Recent International Conventions Will Affect Family Law Practice

On Oct. 22, 2010, the U.S. ambassador to the Netherlands signed the Child Protection Convention. Secretary of State Hillary Rodham Clinton issued the following press statement marking the signing:

This agreement ensures international recognition and enforcement of custody orders, complements and reinforces the Hague Convention on the Civil Aspects of International Child Abduction, and contains provisions addressing cooperation on key issues such as runaway children and the cross-border placement of children in foster families or institutional care ' . Going forward, the State Department will work closely with Congress, other Federal agencies, and state and local officials to address implementation of the Convention in the United States. And we look forward to working with The Hague Conference on Private International Law and other countries to implement it around the world.

What It Means to U.S. Family Law

Anyone who is familiar with international child-custody disputes knows that, all too often, children are caught up in family disputes that know no international geographic boundaries. International child custody relocations, international abductions and difficulties in securing parental access to children in other countries require protection under civil codes and laws. The U.S. has long been a signatory to The Hague Convention on the Civil Aspects of International Child Abduction. This convention is familiar to U.S. practitioners who have handled international custody abductions or retention and have successfully effectuated the return of children to their rightful, habitual residence.

The Child Protection Convention is broader than the abduction convention. It includes orders that regulate parental responsibility and contact, which U.S. jurisdictions refer to as visitation or parenting access and parenting time. It also includes measures that can be taken for the protection of children, similar to our abuse and neglect laws and, finally, it includes measures for protection of the property of minors.

Briefly, the convention attempts to define which authority has the right to take the necessary steps to protect children and avoid conflicting decisions by two authorities. The primary right to assume jurisdiction resides with the authority in the child's habitual residence. Any country where a child is present may take emergency measures to provide protection. The convention also provides enforcement and recognition measures, including provisions for the exchange of information among authorities. Decisions by the authority where a child has a habitual residence are afforded primacy. Temporary protection may be afforded to a child until the authority where the child maintained a habitual residence has the opportunity to provide necessary protections. Unaccompanied minors will be subject to orders made by national authorities in the present state and in the jurisdiction of habitual residence.

The convention is not a uniform international law of child protection. Basics of that are found in the U.N. Convention on the Rights of the Child, of which the United States is not a signatory. The new convention is an attempt to enact structures for international cooperation among systems that have diverse cultural or religious backgrounds. These are high and lofty goals, and it will take years of experience to ascertain if the aspirations have been met.

The UCCJEA

The implementation of the convention is anticipated to take place through amendments to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which has been enacted by all states except Vermont and Massachusetts. The UCCJEA is designed to avoid jurisdictional battles regarding child custody.

There are several noteworthy differences between the Child Protection Convention and the UCCJEA.
Unlike the UCCJEA, the convention has language that gives considerations to the best interest of the child in determining jurisdiction. In the convention, the best-interests concept is found, for instance, in Article 23, in which an order will not be recognized if it is “manifestly contrary to public policy of the requested state, taking into account the best interests of the child.” Under the UCCJEA, recognition of both sister-state and international orders is required if the responding party has been afforded due process protections and if the order was made with proper jurisdictional predicates.

Another difference between the UCCJEA and the convention relates to protection of victims of domestic violence. The UCCJEA contains numerous provisions that give consideration to this circumstance. It is likely that, when states are called upon to enforce international child-protection orders or to relinquish jurisdiction to foreign countries, protection for the victims of violence will have to be the first priority.

Although there are a few differences, there are many similarities between the convention and the UCCJEA. Hopefully this will expedite the process of implementing the convention through amendments to the UCCJEA. In fact, many of the states that enacted the UCCJEA chose to include foreign orders (made with proper due process protection), treating those orders as if they were made by a sister state. Some changes in terminology will likely be necessary. In terms of process, it is anticipated that the Uniform Law Commission will take a serious look at the UCCJEA and propose the necessary changes. The federal government may mandate states to enact a new version of the UCCJEA, since the federal government has reserved the right to conform legislation to implement the convention.

Family Maintenance Convention

After the Senate ratified the Family Maintenance Convention, implementing legislation was left to the Department of State and the Department of Health and Human Services. The implementing legislation for this convention will be the 2008 amendments to the Uniform Interstate Family Support Act (UIFSA).

As of this date, only five states have enacted the amendments. The current version of UIFSA, as enacted by the National Conference of Commissioners on Uniform State Laws, can be found and accessed at www.nccusl.org. UIFSA, like the UCCJEA, rests upon a fundamental principle that, once a state has issued a support order, other states must not modify that order, and if there are two support orders, only one order can be the operative one. UIFSA also has standards to determine whether support orders may be modified and, if so, what state has the right to do so. It sets forth jurisdictional predicates incorporating the concept of continuing exclusive jurisdiction retained by the state with the first support order as long as certain conditions are operative. The federal government required all states to enact UIFSA as a condition to receiving federal funds for state child-support programs.

U.S. representatives have been actively involved in developing the maintenance convention, and the United States was the first country to sign it in 2007. The convention looks to protect the economic well-being of a child when the child and one parent are in one country and the other parent (the obligor) is in another country. Under such circumstances, recovery of child or spousal support can be most challenging and sometimes impossible. The maintenance convention incorporates a statutory scheme similar to UIFSA for establishing, recognizing and enforcing support obligations. Uniform procedures for processing international support cases will greatly simplify and effectuate international support orders.

The 2008 amendments to UIFSA were drafted specifically to incorporate provisions of The Hague Maintenance Convention. Most modifications were made in ' 7 of UIFSA, which affects procedures for the registration, recognition, enforcement and modification of orders from foreign countries that become signatories of the maintenance convention. Once the amended UIFSA is enacted by the states, it will greatly assist in the international enforcement of child support orders in foreign countries that have ratified the maintenance convention.

Mary Kay Kisthardt is a professor at the University of Missouri-Kansas City School of Law. She can be reached at [email protected]. Barbara Handschu is special counsel to Dobrish Zeif Gross in New York. She can be reached at [email protected]. This article also appeared in the National Law Journal, an ALM sister publication of this newsletter.

While the media focus on the work of Congress that has involved major “newsworthy” legislation affecting health care and “Don't Ask, Don't Tell,” the U.S. Senate has “quietly” ratified two important international conventions that will have an impact on family law practice in the United States. On Sept. 29, 2010, the Senate gave its advice and consent to The Hague “Family Maintenance Convention” (The Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance). On Oct. 23, 2010, the United States signed the “Child Protection Convention” (Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children).

This article discusses both international conventions and their implementation, anticipating what effect they will have on statutes in the U.S. that affect family support and international custody orders. Although legislation allowing full implementation of the conventions is still necessary, family law practitioners need to be cognizant now of the conventions for two reasons. First, foreign orders making reference to these conventions have a way of exporting themselves into U.S. proceedings. Second, courts often become aware of these conventions, and lawyers may wish to cite to them for principles of law.

The Child Protection Convention

On Oct. 22, 2010, the U.S. ambassador to the Netherlands signed the Child Protection Convention. Secretary of State Hillary Rodham Clinton issued the following press statement marking the signing:

This agreement ensures international recognition and enforcement of custody orders, complements and reinforces the Hague Convention on the Civil Aspects of International Child Abduction, and contains provisions addressing cooperation on key issues such as runaway children and the cross-border placement of children in foster families or institutional care ' . Going forward, the State Department will work closely with Congress, other Federal agencies, and state and local officials to address implementation of the Convention in the United States. And we look forward to working with The Hague Conference on Private International Law and other countries to implement it around the world.

What It Means to U.S. Family Law

Anyone who is familiar with international child-custody disputes knows that, all too often, children are caught up in family disputes that know no international geographic boundaries. International child custody relocations, international abductions and difficulties in securing parental access to children in other countries require protection under civil codes and laws. The U.S. has long been a signatory to The Hague Convention on the Civil Aspects of International Child Abduction. This convention is familiar to U.S. practitioners who have handled international custody abductions or retention and have successfully effectuated the return of children to their rightful, habitual residence.

The Child Protection Convention is broader than the abduction convention. It includes orders that regulate parental responsibility and contact, which U.S. jurisdictions refer to as visitation or parenting access and parenting time. It also includes measures that can be taken for the protection of children, similar to our abuse and neglect laws and, finally, it includes measures for protection of the property of minors.

Briefly, the convention attempts to define which authority has the right to take the necessary steps to protect children and avoid conflicting decisions by two authorities. The primary right to assume jurisdiction resides with the authority in the child's habitual residence. Any country where a child is present may take emergency measures to provide protection. The convention also provides enforcement and recognition measures, including provisions for the exchange of information among authorities. Decisions by the authority where a child has a habitual residence are afforded primacy. Temporary protection may be afforded to a child until the authority where the child maintained a habitual residence has the opportunity to provide necessary protections. Unaccompanied minors will be subject to orders made by national authorities in the present state and in the jurisdiction of habitual residence.

The convention is not a uniform international law of child protection. Basics of that are found in the U.N. Convention on the Rights of the Child, of which the United States is not a signatory. The new convention is an attempt to enact structures for international cooperation among systems that have diverse cultural or religious backgrounds. These are high and lofty goals, and it will take years of experience to ascertain if the aspirations have been met.

The UCCJEA

The implementation of the convention is anticipated to take place through amendments to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which has been enacted by all states except Vermont and Massachusetts. The UCCJEA is designed to avoid jurisdictional battles regarding child custody.

There are several noteworthy differences between the Child Protection Convention and the UCCJEA.
Unlike the UCCJEA, the convention has language that gives considerations to the best interest of the child in determining jurisdiction. In the convention, the best-interests concept is found, for instance, in Article 23, in which an order will not be recognized if it is “manifestly contrary to public policy of the requested state, taking into account the best interests of the child.” Under the UCCJEA, recognition of both sister-state and international orders is required if the responding party has been afforded due process protections and if the order was made with proper jurisdictional predicates.

Another difference between the UCCJEA and the convention relates to protection of victims of domestic violence. The UCCJEA contains numerous provisions that give consideration to this circumstance. It is likely that, when states are called upon to enforce international child-protection orders or to relinquish jurisdiction to foreign countries, protection for the victims of violence will have to be the first priority.

Although there are a few differences, there are many similarities between the convention and the UCCJEA. Hopefully this will expedite the process of implementing the convention through amendments to the UCCJEA. In fact, many of the states that enacted the UCCJEA chose to include foreign orders (made with proper due process protection), treating those orders as if they were made by a sister state. Some changes in terminology will likely be necessary. In terms of process, it is anticipated that the Uniform Law Commission will take a serious look at the UCCJEA and propose the necessary changes. The federal government may mandate states to enact a new version of the UCCJEA, since the federal government has reserved the right to conform legislation to implement the convention.

Family Maintenance Convention

After the Senate ratified the Family Maintenance Convention, implementing legislation was left to the Department of State and the Department of Health and Human Services. The implementing legislation for this convention will be the 2008 amendments to the Uniform Interstate Family Support Act (UIFSA).

As of this date, only five states have enacted the amendments. The current version of UIFSA, as enacted by the National Conference of Commissioners on Uniform State Laws, can be found and accessed at www.nccusl.org. UIFSA, like the UCCJEA, rests upon a fundamental principle that, once a state has issued a support order, other states must not modify that order, and if there are two support orders, only one order can be the operative one. UIFSA also has standards to determine whether support orders may be modified and, if so, what state has the right to do so. It sets forth jurisdictional predicates incorporating the concept of continuing exclusive jurisdiction retained by the state with the first support order as long as certain conditions are operative. The federal government required all states to enact UIFSA as a condition to receiving federal funds for state child-support programs.

U.S. representatives have been actively involved in developing the maintenance convention, and the United States was the first country to sign it in 2007. The convention looks to protect the economic well-being of a child when the child and one parent are in one country and the other parent (the obligor) is in another country. Under such circumstances, recovery of child or spousal support can be most challenging and sometimes impossible. The maintenance convention incorporates a statutory scheme similar to UIFSA for establishing, recognizing and enforcing support obligations. Uniform procedures for processing international support cases will greatly simplify and effectuate international support orders.

The 2008 amendments to UIFSA were drafted specifically to incorporate provisions of The Hague Maintenance Convention. Most modifications were made in ' 7 of UIFSA, which affects procedures for the registration, recognition, enforcement and modification of orders from foreign countries that become signatories of the maintenance convention. Once the amended UIFSA is enacted by the states, it will greatly assist in the international enforcement of child support orders in foreign countries that have ratified the maintenance convention.

Mary Kay Kisthardt is a professor at the University of Missouri-Kansas City School of Law. She can be reached at [email protected]. Barbara Handschu is special counsel to Dobrish Zeif Gross in New York. She can be reached at [email protected]. This article also appeared in the National Law Journal, an ALM sister publication of this newsletter.