International family law is expanding as people travel more and
spend time with people from different countries. International personal
relationships produce an abundance of conflict and litigation. It is hard
enough for people to live together when they share a similar background, but it
is far harder when they are from different countries, cultures, religions,
ethnicities, educational experiences, languages, traditions, and family
structures. The resulting pressures may become especially acute when
international couples have children and disagree about such matters as
child-rearing methods, the role of in-laws, proper education, religious issues,
and ultimately the desire of one of them to take the children “back home” to his
or her country of origin.
When international personal relationships dissolve, the legal work
is often extremely challenging. I have focused on such work for many years and
have found it a great way to leverage my international know-how and experience
gained as an Anglo-American national with a Japanese wife and children of
various citizenships, who has lived, worked, studied, and run businesses around
the world and who has taught law on three continents.
The financial aspects of international family law disputes are
often complex and difficult to resolve. But when children are the subject of
such disputes, the challenges are often greater and the emotions generally run
far higher. Simply put, money can be divided but children cannot. Divorcing
parents who stay in the same town can often make sensible arrangements to share
the parenting of their children, and if they cannot, a local court can issue
appropriate orders and also enforce them as needed. But when the parents cannot
even agree on which country to live in, all bets are off.
I represent many parents who live in desperate fear that the other
parent will abduct their child to another country and that they will never see
the child again. I also represent many parents who desperately want to “go home”
with their child to their country of origin.
What Law Governs?
When an international client asks as basic a question as, “What
law governs our case?” the answer may well be far from clear. We must often
advise that it will depend overwhelmingly on which court--or courts--will have
jurisdiction over the case. Although the courts in the state in which the child
is currently located have exclusive custody jurisdiction from their own
perspective, if the child is taken to visit another country, the courts there
will often have jurisdiction under the local law of that country to determine
what is best for the child. In addition, these cases often have a strong
international law component: More than 80 countries, including the United
States and most developed countries, have adopted the Hague Convention on the
Civil Aspects of International Child Abduction, which requires that children
who have been “wrongfully taken” or “wrongfully retained” overseas should
normally be returned promptly to their country of habitual residence.
In practice, international child custody cases often yield complex
and messy conflicts between the laws and courts of different countries,
demonstrating serious clashes of societal views about culture, religion, gender
roles, parental rights, and children's rights, as well as of the role of the
legal system in intervening in disputes about children.
Prevention of Abduction
An increasing number of cases involve the prevention of
international child abduction. Let's assume that you receive a frantic call
from a client somewhere in the United States, who tells you, “I'm sure my
spouse is about to take our child to
[India/Japan/China/Colombia/England/Germany] and they will never come back.
Please help!” What do you do?
Your initial advice may well be purely practical. It will be
designed to prevent the immediate threat. Some issues to cover are:
• You must discuss the passport issue. Most likely you should talk
about how to secure the child's passport. You might discuss the location of the
other parent's passports (recognizing that it is that person's property). You
will need to alert the client to the fact that control over passports does not
create complete security because many foreign consulates issue renewal
passports or other travel documents to their own nationals, without requiring
the consent of the other parent and frequently even in the face of a U.S. court
order. You should discuss how the U.S. State Department's Office of Children's
Issues might help ensure that no new U.S. passports are issued.
• You should talk about how to track the child's whereabouts. Who
can watch the child? Should you alert school authorities? What about placing a
GPS tracking device in the child's clothing or cell phone? What about alerting
the police or hiring a private investigator?
• Perhaps your client should contact the airlines to discover if
the other parent has bought airline tickets for the child. Perhaps you should
write to the airlines to demand that they prevent the child from boarding.
• You should discuss whether your client should
contact other family members about the issue and what to say to them.
• You should advise your client how to instruct the child as to
what to do in case of an emergency.
• You should advise your client about collecting and securing
evidence for a potential court hearing.
You may well want to secure an emergency restraining order very
promptly from the family court. An initial temporary order should be easy to
secure, but it will be far more difficult to keep such an order in place over
the long term or to ensure that it has sufficient teeth to be effective. The
United States has no exit controls, with certain exceptions, and a mere court
order will not trigger the kind of effective checks that other countries have
in place to prevent children from being taken out of the country by one parent
or family member. Ideally the short-term solution should be to give sole
custody to your client and to require that any access by the other parent be
strictly supervised.
Burden of Proof
The long-term burden will be strongly on your client to present
compelling evidence sufficient to justify what the court will likely see as
extraordinary relief. That evidence must be of two distinct types. First, you
must establish that the other parent represents a serious risk of being an
international child abductor. Second, you must show, if appropriate, that the
foreign country's legal system will not return an abducted child at all or will
do so only after great delay and expense. There will be a significant interplay
between these two factors. The more that you establish a strong likelihood that
the other parent will abduct the child, the less evidence you should need that
the country in question presents a high degree of risk. So if the potential
country is one such as England or New Zealand, which have strong and effective
laws and systems in place to return abducted children, you will likely need
very strong evidence of an anticipated abduction. Conversely, if the country
presents an obviously greater risk of not returning an abducted child (think
Japan or Venezuela), much less evidence of the likelihood that the particular
parent will be an abductor should be required.
Your evidence concerning the specific parent should focus on
establishing as many of the so-called risk factors as possible. These factors
are well established and have been codified in the Uniform Child Abduction
Prevention Act (UCAPA). The most compelling evidence would be clear proof of a
threat to abduct. Surprisingly, some parents make explicit threats in emails.
More typically you will need to build a circumstantial case based on such
factors as the parent having moved money overseas, vacated a residence, made
international job inquiries, retained few ties to the United States, or kept
strong connections to the foreign country and community, or being disdainful of
the United States.
In order to show that the foreign country's legal system will not
return an abducted child at all or will do so only after great delay and
expense, you will start with the Hague Convention. It will be highly
significant if the country has not signed the Convention or if the United
States has not accepted its accession. However, just because a country has
signed the Convention does not mean that it will enforce it. As a signatory,
Mexico is obliged to return abducted children promptly; in reality, it does not
do so, as the U.S. State Department has repeatedly reported.
Likewise, just because a country has not signed the Convention
does not necessarily mean that it will not return abducted children. For
example, Singapore has not yet acceded, but its courts follow the spirit of the
Convention.
Frequently you will need to ask the court to consider and evaluate
the real facts as to a country's legal system. Generally speaking, U.S. judges
are extremely uncomfortable evaluating another country's legal system and
predicting the results that may be expected of a case overseas. Although such
reluctance is perfectly understandable, it must be overcome. It is absolutely
essential in this area that judges should not shirk from their responsibility
to judge whether or not a child is likely to be returned from abroad if a parent or others in
his or her family decides to keep the child in that country.
How do you prove that a foreign country's legal system in
international child custody cases is ineffective, corrupt, or slow? How do you
establish the extent to which the courts in another country will recognize and
enforce foreign--and especially U.S.--judgments, particularly in the family law
area? Or the extent to which discrimination--sexual, religious, ethnic, or
national-- might impact the issue in the courts of that country?
And how do you convince a court that it is both appropriate and
necessary for it to act as a judge of the legal systems in place in other
countries?
Expert testimony is the key. For example, in a recent case in
Ontario, Canada, a mother sought to prevent the child's father from taking the
child to visit his family in India. Counsel for the mother presented my expert
affidavit as to India's law and practice concerning international child
abduction to that country. Based on my experience with similar cases and my
research on India, I opined that if the child were kept in India, the
authorities there would be most unlikely to secure his return. The court
ultimately decided to prevent the proposed visit, relying primarily on my
expert opinion, which, it said, “unequivocally outlined the many challenges,
frustrations--and indeed roadblocks--which the Applicant would face in
attempting to secure [the child's] return if the Respondent elected not to
return the child from India.”
The Court of Public Opinion
Publicity may sometimes be helpful. In 2009 my client's children
were abducted from Tennessee to Japan. The Tennessee court then gave sole
custody to my client, who went to Japan and tried to bring the children home to
America. Instead, he was jailed in Japan. We quickly launched a high-profile
campaign to secure his release and to highlight the fact that Japan is a haven
for international child abduction. The client was then freed. While he has not
seen his children again, at least the world now knows of the problem. The U.S.
House of Representatives has now condemned Japan in extremely strong terms, and
the Office of the Secretary of State has now joined with a host of other
countries in demanding that Japan change its laws and sign the Hague
Convention. One extremely constructive result of the campaign is that judges
are now far more aware of the dangers of allowing children to be taken to
particular countries if there is a real reason to suspect that the child may
not be returned--and are aware of the firestorm of publicity that such cases
can elicit. In subsequent cases concerning Japan, this has enabled me to be far
more successful than before in persuading courts to prevent children's visits
to that country.
Representing the Other Parent
What if you are representing the other side in these cases?
Perhaps your client genuinely wants to take the child for a limited family
visit to his or her country of origin. Or perhaps your client came recently to
the United States from another country with an American spouse, and now that
the relationship is over wants to “return home” with the child.
In any such case you will need to explain how the U.S. legal
system works in the area of child custody. Often you will need to encourage the
client to use the system and to explain the grave dangers of disrespecting that
system. The client will often say, “It's my child. I'm the one who looks after
him. The other parent is never around. Why on earth should I have to go to
court to ask for permission?”
You may well need to discuss with the client that acting
unilaterally might lead to a criminal as well as civil difficulty. For example,
the International Parental Kidnapping Crime Act of 1993 makes it a federal
felony to remove a child from the United States with intent to obstruct the
lawful exercise of parental rights. Once a federal warrant is issued, Interpol
may issue a “red notice” seeking the person's arrest wherever found.
If a client tells you that he or she intends to covertly take and
retain a child overseas, you need to exercise great care--you may have a duty
to report the planned felony to the police, notwithstanding the attorney-client
privilege.
In presenting an application to a court for a temporary visit with
a child overseas, you will present those facts and those arguments that show
that the client is unlikely to abduct and that the country in question is one
that respects U.S. custody orders and returns abducted children. In a case for
an Italian client living in New York, I offered testimony that Italy was in
full compliance with the Hague Convention and that its performance was significantly
better than that of the United States. The court accepted my expert testimony
and authorized the visit.
If the request is for relocation, the burden of proof on the
applicant is far higher. Domestic child relocation cases are generally
difficult to win, and international relocation cases are much more so. They
often require lawyers to present evidence as to the legal, social, cultural,
political, economic, religious, and educational environment of a foreign
country and, in particular, as to whether a U.S. custody order will be
recognized and enforced in that country. It is generally a major mistake for a
lawyer to present any such case without having worked intensely with the client
to prepare an attractive relocation package. The plan should demonstrate the
serious steps that the parent has taken to secure optimal conditions for the
child and the client in the proposed new location. Equally important, it should
establish that the taking parent will not merely permit the left-behind parent
to participate in the child's life but will actively encourage and genuinely
promote such ongoing contact.
Conclusion
In this article I have
been able to provide no more than a brief introduction to a fascinating area of
the law. International child custody cases are always stimulating and sometimes
extremely frustrating. But when a client e-mails to say, “Thanks to you, my
children are safe” or “Blessings, thanks to you, I got the kids back,” they can
be the most rewarding cases of all.
Jeremy D. Morley is a New York lawyer and the
author of International Family Law Practice. His firm handles
family law cases in New York and New Jersey. He consults with clients and
lawyers globally on International family law matters, working with local
counsel as appropriate. He frequently acts as an expert witness on
International family law. He may be reached atwww.international-divorce.com.