UCCJEA: FAILURE TO TIMELY OPPOSE REGISTRATION OF FOREIGN CUSTODY ORDER PRECLUDES SUBSEQUENT JURISDICTIONAL CLAIMS

Jeremy D. Morley

A New York appellate court has ruled that a father could not register a California custody order in New York when he had previously failed to oppose the mother’s effective registration of an Israeli custody order which had modified the California order. Matter of Worsoff v. Worsoff, 161 A.D. 3d 879, 75 N.Y.S.2d 525 (N.Y. App. Div. 2018).

The parties lived in California with their children. In 2014 a California court awarded custody to the mother with visitation to the father. The mother then moved to Israel with the children, after which the California court modified its prior order and granted sole custody to the father.

The mother opened a custody case in Israel and the Israeli court, on father’s default, issued an order granting sole custody to the mother, who then relocated with the children to New York. The mother then filed an application to register the Israeli order in the Family Court of Nassau County, whose Clerk served the requisite 20-day notice on the father.

The father did not take advantage of his statutory UCCJEA right to contest the validity of the registration by requesting a hearing within twenty days after service of the notice, and the Clerk of the Family Court certified the registration of the Israeli order. A few weeks later, the father petitioned the same court to register and enforce the California order, claiming that the Israeli court had had no modification jurisdiction under the UCCJEA. “Too late,” said the Family Court. On appeal, the Appellate Division ruled that the father’s failure to seek a hearing within the statutory twenty-day period precluded him from subsequently contesting the registration of the Israeli order. Confirmation of the registration “precludes further contest of the order with respect to any matter that could have been asserted at the time of registration” and meant that the Family Court had necessarily and correctly concluded that the California order had been effectively modified by the Israeli order.

The Lesson: Pursuant to the UCCJEA, if the registration of a foreign custody order is confirmed after the opposing party has failed to request a hearing within twenty days of service of the required statutory notice, that party cannot subsequently assert that the foreign order was issued by a court that had no jurisdiction to do so.

Switzerland: Child Custody

A very helpful introduction to Swiss Child Custody Law is provided by the Association of Counselling Agencies for Binational and Intercultural Couples and Families, Switzerland, as follows:

 

It is important to a child’s harmonious development that he or she be able, as far as possible, to maintain a close relationship with both parents. As of July 1, 2014, separated or divorced parents as a rule will share (in the case of separated parents, continue to share) custody for children they have together. There are exceptions in cases where joint care would conflict with the child’s welfare. Priority is given to children’s welfare. And a child has the right to an independent relationship to each parent, but that is not all. A child also has the right to stable and dependable conditions of care and the right to financial security.

Joint custody also applies for unmarried couples. For this, a joint statement is required; this is most easily provided at the same time as acknowledgment of paternity at the civil registry office. The joint statement can also be provided at a later time at the Child and Adult Protection Authority (KESB, Kindes- und Erwachsenenschutzbehörde, formerly Vormundschaftsbehörde, Guardianship Authority). Without a joint statement, the mother continues to have sole parental custody. If the mother refuses to provide a joint care statement, the affected father may call the KESB in the child’s place of residence. If there is no rationale against joint care, the KESB will issue an order in that regard. The application must be done latest one year after the new law enters into force (application before July 1, 2015).

As of July 1, 2014, divorced parents who do not have joint care pursuant to the new law may contact the KESB in the child’s place of residence and apply for joint care. If only one divorced parent submits the application, there is a deadline of one year after the new law enters into force (application before July 1, 2015) and the divorce ruling may not have been more than five years before the law enters into force (divorces after July 1, 2009). 

Joint parental care means:

• The parents decide together (as previously in a marital relationship), e.g. about names, general childrearing, education, medical matters, religion, other matters that set the course for or significantly influence the child’s life, the child’s income and property, etc.
• New: The parent who is caring for the child may make decisions alone if:  1. the matter is a routine or urgent one, e.g..: food, clothing, recreational activities, contact with friends, etc or 2. the other parent cannot be reached with a reasonable amount of effort.

• New: The concepts of caregiving and custodial care are not spelled out in the law. The concept of actual custodial care: The parent with whom the child lives most of the time. The concept of caregiving goes further: A parent who does not provide official custodial care is giving care when the child is with him or her within the scope of the law governing visits.

• New: Parental care includes the right to determine the child’s domicile. In the case of joint parental care, either the other parent’s approval or a decision by the court or the KESB is necessary in order to change the child’s domicile if: 1. the new domicile is in another country or 2. the change of domicile has significant effects on the other parent’s ability to provide parental care and maintain personal contact. Requirement for consent only in the case of significant effects, i.e., if the move results in significant restriction of visiting rights. Legal consequences in the case of violation and of a move to another country: Repatriation proceedings due to international child abduction.

Responsibilities in the case of disputes:

For divorced parents, the KESB in the child’s place of residence is responsible. If a divorce judgment must be changed (custodial care, custody, child support), the court is responsible.

For unmarried parents, the KESB in the child’s place of residence is responsible. The court is responsible for new regulations concerning child support.

If the parents repeatedly cannot agree about important questions in the child’s life, such that the child’s welfare is seriously jeopardized, the question arises of whether parental care should be taken away from (both or just one of) them. Legal questions related to child support and caregiving are not addressed by the new law. Legal questions related to child support and caregiving should, like parental care, be arranged in such a way that no disadvantages to the child arise from the parents’ marital status.

Recognition of paternity

In the case of married couples, the mother's husband is considered to be the child's father. Paternity needs to be regulated for children of unmarried parents (ZGB art. 260). In addition, a maintenance contract (ZGB art. 279 ff) needs to be concluded and - if the parents do not live together - visiting rights need to be regulated. Parents can do this of their own accord, i.e. they inform the responsible registry office of the paternity. Otherwise, the guardianship authority will establish a declaration of legal support in the interest of the child with the aim of regulating paternity and maintenance (ZGB art. 309). The interests and rights of the child are the main objective here. If a mother keeps the paternity a secret and/or forgoes maintenance, this damages the interests of the child. Keeping paternity secret and/or renouncing maintenance by a mother may be detrimental to the child's interests.

United Arab Emirates' Noncompliance - International Child Abduction - U.S. July 2018 Action Report

Country Summary:

The United Arab Emirates does not adhere to any protocols with respect to international parental child abduction. In 2017, the United Arab Emirates demonstrated a pattern of noncompliance. Specifically, the competent authorities in the United Arab Emirates persistently failed to work with the Department of State to resolve abduction cases. As a result of this failure, 50 percent (two cases involving two children) of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for two years.

Report of Actions Taken:

Upon release of the 2018 Annual Report, U.S. Embassy Abu Dhabi delivered a demarche to the Emirati government noting that the Department had cited the United Arab Emirates in the 2018 Annual Report for demonstrating a pattern of noncompliance.

Peru's Noncompliance - International Child Abduction - U.S. July 2018 Action Report

Country Summary: 

The Convention has been in force between the United States and Peru since 2007. In 2017, Peru demonstrated a pattern of noncompliance. Specifically, Peru’s judicial branch regularly failed to implement and comply with the provisions of the Convention. As a result of this failure, 36 percent (four cases involving five children) of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average, these cases were unresolved for 23 months. Peru has been cited as noncompliant since 2014.

Report of Actions Taken:

In October 2017, the Department sponsored an International Visitor Leadership Program (IVLP) that brought Peruvian officials to the United States to discuss the Convention with U.S. officials and judges, and to learn about how Convention cases are handled in the United States. IVLP participants included Peruvian judges and officials from the Peruvian Central Authority.

In August 2017, and again in June 2018, U.S. Embassy Lima delivered demarches notifying the Peruvian Ministry for Women and Vulnerable Populations about Convention abduction cases that have been pending with Peruvian courts for more than one year.

In June 2018, the Department delivered a demarche to the Peruvian Ministry of Foreign Affairs stating that the Department cited Peru in the 2018 Annual Report for demonstrating a pattern of noncompliance.

The Department has frequently raised concerns about the Peruvian judiciary’s failure to meet its Convention obligations in both public and private fora. Additionally, to improve communication between the U.S. and Peruvian Central Authorities, the Department conducts bi-monthly conference calls with the Peruvian Central Authority.

Morocco's Noncompliance - International Child Abduction - U.S. July 2018 Action Report

Country Summary: 

The Convention has been in force between the United States and Morocco since 2012. In 2017, Morocco demonstrated a pattern of noncompliance. Specifically, the Moroccan Central Authority and law enforcement authorities in Morocco failed to take appropriate steps to locate a child in one case for more than one year after a Convention application was filed.

Report of Actions Taken:

In September 2017, U.S. Consulate General Casablanca built upon the prior spring’s visit by the Office of Children’s Issues to urge officials in the Moroccan Central Authority (MCA) to improve central authority functioning with regard to locating children and to communicating with the U.S. government. U.S. officials discussed the Act, including citations, to stress the importance of improving collaboration with the United States under the Convention.

The U.S. Consul General in Casablanca met with the Director of the MCA at the Ministry of Justice in December 2017 on the continued inaction by the Government of Morocco. In April 2018, the Assistant Secretary for Consular Affairs traveled to Rabat to meet with senior Moroccan officials. During this meeting, the officials agreed to exhaust all resources available to the Moroccan government to locate children and improve communication with the United States.

Upon release of the 2018 Annual Report, U.S. Consulate General Casablanca delivered a demarche to the Moroccan government noting that the Department had cited Morocco in the Annual Report for demonstrating a pattern of noncompliance.

Jordan's Noncompliance - International Child Abduction - U.S. July 2018 Action Report

Country Summary:

Jordan is not a party to the Convention and does not adhere to any protocols with respect to international parental child abduction. In 2006, the United States and Jordan signed a Memorandum of Understanding to encourage voluntary resolution of abduction cases and facilitate consular access to abducted children. In 2017, Jordan demonstrated a pattern of noncompliance. Specifically, Jordanian authorities persistently failed to work with the Department to resolve abduction cases. As a result, 50 percent (two cases involving two children) of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for one year and 11 months.

Report of Actions Taken:

In September 2017, officials from U.S. Embassy Amman met with the Jordanian Acting Director of Consular Affairs. The embassy reiterated the Department’s request for appropriate assistance to parents seeking resolutions to the abduction of their children. The embassy delivered a diplomatic note requesting resources available to parents seeking the return of their children from Jordan.

In April 2018, an official from the Office of Children’s Issues traveled to Amman to meet with the Government of Jordan. During the meeting, attended by representatives from the Jordanian Ministries of Foreign Affairs, Interior, and Justice, Jordanian officials provided responses to questions posed by the Department via diplomatic notes and demarches. Further, they offered to provide free mediation services to parents of abducted children in order to assist in the resolution of abductions. U.S. Embassy Amman is following up with the Ministry of Foreign Affairs to confirm the process by which a parent could request this service from the Government of Jordan.

Upon release of the 2018 Annual Report, U.S. Embassy Amman delivered a demarche to the Jordanian government in June 2018 noting that the Department had cited Jordan in the Annual Report for demonstrating a pattern of noncompliance.

Japan's Noncompliance - International Child Abduction - U.S. July 2018 Report

Country Summary: 

The Convention has been in force between the United States and Japan since 2014. Since then Japan has made measurable progress preventing and resolving cases of international parental child abduction. The number of abductions to Japan reported to the Department has decreased since the Convention came into force for Japan. Despite this progress, in cases where taking parents refused to comply with court return orders, there were no effective means to enforce the order, resulting in a pattern of noncompliance. As a result of this failure, 22 percent (two cases involving five children) of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average, these cases were unresolved for one year and 10 months. The Department continues to urge Japan to resolve the 21 pre-Convention abduction cases that remained open at the end of the year, all of which have been outstanding for many years.

 Report of Actions Taken:

In July 2017, senior Department officials delivered a demarche to the Japanese Ambassador requesting that Japan enforce Convention return orders and resolve all pre-Convention IPCA cases.

In November 2017, senior Department officials delivered a demarche to the Embassy of Japan’s Political Minister, expressing their concern that Japan was not upholding its Convention obligations in failing to enforce Japanese court return orders. In September, October, and November, a U.S. Embassy Tokyo senior official met with senior Japanese Foreign Ministry officials to express those same concerns.

In December 2017, the U.S. Ambassador to Japan delivered a demarche with the same points to Japan’s Deputy Chief Cabinet Secretary. Also in December, the Special Advisor for Children’s Issues met in Tokyo with Japanese government officials to encourage Japan to create measures for enforcing Convention return cases and resolve pre-Convention abduction cases.

In January 2018, U.S. Embassy Tokyo high-level officials met with relevant Japanese authorities, highlighting U.S. concerns regarding enforcement of Convention court orders, and the importance of cross-ministry collaboration to solve the problem.

In February 2018, the Special Advisor for Children’s Issues met with the Japan Central Authority Director in Washington, D.C., to raise concerns on enforcement and to review all pre-Convention cases.

In April 2018, high-level officials from the Department and the U.S. Embassy in Tokyo met in Tokyo with Japan’s Consular Affairs Director General, reiterating concerns regarding enforcement and the need for a whole-of-government approach to fix it.

Following the release of the 2018 Annual Report, U.S. Embassy Tokyo delivered a demarche to Japanese authorities stating that the Department had cited Japan in the 2018 Annual Report for demonstrating a pattern of noncompliance because of the persistent failure to enforce judicial decisions. The U.S. embassy urged the Government of Japan to review and address the impediments that result in enforcement failures, and provide the Department with an update on the actions it intends to take in order to promptly enforce Convention return orders and the timetable for such reforms.

The embassy further requested Japan’s assistance in specific Convention and preConvention cases. The Department is considering the use of further tools under the Act if Japan continues its pattern of noncompliance in failing to promptly enforce Convention court orders.

India's Noncompliance - International Child Abduction - U.S. July 2018 Action Report

Country Summary:

India is not a party to the Convention and does not adhere to any protocols with respect to international parental child abduction. In 2017, India demonstrated a pattern of noncompliance. Specifically, the competent authorities in India persistently failed to work with the Department to resolve abduction cases. As a result of this failure, 90 percent (44 cases involving 50 children) of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for one year and ten months. India has been cited as noncompliant since 2014.

Report of Actions Taken: 

Throughout the year, officials at the highest levels of the Department engaged with the Government of India on the issue of international parental child abduction. Several senior Department officials pressed India to assist with resolving abduction cases and to accede to the Convention.

In January 2018, U.S. Embassy New Delhi and the Department hosted a digital video conference between a U.S. Hague Network Judge and an Indian committee reviewing draft legislation to address IPCA. The discussion addressed common concerns and misconceptions about IPCA and the Convention.

In February 2018, the Special Advisor for Children’s Issues traveled to India to meet with government officials, legal experts, and members of India’s civil society to address common concerns regarding IPCA and the Convention. The Special Advisor pressed the Indian government to assist with resolving abductions and to accede to the Convention.

Upon release of the 2018 Annual Report, U.S. Embassy New Delhi delivered a demarche notifying the Indian government that the Department had cited India in the 2018 Annual Report as demonstrating a pattern of noncompliance and once again requested India’s assistance with resolving reported cases.

Ecuador's Noncompliance - International Child Abduction - U.S. July 2018 Action Report

Country Summary:

The Convention has been in force between the United States and Ecuador since 1992. In 2017, Ecuador demonstrated a pattern of noncompliance. Specifically, Ecuador’s judicial branch and law enforcement authorities regularly failed to implement and comply with the provisions of the Convention. As a result of this failure, 13 percent (one case involving one child) of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. More specifically, this case has been unresolved for four years and 11 months. Ecuador has been cited for noncompliance since 2015. The Ecuadorian Central Authority moved from the Ministry of Economic and Social Inclusion to the Ministry of Justice in June 2017, and a new director was appointed in mid-November 2017.

Report of Actions Taken: 

The Department has reinforced efforts urging Ecuador to improve its Convention implementation. In January 2018, the USCA increased the frequency of digital video conferences with the Ecuadorian Central Authority, Ecuadorian law enforcement officials, and the Public Defender’s Office to monthly meetings. During these conferences, participants discussed case updates and strategies on improving implementation of the Convention in Ecuador. Such conferences also increased understanding among the different offices involved in abduction cases in Ecuador and therefore improved communication, coordination, and cooperation.

The Department also plans to invite Ecuadorian officials to participate in a new International Visitor Leadership Program (IVLP) tentatively scheduled for summer 2018. The IVLP will specifically address the judicial components of processing and resolving Convention abduction cases.

In June 2018, U.S. Embassy Quito delivered a demarche to the Ecuadorian Ministry of Foreign Relations, giving official notice that the Department cited Ecuador for demonstrating a pattern of noncompliance.

Dominican Republic's Noncompliance - International Child Abduction - U.S. July 2018 Action Report

Country Summary: 

The Convention has been in force between the United States and the Dominican Republic since 2007. In 2017, the Dominican Republic demonstrated a pattern of noncompliance. Specifically, the judicial authorities in the Dominican Republic persistently failed to implement and abide by the provisions of the Convention. As a result of this failure, 20 percent (one case involving one child) of requests for the return of abducted children under the Convention have remained unresolved for more than 12 months. On average, these cases have been unresolved for 16 months. The Dominican Republic has been cited as noncompliant since 2014.

Report of Actions Taken: 

The United States regularly presses the Dominican Republic directly to improve its performance. In 2017, the USCA nominated the Director of the Dominican Central Authority (DCA) for the International Visitor Leadership Program. In April 2018, an official from the Office of Children’s Issues traveled to the Dominican Republic, met with the DCA and discussed ways to improve communication. During this meeting, the DCA and USCA agreed on a method for improving the overall quality and frequency of communication between our Central Authorities.

In June 2018, the Consul General at U.S. Embassy Santo Domingo delivered a demarche to the Dominican Ministry of Foreign Relations, giving official notice that the Department cited the Dominican Republic for demonstrating a pattern of noncompliance. The demarche also highlighted the lack of progress on long-standing cases, and requested an update on a case pending with the Dominican Supreme Court.

The embassy delivered both messages to the DCA and the Dominican Attorney General’s Office.

China's Noncompliance - International Child Abduction - U.S. July 2018 Action Report

Country Summary: 

China does not adhere to any protocols with respect to international parental child abduction. In 2017, China demonstrated a pattern of noncompliance. Specifically, the competent authorities in China persistently failed to work with the Department to resolve abduction cases. As a result of this failure, 75 percent (three cases involving three children) of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for two years.

Report of Actions Taken:

In August 2017, senior officials from U.S. Embassy Beijing raised abduction issues with counterparts from China’s Ministry of Foreign Affairs.

In October 2017, the Assistant Secretary for Consular Affairs met with China’s Ministry of Foreign Affairs Director General as part of the 2017 U.S.-China Consular Dialogue, where he urged China to join the Convention.

In December 2017, an official from the Office of Children’s Issues spoke with an official from China’s Ministry of Justice at the Hague Seminar in Tokyo regarding the Convention. An official from U.S. Embassy Beijing met with the Ministry of Justice official again in March 2018 to discuss China’s concerns about the Convention.

In April 2018, a U.S. Embassy Beijing senior official highlighted the importance of the Annual Report with his counterpart at the Ministry of Foreign Affairs. In May 2018, a U.S. Embassy Beijing senior official met with representatives from China’s Ministry of Foreign Affairs ahead of the 2018 U.S.-China Consular Dialogue, where he conveyed that China had been cited in the 2018 Annual Report.

Upon release of the 2018 Annual Report, during the U.S.-China Consular Dialogue, the Assistant Secretary for Consular Affairs delivered a demarche to the Chinese government noting that the Department had cited China in the 2018 Annual Report as demonstrating a pattern of noncompliance and requesting that the Chinese government engage in dialogue with the Department on the Convention.

Brazil's Noncompliance - Inernational Child Abduction - U.S. July 2018 Action Report

                                                                                               

Country Summary:  






The Convention has been in force between the United States and Brazil since 2003. In 2017, Brazil demonstrated a pattern of noncompliance. Specifically, Brazil’s judicial branch regularly failed to implement and comply with the provisions of the Convention. As a result of this failure, 35 percent (seven cases involving eight children) of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average, these cases were unresolved for five years and 11 months. Brazil has been cited as noncompliant since 2006.

Report of Actions Taken:

Throughout the year, officials at the highest levels of the Department engaged with the Government of Brazil on the issue of international parental child abduction. The U.S. Ambassador to Brazil, Assistant Secretary for Consular Affairs, Minister Counselor for Consular Affairs, and the Special Advisor for Children’s Issues pressed Brazil to assist with resolving abduction cases and to address the ongoing issue of judicial delays.


In June 2017, Department officials traveled to Brazil and met with senior officials from the Ministry of Foreign Relations (MRE) and Ministry of Justice (MOJ) to discuss Brazil’s noncompliance with the Convention. The MOJ Secretary acknowledged U.S. concerns over the long-standing IPCA cases and officials at MRE and MOJ both supported hosting a judicial symposium on IPCA.

In July 2017, Department officials met with the Brazilian Ambassador to analyze progress on bilateral agenda items including IPCA.

In August 2017, senior officials from U.S. Embassy Brasilia met with the Brazilian Central Authority (BCA) and a Brazilian Hague Network Judge to discuss pervasive compliance issues and to support judicial symposium initiatives.

In November and December 2017, Brazilian IPCA stakeholders, including officials from the BCA, the MRE, the Association of Federal Judges, and a Hague Network Judge, held two Convention-specific judicial symposia. The Office of Children’s Issues and U.S. Embassy Brasilia attended the symposia and sponsored the participation of three Convention experts: two U.S. Hague Network Judges, and a representative from the Hague Conference on Private International Law.

In January 2018, the Assistant Secretary for Consular Affairs traveled to Brazil to participate in the Annual Bilateral Consular Dialogue. The dialogue addressed the detrimental effects judicial delays have on Convention cases and the steps the Brazilians are taking to improve compliance, including judicial outreach and consolidation of jurisdictions in the judiciary.

In March 2018, senior officials from U.S. Embassy Brasilia met with a senior Minister of the Brazilian National Council of Justice to discuss judicial delays and possible procedural reforms that could prioritize and streamline Convention case processing in the judiciary.

In April 2018, the Special Advisor for the Office of Children’s Issues traveled to Brazil to discuss IPCA and Brazil’s efforts to comply with the Convention. The Special Advisor met with senior Brazilian judicial and executive branch officials who discussed enacting procedural guidelines to expedite and prioritize Convention cases in the judiciary.

Upon release of the 2018 Annual Report, U.S. Embassy Brasilia delivered a demarche to the Brazilian government noting that the Department had cited Brazil in the 2018 Annual Report as demonstrating patterns of noncompliance and once again requested Brazil’s assistance with resolving longstanding cases.

Bahama's Noncompliance - International Child Abduction - U.S. July 2018 Action Report

Country Summary:                                                                                               

The Convention has been in force between the United States and The Bahamas since 1994. The Department cited The Bahamas for demonstrating a pattern of noncompliance in the 2018 Annual Report. Specifically, the Bahamian Central Authority regularly failed to fulfill its responsibilities pursuant to the Convention, and the Bahamian judicial branch regularly failed to implement and comply with the provisions of the Convention. As a result, 50 percent (two cases involving two children) of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average, these cases were unresolved for seven years and two months. The Department has cited The Bahamas as noncompliant since 2011.

 Report of Actions Taken:

In June 2018, U.S. Embassy Nassau officially notified The Bahamas in a demarche that the Department cited The Bahamas for demonstrating a pattern of noncompliance in the 2018 Annual Report. Senior U.S. Embassy Nassau officials reiterated U.S. concerns directly with senior officials at the Bahamian Ministry of Foreign Affairs and the Bahamian Central Authority. They also emphasized that The Bahamas needs to comply with its obligations under the Convention.

In June 2018, representatives from the Department met with the Ministry of Foreign Affairs and the Bahamian Central Authority in an effort to improve coordination between our offices. The Department discussed the importance of improving communication, best practices in implementing the Convention, and how both countries fulfill their obligations under the Convention.

Argentina's Noncompliance - International Child Abduction - U.S. July 2018 Action Report

Country Summary:  
                                                           
The Convention has been in force between the United States and Argentina since 1991. In 2017, Argentina demonstrated a pattern of noncompliance. Specifically, Argentina’s judicial branch regularly failed to implement and compl
y with the provisions
of the Convention. As a result of this failure, 40 percent (two cases involving two children) of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average, these cases were unresolved for five years and five months. Argentina has been cited as noncompliant since 2014.

Report of Actions Taken:

Department of State officials raised continuing U.S. concerns about the Argentine judiciary’s failure to meet its Convention obligations in public and private fora. In August 2017, during an official visit to Argentina, the Department formally raised U.S. concerns about Argentina’s performance with senior Argentine officials, citing the high percentage of unresolved Convention abduction cases. In the same visit, a Department official met with a representative from the Hague Conference on Private International Law to convey the Department’s support for a mechanism to expedite judicial resolution of Convention cases, such as the proposed national procedural law.

In September 2017, Department officials met in Argentina with officials from the Argentine Supreme Court and child welfare advocates. These officials participated in a Convention-focused International Visitor Leadership Program in the United States earlier in 2017. The participants demonstrated increased understanding of the U.S. justice system as it relates to international parental child abduction and the safe return of children to the United States.

In December 2017, the U.S. embassy provided a forum for the International Visitor Leadership Program participants to share with the Argentine Central Authority what they learned about U.S. Convention implementation. The participants made recommendations and suggestions to the Central Authority for improved implementation of the Convention in Argentina.

In a February 2018 digital video conference, senior U.S. Central Authority officials met with Argentine Ministry of Foreign Affairs officials and the newly installed Argentine Central Authority Director to address the Department’s concern for resolving longstanding Convention cases. This meeting strengthened central authority cooperation.

In May 2018, the Consul General of the U.S. embassy met with the Hague Conference on Private International Law and the Argentine Central Authority to discuss procedural reforms for improving Argentine compliance. In a digital video conference that month, the Department pressed senior Argentine officials on the status of the draft procedural law that seeks to expedite judicial resolution of Convention cases. The Department commended Argentina for the increased adoption, among Argentine courts, of voluntary judicial procedural guidelines for 4 Argentina.

In June 2018, the Consul General of the U.S. Embassy in Buenos Aires met with the Argentine Hague Network Judge to discuss a joint effort to provide trainings to the Argentine judiciary on the expeditious processing of Convention cases. In the same month, the Consul General delivered a demarche to the Argentine Ministry of Foreign Affairs, notifying the Argentine authorities that the Department cited Argentina in the 2018 Annual Report for demonstrating a pattern of noncompliance during 2017. Following the demarche, the U.S. embassy undertook a related media campaign, conducting an interview with a local media outlet and publishing a series of social media posts to raise awareness among the public of Argentina’s noncompliance.

Expert Witness: Child Relocation to Pakistan

Jeremy D. Morley

In a recent case in a state court in the United States, I testified as an expert witness that in my opinion if a parent were to relocate to Pakistan with the parties’ child, and were then to violate the rights of the left-behind parent, then:

a.                    The courts in Pakistan would have exclusive jurisdiction under the laws of Pakistan as to all matters concerning the custody of the child;

b.                  The courts in Pakistan would not recognize the continuing and exclusive jurisdiction of the courts in Michigan under Michigan law as to such matters;

c.                   The left-behind parent would be required to initiate judicial proceedings in the courts in Pakistan in order to seek access to the Child;  

d.                  The access provisions of the Hague Convention on the Civil Aspects of International Child Abduction would not apply and, in any event, would not be enforceable;

e.                   Pakistan has been consistently non-compliant with international norms concerning the return of children who are abducted to Pakistan;

f.                    The visitation rights in Pakistan of a parent without residential custody of a child are usually limited to short intermittent daytime visits in the close vicinity of the child’s place of residence, often in a crowded courthouse or similar public place;

g.                  There is no significant likelihood that a court in Pakistan would order international visitation of the child;

h.                  There is no significant likelihood that the authorities in Pakistan would enforce an order requiring international visitation to the United States over the objections of the Pakistani mother;

i.                    Custody cases in Pakistan usually take several years to complete;

j.                    The legal system in Pakistan is subject to endemic corruption;

k.                  Any court proceeding in Pakistan concerning access to the child would most likely be exceedingly slow, unpredictable and difficult, and would likely require the repeated personal presence of the left-behind parent over extended periods of time;

l.                    In attempting to secure access to the child in Pakistan, the left-behind parent would need to spend very considerable sums on legal fees, travel costs and other expenses; and

m.                Pakistan is a place of significant physical danger for American citizens.

Other expert witnesses offered evidence in support of the request for relocation.

The court denied the request to relocate the child to Pakistan.