Cultural and Legal Concept Differences: Some legal concepts unique to the U.S., such as shared custody or parental relationship evaluations, may require additional interpretation and understanding by foreign courts, potentially affecting the recognition and enforcement of orders.
There is not a bilateral judicial recognition and enforcement treaty on civil and commercial matters between China and the U.S. Nor have they both joined relevant international treaties or established reciprocity. Therefore, custody and visitation orders issued by U.S. courts are not directly recognized or enforced in China. Based on our experience, while U.S. custody and visitation orders cannot be directly recognized and enforced by Chinese courts, Chinese courts do not completely disregard these U.S. orders. In fact, in disputes involving guardianship, custody, or visitation rights, one party can submit valid U.S. custody and visitation orders as evidence to support their claims in their actions in Chinese courts. Based on the principle of the best interest of the child, Chinese courts may, depending on each case, consider valid U.S. custody and visitation orders as part of a comprehensive assessment to make a decision that aligns with the best interest of the child.
For example, in the first-instance case of the dispute over the change of custody relationship between Feng and Wang (case number [2015] Hongshaominchuzi No. 41), Feng and Wang, who are Chinese nationals, were married in the United States and had a child who holds U.S. citizenship.
Due to the breakdown of their relationship, the couple filed for divorce and custody in the U.S., and later Feng returned to China with the child. The couple then engaged in a custody dispute in China. The Shanghai Hongkou District People’s Court accepted the judgment and order from case number D5405** of the San Diego Court in California, U.S., stating that "the San Diego Court of California made a detailed analysis of the child’s living conditions, environment, and the capabilities of both parents, which was reasonable and appropriate."
When submitting U.S. custody and visitation orders as evidence in disputes involving guardianship, custody and visitation rights in Chinese courts, the following shall be noted:
Clarity and Finality of Orders: Chinese courts may be more inclined to admit clear, specific, and final custody orders as evidence. If an order is vague or subject to further appeal, Chinese courts may hesitate to admit it.
Procedural Fairness: If a U.S. custody order is obtained in adherence to the principles of due process, including providing the parties with full opportunities to present their case and a fair hearing, this may facilitate a U.S. court order’s admissibility in Chinese courts.
Sufficiency of Evidence: The applicant needs to provide sufficient evidence to prove the authenticity and legality of the foreign custody order. Such evidence generally includes an original of the order, the Chinese translations of the order, and notarization/authentication of the order as required by Chinese law on evidence involving foreign official documents. Chinese translations of the order must be provided by a qualified translation company.
Unlike custody and visitation orders, U.S. divorce decrees may be directly recognized and enforced in Chinese courts. When enforcing a foreign court's divorce decree in China, Chinese courts require the clarity and finality of the decree, procedural fairness, and sufficiency of the process described above. In addition, Chinese courts may consider the practicality in enforcing a U.S. divorce decree in China, such as whether there are assets that can be enforced against or whether the parties are cooperative. Thus, it is important to consider the practicality in enforcement in China when obtaining a divorce decree in the United States.
Recently, the Supreme People’s Court of China has drafted a "Judicial Interpretation of the Supreme People’s Court on the Recognition and Enforcement of Foreign Civil and Commercial Judgments" and is currently seeking opinions from scholars and experts. We look forward to full cooperation and mutual recognition and enforcement of civil judgments between China and the United States in the future.
