Monday, February 11, 2019
I will be lecturing and consulting extensively in Japan, throughout the last week of this month, on “The Hague Abduction Convention in the U.S. and Japan,” at the invitation of the Ministry of Foreign Affairs of Japan.
I will address the issue of Japan’s failure to enforce return orders and the differences between the interpretations and applications of the treaty in the two countries.
However, I will also explain that that the differences between the United States and Japan concerning the Convention run far deeper than these relatively superficial matters, and that they stem from widely divergent views and practices about the appropriate parenting of children and the role of law in private family life.
I will argue that the pending debate about the Hague Convention is a mere sideshow to, and a diversion from, the more fundamental issue of the best interests of children and the fundamental human rights of parents and children after parental separation or divorce.
I will assert that, in the current environment, the Convention cannot adequately protect the competing rights of parents and children in the case of abductions of children from the United States or other countries to Japan. I will further explain that the U.S. State Department’s designation of Japan as “noncompliant” with the Convention, while technically accurate, addresses only the most superficial of issues that are relevant to these matters.
I will also explain how Japan’s adoption of the Hague Convention without addressing the basic issue of the right of both of a child’s parents to have their children in their lives has often proven counter-productive not only to non-Japanese parents who wish to see their own children but also to expat Japanese parents who wish to bring their children to visit Japan or to live in Japan if that is in the children’s best interests.
Wednesday, February 06, 2019
by Jeremy D. Morley*
- If a court in a U.S. state authorizes the relocation of children to Austria, the courts in Austria will not recognize that the U.S. court has continuing and exclusive jurisdiction on any or all matters concerning the custody of the children, and they will have the right to issue such orders concerning the custody of the children and the left-behind parent's access to the children as they might deem appropriate once the children are “habitually resident” in Austria and once there has been a significant change in the circumstances of the children.
- Under the law that applies in Austria and throughout the European Union, the courts in Austria will have jurisdiction over all matters concerning the custody of the children as soon as they are “habitually resident” in Austria. The preeminence of habitual residence as the basis for jurisdiction in such matters is reflected in the fact that Austria is bound by the Brussels II Regulation. Article 8 of the Regulation provides that custody jurisdiction (referred to as “parental responsibility”) is based on the habitual residence of the child.
- Austria has also adopted the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. The United States has signed but not ratified the Convention, and it is therefore not in effect with respect to the two countries.
- Austria has unlimited jurisdiction concerning the custody of children who are habitually resident in Austria. Sections 104 and 109 of the Jurisdiction Act of Austria (the Jurisdiktionsnorm) provide that the district court in the place of the child's normal habitual residence has jurisdiction as to all matters concerning the custody of the child.
- The definition of habitual residence in Austria is fundamentally different from the definition adopted by many courts in the United States. Under Austrian law a child is habitually resident in that country if it is there with “some degree of integration by the child in a social and family environment.” The meaning of the term “habitual residence” in Austria and throughout the European Union has been established by the Court of Justice of the European Union. For example, in one case, the Court ruled that the term “must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment.” Under that test, a change of habitual residence is likely to occur promptly after a child is relocated lawfully to another country, particularly when the child is in school there.
- As soon as relocated children are in school in Austria, or are in any event there for more than a few months, they will be habitually resident in Austria and the Austrian courts will then have full power and authority under to modify any custody order issued by the U.S. court.
- The Supreme Court of Austria has ruled that, once a child has been living in a new country for at least six months, the child is presumed to be habitually resident in Austria even if the custodial parent opposed the relocation, since the new place of residency has objectively become the center of the child's life. 8Ob121/03g, Oberster Gerichtshof.
- Once children are habitually resident in Austria and there has been a significant change in their circumstances, the Austrian courts will then have a duty to reconsider the best interests of the children.
- International child relocation invariably creates a significant change in the circumstances of a child.
- If the parties stipulate in advance that the Austrian courts will not have modification jurisdiction, that will not prevent an Austrian court from assuming modification jurisdiction.
- The courts in the European Union, particularly including Austria, will generally consider the views of all children, including young children, in custody cases.
- If the terms of an order concerning custody issued by a court in the U.S. are violated by the relocating parent, the left-behind parent will have no significant remedy under the Hague Convention on the Civil Aspects of International Child Abduction or any other international treaty. Once a relocation is authorized it is not “wrongful” within the meaning of the Convention.
*Jeremy D. Morley is admitted to practice only in New York, USA. He works closely with colleagues in Austria and throughout the world. See www.international-divorce.com