which outlines causing or encouraging child seduction or prostitution, the Court may divest that person of authority over the child and appoint someone willing to take care of the child until he or she is twenty-one years of age or an age directed by the Court. The Court may also rescind or vary the appointment or order. Section 111 outlines the power of the Court to issue a warrant to search for a child detained for an "Immoral Purpose."

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).

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.

This law defines “customary marriage” as the marriage between a man and a woman performed according to the tribal tradition of their locality and provides that a wife’s rights and duties within a customary marriage are the same as a wife’s rights and duties in a statutory marriage (a statutory marriage is a civil marriage license under the Domestic Relations Law). §2.1 provides that all customary marriages are legal, and the duties and liabilities of the statutory wife shall be accorded to all customary wives. §2.2 provides that the husband shall not recover the dowry from the wife or her parents; while §2.3 provides that a customary wife receives one-third of her husband’s property upon marriage. §2.6 provides that a customary wife has exclusive right to the properties she receives before or during the marriage, but she needs the husband’s consent to conduct business in her own name. §2.6 also states, however, that if the husband attempts to control his wife’s property he will have committed theft of property and he will be subject to a fine for such theft. §2.9 establishes that the minimum age for a tribal woman to enter into a customary marriage is 16, while §2.10 provides that the parents shall not choose the husband for their daughter against her will. Various sections provide for the rights of women on the event of her husband’s death: §3.2 states that a widow in a customary marriage is entitled to one-third of her deceased husband’s property; §3.3 provides that the widow has the freedom to enter into a new marriage upon the death of her husband; §3.5 provides that the widow has the right to petition to the probate court to administer the property of the decedent; §3.4 prohibits the husband’s family from compelling a widow to marry her deceased husband’s relative; and §3.7 establishes that the living spouse retain the right to custody of the minor children.

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.

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.

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.”

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.

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, who 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 U.S., 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.

本件は、日本人夫婦の妻が、夫の同意を得ることなく、米国出身の11歳の息子を米国から日本に連れて帰り、米国にいる夫が東京家庭裁判所に息子の返還命令を申し立た事案である。日本が国際的な親による子の奪取を規定している「ハーグ条約」に加盟したことにより、東京家庭裁判所は返還命令の決定を下した。しかし、執行官が裁判所の命令を執行しようとしたところ、妻が強く抵抗したため、裁判所の命令を執行することができなかった。その後、夫は子の監護等を求めて人身保護請求を求めたが、高裁は夫の請求を棄却した。最高裁は、高裁の判決を破棄し、原審に差し戻した。その理由として、まず、旧判例では、人身保護法及び人身保護規則にいう「拘束」に当たるのは、意思能力がある子の監護について、子が自由意思に基づいて監護者の下にとどまっているとはいえない特段の事情があるときと示していた。本件では、子供が日本に連れて行かれた時点で自分の生活について判断する能力がなかったこと、父親とのコミュニケーションの機会が十分ではなかったと思われること、母親に大きく依存していたことなどから鑑みると、母親からの過度の精神的影響という特別な事情が存在すると最高裁は判断した。さらに、最高裁は、母親が家庭裁判所の返還命令に従わなかったこと、子を連れ去ることが著しく不当となる特段の事情がないことなどを考慮して、問題となっている拘束は紛れもなく違法であると判断した。本最高裁の全員一致による判決は、裁判所が「ハーグ条約」を遵守する姿勢を示している。

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 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.

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 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.

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.

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.