Child Custody Jurisdiction in a Global Society

With the expansion of international trade and multinational companies, we are becoming a global society. More and more corporations have offices in different regions of the world and they routinely conduct business across national boundaries. As a result, our population is becoming increasingly transient. It is not uncommon for married couples to relocate to another country when one of the spouses has an opportunity to advance in his or her career, and as a result of people living and working in foreign countries, there are increasing amounts of cross-national marriages. When offspring are born of these marriages and then the marriage unravels, there is commonly a desire on the part of each parent to raise the children in their respective homeland. Although international custody disputes most frequently occur between citizens of two different countries, such custody disputes may in fact arise between parents who are citizens of the same country, albeit one of the parents is residing outside his/her country of citizenship. To illustrate such a situation, a hypothetical is extrapolated from a recent case filed in the Harris County, TX, district court.

Introduction

This article addresses problems that commonly occur in international custody disputes when one of the parents and the children are in, or return to the United States, there is no custody order in place, and the other parent removes the children from the United States to a foreign country.

Frequently, neither estranged party to the marriage seeks an order of custody immediately after the separation occurs. This may be because the parents hope to resolve the issues related to custody in an amicable manner, or because neither parent knows what must be done to establish custody of the children. Generally speaking, under the laws of the United States, both parents have equal custodial rights to their children unless and until there is a court order allocating the parents' rights of custody differently.

When one of the parents is living in the United States, or relocates with the children to the United States upon separation and seeks an order of custody, the order will generally be issued by a state court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA” or “the Act”). The UCCJEA has been adopted in 48 states, the District of Columbia, Guam, and the U.S. Virgin Islands. New Hampshire has adopted the Act, but it will not become effective until Dec. 1, 2010.

The Act

The Act vests “exclusive [and] continuing jurisdiction“ for litigating child custody cases in the courts of the child's “home state.“ This is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding, or the state where the child has lived since birth, in the case of children younger than six months. If a child has not resided in any state for six consecutive months, then child custody jurisdiction would be proper in the state that has: 1) “significant connections“ with the child and at least one parent; and 2) “substantial evidence concerning the child's care, protection, training, and personal relationships.“ As a result of the adoption of the UCCJEA by most of the states and territories of the United States, there are far fewer conflicting and competing custody orders. Although the UCCJEA has standardized custody procedure throughout the country, it does not provide the definitive solutions to all custody matters, particularly those in which one of the parents threatens to remove the children to a foreign country, or actually removes the children from the United States to live in a foreign country. If the removing parent then initiates a custody action in the foreign country's court, and that court issues an order, that country's order may be enforced in the United States under the UCCJEA.

Under the Act, state courts are directed to recognize and enforce a child custody determination of a foreign country's court that was made, “under factual circumstances in substantial conformity with the jurisdictional standards of this act ' ,” but the courts “need not apply this act if the child custody law of a foreign country violates fundamental principles of human rights.” While the UCCJEA makes it clear that our courts do not have to enforce custody orders promulgated by foreign courts whose laws “violate principles of human rights,” the Act provides no guidance on what constitutes such violations.

Although there is not a substantial amount of case law regarding the UCCJEA's application to the enforcement of foreign court's custody orders, a review of the existing cases in which foreign child custody orders have been challenged in the United States makes it clear that if the foreign country's court makes a custody determination in a case in which that court, under the UCCJEA, would have properly had custody jurisdiction, and the custody determination is substantially based upon an evaluation of the best interests of the child, the foreign court's custody order will not be disturbed and will be enforced by a court of this country. Thus, the United States family lawyer representing either the parent residing in the United States or the parent living in the foreign country must become familiar with the family law of the country in which such a custody order was issued in order to be able to make a judgment call as to how likely it is that our courts will enforce the foreign order.

Another problem that may arise as a result of the application of the UCCJEA occurs when one of the parents takes the children from the United States to a foreign nation prior to a custody order being issued here, and then that parent institutes a custody action in the foreign country. If the children have not lived in any one state for six consecutive months, nor have significant connections to a particular state, and the children have resided in the foreign country for six consecutive months, then it would appear that under the UCCJEA, the foreign country would be considered the child's “home state” for jurisdictional purposes. If the foreign country's child custody laws are substantially similar to those in the United States, then the parent who remains in the United States would, in all likelihood, have to abide by the custody decision of the foreign court. But what if it is unclear whether or not the foreign country's custody laws violate the principles of human rights?

Muslim Countries

In Muslim countries, child custody is determined under Shari'a law, which is a code of law based on Islam. Under Shari'a law, there is a presumption that the children of the marriage should be in the primary physical custody of the mother until they reach a certain age, usually seven to nine years of age for a boy, and until nine or 11 years old for a girl, at which time the father assumes primary physical custody of the child. At all times, the father remains the legal custodian of the children, and the mother may lose custody if she remarries. Would an order issued by a court under Shari'a law be enforceable under the UCCJEA, or would such an order be considered to have been issued under laws that “violate principles of human rights”? Unfortunately, at this time, there is no clear answer, as there are no reported cases that directly address this issue.

A Hypothetical Case

The hypothetical situation presented herein exemplifies the difficulties that can be encountered in determining proper jurisdiction under the UCCJEA in an international custody case.

Amy and Bob, both citizens of the United States, marry in Virginia in 2004. While still living in Virginia, they have two children, a son and a daughter. Bob works locally for an international company, and in February 2007 the company offers Bob a promotion. He is asked to accept a management position in the company's office in the United Arab Emirates. Amy and Bob decide that Bob should accept the opportunity, although it will mean the family's relocation. Amy and Bob and the children relocate to the UAE in April 2007. They take up residence in Abu Dhabi near Bob's new office. They enroll their children in local private schools. The couple experience marital difficulties, and in early March 2009, they separate. Amy and the children return to the United States. They first go to Wisconsin to spend a few weeks with her parents. While still in Wisconsin, Amy finds and accepts a job in Houston, TX. At the end of March, she and the children travel to Houston, where Amy rents an apartment. Amy signs the lease agreement on March 28, 2009, and she and the children move into the new apartment on April 1. On April 6, Amy and the children fly to South Carolina to spend the week of Easter with Amy's brother and his family. They return to Houston on April 14, 2009, and Amy enrolls the children in the local public school in Houston the next day.

Amy and Bob have been communicating during their separation, and Bob indicates that he really misses the children. Amy agrees to allow Bob to take the children back to Abu Dhabi for the summer. Bob promises to return the children to the United States before the start of the 2009-2010 school year.

The day after school ends for the summer, Amy and the children meet Bob at Chicago O'Hare Airport. Bob gives Amy a signed and notarized paper promising to return the children prior to the start of the next school year, and Amy gives Bob a letter stating that he has her permission to travel to Abu Dhabi with the children. Bob and the children leave for Abu Dhabi, and Amy returns to Houston.

Bob calls Amy on June 15 and tells her he's decided that he's not going to bring the children back to the United States and will instead keep them with him in Abu Dhabi. In early September, Bob informs Amy that he's filed for divorce in the Family Court of Abu Dhabi, and he's asked that court to grant him sole custody of the children.

Amy retains counsel and on Oct. 11, 2009, a petition for custody is filed in the Texas court. Texas strictly interprets the jurisdictional requirements of the UCCJEA in that the children must have resided in Texas for at least six consecutive months in order for Texas to assume jurisdiction to make a custody determination. The children had only been physically present in Texas for about seven weeks before they left for Abu Dhabi to visit with their father. Would the time when the children were in Abu Dhabi by agreement of their parents from June 6 until June 15 be counted as time the children were residents of Texas? Although the children would have been back in Texas at the end of August but for their father's failure to return them, would the time from June 15 through the time that Amy filed the custody petition count toward the statutory residency time period? Would the court determine that Texas was the home state of the children for purposes of issuing a custody order? If Texas declined to assume jurisdiction of this custody case, there was no other state within the United States to which the children had closer ties.

Other Issues

Other issues that may affect the determination by a Texas court regarding UCCJEA jurisdiction include the fact that Bob had filed his divorce action in Abu Dhabi and asked that court to grant him custody. Would the Texas court determine that Abu Dhabi was the home state of the children under the UCCJEA and decline jurisdiction on that basis? Would the Abu Dhabi court be considered to have assumed jurisdiction over the custody of the children? Would the Texas court consider Shari'a law to violate fundamental principles of human rights? Only if the Texas court found such a violation of human rights could it assume jurisdiction to make a custody determination.

Negotiated Settlement

Fortunately, Amy and Bob were able to reach a negotiated settlement prior to the case being heard, and by agreed order, the children were returned to the United States. Because the parties reached settlement, the Texas court did not address the questions presented above.

At the present time, there is little guidance to help the family law practitioner navigate international custody jurisdiction issues when the law of a foreign country involved in such a dispute is not clearly “substantially similar” to the laws of the United States.

Shirley Keisler, a member of this newsletter's Board of Editors, is a partner at KeislerLee PLLC (Fairfax, VA), and has practiced family law for nearly 20 years. She can be reached at [email protected].

With the expansion of international trade and multinational companies, we are becoming a global society. More and more corporations have offices in different regions of the world and they routinely conduct business across national boundaries. As a result, our population is becoming increasingly transient. It is not uncommon for married couples to relocate to another country when one of the spouses has an opportunity to advance in his or her career, and as a result of people living and working in foreign countries, there are increasing amounts of cross-national marriages. When offspring are born of these marriages and then the marriage unravels, there is commonly a desire on the part of each parent to raise the children in their respective homeland. Although international custody disputes most frequently occur between citizens of two different countries, such custody disputes may in fact arise between parents who are citizens of the same country, albeit one of the parents is residing outside his/her country of citizenship. To illustrate such a situation, a hypothetical is extrapolated from a recent case filed in the Harris County, TX, district court.

Introduction

This article addresses problems that commonly occur in international custody disputes when one of the parents and the children are in, or return to the United States, there is no custody order in place, and the other parent removes the children from the United States to a foreign country.

Frequently, neither estranged party to the marriage seeks an order of custody immediately after the separation occurs. This may be because the parents hope to resolve the issues related to custody in an amicable manner, or because neither parent knows what must be done to establish custody of the children. Generally speaking, under the laws of the United States, both parents have equal custodial rights to their children unless and until there is a court order allocating the parents' rights of custody differently.

When one of the parents is living in the United States, or relocates with the children to the United States upon separation and seeks an order of custody, the order will generally be issued by a state court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA” or “the Act”). The UCCJEA has been adopted in 48 states, the District of Columbia, Guam, and the U.S. Virgin Islands. New Hampshire has adopted the Act, but it will not become effective until Dec. 1, 2010.

The Act

The Act vests “exclusive [and] continuing jurisdiction“ for litigating child custody cases in the courts of the child's “home state.“ This is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding, or the state where the child has lived since birth, in the case of children younger than six months. If a child has not resided in any state for six consecutive months, then child custody jurisdiction would be proper in the state that has: 1) “significant connections“ with the child and at least one parent; and 2) “substantial evidence concerning the child's care, protection, training, and personal relationships.“ As a result of the adoption of the UCCJEA by most of the states and territories of the United States, there are far fewer conflicting and competing custody orders. Although the UCCJEA has standardized custody procedure throughout the country, it does not provide the definitive solutions to all custody matters, particularly those in which one of the parents threatens to remove the children to a foreign country, or actually removes the children from the United States to live in a foreign country. If the removing parent then initiates a custody action in the foreign country's court, and that court issues an order, that country's order may be enforced in the United States under the UCCJEA.

Under the Act, state courts are directed to recognize and enforce a child custody determination of a foreign country's court that was made, “under factual circumstances in substantial conformity with the jurisdictional standards of this act ' ,” but the courts “need not apply this act if the child custody law of a foreign country violates fundamental principles of human rights.” While the UCCJEA makes it clear that our courts do not have to enforce custody orders promulgated by foreign courts whose laws “violate principles of human rights,” the Act provides no guidance on what constitutes such violations.

Although there is not a substantial amount of case law regarding the UCCJEA's application to the enforcement of foreign court's custody orders, a review of the existing cases in which foreign child custody orders have been challenged in the United States makes it clear that if the foreign country's court makes a custody determination in a case in which that court, under the UCCJEA, would have properly had custody jurisdiction, and the custody determination is substantially based upon an evaluation of the best interests of the child, the foreign court's custody order will not be disturbed and will be enforced by a court of this country. Thus, the United States family lawyer representing either the parent residing in the United States or the parent living in the foreign country must become familiar with the family law of the country in which such a custody order was issued in order to be able to make a judgment call as to how likely it is that our courts will enforce the foreign order.

Another problem that may arise as a result of the application of the UCCJEA occurs when one of the parents takes the children from the United States to a foreign nation prior to a custody order being issued here, and then that parent institutes a custody action in the foreign country. If the children have not lived in any one state for six consecutive months, nor have significant connections to a particular state, and the children have resided in the foreign country for six consecutive months, then it would appear that under the UCCJEA, the foreign country would be considered the child's “home state” for jurisdictional purposes. If the foreign country's child custody laws are substantially similar to those in the United States, then the parent who remains in the United States would, in all likelihood, have to abide by the custody decision of the foreign court. But what if it is unclear whether or not the foreign country's custody laws violate the principles of human rights?

Muslim Countries

In Muslim countries, child custody is determined under Shari'a law, which is a code of law based on Islam. Under Shari'a law, there is a presumption that the children of the marriage should be in the primary physical custody of the mother until they reach a certain age, usually seven to nine years of age for a boy, and until nine or 11 years old for a girl, at which time the father assumes primary physical custody of the child. At all times, the father remains the legal custodian of the children, and the mother may lose custody if she remarries. Would an order issued by a court under Shari'a law be enforceable under the UCCJEA, or would such an order be considered to have been issued under laws that “violate principles of human rights”? Unfortunately, at this time, there is no clear answer, as there are no reported cases that directly address this issue.

A Hypothetical Case

The hypothetical situation presented herein exemplifies the difficulties that can be encountered in determining proper jurisdiction under the UCCJEA in an international custody case.

Amy and Bob, both citizens of the United States, marry in Virginia in 2004. While still living in Virginia, they have two children, a son and a daughter. Bob works locally for an international company, and in February 2007 the company offers Bob a promotion. He is asked to accept a management position in the company's office in the United Arab Emirates. Amy and Bob decide that Bob should accept the opportunity, although it will mean the family's relocation. Amy and Bob and the children relocate to the UAE in April 2007. They take up residence in Abu Dhabi near Bob's new office. They enroll their children in local private schools. The couple experience marital difficulties, and in early March 2009, they separate. Amy and the children return to the United States. They first go to Wisconsin to spend a few weeks with her parents. While still in Wisconsin, Amy finds and accepts a job in Houston, TX. At the end of March, she and the children travel to Houston, where Amy rents an apartment. Amy signs the lease agreement on March 28, 2009, and she and the children move into the new apartment on April 1. On April 6, Amy and the children fly to South Carolina to spend the week of Easter with Amy's brother and his family. They return to Houston on April 14, 2009, and Amy enrolls the children in the local public school in Houston the next day.

Amy and Bob have been communicating during their separation, and Bob indicates that he really misses the children. Amy agrees to allow Bob to take the children back to Abu Dhabi for the summer. Bob promises to return the children to the United States before the start of the 2009-2010 school year.

The day after school ends for the summer, Amy and the children meet Bob at Chicago O'Hare Airport. Bob gives Amy a signed and notarized paper promising to return the children prior to the start of the next school year, and Amy gives Bob a letter stating that he has her permission to travel to Abu Dhabi with the children. Bob and the children leave for Abu Dhabi, and Amy returns to Houston.

Bob calls Amy on June 15 and tells her he's decided that he's not going to bring the children back to the United States and will instead keep them with him in Abu Dhabi. In early September, Bob informs Amy that he's filed for divorce in the Family Court of Abu Dhabi, and he's asked that court to grant him sole custody of the children.

Amy retains counsel and on Oct. 11, 2009, a petition for custody is filed in the Texas court. Texas strictly interprets the jurisdictional requirements of the UCCJEA in that the children must have resided in Texas for at least six consecutive months in order for Texas to assume jurisdiction to make a custody determination. The children had only been physically present in Texas for about seven weeks before they left for Abu Dhabi to visit with their father. Would the time when the children were in Abu Dhabi by agreement of their parents from June 6 until June 15 be counted as time the children were residents of Texas? Although the children would have been back in Texas at the end of August but for their father's failure to return them, would the time from June 15 through the time that Amy filed the custody petition count toward the statutory residency time period? Would the court determine that Texas was the home state of the children for purposes of issuing a custody order? If Texas declined to assume jurisdiction of this custody case, there was no other state within the United States to which the children had closer ties.

Other Issues

Other issues that may affect the determination by a Texas court regarding UCCJEA jurisdiction include the fact that Bob had filed his divorce action in Abu Dhabi and asked that court to grant him custody. Would the Texas court determine that Abu Dhabi was the home state of the children under the UCCJEA and decline jurisdiction on that basis? Would the Abu Dhabi court be considered to have assumed jurisdiction over the custody of the children? Would the Texas court consider Shari'a law to violate fundamental principles of human rights? Only if the Texas court found such a violation of human rights could it assume jurisdiction to make a custody determination.

Negotiated Settlement

Fortunately, Amy and Bob were able to reach a negotiated settlement prior to the case being heard, and by agreed order, the children were returned to the United States. Because the parties reached settlement, the Texas court did not address the questions presented above.

At the present time, there is little guidance to help the family law practitioner navigate international custody jurisdiction issues when the law of a foreign country involved in such a dispute is not clearly “substantially similar” to the laws of the United States.

Shirley Keisler, a member of this newsletter's Board of Editors, is a partner at KeislerLee PLLC (Fairfax, VA), and has practiced family law for nearly 20 years. She can be reached at [email protected].