By
Jeremy
D. Morley
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.
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