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Jeremy D. Morley*
The courts in most countries have jurisdiction to
modify prior child custody orders if the child is now habitually or ordinarily
resident there, even if the original order was issued by a foreign court.
The United States follows completely different
rules. The Uniform Child Custody Jurisdiction & Enforcement Act (the “UCCJEA”)
provides that once a U.S. state has issued an initial child custody order it
will normally have continuing exclusive jurisdiction for as long as one parent
continues to live there.
These differences can lead to a clash of
jurisdictions.
I have written about such issues in my article The
Impact of Foreign Law on Child Custody Determinations in the Journal of Child Custody, Vol. 10
(2013).
The issue has come to a
head in a case before the Rhode Island Supreme Court. Hogan v. McAndrew, 2016 WL 556297 (Supreme Court of Rhode Island,
Feb. 12, 2016) and it remains unresolved.
In this case the children relocated with their
mother from Rhode Island (“R.I.”) to Ireland in 2009 pursuant to a R.I. divorce
settlement agreement that authorized the relocation, with extensive visitation
for the father, but expressly provided for continued exclusive jurisdiction for
the Rhode Island court. The father remained living in Rhode Island.
After the children had lived in Ireland for five
years the father filed emergency motions in Rhode Island to modify custody. The
mother sought to dismiss the motions since the children had long lived in
Ireland and she commenced a competing case in the Irish High Court.
Under the UCCJEA the basic rule is that the R.I. courts
had continuing exclusive jurisdiction as long as one parent continued to reside
there. Under the law of Ireland the Irish courts had jurisdiction over the custody
of children who were habitually resident in Ireland.
The mother asked the R.I. court to dismiss the R.I.
case on the ground of forum non conveniens. At first instance the justice
concluded that Ireland was a more appropriate forum for the dispute to be heard
and declined to exercise jurisdiction on the ground of inconvenient forum.
However, on appeal, the R.I. Supreme Court ruled
that the trial judge had improperly applied the provision of the UCCJEA that sets
forth the factors that must be considered in determining the convenience issue.
The Supreme Court asserted that the language of the
UCCJEA is clear that the Family Court, vested with exclusive, continuing
jurisdiction over a child-custody matter, must engage in a two-part
inquiry before it may decline jurisdiction on the grounds that Rhode
Island is an inconvenient forum under the UCCJEA. The Family Court judge must
conclude both that the court “is an inconvenient forum under the
circumstances and that a court of another state [or a foreign
tribunal] is a more appropriate forum.”
The Supreme Court insisted that, “declining to hear
a matter over which the court possesses exclusive, continuing jurisdiction is
not a determination that a court should undertake lightly. It should be done
only after strict adherence to the statute and careful analysis of the
evidence.”
The Court was particularly concerned about the
significance of the original forum-selection
agreement whereby the parents had agreed that the R.I court was to retain
subject matter jurisdiction. The trial judge had stated that such an agreement
constituted only one of the eight relevant factors listed in the UCCJEA. But the
Supreme Court stated that, “In her decision, the Family Court justice
overlooked [the father’s] testimony that the forum-selection clause had been a
predominant factor in his agreement to allow the children to move to Ireland
with their mother and that the parties had entered into the agreement in anticipation
of their relocation. The hearing justice also failed to address the nature of
the agreement as a final judgment by consent and the high value that is
conferred upon such judgments. We deem these to be material factors deserving
significant weight, but which were ignored by the hearing justice.”
The R.I. Supreme Court also stated
that it was particularly concerned that “neither party provided the court with
a clear understanding about an issue of particular concern to [the father] — whether
the courts in Ireland would recognize an American joint—custody arrangement—nor
could the parties do so on appeal to this Court.”
Nor was there any evidence as to “whether
the wishes of the children entangled in custody disputes are relevant or even
considered by the Irish courts.”
The Supreme Court thus concluded that,
“The dearth of information before the Family Court prompts us to conclude that
the hearing justice improperly determined that the seventh factor weighed
equally in favor of Ireland and Rhode Island.”
For these reasons the Supreme Court
remanded the matter back to the trial court. The clear impression is that it
expects that the trial court will retain jurisdiction.
Such a decision may well be surprising
to the courts of Ireland and most of the rest of the world, since it would be
far more usual for the courts in the place where children have lived for the
past five years to deem it to be their duty as well as their right to decide
what is in the best interests of such children. Whether the Irish courts will
defer these issues to the courts of Rhode Island, or whether there will be conflicting
orders from the two courts, remains to be seen.
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* Jeremy D. Morley consults on international
family law matters with clients globally, always working with local counsel as
appropriate. He may be reached at +1- 212-372-3425 and through his
website, www.international-divorce.com. Jeremy has handled hundreds of child
custody and abduction cases and has written the leading treatises on
international family law.
