Hamish is Scottish. He is a famous Scottish curling player. Siobhan is Irish. She is a famous Irish barrister. Hamish and Siobhan are married and have lived in Dublin, Ireland, for the last four years. They have twins who are three years old. Hamish traveled to Rising Sun, Maryland, just short of six months ago with the twins to give Siobhan a break while she handles a lengthy human rights case in the European Court of Human Rights in Strasbourg, and to be the temporary coach for the Maryland state curling team. Hamish, to his surprise, has now been offered the full-time coaching job to train the U.S. Olympic Curling Team at its Maryland facility. The twins attend daycare in Maryland. You have your law office on Main Street, Bel Air, Maryland. Hamish has a consultation with you and tells you he has been working in Rising Sun for just shy of the last six months and cannot go back to Siobhan after he returns to Ireland. Hamish wants you to file for divorce from Siobhan. Hamish also wants you to file for custody of the twins.
This scenario may sound like a bar examination question. But it is a scenario that frequently plays out in the United States and around the world.
If you represent Hamish, you might seize on home state jurisdiction in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and file for custody in state court. If you represent Siobhan, you might immediately submit your 1980 Hague Convention (Convention) application to the Irish Central Authority, have it transmitted to the U.S. Department of State, and file your Petition for Return of your twins in federal court. Let’s examine each side and see what may happen next.
The UCCJEA was a game-changer because it created priority jurisdiction for a child’s home state. The home state concept, unique to the United States, relates to the notion that the place where the child has resided for the six months prior to the filing of the custody case has jurisdiction over the child. Prior to the UCCJEA, interstate and international family would result in competing states and countries having competing custody orders relating to a child. This too often encouraged the law of snatch-and-grab between parents.
Likewise, the Convention was a game-changer too. Whereas the UCCJEA gives priority to custody orders, the Convention provides for a remedy when there is no custody order at all. The Convention does this by putting in place a mechanism whereby a country’s custody laws can be used to have a child returned to the left-behind parent in the child’s habitual residence. As explained below, “habitual residence” is the term used for a child’s ordinary and regular home—as opposed to the UCCJEA concept of “home state.”
When the 1980 Hague Convention was being drafted at the Permanent Bureau of the Hague Conference in The Hague, Netherlands, in the late 1970s, the expectation was that perhaps a handful of countries would ratify the treaty between each other—perhaps the United States, the United Kingdom, Australia, and a smattering of European countries. Today, this treaty is the most successful child treaty in the world, with over 100 nation states-parties. And the treaty has changed not only the landscape of international family law, but also the internal custody landscapes of numerous nations.
So if you represent Siobhan in Ireland, you should consider downloading the Hague application form and submitting it immediately to the Central Authority in Dublin—the agency in each requesting country that processes applications and transmits them to the equivalent Central Authority in the requested country. The treaty does allow left-behind parents to proceed immediately to court without an application being submitted in the requesting country. But a huge advantage of the application process is that all documents attached are admissible in court in the United States—in other words, no hearsay problems for your foreign documents.
Siobhan will then need counsel in the United States. And although the Hague case can be filed in state or federal court, international family law practitioners will frequently choose federal court. Generally, cases are expedited, some circuits have specific local rules for Hague cases, and the U.S. Marshal Service is usually very helpful in cases where locating the taking parent and children is a challenge.
Siobhan will have to show that the twins’ habitual residence was Ireland at the time Hamish wrongfully and unilaterally decided to stay permanently in Maryland, that she had rights of custody under Irish law, and that she was or would have been exercising her custody rights but for Hamish’s wrongful actions. The Supreme Court’s recent decision in Monasky v. Taglieri, 140 S. Ct. 719 (2020), provides some relevant guidance. Before Monasky, it was uncertain what test or factors a court in the United States would apply to determine a child’s habitual residence in a Hague case. Monasky adopts a “totality of the circumstances” test, although it remains to be seen what elements might make up that “totality” in any particular case.
Depending on the circumstances of the case, the left-behind parent may have to deal with the various defenses to return provided under the Hague treaty. Those include consent, acquiescence, the child’s voice, grave risk of return, and the human rights and fundamental freedoms exception.
Apart from a Hague case, Siobhan also has another powerful option. Siobhan can seek a custody order—even a temporary, provisional, interim, or emergency custody order—from the Dublin family court. And as long as Hamish had notice and opportunity to be heard in the proceeding, Siobhan can register and enforce her Irish custody order in state court in Maryland.
The UCCJEA, enacted in 49 of the 50 states to date (the Commonwealth of Massachusetts being the exception), treats foreign countries as sister states for the purposes of registration and enforcement. Indeed, the United States will generally recognize and enforce any custody order from any country in the world. Note, however, that the UCCJEA recognizes certain limited defenses to enforcement of foreign custody orders, some of which are similar to the Hague defenses noted above. By contrast, left-behind parents in the United States often have to try to rely on unpredictable international comity principles to try to have their custody orders enforced abroad, and success rates vary widely depending on the foreign country involved, among other things.
If Siobhan is concerned that Hamish will try to remove the children from Maryland to Scotland while things are being sorted out, she may also consider using the U.S. Prevent Abduction Program. Under appropriate circumstances, the federal court in the Hague case or the state court in the case where she has sought registration and enforcement of her Irish order may enter a further order restraining removal of the children from the United States. If such an order enters, the U.S. Department of State may add the twins to its no-fly list. Note that the efficacy of such an order may depend on many factors, including what country issued the children’s passports. As well, overworked judges, which are the reality in many courts around the country, may be concerned by a parent seeking seemingly contradictory orders, which on the one hand prevent the removal of the children from the United States and on the other hand require the return of the children to a foreign country.
All the UCCJEA’s tools for determining, recognizing, and enforcing both internal and foreign custody orders hinge upon its underlying determination of subject-matter jurisdiction. Jurisdiction is established by the “home state” test. The preliminary element of that test rests on whether, at the time of commencement of Hamish’s custody proceedings in Maryland, the twins had resided in Maryland for at least six months. And Hamish is not there yet. He could try to pursue a temporary emergency custody request if a genuine emergency existed. However, the state court can only enter such an order in very limited circumstances, for a limited period of time, and the goal of such orders is just to provide a short-term solution while proceedings are initiated or take place in the home state or country. As well, the state court should communicate with the Irish court if the Irish court has entered a custody order.
Hamish’s other problem is that the Hague treaty brings with it the power to stay any custody action that Hamish files in Maryland until Siobhan’s Hague case has been finally determined. Once Siobhan gives notice to the Maryland court that her Hague application is pending, the state court must freeze its custody case completely.
Frequently, upon the advice of counsel, Hamish will wait to achieve six months of “home state” jurisdiction before filing locally. However, if any of his actions are deemed to constitute “unjustified conduct” as used in the UCCJEA, the state court may decline to hear his custody case, even if Siobhan has not acted to stay Hamish’s case. As well, he could be ordered to pay Siobhan’s fees and necessary expenses in connection with the state court proceeding if his conduct was determined to be unjustified.
Hamish, however, is having a really bad day. The reason he turned up at your law office is because he was awoken at 6:00 A.M. by loud banging on his front door. There on his stoop were two U.S. Marshals who served him with a show cause order to appear in federal court the very next day, and who took from Hamish all the family’s passports and travel documents.
The U.S. Marshals appeared because Siobhan had filed a Convention application in Ireland. The application was transmitted to the U.S. State Department. And Siobhan then filed a petition in federal court for the return of the twins to Ireland. Such petitions are given priority on the court’s docket and ordinarily result in the court issuing a “show cause order” instead of a writ of summons. A show cause order requires Hamish to show up in just a few days in court with the children to explain why the children should not be summarily returned to Ireland.
And now Hamish is facing a rocket docket Hague case where the federal judge intends to have the evidentiary hearing in a week. There is little time to try to marshal any defenses. And to Hamish’s horror, you have now advised him that the federal implementing statute for the treaty includes a one-way fee-shifting statute. Upon return of the twins to Ireland, Hamish will be vulnerable to the federal court counsel’s fees and necessary expenses request—a request that will be granted unless the request is “clearly inappropriate.”
There are, of course, defenses that Hamish can try to advance: that the children have reached an age and degree of maturity and the court should take account of their views; that Siobhan consented or later acquiesced to the relocation; that more than a year has passed and the children are now well-settled here; that return would violate the children’s human rights; or that return would result in there being a grave risk to the children’s physical or psychological condition or that their return would be intolerable.
It is best for Hamish to agree to a voluntary return of the twins to Ireland in this case and sort out custody matters there. And yet, taking parents in the United States often try to run every conceivable defense under the treaty. These defenses are very difficult to advance because of the time limits set by the Convention, and by the high burden of proof required for many of them.
But if there is a valid Convention defense, it is for this reason that a registration and enforcement case should always be front and center in any international family lawyer’s mind. A Hague case in federal court may not always be the best option if the left-behind parent has a custody order from the requesting country.
Disclaimer: This is for general information and is not intended to be and should not be taken as legal advice for any particular matter. It is not intended to and does not create any attorney-client relationship. The opinions expressed and any legal positions asserted in the article are those of the author and do not necessarily reflect the opinions or positions of Miles & Stockbridge, its other lawyers or the American Bar Association Family Law Section.
Practice Tips for the Left-Behind Parent
- File your Hague application with the Central Authority immediately.
- Marshal all useful documents and attach them to your Hague Application.
- Retain international family law counsel immediately in the requested country.
- Obtain a custody order in the requesting country.
- File a registration and enforcement case in the requested country. It would be helpful to make the references less cryptic—requesting will be hard to follow without some hints or guideposts.
- Never threaten criminal remedies.
Practice Tips for the Taking Parent
- Do not consider any action in state court for six months.
- Accept the likelihood of prevailing may be very unlikely.
- Do not underestimate the power of the treaty to move your family’s case superfast.
- Only retain counsel who have experience in federal court if the Hague case is filed in federal court.
- Consider a voluntary return immediately.
- Accept the significant likelihood that you will be paying the left-behind parent’s fees and expenses.
- Accept that if you appeal the trial court’s habitual residence determination, the appeal court now gives great deference to the determination.
- Do not make unilateral decisions about your children unless you have taken proper advice that one of the Hague defenses could apply to your situation.
- If you intend to run the grave risk defense, make sure you have an experienced and competent clinical psychologist lined up in advance.
- Read all the material posted on the Permanent Bureau of the Hague Conference before you do anything rash.