Jurisdiction and International Child Custody Law- Module 5 of 5

 Module 5: Jurisdiction and International Child Custody Law

 In a closely watched case that drew calls for diplomatic action from prominent United States lawmakers, a federal jury found an affluent Brazilian couple guilty of aiding in the international kidnapping of their Houston-born grandson.[1]  In July 2013, the couple’s daughter, Marcelle Guimaraes, left the United States with her then-3-year-old son to attend her brother’s wedding in Brazil. Without notifying her American husband, a Brazilian court granted her sole custody over the child and even went so far as to bar him from visiting the child unless he was accompanied by supervisors. In the ensuing five years, state and federal courts in the two countries have taken up the question of where the son should live. This is just one case of many involving international child custody questions. 

Our final module is devoted to jurisdictional and cross-border aspects of child custody law. We’ll discuss the model acts and laws that designate which state has proper jurisdiction in a child custody dispute. Finally, we’ll look at the laws that are meant to resolve custody issues traversing international borders. 

Jurisdiction Over A Child Custody Order

Approaches to determining which state has “proper” jurisdiction over a child have evolved. Let’s look at an early case that went before the Supreme Court regarding an interstate custody and jurisdiction dispute. In Halvey v. Halvey, a mother took her child, moved to Florida and filed for divorce there. Prior to the grant of a divorce decree, the father took the child back to New York. The Florida court entered the divorce decree and awarded the mother custody of the child. The mother brought a habeas corpus proceeding in New York, challenging the father's “detention” of the child. A New York court modified the Florida custody decree to allow the father visitation rights before enforcing it. 

The mother argued that the New York court’s modification was unconstitutional under the Full Faith and Credit Clause of the Constitution, which requires that a judgment in one state be given “full faith and credit… in every court within the United States.” However, the Supreme Court upheld the New York modification, ruling that the Florida court was given adequate deference by the New York courts.  The Supreme Court observed that family courts are empowered to modify existing custody and visitation orders when new facts arise. As such, the Florida court would have been empowered to amend its own order. So, that the New York court did so was not a Constitutional violation.[2] 

In response to the Halvey decision, state courts began to exercise their custody modification power liberally, which encouraged parents to begin “forum shopping,” which means looking to more favorable states to exercise jurisdiction and modify or enforce custody orders.[3] 

To achieve consistency and avoid forum shopping, there have been federal and state model acts devoted to working out issues with jurisdiction over child custody disputes. These acts developed in response to “a growing public concern over the fact that thousands of children are shifted from state to state and from one family to another every year while their parents or other persons battle over their custody in the courts of several states.”[4] 

The Uniform Child Custody Jurisdiction Act

The first model act we’ll examine is the Uniform Child Custody Jurisdiction Act. Developed in 1968 by the National Conference of Commissioners on Uniform Laws to help alleviate states’ inabilities to cooperate with one another in interstate custody matters, the Act encourages the adoption of a uniform system to discourage interstate kidnapping of children by non-custodial parents.[5] By 1981, every state had adopted this uniform act.[6] 

The UCCJA’s three main purposes are to avoid jurisdictional competition and conflict among courts of different states and to promote cooperation; to ensure that custody decisions are made in the states best suited to determine the best interests of children; and to deter abductions and other unilateral removals of children undertaken by a disappointed parent trying to obtain a more favorable custody ruling in a different state.[7] 

While all fifty states have adopted the UCCJA, each state’s version has unique characteristics. For example, in addressing the filing and enforcement of out-of-state custody decrees, Georgia just requires that a copy of the decree be certified and exemplified.[8] Louisiana permits a court to place a child in the temporary custody of the Department of Health and Human Resources if a certified copy of a decree of another state is filed and there is probable cause to believe that the person with physical custody is likely to flee the jurisdiction.[9] 

These differences have partially undermined the purpose of the uniform act to the point that the Oregon Supreme Court called it “a schizophrenic attempt to bring about an orderly system of decision.”[10] 

We’ll next turn to the Parental Kidnapping Prevention Act, which Congress enacted in 1980.[11] The goal of the Parental Kidnapping Prevention Act is to foster a stable home environment and family relationship for a child.[12] This Act’s main effect is that it prevents concurrent jurisdictions in an interstate custody battle.[13]

This law protects an original decree state’s jurisdiction to modify its own order as well by giving the original home state exclusive, continuing jurisdiction to the exclusion of all other states, so long as at least one parent and the child continue to live there for at least six consecutive months. All states must grant full faith and credit to the home state’s order.[14] This discourages parents from relocating to establish a home state solely to modify what he perceives as an unfavorable custody arrangement. 

Uniform Child Custody Jurisdiction Enforcement Act 

Finally, in 1997, the National Conference of Commissioners on Uniform State Laws attempted to reconcile the UCCJA’s principles with the Parental Kidnapping Prevention Act by promulgating the Uniform Child Custody Jurisdiction Enforcement Act.[15] Since its release all jurisdictions adopted some version of this model act. This Act has strengthened the rules for determining interstate custody jurisdiction.[16] 

The UCCJEA sets forth four bases for jurisdiction: 

·       Home state, defined as the state in which the child lived with a parent for at least six months immediately prior to the filing of a custody action;

·       Significant connection, which means a state with which a child and at least one parent have meaningful ties;

·       Emergency jurisdiction, which applies if the child is physically present in the state and it is necessary to protect the child because the child has been threatened, abused, mistreated, or neglected; and

·       Last resort, which applies when no other state has any of the higher forms of jurisdiction.[17]

With home state being the highest level of jurisdiction, states in each category may only assert jurisdiction if there is no available court of a state with a higher level.[18] 

Moreover, another state’s court cannot modify an order unless the court that issued the order gives permission to another state’s court to decide the issue. A court with jurisdiction may decline to exercise jurisdiction if it determines that it is an inconvenient forum and that another state is more appropriate. A court may use several factors to determine whether it should decline jurisdiction, including whether domestic violence has occurred and is likely to continue, which state could best protect the parties and the child, the distance between the forum court and the court in the state that would assume jurisdiction and the relative financial circumstances of the parties.[19]

If a court wants to assume jurisdiction to modify an out-of-state custody order, it must communicate with the issuing state and conduct a hearing at which both sides are allowed to present evidence on any factual dispute as to the residency issue.[20] The burden of proof is on the parent petitioning for the new jurisdiction.[21]

International Child Abduction Laws

International child abductions have increased, possibly due to increases in bi-cultural marriages and divorces and because of greater ease of international travel.[22] An international child abduction can result in the child losing contact with a parent and the culture, environment and people with which she is familiar.[23] Moreover, a child’s new home country might have a different language, culture, social custom, and legal system, making adjustment for the child difficult. 

In the last 40 years, countries have increased cooperation to prevent and resolve child abduction. Under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, a person who removes a child from a country has committed a “wrongful abduction” and, unless he establishes a defense, he must return the child to the country from which she was taken.[24] The removal or the retention of a child is considered “wrongful” when it’s in breach of rights of custody attributed to a person under the law of the State in which the child was residing before the removal. 

Under the Convention, the court where the child is located is not allowed to analyze the “merits of any custody issue,” but must decide whether immediate return of the child is warranted. The underlying custody issues are to be determined by the state of habitual residence and the judgment of the court of that state is to be afforded deference. The policy is designed to prevent parents from abducting children in the hopes of getting more favorable judgments from courts in other countries.[25] 

An example of the use of the Hague Convention in an international child custody dispute is found in Abbott v. Abbott, a 2010 case that reached the Supreme Court. There, a mother moved a child from Chile to the United States without her ex-husband’s consent.[26] The father filed suit seeking the return of his son under the Hague Convention. The district court disagreed, holding that he had been given no “right of custody” in Chile, for purposes of the Convention; instead, he had been granted only the right of “access to the child.” 

The Supreme Court reversed and held that the father had a “right of custody” since he had been granted regular visitation rights, including the right to determine the child’s place of residence and the right to restrain his child from leaving the country, by the Chilean court. Considering the Convention’s purpose to prevent harmful removals across international borders, this amounted to a right of custody to his child. 

The Hague Convention creates a simple procedure to solve and deter an international child abduction. If a child is abducted from one country and moved to another country that is a member of the Hague Convention, the parent can file a “petition for return” under the Hague Convention.[27] The petition is transmitted to “central authority” of the country where the child is living. Then, the petition is heard in the courts of the locality to which the child has been taken. Many countries provide free Legal Aid lawyers for Hague Convention petitioners to assist parents seeking a return of the child. If a child is abducted and moved to a country that is not a member of the Convention, however, there is no such remedy available.[28]

The International Parental Kidnapping Act 

Another law that has made inroads in dealing with parental kidnapping is the federal International Parental Kidnapping Act, which imposes criminal penalties on parents who illegally abduct children.[29] Specifically, the Act makes it a felony for a parent to wrongfully remove or retain a child outside the United States and provides for criminal penalties including imprisonment for up to three years.[30] 

A parent accused under the Act may assert defenses, such as that the defendant was granted custody or visitation or that the defendant took the child because she was fleeing from domestic violence.[31] 

Defendants have challenged the constitutionality of this Act, and in one case, a defendant unsuccessfully claimed that the Act violated his free exercise of religion.[32] In United States v. Amer, the defendant was accused of abducting his children and taking them to Egypt, in violation of the International Parental Kidnapping Act. He defended his actions, contending that he returned his children to Egypt to provide them with a proper Muslim upbringing and that punishing him for this violates his rights under the First Amendment’s Free Exercise Clause.[33] The court disagreed, finding that the Act was a law of general applicability that incidentally burdened the defendant’s religious practices. It reasoned that the Act punishes parental kidnappings for the harm they cause, not for a parent’s religious motivations. 

Conclusion

Thank you for participating in our program on child custody and visitation. While this course covered a variety of areas of family law and provided an overview of this subject matter, we encourage you to take our other video courses in areas that are most relevant or interesting to you.