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National Report - International Child Custody

National Report - International Child Custody

for the

Common Law Judicial Conference
on International Child Custody
Washington, D.C.
September 17 - 21, 2000

I. ORGANIZATION OF THE COURTS OF THE UNITED STATES OF AMERICA

A. State and Federal Courts. There are two separate court systems which may hear cases arising under the Hague Convention: federal courts and courts of the individual states. By statute, both federal and state trial courts have original jurisdiction to hear Hague cases. In most cases, the choice of forum lies with the person requesting the return of the child or children. The court system is basically comprised as follows:

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Federal Courts and their jurisdiction. Federal courts are established by the U.S. government. There are fewer than 1,500 federal court judges and magistrates, and about one million cases are brought each year in federal courts. Of the one million cases, half are bankruptcy filings and one tenth are minor criminal cases. United States District Courts have original jurisdiction to try Hague Convention cases. Federal courts also have the power to remove a Hague proceeding pending in state courts and to move the case to federal court. The state court may not resist or decline removal of the case. For more information about the United States Federal Court system , see the web site at http://www.uscourts.gov/about.html.

State Courts and their jurisdiction . States courts are established by a state, or by a county or city within the state. There are almost 30,000 state court judges, and the number of state court cases exceeds 27 million each year, not including traffic and parking violations. The cases individual citizens are most likely to be involved in - such as robberies, traffic violations, broken contracts, and family disputes - are usually tried in state courts. Trial courts in the individual states share original jurisdiction in Hague Convention cases. A principal difference between federal and state courts is that only state courts hear matters involving divorce, legal separation, guardianship or other types of family matters. Hague Convention applications may be filed as part of an ongoing state family law action. For this reason, a state court may hear and determine a Hague Convention application, and upon its resolution, may proceed to make a subsequent custody determination.

Despite the fact that both federal and state courts may exercise jurisdiction over Hague cases, the substantive law remains the same. The provisions of the Hague Convention itself comprise the substantive law to apply, and the procedural rules enacted by Congress in implementing the Convention apply to all cases, regardless of whether the case is tried in federal or state court. Whether state or federal court is to be used seems to be a choice initiated by the Petitioner, although U.S. authorities are not unanimous on this point.

Number of Judges. The total number of judges in the United States in both Federal and State systems exceeds 30,000. Most of these judges sit in limited jurisdiction courts. The breakdown according to jurisdiction and likelihood of handling a Hague Convention case follows:

Type of Court	Number of Judges	May Hear Hague Cases
United States District Court	646	Yes
United States Courts of Appeals	167	Yes
State Appellate Courts	1243	Yes
State General Jurisdiction Courts	10,163	Yes
State Limited Jurisdiction Courts	18,630	Some possible
Total	30849

 

Due to the number of judges who might be assigned to hear a Hague Convention case, especially in the individual states, the first Hague case a judge receives may also be the last. Unlike the United Kingdom, where all Hague cases are heard by the High Court in London, there is no centralization of Hague cases in the U.S. District Courts, and only to a limited degree in the more populous states such as New York or California. Due to the large geographic area and multiple jurisdictions in the U.S., some experts recommend setting up certain courts within a geographical area to hear all Hague related claims.

B. Appeals.

1. State Courts . Many state courts have two levels of appeal from a trial court determination: an intermediate court of appeal, and a final level of appeal. This latter court is generally referred to as the state Supreme Court. One notable exception, the highest court in New York is the New York Court of Appeals, and the trial court of original jurisdiction is the New York Supreme Court.

2. Federal Courts . Appeals from district court decisions are made to the federal circuit courts of appeal. In the United States, there are 13 Circuit Courts of Appeal which cover all of the 50 states, Washington D.C., and such entities as Puerto Rico and the U.S. Virgin Islands.

C. Judge’s Qualifications. The overwhelming number of judges in the United States general jurisdiction courts are law trained, having served as members of the bar. Federal Judges at all levels are appointed by the President of the United States, and they serve during "good behavior", which essentially is for life. They may only be removed from office by the process of impeachment by the United States Senate.

State judges may be elected or appointed. In some states judges must run for election at various intervals, for example, every six years. These elections may be contested, that is, various candidates running for the same office; or in some states the elections are referred to as "retention" elections, where the question put to the voters is whether the incumbent judge should be retained. Each of the 50 states decides for itself how its judges are to be selected and retained.

D. Role of Attorneys and Judges. The respective roles of judges and attorneys in the United States are based upon and are similar to the system in the United Kingdom. Evidence is presented according to the adversary system, that is, with each party presenting their own evidence to the court, and each party being able to cross-examine the witnesses. The judge serves as a neutral arbiter, ruling on legal matters, the scope of evidence which will be permitted in the case, and ultimately the finder of facts at least insofar as Hague Convention cases are concerned. Only the State of Louisiana follows a civil law model of jurisprudence, roughly patterned after the French system. The remaining 49 states legal systems are based upon common law principles.

II. Legal Representation in Hague Convention Cases.

A. United States Reservation to Article 26. The United States ratified the Hague Convention with a reservation as to Article 26 relating to legal representation. Consequently, in the United States, courts are not required to appoint counsel to represent parties in Convention cases. This reservation initially met with some criticism, which did not escape notice by Federal authorities. In response to complaints made at the 1994 intergovernmental meeting of Convention Central Authorities, the Department of Justice, in coordination with the Office of Children’s Issues, agreed in 1995 to fund the American Bar Association’s creation of the International Child Abduction Attorney Network (ICAAN) to expand the pool of attorneys who provide pro bono or reduced fee legal assistance in Hague cases involving children in the United States.

Despite the Article 26 reservation, courts retain the discretion to appoint counsel to represent parties, either on a pro bono basis, or with compensation if funding is available. In some instances, courts also appoint counsel to represent the children who are affected by the proceeding. Most local bar associations have attorneys who will appear on a pro bono basis to represent those who are otherwise unable to retain counsel. Some bar associations maintain lists of attorneys who are proficient in cases involving questions of jurisdiction in child custody cases.

The growing acceptance of the Uniform Child Custody Jurisdiction and Enforcement Act, discussed below, will also provide additional mechanisms for governmental assistance to parents whose children have been abducted. This assistance takes the form of efforts by prosecuting authorities in each state to provide assistance to the court in locating, securing, and physically returning children who have been abducted by their parents.

III. Timely Disposition of Proceedings.

Courts handling Hague Convention matters are cognizant of the need for an expeditious handling of the case. The United States Central Authority, the State Department, contacts courts handling Hague Convention matters after a period of six weeks to inquire as to the status of the matter. In general, delay in the trial courts has not been a widespread problem.

When cases are appealed, however, the challenges to an expeditious decision become more complex. Inherent in many appellate procedures are built in delays which are meant to accommodate the preparation of a record of the proceedings below, in many cases a written transcript of the testimony of witnesses along with a copy of the court’s official file. Appellate procedures call for times for the filing of appellate briefs, and calendaring the matter for argument.

Recognizing that the time an appeal may take to resolve an issue may be well beyond the time the Convention contemplates for a final determination, some courts have obtained a waiver of the time limits given in which to file appellate briefs. Others have used expedited procedures for determining the appeal. Stays of return orders pending appeal may not be mandatory, and children may be returned to their habitual residence pending determination of the appeal. One interesting approach was used in Csoka v. Superior Court (Scott-Robson) (Cal.App. 4 ^th Dist., 3 Civ 2000) wherein the court of appeal required that the appealing party show if there was a prima facie case upon appeal before it would proceed on an expedited basis. The court made a finding that there was no ". . . reasonable probability that petitioner will prevail on appeal . . . " and denied the request for an immediate stay.

IV. Evidence in Hague Convention Cases.

The legislation which implements the Hague Convention in the United States is the International Child Abduction Remedies Act, (ICARA) found at 42 U.S.C. 11601 et. seq. The act sets forth the standards of proof applicable to Convention proceedings in the U.S.

A. Case in chief. Applicants must prove their case in chief by a preponderance of the evidence.

B. Defenses. The five narrowly defined defenses to an action for return of a child are subject to differing burdens of proof under ICARA.

Defenses that may be proved by a preponderance of the evidence are:

Defenses that must be established by clear and convincing evidence are:

C. Procedure. The nature of Hague Convention cases lends itself to determining the issues by declaration or other similar procedure for the prima facie case. A full trial, consisting of an evidentiary hearing, may not always be necessary or desirable. While it is always better to have the Petitioner present, there are times when this cannot be done due to lack of money, travel restrictions, or other considerations. Existing law in the United States permits testimony in interstate custody disputes to be taken in local courts, and that testimony transmitted to the court with jurisdiction over the custody dispute. Similar measures might be considered should appropriate changes be made to ICARA (The U.S. implementing legislation).

V. ENFORCEMENT OF COURT ORDERS

A. Legal Supremacy of the Hague Convention. Under United States Law, a treaty occupies coequal authority with the United States Constitution, and as such, is entitled to recognition as the "supreme law of the land". See Missouri v. Holland, 252 U.S. 416, 433, 40 S.Ct. 382, 383, 64 L.Ed. 641, 647 (1920), and Article VI, Clause 2 of the United States Constitution. Consequently, the Hague Convention takes precedence over any conflicting federal or state laws.

B. Enforcing Return Orders . Typically, orders made by U.S. courts directing the return of a child to a country outside the United States are enforceable throughout the United States by both Federal and State law enforcement authorities.

C. Recognition of Foreign Custody Orders in the United States. The internal law of the United States currently provides that custody orders made by one state which has jurisdiction to act, is enforceable in another state and is entitled to "full faith and credit" Basically, this means that a proper order regarding custody or access made by the courts of one state must be recognized and honored by the courts of another state.

1. Orders Made by Foreign Courts in Hague Convention Cases. Orders made by foreign courts in Hague Convention cases are entitled to enforcement under the Hague Convention.

2. Foreign custody orders not involving Hague Convention issues. Two bodies of law govern the enforceability of foreign custody orders in the United States: The Uniform Child Custody Jurisdiction Act, (UCCJA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Both acts are uniform acts which have been proposed by the National Conference of Commissioners on Uniform State Laws. It is up to the individual states in the United States to adopt the acts. Since the uniform acts are no more than "suggestions" as to what law the individual states should adopt, each state has discretion to modify the acts to suit their own needs.

The latter act, the UCCJEA, is the more modern act, and is gradually replacing the UCCJA as individual state legislatures modify their internal law. The UCCJEA has been adopted in twenty-one states and it has been introduced for passage in nine state legislatures and the District of Columbia. This uniform act clarifies the issue of international application, and provides for the recognition of foreign decrees, and treatment of a foreign nation as a state. Of particular note is that the enforcement provisions specifically apply to an order for return of a child made under the Hague Convention.

In one form or another, the UCCJA was adopted in all fifty states, Washington D.C., and the Territory of the Virgin Islands. It is still the law in 29 states. It provides the basic framework for determining initial jurisdiction to make child custody orders. The UCCJA has international application, in that the uniform act provides for the recognition of custody decrees of other countries as long as the foreign court has exercised its jurisdiction 'substantially in accordance' with the provisions of the Act. As adopted, however, the provisions in the UCCJA relating to international application have not been uniformly accepted by the individual states, thus accounting for a lack of uniformity in case law on this issue. Because of the lack of reciprocity of foreign states, however, there are substantial limitations to the Act’s international application.

D. Methods of enforcement of court orders.

1. Duty to Enforce. State courts are required to enforce the order of another country under the provisions of the UCCJEA, and the Parental Kidnapping Prevention Act. Hague Convention cases are included within this duty.

2. Public Prosecutor May Assist in Enforcement. Under the UCCJEA, the public prosecutor’s role is expanded to authorize the commencement of proceedings to locate, obtain return of a child, or enforce child custody determinations under certain conditions.

3. Contempt. Courts in the United States may enforce court orders by contempt powers, which includes fine or imprisonment. Where the person in contempt has the ability to comply with a court order but refuses to do so, the court may imprison the person until such person complies with the court order.

4. Enforcement stayed by appeal. The internal law of most states provides for a stay of the enforcement of the order pending the appeal. In some states the stay is not automatic, and must be applied for. In other jurisdictions, the stay is automatic, and a denial of the stay must be affirmatively sought.

VI. EDUCATION OF THE BAR AND THE JUDICIARY

Unlike many common law countries, judicial education in the U.S. is obtained largely "on the bench" after a career at the bar. Judicial education in the individual states ranges from minimal to highly structured.

A. Federal Courts. The Federal Judicial Center is the organization that provides research and educational services for members of the federal judiciary. The Judicial Education Division develops and administers education programs and services for judges, career court attorneys, and federal defender office personnel. These include orientation seminars, continuing education programs, and special-focus workshops.

B. State Courts. Many states have organizations associated with their state judiciary that provides for continuing judicial education. Others take advantage of educational opportunities provided by other national organizations, such as those listed below.

VII. U.S. CENTRAL AUTHORITY

The U.S. Central Authority for the Hague Abduction Convention is the Office of Children’s Issues in the U.S. Department of State’s Bureau of Consular Affairs. The Office was established in June 1994. It provides assistance to the public on international child custody and abduction issues, as well as international adoption issues.

On international custody and abduction issues, both Hague and non-Hague, the Office formulates and coordinates policy with other U.S. Government agencies, and provides guidance to foreign service posts abroad. The Office receives Hague petitions for cases involving children taken outside the United States and forwards them to the appropriate foreign central authorities. Under a cooperative agreement with the Office of Children’s Issues, the National Center for Missing and Exploited Children (NCMEC) handles the processing of all incoming Hague cases for the U.S. Central Authority. Neither the Office of Children’s Issues nor NCMEC acts as an agent or attorney in legal proceedings arising under the Hague Convention. It acts more as a facilitator and works to promote cooperation among the relevant parties and institutions involved in a case. On incoming cases, NCMEC assists left behind parents in finding legal assistance in the U.S. through the International Child Abduction Attorney Network (ICAAN) (see II A. above).

The Office of Children’s Issues has an active outreach program, educating judges, practitioners, law enforcement officials and the public on the Hague Convention and other civil legal methods available in international custody, access, and abduction matters. In addition, the Office educates parents and attorneys on effective methods to prevent an international abduction.

The Office of Children’s Issues also is responsible for managing the child custody passport alert program. This program places a "lookout" for the name of a child who is involved in a child custody dispute. This enables the Office to notify the custodial parent if an application for a U.S. passport for the child is received anywhere in the U.S. or at any U.S. embassy or consulate.

Staff and Resources

The Office of Children’s Issues is headed by a Director with a staff consisting of a Deputy Director, staff attorney, public outreach officer, correspondence specialist, and management analyst. In 1999, the Office split the abduction and adoption functions into two separate units. Each unit is headed by a unit chief and is staffed by case officers who are assigned to manage country-specific workloads.

The abduction unit, which handles all Hague and Non-Hague casework, has a staff of 11 country officers, a unit chief, secretary, and an incoming case specialist.

VIII. HAGUE CONVENTION CASE STATISTICS

OUTGOING CASES: Calendar Years 1996-2000

The following statistics are current as of August 31, 2000. Each case represents one child. The current database in the Office of Children’s Issues began operating in May 1997. Note: Cases opened in 1996, that were still open as of May 1997, were entered into the current database.

Table 1: Present status of abduction cases, as of 31 August 2000

31-Aug-00	Open	Closed	Total
Hague	393	1,172	1,565
Non-Hague	455	670	1,125
Total	848	1,842	2,690

 

Table 2: Number of abduction cases created or closed during the Calendar Year 2000

CY-2000	Created	Closed	Total
Hague	107	222	329
Non-Hague	91	313	404
Total	198	535	733

 

Table 3: Number of abduction cases created or closed during the Calendar Year 1999

CY-1999	Created	Closed	Total
Hague	212	304	516
Non-Hague	198	137	335
Total	410	441	851

 

Table 4: Number of abduction cases created or closed during the Calendar Year 1998

CY-1998	Created	Closed	Total
Hague	265	305	570
Non-Hague	136	93	229
Total	401	398	799

 

Table 5: Number of abduction cases created or closed during the Calendar Year 1997

CY-1997	Created	Closed	Total
Hague	204	236	440
Non-Hague	134	44	178
Total	338	280	618

 

Table 6: Number of abduction cases created or closed during the Calendar Year 1996

CY-1996	Created	Closed	Total
Hague	10	9	19
Non-Hague	57	1	58
Total	67	10	77

 

Table 7: "Top Five" destination Hague Countries in outgoing cases

	Country	Open	Closed	Total
1	Mexico	102	231	333
2	United Kingdom	21	179	200
3	Germany	54	126	180
4	Israel	12	86	98
5	Canada	18	76	94
	"Top Five"	207	698	905

 

Table 8: "Top Five" destination Non-Hague Countries in outgoing cases

	Country	Open	Closed	Total
1	Philippines	46	30	76
2	Saudi Arabia	34	31	65
3	Lebanon	11	49	60
4	Jordan	26	23	49
5	Japan	17	26	43
	"Top Five"	134	159	293

 

INCOMING CASES

Total Active Cases - 422 (338 Return/84 Access)

Total cases received since January 1, 2000 - 303

Top 5 countries for incoming cases:

IX. STATUTES CRIMINALIZING PARENTAL ABDUCTION.

A. State Criminal Provisions. All states in the U.S. have criminalized parental abduction.

B. International Parental Kidnapping Crime Act. In 1993 Congress enacted the IPKCA, set forth in full at Appendix B. The purpose of this act is to provide criminal penalties for those who abduct children to non-Hague countries. The passage of IPKCA was motivated in part by the recognition that the Hague Convention was limited in its application to Contracting States, and that many more nations had not become signatories to the act. As such, cases of parental abductions to non-Hague countries fell within a void in U.S. law.

The legislation was designed to accomplish four purposes: (1) to ease extradition of abductors by making parental kidnapping a federal offense; (2) to act as a deterrent; (3) to strengthen diplomatic efforts undertaken for the return of a child; and (4) to verify the U.S.’s serious concern over international parental kidnapping.

IPKCA is meant to be complimentary to the Hague Convention. It is neither a replacement, nor an alternative to it. In subsection (d), IPKCA specifically provides that "This section does not detract from The Hague Convention on the Civil Aspects of International Parental Child Abduction . . .." The relationship between the Hague Convention and IPKCA is acknowledged by Congress, and is consistent with the intent of the drafters of the Hague Convention - the Convention should be the first avenue of choice to effectuate the return of a child.

Appendix A

TITLE 42.

UNITED STATES CODE

CHAPTER 121--INTERNATIONAL CHILD ABDUCTION REMEDIES

§ 11601. Findings and declarations

(a) Findings

The Congress makes the following findings:

(b) Declarations

The Congress makes the following declarations:

§ 11602. Definitions

For the purposes of this chapter--