The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) governs many international child custody disputes involving California (or any state within the United States) and a foreign country. In addition, the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) as made effective in the United States by the International Child Abduction Prevention Act (“ICARA”), which is a federal law, governs international custody disputes between countries that have both signed the Hague Convention treaty. Whether the foreign country has signed the Hague Convention or not determines how the California court can proceed as a matter of law and this determination in turn
greatly influences the outcome of the custody dispute.
For example, assume a child custody dispute arises between California and a foreign country that did not sign the Hague Convention. The first thing California must do is determine if, pursuant to the UCCJEA, California has subject matter jurisdiction over child custody. This is a critical question under this scenario because the California court is required to determine as a threshold question whether the foreign country has custody laws that “are in substantial conformity with the Uniform Child Custody Jurisdiction and Enforcement Act.” If they are not, the California court may elect not to apply the foreign country’s custody laws if its laws violate fundamental principals of human rights. Where the foreign country’s laws substantially conform to the Uniform Child Custody Jurisdiction and Enforcement Act and the California court determines that child custody jurisdiction properly lies in the foreign country, the California court is obligated to apply the foreign country’s laws. That is to say, once the threshold question of which country has jurisdiction is settled, the California court will proceed to make a child custody determination by applying either the Uniform Child Custody Jurisdiction and Enforcement Act or the foreign country’s custody laws, depending on which locus has jurisdiction.
As a practical matter, under the Uniform Child Custody Jurisdiction and Enforcement Act, the California court is required to consult telephonically on the record with the foreign court with both parties present before reaching its decision. This is not always a simple matter to arrange.
In the above scenario, the child’s physical whereabouts–whether in California or abroad–is not mentioned. This is because the physical location of the child is not relevant in determining jurisdiction. Once jurisdiction is asertained and the proper custody laws are applied, a custody determination is made. Note, however, enforcing the custody decision can be problematic.
Next, assume a child custody dispute arises between California and a foreign country that signed the Hague Convention. In this case the International Child Abduction Prevention Act applies if the child is under 16 years of age and is “wrongfully removed” (i.e., without the other parent’s consent) from his or her “habitual residence”. The International Child Abduction Prevention Act is not a designed or intended to determine the merits of a custody claim. Its sole purpose is to ensure that custody determinations are made in the country that was the child’s “habitual residence” before the abduction.
Under this scenario, one of two things happens. Either the California court determines that the foreign country has jurisdiction over the custody dispute in which case California relinquishes jurisdiction to the foreign country, or the California court determines that California is the “habitual residence” of the child and asserts jurisdiction over the custody dispute.
Even if California has jurisdiction, many challenges still face the parent who was deprived of custody. The dispossessed parent must still convince the California court that the child’s best interests would be served if the child were returned to the non-custodial parent. If successful, the non-custodial parent must then take that custody order and attempt to have it enforced in the foreign country where the abducting parent took the child. This can takes months and tens of thousands of dollars may be spent to secure the return of the child.
To add insult to injury, if too much time passes before the non-custodial parent secures physical custody of the child, a court could decide that the best interests of the child would best be served by allowing the child to stay with the abducting parent!
For these and many other reasons, it is essential that the dispossesed parent act quickly and decisively to effect the return of the abducted child. This can only be done by securing effective legal counsel as quickly as possible and by filing appropriate pleadings in both California and the foreign country.