LLooyyoollaa ooff LLooss AAnnggeelleess IInntteerrnnaattiioonnaall aanndd CCoommppaarraattiivvee LLaaww RReevviieeww Volume 10 Number 1 Article 5 1-1-1988 TThhee HHaagguuee CCoonnvveennttiioonn oonn IInntteerrnnaattiioonnaall CChhiilldd AAbbdduuccttiioonn:: AA PPrraaccttiiccaall AApppplliiccaattiioonn Barbara Ullman Schwerin Follow this and additional works at: https://digitalcommons.lmu.edu/ilr Part of the Law Commons RReeccoommmmeennddeedd CCiittaattiioonn Barbara Ullman Schwerin, The Hague Convention on International Child Abduction: A Practical Application, 10 Loy. L.A. Int'l & Comp. L. Rev. 163 (1988). Available at: https://digitalcommons.lmu.edu/ilr/vol10/iss1/5 This Notes and Comments is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles International and Comparative Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. The Hague Convention on International Child Abduction: A Practical Application I. INTRODUCTION The abduction of children to foreign countries by non-custodial parents is a problem of increasing concern in many countries. As of May 1, 1986, the United States State Department had 2,184 reported cases of child abduction.1 There were an additional 169 cases re- ported by December 31, 1986.2 The number of United States citizens seeking the return of abducted children abroad increased by approxi- mately forty cases per month in the three year period from 1983 to 1986.3 These figures are especially significant when one considers that this number has shown a consistent increase over the last few years. One of the reasons international child abduction has become more serious is the escalating divorce rate in the United States and other Western countries.4 The United States alone had 1,182,000 di- vorces in 1980.5 This was a substantial increase from the number of United States divorces in 1975. A second reason for an increase in international child abduction has been the relative ease with which people can now engage in foreign travel.6 These two factors have 1. Hague Convention on the Civil Aspects of InternationalC hild Abduction Before the Senate Foreign Relations Comm. at 7 (June 11, 1986) (written statement of Mary Mochary, Deputy Legal Adviser) [hereinafter Mochary]. "As of May 1, 1983 the Department of State had been informed of 677 cases of allegedly wrongfully removed or retained children normally resident in the United States." Id. 2. Letter from J. Edward Fox, Assistant Secretary, Legislative and Intergovernmental Affairs to George Bush, President, United States Senate (undated) (hereinafter "Letter"]. 3. Mochary, supra note 1, at 7. 4. Jones, Council of Europe Convention on Recognition and Enforcement of Decisions Relating to the Custody of Children, 30 INT'L & COMP. L.Q. 467 (1981). 5. Comment, American and InternationalR esponses to International Child Abductions, 16 N.Y.U. INT'L L. & POL. 415, 416 n.4 (1984). Statistics from the Bureau of the Census, U.S. Dep't of Commerce, Statistical Abstract of the United States: 1982-83 at 60 (103d ed. 1983), show that in 1970 the United States divorce rate was 708,000. That rate had risen to 1,036,000 in 1975 and in 1980 had reached 1,182,000. Id. 6. See Comment, supra note 5, at 416. Statistics from the Bureau of the Census, U.S. Dep't of Commerce, Statistical Abstract of the United States 1982-83 at 4 (103d ed. 1983), show that during the period from 1975 to 1980, 45.1% of the United States population moved at least once within the United States and 1.9% of the United States population in 1980 had moved to the United States from a foreign country. Id. 164 Loy. L.A. Int'l & Comp. L.J. [Vol. 10: 163 been major influences on the increase in the number of international child abductions seen in recent years. "Child snatching"7 occurs when a child has been removed or re- tained in breach of a parent's custody rights.8 The breaching parent can either remove the child from the child's habitual residence and take the child to a second jurisdiction, or retain the child in the sec- ond jurisdiction after an authorized visitation period.9 In either event, the psychological effect on the child can be dev- astating. In addition to the trauma suffered from the divorce itself, the child now has the additional difficulty of being subjected to an international abduction. A child's strong need for stability and secur- ity is disrupted, often leaving the child with emotional problems.10 This Comment will first discuss the United States' responses to interstate abduction through legislation enacted at the state and fed- eral levels. Second, this Comment will address the responses from the international community: the Council of Europe's Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children (Strasbourg Convention)1' and the Hague Convention on the Civil Aspects of In- ternational Child Abduction (Hague Convention or Convention). 12 This Comment will also look at proposed federal legislation in the United States and examine how this legislation would facilitate imple- mentation of the Hague Convention in the United States. Finally, this Comment will consider a practical application of the Hague Conven- tion and its interaction with existing United States law. II. THE AMERICAN RESPONSE A. The HistoricalB ackground Leading to the Uniform Child Custody JurisdictionA ct and the ParentalK idnapping Act. The United States' initial response to the problem of child abduc- 7. See generally, S.K ATZ, CHILD SNATCHING (1981) [hereinafter KATZ]. 8. Id. at 90. 9. See Comment, supra note 5, at 415. 10. Hague Convention on the Civil Aspects of International Child Abduction Before the Senate Foreign Relations Comm., at 9 (June 11, 1986) (statement of Arthur W. Rovine, Chair- man, Section of International Law and Practice, American Bar Association) [hereinafter Rovine]. 11. Reprinted in EXPLANATORY REPORT ON THE EUROPEAN CONVENTION ON RECOG- NITION AND ENFORCEMENT OF DECISIONS CONCERNING CUSTODY OF CHILDREN AND ON RESTORATION OF CUSTODY OF CHILDREN 23-36 (1980) [hereinafter Strasbourg Convention]. 12. Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, I.L.M. 1506 [hereinafter Hague Convention] reprinted in 51 Fed. Reg. 58, 10498 (1986). 1988] InternationalC hild Abduction tions has been to enact legislation to handle interstate abductions. The Uniform Child Custody and Jurisdiction Act (UCCJA)13 and Pa- rental Kidnapping Prevention Act (PKPA)14 were enacted in re- sponse to the lack of uniform enforcement of custody decrees from one state to another. The UCCJA has been adopted by all fifty states while the PKPA was enacted at the federal level. Prior to enactment of the UCCJA, a custodial parent could re- ceive a custody decree in one state. However, that decree did not prevent the non-custodial parent from then abducting the child to an- other state and relitigating the custody issue in that forum. Under the Restatement (Second) of Conflict of Laws section 79,15 a state court had the power to assert jurisdiction over custody disputes on several grounds. These grounds were the physical presence of the child in the new forum, the domicile of the child, or personal jurisdiction over both parents. 16 In addition, "it was unclear whether a custody decree made in one state was entitled to recognition and enforcement in other states."'17 Since custody decrees are modifiable based on changed cir- cumstances,I8 it was relatively easy for a judge to find that changed circumstances made it appropriate to modify the decree from a sister state. Therefore, there was considerable uncertainty whether a cus- tody decree granted in one state would be upheld in a sister state, leading to confusion in this area of the law. A primary concern in awarding custody is stability for the child.' 9 This could lead to the ironic situation where the non-custo- dial abducting parent is in a better situation after the abduction than the custodial parent with the custody decree. This occurs if the ab- ducting parent has retained custody for any length of time. The judge would look to maintain the stability of the child, and this could be shown by prolonged physical custody.20 Therefore, the abducting parent was rewarded for his actions. 13. UNIFORM CHILD CUSTODY JURISDICTION ACT AND COMMISSIONERS' PREFATORY NOTE, 9 U.L.A. 111 (1979) [hereinafter UCCJA]. 14. Parental Kidnapping Prevention Act, 42 U.S.C. §§ 653-64 (1982 & Supp. III 1985), 18 U.S.C. § 1073 (1982), 28 U.S.C. § 1738A (1982) [hereinafter PKPA]. 15. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 79 (1971). 16. Id. 17. See Comment, supra note 5, at 419, citing S. KATZ, CHILD SNATCHING (1981). 18. See KATZ, supra note 7, at 56. 19. See UCCJA, supra note 13, Commissioner's Prefatory Note at 112. 20. Id. at 113. 166 Loy. L.A. Int'l & Comp. L.J. [Vol. 10:163 In May v. Anderson,21 the Supreme Court in a plurality decision held that an Ohio court did not need to give full faith and credit to a Wisconsin custody decree. In that case, the father obtained the de- cree in an ex parte action in Wisconsin where the Wisconsin court had no personal jurisdiction over the mother. The Court declined to an- swer the question of when full faith and credit would or should be given to a sister state's custody decree.22 This decision had the result of encouraging parents to use a self-help remedy.23 In later cases, the Court further limited granting full faith and credit to a custody decree by holding that for a custody decree to receive full faith and credit in a second state: (1) the first state had to be able to properly assert jurisdiction and, (2) there could be no change in circumstances after the decree that would warrant a change in custody.24 Some states then turned to the legal principal of comity to re- solve some of the resulting inconsistencies. Many of the states "have used comity as their primary means of avoiding interstate disputes and legal inconsistencies in child custody decrees."'25 However, prior to a state's enactment of the UCCJA, the decision of whether or not to apply comity was in the trial judge's discretion.26 A similar difficulty existed in the recognition of decrees from for- eign sovereigns. Under the Restatement (Second) of Conflict of Laws, a court "should be free to disregard a decree when this is required by the best interests of the child."'27 In Hilton v. Guyot,28 the Supreme 21. 345 U.S. 528 (1953). 22. See Comment, supra note 5, at 420. See also Comment, Law and Treaty Responses to InternationalC hild Abductions, 20 VA. J. INT'L L. 669, 673-77 (1980). The Full Faith and Credit Clause of the U.S. Constitution mandates enforcement of the valid judicial determinations of one state by other states. This constitutional doc- trine, however, has never been deemed to apply to custody decrees. The U.S. Supreme Court repeatedly has excluded child custody decrees from the ambit of the full faith and credit mandate .... The basic rationale for exempting child custody decrees from full faith and credit is that such decrees are never final judgments be- cause they can be modified at any time, based on either changed circumstances or the best interests of the child. Id. 23. Comment, supra note 5, at 420. 24. See KATZ, supra note 7, at 56. See also, New York ex rel. Halvey v. Halvey, 330 U.S. 610 (1947); Kovacs v. Brewer, 356 U.S. 604 (1957). The Court stated "that the State of the forum has at least as much leeway to disregard the judgment, to qualify it, or to depart from it as does the State where it was rendered." Halvey, 330 U.S. at 615. In Kovacs, the Court stated that "a custody decree is not resjudicatai n [the new state] if changed circumstances call for a different arrangement to protect the child's health and welfare." Kovacs, 356 U.S. at 608. 25. See KATZ, supra note 7, at 69. 26. Id. 27. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 103 comment b (1971). Section 1988] InternationalC hild Abduction Court used that comity to recognize a foreign judgment where the foreign jurisdiction provided an opportunity for a full and fair trial with no prejudice or fraud. In those instances, the case should not be retried in the United States courts. However, in reality, the United States courts tended to relitigate foreign custody decrees.29 If a foreign parent attempted to enforce a prior foreign decree against the abducting parent in the United States, the foreign parent generally had to relitigate the entire custody suit on its merits.30 Also, the United States courts were reluctant to enforce foreign decrees decided on principles different from the "best interests of the child" standard adhered to in most United States jurisdic- tions.31 In those instances, the court would want to relitigate based on the United States standard. Furthermore, this need to relitigate applied to cases where a United States child was abducted to a foreign 79, comment b, reiterates the rationale that decrees remain subject to modification because of changed circumstances. 28. 59 U.S. 113 (1895). 29. In State ex rel. Domico v. Domico, 153 W. Va. 695, 172 S.E.2d 805 (1970), the court refused to enforce a West German decree awarding custody of the children to the mother after the father took the children to the United States. The father had notice of the hearings. The West Virginia court decided to relitigate, putting the West German mother, in the ironic posi- tion of having to show "changed circumstances" to regain custody of her children. The end result was that the father received custody of the children. In Rzeszotarski v. Rzeszotarski, 296 A.2d 431 (D.C. 1972), a Polish father moved to the United States and kept his son when he came for a visit. A Polish court awarded custody to the mother. The District of Columbia court then granted the father a divorce and custody. On appeal, the court held that the Polish decree was not controlling because the Polish court did not have in personam jurisdiction over both parties (custody granted in ex parte proceeding). Therefore, the standards of the Polish court did not meet the jurisdictional standards of the District of Columbia court. In Baranshamajev . Baranshamaje,7 Fam. L. Rep. (BNA) 2134 (D.C. Super. Ct. Nov. 26, 1980), the District of Columbia exercised its jurisdiction in relitigating a foreign custody de- cree after claiming to have in personam jurisdiction over both parties. While the parents were citizens of Burundi and had married there, they had spent their marriage domiciled in Vir- ginia. However, a foreign court had already made a custody determination. In addition, the child was not physically present in the District of Columbia's jurisdiction and was in fact living in Burundi. Therefore, in this case, the court should have declined to accept jurisdiction. This case illustrates the difficulty parents have had in having a foreign custody decree enforced in the United States. A minority of United States jurisdictions have chosen to enforce a foreign nation's cus- tody decree. In the case of In re Lang, 9 A.D.2d 401, 193 N.Y.S.2d 763 (1959), the court enforced a Swiss decree where the father had been awarded custody of the children in Switzer- land. The mother abducted the children to the United States. The court held that the princi- ple of comity provided a more rational way to determine custody. 30. See Comment, supra note 5, at 422. 31. Id. at 423. Loy. L.A. Int'l & Comp. L[1 [Vol. 10:163 country.32 As the foregoing discussion indicates, a parent whose child was abducted to a foreign country from the United States, or to the United States from a foreign country, would be in the position of relitigating in the country where the child was now present. The parent might face less sympathetic courts, a possible language barrier and the addi- tional expenses of traveling to a foreign forum and hiring local coun- sel. In addition, the abducting parent could establish that the child had been physically present in the new forum for a certain period of time. Since an important factor for the child is stability, this physical presence alone could satisfy the criteria for a "change in cir- cumstances." The end result was that the abducting parent had a strong moti- vation to take a child and "forum shop" for a more sympathetic fo- rum. The victimized parent would then have the burden of showing that the child should be returned pursuant to a custody decree from a sister state or a foreign nation. The various legislatures have re- sponded to this dilemma at the state, national and international level, and an attempt has been made to provide uniformity and stability in the law on which parents can rely. 1. The Uniform Child Custody Jurisdiction Act The National Conference of Commissioners on Uniform State Laws approved the UCCJA in 1968.3 All fifty states have enacted 3 the UCCJA, along with the District of Columbia and the Virgin 34 Islands. The UCCJA was designed to eliminate the advantages that ab- ducting parents received by resorting to self-help. Physical presence of the child in the jurisdiction opens the doors of many courts to the petitioners and often assures him or her of a decision in his or her favor. It is not surprising then that custody claimants tend to take the law into their own hands. They resort to self-help in the form of child stealing, kidnapping, or vari- ous other schemes to gain possession of the child.35 Another goal of the UCCJA was to provide greater certainty in 32. Id. 33. See UCCJA, supra note 13, at 111. 34. See Comment, supra note 5, at 429. 35. See UCCJA, supra note 13, at 113. 1988] International Child Abduction child custody awards. 36 Section 1 provides that the purposes of the UCCJA are (1) to avoid jurisdictional conflicts between courts of dif- ferent states and (2) to promote cooperation so that a custody decree is rendered in the state which can best make a decision in the best interests of the child.37 Other purposes include deterring abductions, avoiding relitigation and facilitating the enforcement of custody de- crees from other states.38 Jurisdiction is predicated on a "home state" basis.39 The first court has jurisdiction to render a custody determination if the state is the home state, or if the state has a significant connection with the child. Additionally, a court may exercise jurisdiction if there is an emergency, or if no other state appears to have jurisdiction.4 Only an 0 emergency situation or the probability that no other state has jurisdic- tion permits the state to assert jurisdiction based solely on the child's physical presence in the state, or on the physical presence of the child and one of the contestants.41 Moreover, the physical presence of the child in the state, while desirable, is not a prerequisite for the court to make a custody determination.42 This allows a victimized parent to bring suit in the home state even if the child is no longer there. Under sections 4 and 5 of the UCCJA notice must be given to the contestants.43 Notice of the action to a contestant outside the state may be by personal service, by mail, or as ordered by the court.44 Section 6 disallows concurrent proceedings. The second state shall not exercise its jurisdiction if there is a pending proceeding in the first state, unless the first state issues a stay because the second state is the more appropriate forum.45 Additionally, a court has the duty to consult the child custody registry, established under section 16, to determine if there are pending hearings in another state.46 "Courts are expected to take an active part ... in seeking out infor- mation about custody proceedings concerning the same child pending 36. Id. 37. Id. §§ l(a)(1), (2). A8 Id-§ § 1(a)(5)-(7). 39. See infra note 126, PKPA definition of home state. The UCCJA and the PKPA use the identical definition for home state. 40. See UCCJA, supra note 13, § 3(a)(l)-(4). 41. Id. § 3(b). 42. Id. § 3(c). 43. Id. §§ 4-5. 44. Id. § 4. 45. Id. § 6(a). 46. Id. § 6(b). Loy. L.A. Intl & Comp. L.J. [Vol. 10: 163 in other states. In a proper case, jurisdiction is yielded to the other state either under this section or under section 7. Both sections must '47 be read together. In addition, a court may decline to exercise its proper jurisdic- tion if it determines that another court is the more appropriate fo- rum.48 The court may look at factors such as whether another state was recently the child's home state, has a closer connection with the child, his family or the contestants, if substantial evidence concerning the child is more available in another state, and, generally, if the exer- cise of jurisdiction would go against the purposes of the UCCJA.49 Section 7 follows the terminology used in the Restatement (Second) of Conflict of Laws section 84,50 and is designed, like section 6, to pro- mote judicial communication and cooperation.5' The "clean hands" principle is extended to cases where a custody decree has not yet been issued under section 8(a).52 Under this sec- tion, the court may decline to exercise its jurisdiction for an initial decree if the petitioner has wrongfully taken the child from another state.53 Additionally, a second court shall not exercise its jurisdiction to modify a custody decree if the petitioner has wrongfully removed the child from another state or improperly retained the child.54 If the petitioner has violated any other provision of a custody decree, the court may decline to exercise jurisdiction.55 Section 12 provides that a custody decree rendered by a court which had jurisdiction under section 3 is binding on all parties who had service or notice:56 "[s]ince a custody decree is normally subject to modification in the interest of the child, it does not have absolute finality, but as long as it has not been modified, it is as binding as a final judgment. '57 Section 13 provides that custody decrees of sister states will be 47. Id. at Commissioner's Note to UCCJA § 6 at 134-35. 48. See UCCJA, supra note 13, § 7(a). 49. Id. § 7(c). 50. Id. at Commissioner's Note to UCCJA § 7 at 139. 51. Id. 52. See UCCJA, supra note 13, § 8(a). 53. Id. 54. Id. § 8(b). 55. Id. For example, this can occur if the custodial parent removes the child from the state to frustrate the non-custodial parent's visitation rights. See Commissioner's Notes to § 8 at 143. 56. Id. § 12. 57. Id. at Commissioner's Note to § 12 at 150. 19881 InternationalC hild Abduction recognized and enforced.58 Section 14 only allows a subsequent state to modify a custody decree from a prior state if it appears that the first state no longer has jurisdiction under the UCCJA, or has declined to exercise jurisdiction.59 If a state has jurisdiction to modify, it must give consideration to records of the prior proceedings.60 Section 14(a) mandates that a court must give recognition to a previous court's ongoing jurisdiction.61 Under section 15, a certified copy of the cus- tody decree from the first state may be filed in another state, and it will be treated as if it had been rendered by that state.62 Pursuant to section 22, a subsequent state is required to take a more active role in its exercise of jurisdiction.63 The court shall re- quest the transcripts of court records and documents from the previ- ous state in order to use as much prior evidence as is available in a subsequent custody modification.64 Section 23 extends the UCCJA to the international arena. If rea- sonable notice and an opportunity to be heard is given to the affected parties, the UCCJA will apply to "custody decrees and decrees in- volving legal institutions similar in nature to custody institutions ren- dered by appropriate authorities of other nations . This section "65 is an application of the Lang case,66 where a minority of jurisdictions have enforced foreign custody decrees. Further, section 23 provides that when a child is brought into a state: the UCCJA may serve as the basis for enforcing a foreign court order. However, when children are removed from the United States, it is less likely that a state order from an American court will be recognized and enforced abroad. Attorneys are left to dis- cover the laws and procedures applicable to the recognition and enforcement of foreign custody orders in effect in the foreign na- tion and to proceed accordingly.67 Several United States state and federal courts have had the opportu- 58. Id. § 13. 59. Id. § 14(a). 60. Id. § 14(b). 61. Id. § 14(a). 62. Id. § 15(a). 63. Id. § 22. 64. Id. 65. Id. § 23. 66. See supra note 29. 67. P. HOFF, INTERSTATE AND INTERNATIONAL CHILD CUSTODY DISPUTES 13 (1981).