Posts
by Jeremy D. Morley
International
child relocation applications are governed by the same legal principles that
apply in domestic relocation applications. However, while international
applications cover the same ground as applications to move with a child to
another location in the same state or to another U.S. state, they also
typically raise significant additional issues that are not present in domestic
relocation cases. Unfortunately, the fundamental differences are often
insufficiently appreciated by lawyers and judges. That is partly because, even
in today's globalized world, international relocation applications are still relatively
unusual.
A key difference between
international and domestic cases concerns the nature of the applicants. Parents
who apply for international relocation generally have fundamentally different
circumstances, concerns, and needs than parents who want to relocate
domestically. Such differences are often not fully appreciated by lawyers or
courts.
Another critical difference is that
while sister states have similar laws and legal systems, the legal systems in
foreign countries vary dramatically in the extent to which they recognize and
enforce U.S. custody and access orders, the rules concerning the modification
of foreign custody orders, and the substantive laws concerning child custody
and access.
The law in the United States
concerning international child relocation consists of a muddled accumulation of
presumptions and burdens of proof, as well as “laundry lists” of factors to
consider that vary from state to state. Unfortunately, they do not add up to
much in the way of providing predictable, workable, fair or appropriate
solutions to extremely difficult issues.
Any child relocation dispute is
fundamentally an argument about predicting the future, which is a
self-evidently impossible task. Courts must issue prophesies, in the form of
legal judgments, as to the future happiness and well-being of a child if the
child remains in location A or moves to location B and as to which parent is
more likely to share access to the child and in which location. Typically, one
parent claims that if she cannot “go home” with her child to her country of
origin, she will suffer terrible consequences and, much more significantly, so
will her child. Just as typically, the other parent will claim that the
relocation will damage or destroy his relationship with his child, to the
child's substantial detriment.
As difficult as such cases are when
the requested relocation is in state or intrastate, they are far more difficult
when they are international. International relocation applications require that
courts make critical predictions about additional important factors,
particularly concerning the enforceability of their orders in other
jurisdictions. One parent will typically claim that the legal system in the
other country is sufficiently robust that it will compel her to comply with the
terms to be imposed by the forum court if she were ever to violate those terms.
She may also argue that her past practices show that she will comply in any
event and that the specific conditions to be imposed by the forum court will be
effective to cause her to comply with the order. The other parent claims that
exactly the opposite is true.
It is impossible to evaluate the true risks that arise
from authorizing an international child relocation without considering the
foreign law that will apply once the child is overseas and without evaluating
the effectiveness of the foreign legal system that will subsequently be called
upon to implement the provisions for parental access or shared decision-making
on the part of a left-behind parent. Accordingly, any evaluation of potential
international relocation (or international travel) in a contested case should
include a consideration of the potential impact that the laws and procedures of
the foreign country may have on the child's future well-being. Counsel should
secure and present such material to the court.
Unfortunately, all too often, courts
and evaluators blithely--and wrongly--assume that the terms of domestic custody
orders will be recognized and effectively enforced in foreign countries. In
such cases, the source of the problem may be:
a. The failure of counsel for the
potentially left-behind parent to provide the custody evaluator and the court
in the United States with effective, reliable, admissible, and persuasive
expert evidence concerning the foreign laws and procedures that would apply if
things went wrong; or
b. The decision of the court in the
United States to the effect that such evidence concerning foreign laws and
procedures should not be considered or is inapplicable, uncertain, speculative,
or otherwise unpersuasive.
In either event, the result is that the interests of
the child and at least one parent are compromised and that the expectations of
the U.S. court are not met.
