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Файл:Альманах семейного права = International Aspects of Protection of Children’s Rights. Вып.1. Международные аспекты защиты прав ребенка
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Cross-Border Children’s Cases in the United States
in this situation continues only until the court that would otherwise have
jurisdiction has an opportunity to act1. A court asked to make an emergency
order must inform and seek to communicate with the other court “to resolve
the emergency, protect the safety of the parties and the child, and determine
a period for the duration of the temporary order”.
The 1996 Convention allows authorities in the place where a child is present to take jurisdiction in cases of refugee children and those whose habitual
residence cannot be established2. It also includes a provision for temporary
jurisdiction in cases of urgency3.
3.3. Declining Jurisdiction
Except in emergency situations, a state court must decline jurisdiction if
a court in another state or foreign country is already exercising jurisdiction
consistently with the provisions of the UCCJEA4. In international cases, the
question is whether the factual circumstances would meet the jurisdictional
standards of the UCCJEA, whatever the foreign court’s own rules would
permit. The state court is also not required to defer to a foreign court’s jurisdiction if the child custody law of the other country violates fundamental
principles of human rights5.
A state court may decline to exercise its jurisdiction if it concludes that
another forum is a more convenient forum6. It must decline to act if “a person
seeking to invoke its jurisdiction has engaged in unjustifiable conduct”7 such
as removing, secreting, retaining, or restraining a child in order to create
jurisdiction8.
The rules are similar under the 1996 Convention. Authorities must abstain
from hearing a matter if authorities in another contracting state are properly
1
UCCJEA § 204. Cf. Marriage of Paillier, 50 Cal.Rptr.3d 459 (Cal. Ct. App. 2006) (no
emergency sufficient to justify jurisdiction).
2
1996 Convention art. 6.
3
Id. at art. 11.
4
UCCJEA § 206(a). E.g. Karam v. Karam, 6 So.3d 87, 90–91 (Fla. Dist. Ct. App. 2009)
(French court was not exercising jurisdiction in substantial conformity with the UCCJEA).
5
UCCJEA § 105(a). Cf. Toland v. Futagi, 40 A.3d 1051, 1064-66 (Md. 2012) (rejecting
argument that Japanese guardianship law violated father’s human rights). See infra part 5.3.
6
UCCJEA § 207. E.g. R.B. v. D.R., 238 Cal.Rptr.3d 904 (Cal. Ct. App.) (India was more
appropriate forum).
7
UCCJEA § 208.
8
E.g. In re Lewin, 149 S.W.3d 727, 739-41 (Tex. App. 2004) (jurisdiction declined due to
father’s repeated violations of court orders).
121
A.L. Estin
exercising jurisdiction1. An authority with jurisdiction may request that authorities in another contracting state assume jurisdiction, if they are better
placed to assess the child’s best interests2.
3.4. Effect of Hague Return Proceedings
The Abduction Convention limits jurisdiction in the place where a child
may have been wrongfully removed or retained. When judicial authorities
have been notified that a child has been wrongfully removed to or retained
in their state, they may not decide “the merits of rights of custody until it has
been determined that the child is not to be returned under this Convention or
unless an application under this Convention is not lodged within a reasonable time following receipt of notice”3. Custody orders entered by a court in
that state before return proceedings are commenced under the Convention
are not relevant to the determination of whether a child must be returned4.
A return proceeding under the Abduction Convention does not affect the
courts’ jurisdiction in the child’s country of habitual residence. A left-behind
parent may therefore file or continue litigation while the foreign court considers his or her request for return. If return is denied, this fact alone does not
affect the jurisdictional situation, and courts in the child’s previous residence
may continue to exercise jurisdiction. Under the 1996 Convention, jurisdiction does not shift to the child’s new habitual residence immediately in cases
of wrongful removal or retention5.
The Abduction Convention states that a decision in a return proceeding
“shall not be taken to be a determination on the merits of any custody issue”6.
The return order usually implies that any further custody litigation will be
carried out in the country to which the child is returned7. If a return petition
is denied, custody proceedings may resume. If a return order is granted,
1
1996 Convention art. 13.
2
Id. arts. 8 & 9.
3
Abduction Convention art. 16.
4
Id. art. 17 (“The sole fact that a decision relating to custody has been given in or is entitled
to recognition in the requested State shall not be a ground for refusing to return a child under
this Convention, but the judicial or administrative authorities of the requested State may take
account of the reasons for the decision in applying this Convention”).
5
1996 Convention art. 7.
6
Abduction Convention art. 19.
7
See Pérez-Vera Elisa. Explanatory Report, Convention on the Civil Aspects of Interna-
tional Child Abduction, Hague Conference on Private International Law, III Actes et documents
de la Quartorzième session 426, 429–430 (1980).
122
Cross-Border Children’s Cases in the United States
state courts must enforce that order under the UCCJEA as if it were a child
custody determination1.
From the perspective of the UCCJEA, a ruling granting or denying a
Hague return petition is not a “child custody determination” and does not
preempt or confer jurisdiction on the state court to make a custody determination. If a state court has jurisdiction under the UCCJEA, it can exercise
that jurisdiction even when the child remains in another country where return has been denied2. Conversely, if a Hague return petition is denied in the
United States, a state court will be limited to exercising temporary emergency
jurisdiction unless it has another basis for jurisdiction under the UCCJEA3.
4. Modifying a Child Custody Determination
To protect the best interests of a child, parental responsibility orders are
always subject to modification upon a showing of a significant change in
circumstances4. Once a court in a state or foreign country has made a child
custody determination consistent with the jurisdictional standards of the
UCCJEA, however, the act carefully limits jurisdiction to modify that order5.
This is a significant difference between the UCCJEA and the 1996 Convention. Under the 1996 Convention, a change in the child’s habitual residence shifts jurisdiction to the authorities in the new habitual residence6. Once
a new court takes jurisdiction, its law will be applicable, and the authority to
modify a previous order is not limited7.
4.1. Exclusive, Continuing Jurisdiction
Under the UCCJEA, a court that has made a child custody determination
retains exclusive continuing jurisdiction even if the child has left the state
1
UCCJEA § 302.
2
E.g. Katz v. Katz, 986 N.Y.S.2d 611 (N.Y. App. Div. 2014) (child in Dominican Republic).
3
E.g. Parental Responsibilities of T.L.B., 272 P.3d 1148 (Colo. Ct. App. 2012) (court
declined to return children to Canada based on a grave risk of harm, and entered temporary
order keeping the children in the state until Canadian court had opportunity to enter appropriate orders).
4
Cf. Dixson v. Cantrell, 564 So.2d 1138 (Fla. Dist. Ct. App. 1990) (refusing to modify
custody determination made in the Netherlands; no showing of changed circumstances).
5
Limits on modification are required in domestic cases by the PKPA, supra note 10.
6
1996 Convention, art. 5(2). This may be delayed in the case of a wrongful removal or
retention. See supra note 47.
7
Id. art. 17 & 18.
123
A.L. Estin
and established a new residence in another state or foreign country. Continuing jurisdiction ends if the court concludes that the child no longer has
a significant connection to the State, and “substantial evidence is no longer
available in this State concerning the child’s care, protection, training, and
personal relationships”1. The UCCJEA reserves this decision to the court
with continuing jurisdiction2.
Alternatively, continuing jurisdiction ends if, at the time a new action is
filed, the child, the child’s parents, and any person acting as a parent “do
not presently reside in” the original forum State3. This determination may
be made by either the original court or the court in which modification has
been requested.
Based on the continuing jurisdiction principle, a court in another country
that has made a child custody determination in factual circumstances that
satisfy the requirements of the UCCJEA may be deemed to have exclusive
continuing jurisdiction, so that a state court in the U.S. may not take jurisdiction to modify that order4. There must have been a child custody determination as defined in the UCCJEA5. An order granting or denying an application
for return of a child under the Abduction Convention is not a child custody
determination, and does not give rise to continuing jurisdiction6.
4.2. Modification Jurisdiction
Based on its continuing jurisdiction rule, the UCCJEA limits jurisdiction
to modify orders made in another state or foreign country. To modify a prior
child custody determination made in factual circumstances that satisfy the
1
UCCJEA § 202(a)(1). E.g. Marriage of Medill, 40 P.3d 1087 (Or. Ct. App. 2002) (holding
that children did not have sufficient connections with Oregon to sustain jurisdiction).
2
A court with continuing jurisdiction may decide that another court is a more appropri-
ate forum for new proceedings in a case. E.g. Hogan v. McAndrew, 131 A.3d 717 (R.I. 2016).
3
UCCJEA § 202(a)(2). Compare Marriage of Nurie, 98 Cal. Rptr. 3d 200, 218–22 (Cal.
Ct. App. 2009) (state had not lost exclusive continuing jurisdiction when neither Pakistani nor
California court determined that all parties had ceased living in California); with Kar v. Kar,
378 P.3d 1204 (Nev. 2016) (state court lost exclusive continuing jurisdiction after parents moved
to Turkey and England).
4
Cf. In re Marriage of Nurie, 98 Cal. Rptr. 3d 200, 224–26 (Cal. Ct. App. 2009) (exercise
of jurisdiction in Pakistan was not in substantial conformity with UCCJEA); Bellew v. Larese,
706 S.E.2d 78 (Ga. 2011) (Italian court did not act in substantial conformity with UCCJEA).
5
Supra note 13.
6
E.g. Interest of A.S.C.H., 380 S.W.3d 346, 352 (Tex. App. 2012) (English court did not
have exclusive continuing jurisdiction after denial of Hague return petition).
124
Cross-Border Children’s Cases in the United States
UCCJEA requirements, a state court must have a basis for exercising initial
jurisdiction and one of two additional conditions must be met, mirroring the
exclusive continuing jurisdiction rule.
A state court may modify a prior child custody determination if the court
in the original forum has determined that it no longer has exclusive, continuing jurisdiction, or concludes that the court in the new state would be a more
convenient forum. Alternatively, a state court may modify a prior determination if it concludes that “the child, the child’s parents, and any person acting
as a parent do not presently reside” in the state or country of the original
forum1. Once a court has assumed jurisdiction to modify, it acquires exclusive,
continuing jurisdiction.
For example, in Michael McC. v. Manuela A. a New York court took juris-
diction to modify an Italian custody order after all of the parties had relocated
to New York2. Both the mother and father had petitioned for modification
in New York, the mother asking that father’s visitation rights be suspended
and father asking for sole custody. The mother later returned to Italy and
filed a new proceeding there, in violation of the New York court’s order not
to remove the child from the state. The New York court concluded that the
mother’s departure from New York had not deprived the court of its continuing jurisdiction, and that the Italian court was no longer exercising jurisdiction
in substantial conformity with the UCCJEA.
5. Recognizing and Enforcing Foreign
Custody Orders
The 1996 Convention requires that measures for the protection of children taken by the authorities of one Contracting State must be recognized by
operation of law in other Contracting States, with limited grounds on which
recognition may be refused3. There is a simple registration process4, and
measures must be enforced as if they had been taken by the authorities in the
requested state5, To be certain that a measure ordered in one country will be
recognized and enforced in another, the Convention also provides a mecha-
1
UCCJEA § 203. E.g. Guzman v. Sartin, 31 So.3d 426, 430-31 (La. Ct. App. 2009) (al-
lowing modification of Venezuelan decree when all parties had left Venezuela).
2
848 N.Y.S.2d 147 (N.Y. App. Div. 2007).
3
1996 Convention art. 23.
4
Id. art. 26.
5
Id. art. 28. Enforcement “takes place in accordance with the law of the requested State
to the extent provided by such law, taking into consideration the best interests of the child”.
125
A.L. Estin
nism for advance recognition1. These provisions are useful for entry of mirror
orders in connection with return orders under the Abduction Convention.
The UCCJEA includes an equally strong policy of recognition and
enforcement or foreign court orders. Before it was adopted, state courts in
the United States recognized and enforced foreign child custody orders as
a matter of comity, particularly when a party who had violated the order
attempted to have it modified2. The comity doctrine gave courts broad
discretion, and a judge asked to extend comity to a foreign order would
typically consider whether the order was consistent with the child’s best
interests3. Under the earlier uniform law, which encouraged enforcement of
foreign country orders4, many state courts deferred to foreign proceedings
or enforced foreign orders. For example, in Bliss v. Bliss the court enforced
a Russian custody order, after concluding that the court in Moscow had
provided both parents with notice and an opportunity to be heard and had
exercised jurisdiction in factual circumstances that satisfied the requirements of US law5.
The UCCJEA continued this development, providing for recognition
and enforcement of foreign custody orders on the same basis as orders from
other states. A child-custody determination made in a foreign country “under factual circumstances in substantial conformity with the jurisdictional
standards of [the UCCJEA]” must be recognized and enforced under the
Act6. The statute does not authorize a state court to reevaluate the child’s
best interest, but it does not require enforcement if the child custody law of
a foreign country violates fundamental principles of human rights7.
5.1. Registering a Foreign Child Custody Determination
A party may register a child custody determination from another state
or foreign country by sending a request to the state court with copies of the
determination to be registered and a sworn statement that the order has not
1
Id. art. 24.
2
E.g. Adamsen v. Adamsen, 195 A.2d 418 (Conn. 1963) (enforcing Norwegian judgment);
Lang v. Lang, 193 N.Y.S.2d 763 (N.Y. App. Div. 1959) (Swiss judgment).
3
E.g. Oehl v. Oehl, 272 S.E.2d 441, 443-44 (Va. 1980); Levicky v. Levicky, 140 A.2d 534,
536-37 (N.J. Super. Ct. Ch. Div. 1958).
4
UCCJA § 23.
5
733 A.2d 954 (D.C. 1999).
6
Supra n 13.
7
Infra part 5.3.
126
Cross-Border Children’s Cases in the United States
been modified1. The court must notify the other party of the request, and
that person has twenty days to request a hearing contesting the validity of
the order. If no hearing is requested, the court confirms the registration as
a matter of law.
A court may refuse registration if the person contesting registration proves
either (1) that the court issuing the order did not have jurisdiction under the
standards of the UCCJEA; (2) that the determination sought to be registered
has been vacated, stayed, or modified by a court having jurisdiction to do so2;
or (3) that the person contesting registration was entitled to notice and did
not receive notice in accordance with the standards of the UCCJEA3.
As is true with the 1996 Convention, a custody determination may be
registered under the UCCJEA without any accompanying request for enforcement4. Advance registration helps to ensure that a foreign child custody
order will be respected when a child is brought into the state for visitation.
Similarly, parents might seek to register a foreign order in a state before one
parent is permitted to relocate there with the child.
5.2. Enforcing a Foreign Child Custody Determination
After an order has been registered under the UCCJEA, state courts must
recognize and enforce it, and may not modify it unless the UCCJEA test
for modification jurisdiction is satisfied. The court may grant any remedy
normally available under state law, or utilize the additional remedies specified in the UCCJEA5.
The broad definition of “child-custody determination” includes orders for
access or visitation6, and courts may enforce “a visitation schedule made by
a court of another State” or a foreign country7. Although the enforcing court
may not have jurisdiction to modify an access order, the UCCJEA allows
1
UCCJEA § 305.
2
E.g. Morrison v. Morrison, 704 S.E.2d 617 (Va. Ct. App. 2011) (upholding court’s refusal
to register and enforce custody decree that had been modified).
3
E.g. W.M. v. V.A., 241 Cal.Rptr.3d 170 (Cal. Ct. App. 2019) (notice of action in Belarus
was not sufficient to support jurisdiction).
4
1996 Convention art. 24. See also the Comment to UCCJEA § 305.
5
See UCCJEA §§ 303 and 306. These include expedited enforcement under § 308, and
an ex parte warrant to take physical custody of a child who is “imminently likely to suffer serious
physical harm or be removed from this State” under § 311.
6
Supra n 13.
7
See UCCJEA §§ 304(a)(1) and 105(b).
127
A.L. Estin
the court to issue a temporary order if, for example, the foreign order does
not include a specific visitation schedule1. The UCCJEA definition of child
custody determination does not include a return order under the Abduction
Convention2, but a return order may be enforced under the UCCJEA as if it
were a custody determination3.
A court in a proceeding under either the UCCJEA or the Abduction
Convention may request assistance from prosecutors or other public officials
when there is an existing child custody determination and a reasonable belief
that a criminal statute has been violated or that the child has been wrongfully
removed or retained in violation of the Abduction Convention4.
Given the strong protection for foreign custody orders under the UCCJEA, a parent with a foreign order may prefer to seek enforcement of the
order in state court rather than commencing proceedings under the Abduction
Convention. Matter of Yamam illustrates this difference. In that case, after
the federal courts denied the father’s return petition under the Abduction
Convention5, the state courts enforced the foreign custody order under the
UCCJEA6.
5.3. Exceptions to Enforcement in International Cases
The obligation to enforce foreign orders under the UCCJEA has two
exceptions. As just described, a court may deny registration of an order that
does not substantially comply with the UCCJEA’s standards of jurisdiction7
or because there was not adequate notice and opportunity for a hearing.
These are analogous to the provisions in the 1996 Convention allowing a
court to refuse recognition if a measure was taken by an authority that did not
have jurisdiction consistent with the terms of the Convention, or if the child
was not “provided the opportunity to be heard, in violation of fundamental
principles of procedure of the requested State”8.
1
E.g. Marriage of Paillier, 50 Cal.Rptr.3d 459 (Cal. Ct. App. 2006).
2
Supra n 13 & 48.
3
Supra n 50.
4
UCCJEA § 315. Prosecutors may also have access to remedies under the criminal law
for child abduction or interference with custodial rights.
5
Yamam v. Yamam, 730 F.3d 1 (1st Cir. 2013) (return denied on basis that children were
well settled).
6
Matter of Yaman, 105 A.3d 600 (N.H. 2014). See also Spector, supra n 8.
7
UCCJEA § 105(c).
8
1996 Convention art. 23.
128
Cross-Border Children’s Cases in the United States
Under the UCCJEA, a state court is not required to enforce a foreign
child custody determination “if the child custody law of a foreign country
violates fundamental principles of human rights”1. This test was intended
to set a high threshold, to be “invoked only in the most egregious cases”2.
The provision is similar to the public policy exception included in the 1996
Convention3, and the human rights exception to the return obligation of the
Abduction Convention4.
When would a country’s child custody law violate fundamental principles
of human rights? Article 3 of the U.N. Convention on the Rights of the Child
requires that “the best interests of the child shall be a primary consideration”
in all actions concerning children. A child custody determination that was not
based on the best interests principle would violate this fundamental principle5.
The UCCJEA does not address how a state court should proceed when a
party argues that a foreign country child custody determination was not based
on the child’s best interests. In a Florida case, the court refused to make an
independent determination of the child’s best interests in this situation, writing: “We do not think that public policy considerations require a Florida court
to reevaluate the merits of every foreign custody decree to determine whether
a child’s best interest has been served by the foreign decree. Indeed, the very
purpose of the [UCCJEA] is to avoid jurisdictional conflicts and relitigation
of custody decisions of other states”6. In New Jersey, however, the legislature
enacted a modified version of the UCCJEA, stating explicitly that a court
need not enforce a foreign custody order if the law that was applied “does
not base custody decisions on evaluation of the best interests of the child”7.
Applying this provision, a court reevaluated the evidence behind a Greek
custody order, and concluded that it should not be enforced8.
1
UCCJEA § 105(c). See also supra note 39.
2
See Comment to UCCJEA § 105(c); Yamam, supra n 87 at 611.
3
1996 Convention art. 23(d) (recognition may be refused if it is “manifestly contrary to
public policy of the requested state, taking into account the best interests of the child”).
4
Abduction Convention art. 20 (return 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 fundamental freedoms”).
5
Cf. Nasr v. el-Harke, 2011 WL 2175870 (Minn. Ct. App. 2011) (unreported) (rejecting
argument that Lebanese child custody law violated fundamental principles of human rights).
6
Dyce v. Christie, 17 So.3d 892 (Fla. Dist. Ct. App. 2009).
7
N.J. Stat. Ann. § 2A:34-57(c) (2021).
8
J.A. v. A.T., 960 A.2d 795 (N.J. Super. Ct. App. Div. 2008). See also Marriage of Donboli,
2005 WL 1772328 (Wash. Ct. App. 2005) (unpublished) (incorporating best interests requirement into the UCCJEA).
129
A.L. Estin
6. Conclusion: The UCCJEA and the 1996 Convention
In 1997, the UCCJEA was drafted to work together with the Abduction
Convention, with language allowing for enforcement of a return order under
the Convention “as if it were a child-custody determination”1. It seemed
unlikely at the time that the United States would be able to ratify the 1996
Convention, because of the primary responsibility of the states for family law,
but the new UCCJEA assured a high level of respect for foreign courts and
custody orders by treating foreign countries as if they were states.
While the differences between the UCCJEA and the 1996 Convention are
small, they are significant in some cases. Families engaged in cross-border
disputes involving the United States need to consider carefully the UCCJEA’s
jurisdictional requirements, especially its use of home state jurisdiction2 and
its approach to exclusive continuing jurisdiction3. Foreign orders based on
factual circumstances that comply with these requirements will be fully recognized and enforced in state courts. In these cases, the UCCJEA provides
a very useful framework for international cooperation.
In 2010, the United States signed the 1996 Convention. No timeline for
ratification was announced, but amendments for the UCCJEA have been
prepared to provide a basis for implementing the Convention at the state level4.
For cases within its scope, these amendments will close the gap between the
Convention and the UCCJEA.
Ratification and implementation of the 1996 Convention will eliminate
a source of confusion and uncertainty for courts and for families in crossborder situations. For the United States, it will provide a basis for obtaining
reciprocal recognition abroad for child custody orders from state courts, on
terms largely similar to what the UCCJEA currently provides for orders from
other states and countries.
1
UCCJEA § 302. E.g. Cook v. Amritsu, 907 N.W.2d 233, 240-41 (Mich. Ct. App. 2018)
(Japanese Hague order registered for enforcement).
2
Supra part 3.1.
3
Supra part 4.1.
4
Federal implementing legislation will also be necessary. The 2013 UCCJEA amendments
are available on the Uniform Law Commission website: www.uniformlaws.org.
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