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International Family Law - A Costa Rican update.

We have left Costa Rica, but Costa Rica has not left us.  We have learned much about International Family Law from a Costa Rican perspective but have reinforced the universality that is family law across much of the globe.

Our trial is not over, it continues on Wednesday.  But we move from extensive travel mode into high tech mode, which is the much more the norm for the way we have tried Hague Convention cases.  Instead of appearing in person, we will appear, testify and argue via video conferencing from our respective court houses.  This is not the waive of the future.  This is how much of international litigation is already done.

The Costa Rican legal system is quite different from ours.  The Judge is far from a passive receiver of information; the Judge is the interrogator of the witness.  The Judge is also the reporter.  While counsel does get to subsequently question the witness, the questions are extremely direct and severely short.  Directness certainly has its virtue.  Some would argue that it avoids artifice.  But I find that it is the indirect that teases out the nuance.  And nuance is truth found in between the obvious.

The American system places the attorney in a very different role.  The attorney is a word smith, a rhetorical artisan, a master chess player crafting his moves by skillful questions.  

The Costa Rican system is much more blunt.  Nuance yeilds to the essential.

I like our Judge.  She is quite direct and quite adept at ferreting out baloney from the opposing side.  She seems quite well versed in the Hague Convention and Costa Rica's agreement to abide by it.

She is fairly constrained by Costa Rica's placement of its national law on par with its treaty obligations, which means putting a "best interest" test on equal footing with the jurisdictional analysis that is the essence if not the entirety of the Hague Convention.  The problem with inserting a best interest analysis to the Convention's application is that it runs wholly afoul with what the Convention was designed to avoid: home cooking based upon "my country is better than yours" bias.  Trully, if a country insists upon a best interest test, they ought not sign on to the Convention.  To require a best interest test is completely contrary to International Family Law.

Still, our Judge is managing the best interest information quite well.  In our case, there is ample evidence that the opposing party, the mother who abducted her children to Costa Rica, has behaved in ways that are antithetical to the children's best interest, and continues to this day.  

So, our saga continues.  With timely execution, closing arguments (they call them conclusions) shall be given on Wednesday after the last witness has been interrogated.  Her Honor will consider the case for a few days and render her verdict some time next week.

With luck, the children will enjoy the summer of 2012 back home in their beds, in their rooms, in their house, in the community in which they have spent their entire lives.

That's what I'm fighting for.

Michael Manely

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