International Custody Disputes

An Escape Clause?

Section 105(c) of the UCCJEA has been described by one legal scholar as an escape clause. Professor D. Marianne Blair of the University of Tulsa College of Law has written the leading article on Section 105(c), International Application of the UCCJEA: Scrutinizing the Escape Clause, 38 Fam. L. Q. 547 (Fall 2004). This article is essential reading for any family lawyer involved in a case requiring application of Section 105(c). Among other things, Professor Blair summarizes the international application of the UCCJEA's predecessor, the Uniform Child Custody Jurisdiction Act, citing trial court decisions from across the United States denying enforcement of foreign custody orders where the foreign court did not consider or apply the best interest of the child standard.

Proving Human Rights Violations

There are very few child custody cases discussing the application of Section 105(c) of the UCCJEA. Those that do so demonstrate that at the trial court level, a litigant may find it challenging to prove that a foreign country's custody law violates principles of human rights. See In Re Marriage of Sareen, 153 Cal. App.4^th 371, 376 (Cal. Ct. App. 3^rd District, 2007) ('Nothing in the record suggests the custody law of India in any way violates principles of human rights'); Poluhovich v. Pellerano, 861 A.2d 205, 236-37 (N.J. Super. 2004) (father 'failed to establish that the courts of the Dominican Republic would violate principles of human rights or not resolve any custody modification application based on an evaluation of the best interests of the children').

Most states have adopted verbatim the language in model Section 105(c). However, New Jersey has a variation from the official text, as follows: 'A court of this State need not apply this act if the child custody law of a foreign country violates fundamental principles of human rights or does not base custody decisions on evaluation of the best interests of the child.' N.J. Stat. ' 2A:34-57(c) (2007).

Important Resources

What resources are available to the family lawyer to determine whether the child custody law of a foreign country violates fundamental principles of human rights? There is a Web site known as the Universal Human Rights Index of United Nationals Documents: www.universalhumanrightsindex.org. It provides instant access for all countries to human rights information from the United Nations system. The index is based on the observations and recommendations of the following international expert bodies: 1) the seven United Nations human rights Treaty Bodies monitoring the implementation of the core international human rights treaties and their protocols: the Committee on the Elimination of Racial Discrimination, the Committee on Economic, Social and Cultural Rights, the Human Rights Committee, the Committee on the Elimination of All Forms of Discrimination Against Women, the Committee Against Torture, the Committee on the Rights of the Child, and the Committee on Migrant Workers; and 2) the Special Procedures of the Human Rights Council, which includes special rapporteurs, special representatives of the Secretary-General, independent experts, and working groups.

Type 'child custody' into the Web site's search engine and there are hundreds of annotation hits corresponding to this search criteria. More then 1,000 documents have been indexed on this site. The index contains all of the concluding observations issued by the Treaty Bodies from the year 2000 forward, as well as all reports published by the Special Procedures since 2006. The documents can be searched, depending on the translations made available by the United Nations, in the six official U.N. languages (Arabic, Chinese, English, French, Russian and Spanish). For the time being, all of the annotations are in English.

Another excellent resource is the Web site of the International Academy of Matrimonial Lawyers (IAML): www.iaml.org. Formed in 1986, the primary objective of the IAML is to improve international family law practice throughout the world. It pursues that objective in a number of ways, mainly by creating a network of experts in international family law around the world and providing its fellows with information about both international and national developments in the law, offering advice and assistance to the wider public, promoting law reform, and, where possible, harmonization of the law. The Web site contains a list of IAML fellows from over 30 countries.

Conclusion

Family lawyers with cases involving application of Section 105(c) of the UCCJEA need to marshal Internet and other resources to determine whether the child custody law of a foreign jurisdiction violates a child's fundamental right to safety and protection. Although Section 105(c) does not provide a broad exception to the otherwise stringent standards of the UCCJEA, in cases where a child's welfare is threatened by deferral of jurisdiction to a foreign tribunal or enforcement of a foreign order, a trial court can invoke Section 105(c) to circumvent application of the UCCJEA's rigorous jurisdictional and enforcement provisions.

Mark A. Momjian, a member of this newsletter's Board of Editors since 1994, is a partner in the Family Law Department of Philadelphia's Schnader Harrison Segal & Lewis LLP. His e-mail address is [email protected].

The Uniform Child Custody Jurisdiction and Enforcement Act ('UCCJEA') was drafted by the National Conference of Commissioners on Uniform State Laws in 1997. The act is the exclusive method of determining subject matter jurisdiction in custody disputes involving competing jurisdictions. It applies to international custody disputes as well as interstate disputes. (Currently, the only two jurisdictions in the United States that have not adopted the UCCJEA are Massachusetts and Missouri.)

Under Section 105(c) of the UCCJEA, foreign countries are to be treated as states for the purpose of determining jurisdiction, unless the child custody law of the country violates fundamental principals of human rights. According to the Comment, this concept is similar to the one found in Section 20 of the Hague Convention on the Civil Aspects of International Child Abduction (where return of a child may be refused if this would not be permitted by the fundamental principles of the requested state relating to the protection of human rights and international freedoms).

In applying Section 105(c) of the UCCJEA, a trial court's attention should be on the child custody law of the foreign country, and not on other aspects of the legal system. While the UCCJEA takes no position on what laws relating to child custody would violate fundamental freedoms, the Comment to Section 105(c) states that this should be 'invoked only in the most egregious cases.'

An Escape Clause?

Section 105(c) of the UCCJEA has been described by one legal scholar as an escape clause. Professor D. Marianne Blair of the University of Tulsa College of Law has written the leading article on Section 105(c), International Application of the UCCJEA: Scrutinizing the Escape Clause, 38 Fam. L. Q. 547 (Fall 2004). This article is essential reading for any family lawyer involved in a case requiring application of Section 105(c). Among other things, Professor Blair summarizes the international application of the UCCJEA's predecessor, the Uniform Child Custody Jurisdiction Act, citing trial court decisions from across the United States denying enforcement of foreign custody orders where the foreign court did not consider or apply the best interest of the child standard.

Proving Human Rights Violations

There are very few child custody cases discussing the application of Section 105(c) of the UCCJEA. Those that do so demonstrate that at the trial court level, a litigant may find it challenging to prove that a foreign country's custody law violates principles of human rights. See In Re Marriage of Sareen, 153 Cal. App.4^th 371, 376 (Cal. Ct. App. 3^rd District, 2007) ('Nothing in the record suggests the custody law of India in any way violates principles of human rights'); Poluhovich v. Pellerano , 861 A.2d 205, 236-37 (N.J. Super. 2004) (father 'failed to establish that the courts of the Dominican Republic would violate principles of human rights or not resolve any custody modification application based on an evaluation of the best interests of the children').

Most states have adopted verbatim the language in model Section 105(c). However, New Jersey has a variation from the official text, as follows: 'A court of this State need not apply this act if the child custody law of a foreign country violates fundamental principles of human rights or does not base custody decisions on evaluation of the best interests of the child.' N.J. Stat. ' 2A:34-57(c) (2007).

Important Resources

What resources are available to the family lawyer to determine whether the child custody law of a foreign country violates fundamental principles of human rights? There is a Web site known as the Universal Human Rights Index of United Nationals Documents: www.universalhumanrightsindex.org. It provides instant access for all countries to human rights information from the United Nations system. The index is based on the observations and recommendations of the following international expert bodies: 1) the seven United Nations human rights Treaty Bodies monitoring the implementation of the core international human rights treaties and their protocols: the Committee on the Elimination of Racial Discrimination, the Committee on Economic, Social and Cultural Rights, the Human Rights Committee, the Committee on the Elimination of All Forms of Discrimination Against Women, the Committee Against Torture, the Committee on the Rights of the Child, and the Committee on Migrant Workers; and 2) the Special Procedures of the Human Rights Council, which includes special rapporteurs, special representatives of the Secretary-General, independent experts, and working groups.

Type 'child custody' into the Web site's search engine and there are hundreds of annotation hits corresponding to this search criteria. More then 1,000 documents have been indexed on this site. The index contains all of the concluding observations issued by the Treaty Bodies from the year 2000 forward, as well as all reports published by the Special Procedures since 2006. The documents can be searched, depending on the translations made available by the United Nations, in the six official U.N. languages (Arabic, Chinese, English, French, Russian and Spanish). For the time being, all of the annotations are in English.

Another excellent resource is the Web site of the International Academy of Matrimonial Lawyers (IAML): www.iaml.org. Formed in 1986, the primary objective of the IAML is to improve international family law practice throughout the world. It pursues that objective in a number of ways, mainly by creating a network of experts in international family law around the world and providing its fellows with information about both international and national developments in the law, offering advice and assistance to the wider public, promoting law reform, and, where possible, harmonization of the law. The Web site contains a list of IAML fellows from over 30 countries.

Conclusion

Family lawyers with cases involving application of Section 105(c) of the UCCJEA need to marshal Internet and other resources to determine whether the child custody law of a foreign jurisdiction violates a child's fundamental right to safety and protection. Although Section 105(c) does not provide a broad exception to the otherwise stringent standards of the UCCJEA, in cases where a child's welfare is threatened by deferral of jurisdiction to a foreign tribunal or enforcement of a foreign order, a trial court can invoke Section 105(c) to circumvent application of the UCCJEA's rigorous jurisdictional and enforcement provisions.

Mark A. Momjian, a member of this newsletter's Board of Editors since 1994, is a partner in the Family Law Department of Philadelphia's Schnader Harrison Segal & Lewis LLP. His e-mail address is [email protected].