By Judge Joan Shkane
This is a continuing discussion of Legal Myths and Reality because an informed citizen is always the most successful citizen.
MYTH: When a property owner’s land is taken by the government for a public purpose, such as a hospital or a road (eminent domain), the owner will get paid the full value of the property.
REALITY: The question of whether or not the actual full market value is being paid is resolved with the definition of when a governmental “taking” occurs. Formerly, a governmental agency could apply a regulation or restriction or take other action that reduces the value of the property. Then, when the Government takes the property, it could pay less than the property was worth if there were no restriction. Now, some states are beginning to define a taking favorably to the owner. In New York State, if a party with the power of eminent domain ( a governmental agency) prevents a property owner from having a full beneficial use of the property by imposing a regulation, then the law will consider the regulation as a “taking” of the property, and the owner can expect to be paid whatever the fair market value would be without the imposed regulation. In other words, courts will not allow the property owner to be paid less than should be paid because of acts by a governmental agency to the detriment of the owner.
MYTH: Anyone who takes his/her child to live in another country can be ordered to immediately return the child to the child’s country of usual residence.
REALITY: The Hague Convention on Child Abduction governs such cases. The Convention aims to protect children from the harmful effects of international abduction by a parent by encouraging the prompt return of abducted children to their country of habitual residence and to organize or secure the effective rights of parental access to a child (visitation). It provides that custody and visitation matters should generally be decided by a court in the country of the child’s usual residence. However, the country of the child’s usual residence, as well as the country where the child currently is residing, must have signed on to the terms of the Convention or they do not apply and parents do not have rights under the Convention. Currently, only 95 countries have signed on, including the U.S. Recently India decided not to ratify the Convention despite international pressure, especially from the U.K. and the U.S. Therefore, there is no way for a government foreign to India to force the abducting parent to return an abducted child. It appears that cultural differences may have played a large role in India’s decision. India expressed, among other facts, that there are far more cases of Indian women escaping bad marriages abroad and returning to India than non-Indian women married to Indian men leaving India with their children. Also, Indian officials claim that international pressure was based on gender equality and father’s rights to the child as equal to the mother. They believe that these principles do not apply given the reality of Indian marriages. Some studies show that half of Hague Convention cases are not actually parental abduction, but flights to safely. In the case of India or any other country not choosing to be part of the Convention, a parent seeking the return of a child to the U.S. must go to an Indian or other foreign country’s court for help, and not rely on the Convention.
Giving attention to legal myths is not wrong. It can be a starting point for developing an interest in the law. However, if legal issues are important in your life, for instance regarding custody of your children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of the many legal myths. This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case or to display any predisposition.