Tuesday, March 20, 2007

Conflict between Child Custody Laws of China and the United States

A recently-decided case in Massachusetts sheds light on the growing problem of international couples and competing divorce jurisdictions. Qiuyue Shao v. Yue Ma.

It also illustrates a serious problem that exists with Section 105 of the Uniform Child Custody Jurisdiction and Enforcement Act.

Chinese-born married parents – characterized by the appellate court as “unusually mobile,” “financially successful”, “highly educated, international entrepreneurs, whose businesses and property were located in both the United States and China” – started competing divorce and child custody cases in Massachusetts and China.

They apparently agreed during the course of their marriage that their younger child, who was born in the U.S., would receive her elementary school education in China and then be further educated in the United States. That child was going to boarding school in China, spending time out of boarding school during the term with her father in China and spending vacations with her mother in the U.S.

The mother, residing in Massachusetts, brought simultaneous actions in Massachusetts and China against the husband, who lived in China. In the Massachusetts case she sought custody of the girl and a division of the couple’s marital assets. In the case in China she also sought custody and a division of the assets in China.

The Massachusetts court granted temporary custody to the mother. The father then moved to vacate that temporary order. Meanwhile the Chinese court issued a judgment granting the parties a divorce, dividing their property in China, and awarding custody to the husband with no provisions for visitation by the wife. The wife appealed the Chinese custody ruling, thereby staying the judgment.

A judge in Massachusetts then vacated the temporary custody order and dismissed the Massachusetts divorce case for lack of jurisdiction. He concluded that the local court did not have jurisdiction to issue the temporary order because the child “had not been domiciled in the Commonwealth of Massachusetts for six months preceding the filing” of the divorce complaint. He also found that dismissal of the complaint was warranted because the mother had submitted to the jurisdiction of the Beijing court, where a judgment had been entered. Accordingly the judge ordered that the child be returned to her father in China.

On appeal, the Massachusetts Appeals Court remanded the case to the original court to take additional evidence to determine whether it had authority to decide the custody issue and, if so, whether it should have exercised its jurisdiction or deferred to the Beijing court. One of the issues to be considered, the appellate court said, is whether China’s child custody laws are “reasonably comparable” to those in Massachusetts, which “treat the welfare of the minor child as the paramount consideration in determining custody issues.” Apparently, the wife’s attorney intends to introduce evidence to show that the courts in China are “controlled politically” and that men “are given complete favoritism” in divorce cases.

(The Appeal Court also ruled that the court below had incorrectly dismissed the complaint’s request for division of marital property wherever in the world it was located).

The decision on the custody issue case illustrates the superiority of the Massachusetts Child Custody Jurisdiction Act over the UCCJEA when it comes to foreign custody orders.

Section 14 of the Massachusetts law compels a judge to 'grant due recognition' to custody determinations rendered by a court of a foreign country 'if those determinations have been rendered in substantial conformity with G. L. c. 209B.'" The "substantial conformity" test requires, among other things, that the foreign court based its order on the "best interests of the child." That provision gives the Massachusetts court the flexibility to take a careful look at the Chinese custody decision.

By contrast the UCCJEA limits the analysis to a determination of whether the foreign “child custody law violates fundamental principles of human rights.”

There is an enormous difference between the two standards -- one that this author submits leads to discrimination against American-resident parents.

Jeremy Morley

Wednesday, March 07, 2007

For richer and poorer

The current issue of The Economist has an interesting article on international divorce law, the introduction to which is as follows:

MARRIAGE may be about love, but divorce is a business. For global couples—born in different countries, married in a third, now working somewhere else and with children, pensions and other assets sprinkled over the world—a contested divorce is bliss for lawyers and a nightmare for others.

Divorce laws vary wildly, from countries (such as Malta) that still forbid it to Islamic states where—for the husband, at least—it may be obtained in minutes. Rules on the division of property and future financial obligations vary hugely too. France expects the poorer party, usually the wife, to start fending for herself almost immediately; England and some American states insist on lifelong support. Some systems look only at the “acquest” (assets built during the marriage); others count the lot. A few, like Austria, still link cash to blame (eg, for adultery). Japan offers a temptingly quick cheap break, but—for foreigners—little or no enforceable contact with the kids thereafter, notes Jeremy Morley, a New York-based “international divorce strategist”. Other places may be mum-friendly when it comes to money but dad-friendly on child custody.