General Practice, Solo & Small Firm DivisionMagazine

International Child Custody Cases

BY John Crouch

International child custody sounds like a specialty within a specialty, and therefore something that most general practitioners would not ordinarily deal with. But often the opposite is true. International clients of an American lawyer, whether living in the United States or abroad, can suddenly find themselves dealing with, or being accused of, international child-snatching.

Needing a lawyer immediately, they turn to the first lawyer they can find, or to one who has helped with completely unrelated matters in the past. Meanwhile, family law cases currently make up half of the cases heard in courts. So even if you don’t go looking for international or interstate family law cases, our mobile and global society creates a large percentage of cases that fit this category.

International clients can end up in many strange predicaments, but the most common ones involve the following dilemmas: A parent wants to move to another country with the child, either after divorce or at the time of separation. Or, a parent has already moved with the child and the other parent wants the child back. Or, a parent doesn’t want to trust another country’s courts for the custody case.

The essence of custody jurisdiction and child abduction law is that a parent is not supposed to gain any legal or practical advantage by taking the child to a new state or country. Though fraught with drama and emotion, these are essentially procedural cases in which the result is supposed to be, "Do not pass go; go back to square one. You have to go to court in the child’s habitual residence before moving, instead of moving and then going to court."

Three separate areas of family law come into play, depending on the choices the parents make. There is the substantive law on relocation, which is different in each U.S. state; general trends go back and forth, first slightly favoring the mover, then the other parent. International moves, however, come under more scrutiny, considering reasons for the move, distance, and conditions in the destination country. The other two relevant areas of family law are those that ensure that relocation and custody questions areas are decided in the state or country where the child has been living. These are the Hague Convention on the Civil Aspects of International Child Abduction, a treaty with approximately 45 member countries, and the Uniform Child Custody Jurisdiction Act (UCCJA), along with its updated replacement, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

The Hague Convention

The Hague Convention encompasses nearly all European countries, including some of the former Soviet and Yugoslav republics, and other westernized countries around the world. Members also include a very few countries in Africa, South America, and the pro-western margins of the Middle East.

The Convention provides for immediate return of children who are taken from their country of "habitual residence" in violation of "custody rights." It is not concerned with substantive custody questions or even with jurisdiction; its purpose is to send children back to their primary residence, where they came from, after making a determination about a very limited set of factual questions. It is sort of like extradition, but should not be confused with it.

The treaty is quite simple. Its substantive provisions are Articles 3, 12, and 13. It provides that children under 16 shall be returned to their country of habitual residence "forthwith" if they have been "wrongfully removed or retained," unless they were abducted more than a year before the petition was filed. If a year has passed, the defendant can try to prove that the children should not be returned because they are now settled in their new environment. The only other defenses are the petitioner’s acquiescence, consent, or nonexercise of custody rights, or a "grave risk" of physical or psychological harm. These defenses are usually very narrowly construed. Burdens of proof for them, as well as for the prima facie case, are set out in the U.S. implementing legislation—the federal International Child Abduction Remedies Act.

"Habitual residence" is not considered to need a definition, nor does it require six months’ residency, as the UCCJA’s "home state" standard does. "Wrongfully removed or retained," however, is defined in the Hague Convention. It does not mean, or require, conduct that is illegal or immoral. It is a term of art, defined as a breach of custody rights that were being exercised, or that would have been were it not for the abduction or retention.

So what are "custody rights"? The term is defined broadly and sometimes depends on foreign law. Usually, even visitation counts, as long as it has been exercised. If there has not yet been a custody order, both parents are assumed to retain whatever primordial custody rights their country’s law gives them, since the Hague Convention protects rights arising by operation of law, not just those granted by courts. One sometimes useful guideline the Hague Convention provides is that "the right to determine the child’s place of residence" counts. Thus, in a case of abduction from Norway by a parent with primary physical and joint legal custody, I proved wrongful removal by showing that Norwegian law says that the primary physical custodian can choose where the children will reside within the country, but an international relocation requires both joint legal custodians’ consent.

Proving wrongfulness based on foreign law is not as difficult, arcane, or doubtful as it sounds. In my case, the Norwegian government forwarded an official English translation of the relevant laws. Also, the wrongfulness question can be decided by the foreign country’s courts in an Article 15 determination (discussed below).

Trying a Hague Case

Abductions from the United States. If your client is in the United States and the child has been taken to another country that is a member of the Hague Convention, your client must contact the U.S. State Department’s Office of Children’s Issues (OCI) to start the process of filing a "petition for return" under the Hague Convention. The petition is transmitted from the OCI—this country’s "central authority" for such cases—to the foreign country’s central authority, and is then heard in the foreign country’s courts in the locality where the child has been taken. This requires a lawyer in the foreign country, who you can find with the help of the central authority or through the Directory of the International Academy of Matrimonial Lawyers. Also, many countries provide free Legal Aid lawyers for Hague Convention petitioners.

The role of a lawyer varies in cases of abduction from the United States. The Hague Convention case is not heard in the place the child was taken from. However, if there is not already a custody order favoring your client, it helps to get one from the U.S. state where the child had lived, or from another convenient place with jurisdiction (as described below in the discussion of the UCCJA).

Abductions to the United States . Hague petitions regarding children believed to be in the United States are sent from the foreign central authority to the International Division of the National Center for Missing and Exploited Children (NCMEC), which is the central authority for "incoming" cases. The NCMEC refers petitioners to a lawyer near the child’s location and will try to provide the parents with a pro bono lawyer if one is needed and available.

The petitioner’s lawyer can file either in state or federal court, and the defendant likewise has the option of removal from state to federal court. This has been criticized as an opportunity for delay and disruption, but it can be useful in cases where one side really is being "hometowned" by biased judges. According to one recent case, the petitioner, too, can nonsuit in state court and refile in federal court—something I have been tempted to do when dealing with particularly slow-moving state judges.

Which court to use depends upon your familiarity with each and upon how efficient and compatible each court’s procedures are with the scheduling needs of you and your client. Filing in federal court could give a general practitioner an advantage over a family law specialist who never has had occasion to go there (and may not even be admitted to practice there). Conventional wisdom is that federal judges stick to applying the exact terms of the treaty and statute in a narrow inquiry. State family court judges—especially new or politically active ones—often are the type who "would cut down all the laws in England to get at" the best interest of the child, as Sir Thomas More would say, and have trouble accepting that a Hague Convention case is only about which country’s courts are better equipped to judge those interests.

Educating the judge.In either court, there is a good chance that the judge will not be familiar with the Hague Convention. Counsel will have to "educate" the judge on the treaty and the implementing statute—a delicate job requiring a balance between confident assertiveness and groveling humility. The OCI and NCMEC offer an excellent "judge education" package that includes the text of the treaty and other relevant laws, emphasizes the need for speed, and includes a catechism-style guide to applying the treaty, with refutations of some of the common sophistic heresies and loose interpretations that could open loopholes in it.

Article 15 determinations. Hague petitioners’ lawyers sometimes need to call on not only U.S. agencies for support but also the foreign country’s central authority and courts. One device that can be very useful is the Article 15 determination. This is a ruling on the petitioner’s prima facie case made by the foreign country’s courts or administrative agencies (which can include central authority itself, if it is willing). It is made at the request of the court hearing the petition and covers the issues of wrongful removal, custody rights, and "actual exercise" of rights. The U.S. court does not have to go along with the determination, but it is often very persuasive, especially on matters that are better known to the foreign court or that the U.S. judge wants to avoid deciding. It can help either side, depending on the case and the timing. Of course, in some cases it will produce nothing but delay. If the defendant comes in on the day of the trial and asks the judge to request an Article 15 determination, the judge generally shouldn’t. However, requesting one can be a "punt" maneuver when the judge seems unwilling to decide the case in your favor but might be persuaded by the other court’s judgment, or would rather defer to it so as to share the burden of making a hard decision.

In cases of abduction from the United States that are heard in foreign courts, how do you get an Article 15 determination? You could try simply petitioning for one in state court; because treaties preempt state rules to the contrary, you ought to be able to get it. You could also seek a declaratory judgment. Actually, the closest thing to Article 15 in U.S. practice is a "certification," in which a federal court or another state’s court asks your state’s supreme court to decide an unclear question of your state’s law. However, there can be some practical obstacles to doing this. Under Virginia’s rules, for example, such a certification would have to come from the highest court of the foreign country (the House of Lords in the case of England) and would be decided by the Virginia Supreme Court, which rarely deals with family law.

For some reason, I have never heard of anyone asking a U.S. court for an Article 15 determination by any of these means. In several cases I have witnessed, foreign counsel have proceeded on the assumption that a determination is not available from U.S. courts, and have instead sought affidavits from U.S. lawyers, sort of in the role of expert witnesses on their state’s custody law.

The UCCJA and UCCJEA

In cases where the Hague Convention does not apply, or when getting a custody order in the home state after an abduction, what we have to work with is our own state’s jurisdictional laws, the UCCJA, and the new UCCJEA.

The UCCJA provides that child custody jurisdiction for an initial custody determination lies in a child’s "home state"—the place in which the child has lived for six months—or in the state with the most significant connections and available evidence on custody. (In the UCCJA, "state" is defined as including foreign countries, according to nearly all the courts that have interpreted the act, and consistent with the declaration in UCCJA § 23 that the act applies internationally. Therefore, unless specifically identified as a U.S. state, the word "state" in this article refers to both U.S. states and foreign countries. Please note: The UCCJA is not reciprocal with foreign countries. U.S. states deciding custody jurisdiction will treat any foreign country’s court just like a U.S. court, but foreign countries’ courts, do not use the UCCJA.)

What if one state is the home state, but another has the connections and evidence? The obvious possibility that two states could equally claim jurisdiction is solved, in states with the new UCCJEA, by preferring the home state. This is also what the federal Parental Kidnapping Prevention Act (PKPA) does. The PKPA modifies and preempts the UCCJA in cases between two U.S. states, but it does not apply to cases involving foreign countries.

This sounds complicated, but the general rule that has filtered down to the intake clerks (who are the gatekeepers for custody filings) is that you cannot file for custody until the child has been in the state for six months. (If six months have not yet passed, the old state can still defer to the new, and the new state can request such a deferment. However, at any time, one state’s court can defer to another’s, or can ask another state to defer.)

There is also "emergency" jurisdiction that applies when a child is in the state making the decision. Nearly all states say that emergency jurisdiction should only be used to make a temporary order, and the new UCCJEA makes that rule explicit.

Even if the U.S. state has jurisdiction, it can decline to exercise it in order to avoid rewarding wrongful or reprehensible conduct, or if there has been any violation of another state’s order. In cases of child-snatching or retention after visitation by the noncustodial parent, the UCCJA strongly discourages exercising jurisdiction to modify custody, prohibiting it unless "required in the interest of the child."

If cases are pending in two countries at once, U.S. judges cannot proceed with the case until they call the foreign judge to discuss where the case should be heard. Under the UCCJA this is mandatory and is a very informal process, often done sua sponte with no notice. The UCCJEA formalizes, but still encourages and relies on, the same process. Many U.S. judges are quite willing to call foreign judges; it helps if you can give them the name, title, gender, and phone number of the foreign judge, together with the date and time difference in the foreign country.

When there is already a custody order, the country that issued it keeps jurisdiction over modification, until the situation changes to such an extent that it no longer would have original jurisdiction under the UCCJA, and a new state would. However, even before the old state loses jurisdiction, its courts can decline to exercise jurisdiction and defer to the new state.

Enforcement, unlike modification, can happen anywhere. For either modification or enforcement, certified copies of the original order need to be "registered" with the new state’s court. Under the UCCJA, this is a matter of merely filing the copies with a praecipe or similar pleading, or sometimes just a cover letter, noting the registration. The UCCJEA makes registration slower and less certain, and changes it into a binding decision on the jurisdictional validity of the order.

If you are getting a custody order, the UCCJA requires you at least to attempt to give the other party notice and an opportunity to be heard. This can sometimes be difficult in an international case, especially with someone who is hiding from you.

Unlike in a Hague case, there is little the U.S. government can do to help one side or the other. However, in non-Hague countries, U.S. consular officers can do "welfare and whereabouts" investigations to see where and how American children are living. Information from these investigations can be helpful to both sides, if it can be received in time. CL

John Crouch practices domestic relations and estate planning with Crouch & Crouch in Arlington, Virginia. He is co-chair of the ABA Family Law Section’s Child Custody Committee and chair of the Arlington County Bar Association’s Family Law Section. His e-mail address is crouch@patriot.net.

Vital Contacts for International Custody Information

Office of Children’s Issues

U.S. State Department

202/736-7000

travel.state.gov

National Center for Missing and

Exploited Children

International Division

1-800-THE-LOST (1-800-843-5678)

www.missingkids.org

International Academy of

Matrimonial Lawyers Directory

www.iaml.org

Bill Hilton’s collection of International

Custody Cases

www.hiltonhouse.com

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