General Practice, Solo & Small Firm DivisionMagazine
Tips for Trying an International Case
1. Personal Jurisdiction—A Two-Pronged Pitfall
Neither the Hague Convention nor the UCCJA have anything to do with personal jurisdiction. Child custody cases occupy a strange area where personal jurisdiction over the parties is not needed in order to make a decision. Child custody jurisdiction under the UCCJA is subject matter jurisdiction, although it can also be seen as giving in rem or personal jurisdiction over the child in nearly all cases. The UCCJA trumps organic state statutes creating the jurisdiction of each court and other rules on a court’s power to modify its own orders. The Hague Convention, in contrast, is not about jurisdiction at all. It operates before jurisdiction or the merits are decided.
Domestic relations in general has several different jurisdiction regimes. Personal and subject matter jurisdiction for custody, child support, divorce itself, and financial aspects of divorce such as property and alimony, are all somewhat different from the general rules of personal jurisdiction we learned in law school, and from each other as well.
There are two things to remember about this. First, don’t get hung up on the non-issue of personal jurisdiction. Don’t let the judge get hung up on it either. Second, don’t create different kinds of domestic relations jurisdiction where there may not already be any—at least, not unless it is done knowingly as part of a settlement of the entire case. Unlike other kinds of law, appearing in a court for one kind of case does not necessarily create personal jurisdiction for all purposes.
For example, I had a Hague case where the defendant had sued for divorce in a state to which the petitioner had no connection. The petitioner’s lawyer filed the Hague petition as part of the ongoing divorce case, and filed an answer to the divorce so that she would not be in default. This subjected her to property division here, although she had no money to hire a lawyer for that. In contrast, as part of settling the Norwegian case mentioned above, we agreed on a support modification but were careful to word the agreement as a contract made in Norway, to avoid creating support jurisdiction here.
2. Character Attacks
One thing I like about the UCCJA and the Hague Convention is that a lawyer conducts a limited (i.e., affordable, paid) inquiry into a few factual questions that will bear on a court’s procedural decision. But sometimes the case doesn’t remain limited. Judges are sometimes human—an alarming tendency that some lawyers stoop to encourage. If you hear yourself saying, "Wait a minute—who’s really on trial here?" then you may be asking that question too late to do your client any good.
You never can tell what’s going to happen in a case. In my first UCCJA case, I did not find out until I arrived at the hearing that my client was a convicted murderer who, incidentally, had weighed 450 pounds at the time of the killing. Fortunately, the judge didn’t see what that had to do with jurisdiction, and was irritated at having his time wasted with attempts to put the conviction in evidence. At my most recent UCCJA case, the judge took a keen interest in my client’s failure to register her car in the distant state she had moved to. He saw this fact as evidence of a mere "temporary absence," which meant the child’s home state did not change when she moved. He even told us what the law on vehicle registration was in that state.
When your client lives or travels a lot in foreign countries, there is fertile ground for speculation on all the awful things that might go on there; the judge is here and it is impossible to prove that nothing is imperfect there. In one case, a couple of business trips to West Africa by a European businessman were characterized as "living in Africa."
But isn’t this why we have jurisdiction rules, and the Hague Convention, in the first place? It is often important to remind the court that these dry procedural rules have reasons behind them, and that human interests in justice and well-informed, fair, truly adversarial adjudication are what these procedures are trying to protect.
Also, you may have to succumb to the general principle that the best defense is an attack. I am afraid that in child custody litigation, that is usually the case. I would still recommend finding a middle way, however. Don't concentrate your attack on things the judge probably knows are irrelevant, or on things that only fit into narrowly written exceptions that would require the judge to go against the majority of the case law. Instead, breathe some life into the usually routine matter of proving what the other client did, where, and when. Emphasize: (1) the morality of the parent’s actions, (2) how those actions affect the best interest of the child, (3) what those actions say about the parent’s character and respect for the law. Then: (4) contrast those actions with the public values and aspirations embodied in the UCCJA or the Hague Convention.
One useful character impeachment involves falsehoods in the pleadings themselves. If a parent takes the children to the United States and files for custody, very often he or she will lie on the UCCJA Section 9 Affidavit, a form that courts require when people file for custody. Any party who files anything, including a jurisdictional motion, is required to file this affidavit, listing each place the children have lived for the past five years, and the current address of everyone they have lived with.
This kind of character evidence is dynamite, because it tells the judge something about what is really going on in the case. Not only that, but the documents are already in the file, and the court itself has been lied to. Common lies on the Section 9 Affidavit include knowingly giving a bad address for the other parent, pretending the other parent has disappeared, or claiming to have actually lived in the jurisdiction for the declared time when the person had only legal residency, citizenship, or a green card. If you represent the defendant, check for blatant falsehoods in the Hague Convention petition.
3. Opposing Party as Witness
It may be important to call the abductor as a hostile witness if you are a Hague Convention petitioner, based on the "Section 9" evidence. Nobody knows better than the abductor where he or she went, when, or with whom; sometimes, your own client’s testimony may not be enough to make a prima facie case, even when the abduction should be obvious in lay terms. The abductor’s passport is also frequently used as a source of this basic evidence.
4. Wide-Open Rules of Evidence
Several provisions of the Hague Convention, UCCJA, and UCCJEA facilitate the admission of documents and translations, foreign laws, and out-of-state testimony. Articles 14 and 24 of the Hague Convention provide for translations of all relevant documents and laws to be sent by the foreign central authority, and allow courts take judicial notice of foreign laws and court or administrative rulings without the usual formalities, such as certified copies, etc. Article 30 says that a Hague Convention petition, and anything sent along with it by the central authority, is admissible in any court. Section 6 of the federal implementing statute, ICARA, which, like the treaty, preempts state court rules, makes clear that even items later sent by the central authority are admissible, and no authentication can be required. This should completely foreclose any disputes about the accuracy of translations of foreign legal terms, etc.
The UCCJA, however, requires certified or exemplified copies of custody orders in order to register them for enforcement, and directs the court to request a certified copy from the other state’s court if copies are not provided by the parties. The UCCJA also has some useful features that the Hague Convention lacks. It strives to prevent child-snatchers from achieving their aims by the economic coercion of forcing the abandoned parent to make several expensive trips to the new state to attend hearings and depositions. Thus, it allows out-of-state depositions in all circumstances, and even provides a procedure for having evidentiary hearings in the courts of other states.
While the UCCJA has provisions for ordering an out-of-state party and the children to appear, it also contains strong provisions on reimbursing, or even advancing, travel costs for such appearances. The Hague Convention also has strong provisions regarding fees and costs; under the U.S. implementing statute, when the petitioner wins, the defendant must pay, unless he or she can prove this to be "clearly inappropriate."
6. Speed and Priority
The Hague Convention and ICARA direct that Hague Convention petitions should be decided within six weeks of filing. Any proceedings on the merits of custody are suspended until the Hague Convention proceeding is finished. The UCCJA and UCCJEA similarly require that the jurisdiction case be "given priority and handled expeditiously," and that jurisdiction be decided before the merits.
7. Temporary Visitation and Security Arrangements
In practice, temporary arrangements for visitation can be ordered in all cases, and are usually agreed to by both sides. After all, neither side wants to look like it cares only about winning the case, and not about the parent-child relationship. Temporary visitation arrangements often involve having the children’s passports, or those of the parents, retained by the court or by one of the lawyers.