Interstate/ International Child Custody Issues

Perhaps no area of family law has grown so complicated in recent years as interstate child custody disputes. In this era of overcrowded divorce dockets and backlogged court systems, more spouses are uprooting their minor dependents, leaving town, and relocating over state lines. This trend is leading lawyers into unknown jurisdictions where they frequently encounter different courtroom procedures, conflicting rules of evidence, and inconsistent laws.

It has also thrust lawyers into a confusing statutory practice. Every jurisdiction has now adopted the Uniform Child Custody Jurisdiction Act (UCCJA) or The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), but there are significant variations in how these laws are applied from state to state. For example, in Zappitello v. Mosses,the Supreme Court of South Dakota required that the UCCJA’s jurisdictional requisites be satisfied under the state’s Domestic Abuse Act in a civil proceeding brought by a father who suspected his visiting children were being abused by their non-resident mother. However, in Curtis v. Curtis, the Mississippi Supreme Court held that emergency jurisdiction under UCCJA did not give Mississippi power to permanently modify a Utah custody decree.

Quite apart from the procedural complexities, interstate custody litigation is one of the most expensive forms of domestic relations litigation. Both child visitation across state lines and potential litigation in more than one court can be quite costly. This cost is compounded when litigants employ experts who must appear for depositions in various jurisdictions or testify in foreign courts. Interstate custody cases are also costly in the toll they take on the parents and children who participate in them.

Children are on the move today, from state to state, neighborhood to neighborhood, and school to school. These children and their parents often find themselves embroiled in long transcontinental legal rights that balance custodial residences in competing states and test the safety of neighborhoods, the adequacy of schools, and the general quality of life. Thus, breaking up the marital relationship and awarding custody may come down to a fierce battle between races, religions, personal philosophies, geographical preferences, spending habits, school districts, communities, family relationships, relatives, and companions. Virtually no social, economic, medical, or spiritual consideration can be excluded in the test of parental fitness or in the search for a proper home for a child. Yet making these judgments between states is a tactical challenge for everybody involved. No other area of litigation is so plagued by procedural differences between courts and by jurisdictional hop-scotching by parties as interstate custody.

Child custody disputes are further complicated by child-snatching across state lines, custodial interference, and other parental torts. Despite federal laws against parental kidnapping, it is much larger problem than originally estimated. Almost half of family abductions, or an estimated 163,200 cases, involved attempts to conceal the whereabouts of a child, transportation over state lines, or an intent by the abductor to permanently alter custodial privileges.

The interstate case may thus involve state and federal laws, civil and criminal statutes, and a wide variety of geographical uncertainties. More often than not, the interstate cases will require sifting through bitter charges of infidelity, bad parenting, neglect, or nonsupport. It is almost always a fact-sensitive proceeding that is made more difficult by the pressure placed upon the courts to select or design a safe and nurturing environment for the child.

The Hague Convention on the Civil Aspects of International Child Abduction was adopted by the Hague Conference on Private International Law on October 25, 1980. The United States signed the Convention on December 23, 1981 (1988) (ICARA).

The fundamental purpose of the Hague Convention is to protect children from wrongful international removals or retentions by persons attempting to obtain physical or legal custody. Contracting states are obligated by Article II of the Convention to take all appropriate measures to implement the objectives of the Convention as set forth in Article I: (i) to secure the prompt return of children wrongfully removed or retained in a contracting state; and (ii) to ensure that rights of custody and of access under the law of one contracting state are effectively respected in other contracting states.

The Convention deals only with the return of the child and does not provide for criminal penalties or deal with international extradition on criminal charges. It does not criminalize any particular conduct, nor does it prevent any country from doing so. However, since the Act deals with “wrongful” removal or retention, a party’s conduct may implicate both civil and criminal laws in one or more countries.

The Hague Convention contains 47 articles in six chapters. Chapter I deals with the scope of the Convention; Chapter II with central authorities; Chapter III with the return of children; Chapter IV with the rights of access; Chapter V with general provisions; and Chapter VI with final clauses. Lawyers attempting to invoke the Convention should read it carefully first. It does not attempt to comport with state law in the United States, and in fact, often relies on rules, procedures, or policies which are somewhat, if not completely, contrary to state law. For example, the Convention applies only to children under the age of 16. Even if the child is under 16 at the time of the wrongful removal or retention as well as when the Convention is invoked, the Convention ceases to apply when the child reaches age 16.

The Hague Convention is a nonexclusive remedy in cases of international child abduction. Article XVIII provides that the Convention does not limit the power of a judicial authority to order return of a child at any time, presumably under laws, procedures, or comity, regardless of the child’s age. Indeed, Article XXXIV of the Convention says that it shall not restrict the application of any law in the country addressed for purposes of obtaining the child’s return or for organizing visitation rights. The age of the children in question may therefore prompt an attorney to consider whether to apply the Hague Convention or some other law or procedure.

The Convention has been ratified by Argentina, Australia, Austria, Bosnia-Herzegovina, Canada, Croatia, Denmark, France, Germany, Greece, Ireland, Italy, Luxembourg, the Former Yugoslav Republic of Macedonia, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, Great Britain, Northern Ireland and the United States of America.

In addition, the following nations have acceded to the Convention with regard to the United States: Bahamas, Belize, Burkina Faso, Chile, Columbia, Cyprus, Ecuador, Honduras, Hungary, Mauritius, Mexico, Monaco, Panama, New Zealand, Poland, Romania, Slovenia and Zimbabwe. These are known as the contracting states.

In order for the Convention to apply, a child must have been “habitually resident in a contracting state immediately before any breach of custody or access rights.” In practical terms, this means that the Convention may be invoked only where the child was habitually residing in a contracting state and taken to or retained in another contracting state. Once again, the orientation of the Convention is directed toward returning children who are wrongfully removed. Hence, if a child were removed from New Jersey to Canada, application under the Convention could be made to secure the child’s return since Convention has been adopted in both the United States and all Canadian provinces.

An alternative remedy might also lie under Canadian law. If the child had been removed from Canada and taken to the United States, the aggrieved custodial parent in Canada would seek to secure the child’s return by invoking the Convention. Alternatively, the parent in Canada could petition for enforcement of the Canadian custody order under the UCCJA or UCCJEA, which is adopted everywhere in the United States. It states that the provisions of the law relating to recognition and enforcement of custody decrees for other states apply to custody decrees involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations if reasonable notice and opportunities to be heard were given to all effective persons.

The Hague Convention establishes civil procedures to secure the return of the so-called abducted children. The Convention is not concerned with the question of whether the person found to have wrongfully removed or retained the child returns to the child’s country of habitual residence once the child has been returned himself. This is in contrast to the criminal extradition process which is designed to secure the return of the fugitive wrongdoer.

The Convention’s first stated objective is to secure the prompt return of children who are wrongfully removed from or retained in any contracting state. What constitutes “wrongful removal or retention” is spelled out in the Convention. The law speaks of a “breach of custody rights” and it includes judicial and administrative orders, legal agreements, and other forms of custody rights. The Convention goes so far as to include custody rights arising by operation of law, where no court order or written agreement has been reached between the parties.

When a person’”“s custody rights have been breached by the wrongful removal or retention of the child by another, he or she could seek the return of the child pursuant to the Convention. The aggrieved party can make an application directly to the Court in the contracting state to which the child has been taken, or he can apply to the Central Authority which must be established by every contracting state under the Convention. In fact, the aggrieved party may invoke both of these remedies simultaneously, while pursuing other legal remedies elsewhere.

There are many incentives for commencing an action under the Hague Convention as soon as possible after an aggrieved party learns of the wrongful removal or retention of the child. For one thing, the child may be near the age of 16, at which time the contracting states would be divested of jurisdiction to adjudicate the matter under the Convention. In addition, acting quickly to protect one’s rights under the Convention will preclude the risk of adjudication of custody on the merits in a country other than the United States.

If the return proceedings are commenced less than one year from the date of wrongful removal or retention, Article XII of the Convention requires the Court to order the return of the child forthwith. If the return proceedings are commenced one year or more after the alleged wrongful removal or retention, the Court remains obligated by Article XII to order the child returned unless it is demonstrated that the child is settled in its new environment.

Prior to ordering a child returned under the Convention, Article XV permits a court to request the applicant to obtain from the authorities of the child’s state of habitual residence a decision or other determination that the alleged removal or retention was “wrongful” within the meaning of the Convention. Article XV does not specify which “authorities” may render such a determination.

The Hague Convention provides that each contracting state must designate a “Central Authority” to carry out the duties imposed by the Convention. States with a federal system or territorial units are free to designate more than one, but must designate one of them to which applications may be sent for further transmission. In Canada, for example, each province has designated Central Authority. In the United States, the State Department has been designated as the United States Central Authority. Article VII of the Convention sets out the duties of the Central Authorities to secure the proper return of children, to discover the whereabouts of a child who has been wrongfully removed or retained, to prevent further harm to the child, to secure the voluntary return of the child, or to attempt to bring about an amicable resolution of the issues.

The Convention also requires the Central Authority to exchange, where desirable, information relating to the social background of the child, and to provide information of a general character and on the law of their state in connection with the application to the Convention. The Central Authority itself may initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, may make arrangements for organizing or securing the effective exercise of rights of access. This may include providing or facilitating the provision of legal aid and advice, including the participation of lawyers and other advisors. The Central Authority is required to provide administrative arrangements for the safe and secure return of the child.

Considering the provisions of the Hague Convention collectively in the context of a seasoned abductor, one can envision the possibility of circumventing the Hague Convention and successfully removing a child to a country whose own courts will not otherwise enforce an American custody decree. The longer the abductor is successful in keeping a child hidden, the greater the chance that a court will put concern for the child’s stability in its new environment first. This is, in fact, a clear policy consideration in the Convention.

If the proceedings are commenced after one year, the judicial authority in a foreign country may, but is not required to, order the return of the child if “it is demonstrated that the child is not settled in its new environment.” Moreover, the longer the abductor is successful in keeping the child hidden, the greater the risk that the child will reach the age of 16, thus divesting the contracting states of jurisdiction under the Convention.

Chapter IV of the Hague Convention deals with the rights of access or simply visitation rights. The Central Authority is obligated to address the issue of visitation, and it has the duty of “organizing” access rights by establishing visitation not already specified in any court order.

The Convention has many unique procedural and administrative aspects. For example, Article XXIV requires a translation of an application into the language of the requested state or into French or English, with the understanding that any contracting state may object to either French or English but not to both. Under this rule, the United States has said that it will require all documents to be translated into English and may only be requested to use French as a translation on outgoing documents if that language is required by a contracting state.

Overall, the Hague Convention is probably not as broadly applicable as the contracting parties initially perceived it would be. But both the American Bar Association and the National Center for Missing and Exploited Children have issued recommendations for guarding against international child abductions and avoiding Convention litigation in the first place. Many of these recommendations are directed to cross-cultural marriages where the risk of international abduction is apparently the greatest.

The Hague Convention is not the only international child custody and abduction treaty. A number of European nations also subscribe to the European Convention on the Recognition and Enforcement of Decisions Concerning Custody of Children and Restoration of Custody of Children. Patterned after the Hague Convention, the European Convention links its European signatories in a uniform scheme for ensuring the speedy return of abducted children to their country of habitual residence.