This article appears in the July 2010 issue of the ABA Journal
Christopher Savoie got the kind of telephone call that terrifies a parent on Aug. 12, 2008. The school where his two young children attended classes wanted him to know that they had not shown up that day. But Savoie's first thought was not that Isaac and Rebecca had been victimized by some stranger. Instead, he rushed over to his ex-wife's home not far from his in the Nashville, Tenn., suburbs. “The first thing that came to mind was murder-suicide,” he says. “It was a horrible thing to imagine. I'd had no contact with her in two days, and that wasn't normal.”
Savoie found his ex-wife's house empty and the blinds drawn. That's when another explanation for the children's disappearance began to worry him.
For months, Savoie had been telling people—including the judges overseeing the couple's divorce—that he feared his ex-wife, Noriko, would quietly slip away with their children to her native Japan, whose domestic relations laws don't provide for joint parental custody. But, he says, “Everybody had been assuring me, saying, ‘You're too neurotic.'”
Savoie, the managing partner of a mediation firm, tried to reach his ex-wife, but his calls went unanswered—until he dialed from a number Noriko wouldn't recognize. “My-father-in law picked up and said, ‘Don't worry. The kids are here with us,'” Savoie recounts. “I said, ‘What?' I blacked out. I was in a fetal position screaming and crying. The anger also came out: Why didn't they believe me that this could happen?” Frustrated with what he describes as intransigence toward his parental interests, Savoie traveled to Japan in September 2009, where he tried to re-abduct his children while they were walking to school. He was detained by Japanese police and later released. The children were released to their mother. Savoie, now a student at the Nashville School of Law who wants to work in the child abduction field, says he won't give up on trying to see his children. “My ex-wife doesn't allow any contact with the children at all,” he says. “I haven't spoken to them since I saw them dragged off by the Japanese police. But you don't lose hope as a parent.”
Savoie's dilemma typifies yet another byproduct of globalization. There is nothing new about people from different parts of the world meeting, mating and sometimes breaking up. But in today's world of multinational business and easy international travel, the odds of pairing up with someone from a different country and culture are higher than they ever were—and so are the chances that such a relationship may end in a breakup, along with the myriad legal battles that often go with it.
Divorces already are fraught with emotion, anxiety and often animosity, but experts say they can become even more combustible when the potential for culture clash is added to the mix, especially if the parties believe the laws of their home countries will better protect their interests.
“Where cultures have both different dispute resolution procedures and different social and family norms, those come into play,” says Jana Singer, a professor at the University of Maryland School of Law in Baltimore. “The more difference there is between and among cultures, the more potential there is for conflict if a family finds itself unable to resolve a dispute.”
And when someone is put in the predicament of, for instance, a Christopher Savoie, it can be easy to view another country's laws as essentially unfair to noncitizens.
“We're talking about people who are legitimately concerned they may never see their children again if they're taken to a country that doesn't recognize U.S. judgments or is biased in favor of its own nationality or religion,” says Jeremy Morley, a solo practitioner in New York City who represents Savoie in his custody dispute.
“In addition, enforcing financial orders in another country may be complex, expensive and often impossible,” says Morley, who co-chairs the International Family Law Committee in the ABA Section of International Law. “There's no coordination between legal systems, and the laws don't mesh. Enforcement is then often an issue because laws are applied differently in different cultures.”
Cases in which one parent takes children out of the United States in violation of a court order or over the objections of the other parent are on the rise. In 2009, there were 1,135 such reported cases involving 1,621 children, up from 749 cases in 2007 and 642 cases in 2006, according to a U.S. State Department report issued this year.
But before a child abduction occurs, there typically has been a marriage between people from dif- ferent countries, often accompanied by the execu tion of a prenuptial agreement, followed by a contentious international divorce.
“There are many issues about prenups when an international couple marry, including under whose laws their prenup should be governed,” Morley says. “The prenups I work on are significantly more complex than a marriage between ‘locals.' Then there's the huge issue of divorce. Where do we get divorced, and who will recognize the divorce?”
Because the financial outcome in a divorce can vary greatly in different national judicial systems, parties often race to the courthouse to lay claim to jurisdiction in their favored country. “There are a lot of attempts at—and these are legitimate and not illegal—forum shopping in international divorces,” according to Stephen J. Cullen, a principal at Miles & Stockbridge in Baltimore who heads the firm's family law and private clients group. “A lot of people try to avoid getting divorced in London. It's so expensive, and the awards can be so high because solicitors' and barristers' fees are enormous, even compared with our fees in this country. In addition, in the United Kingdom, usually the loser pays all. The American view is usually you bear your own fees and costs.”
Parties also rush to court to gain advantages in child custody and support matters. “There may be a race to try to get an injunction before a child is taken out of a country,” Morley says. “In addition, if the case is handled in another jurisdiction, support judgments may never be enforced and awards that are rendered by other countries may be totally different from those rendered here.”
Similar legal systems or common cultural backgrounds don't necessarily reduce conflicts over domestic relations law. Cullen points to domestic partnerships as a prime example. “The United States has a hard enough time among the states on domestic partner issues, and America is somewhat behind in that field,” he says. Meanwhile, “All 27 countries in the European Union have to recognize gay marriage under the European Convention on Human Rights.”
As more domestic relations cases become international in nature, treaty law is playing a more important role in governing how they are resolved.
“Inevitably there have to be more international agreements,” says Morley. “They're really hard to accomplish and enforce. But it's far better to have an agreement than no agreement at all.”
The first of these agreements to be widely adopted is the Hague Convention on the Civil Aspects of International Child Abduction (PDF). The convention was negotiated by members of the Hague Conference on Private International Law, whose current membership encompasses 69 nations, including the United States, and the European Union (rep resenting its 27 member nations). The language of the child abduction convention was finalized in 1980, and the convention went into force in 1983. The United States became a party to the convention when the U.S. Senate ratified it in 1988. The convention is in force in 82 nations, although they are concentrated primarily in Europe and the Americas. The convention's scope is rather limited. Its primary purpose is to expedite the return of a child under the age of 16 to the country of his or her “habitual residence” if the child was wrongfully removed from that country. Under the convention, a removal is “wrongful” if it is in breach of “rights of custody”—whether by law or court order—as long as they were being exercised at the time of the removal or if they would have been exercised but for the removal. Substantive jurisdiction over custody matters remains with the member states.
In 1993, members of the Hague Conference concluded the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (PDF). The adoption convention is in effect in 81 countries. The U.S. Senate ratified the convention in 2008. The convention establishes minimum standards for intercountry adoptions without creating uniform law for the ratifying states. Its primary purpose is to assure that adoptions take place in the best interest of the child and protect the child's fundamental rights as outlined by the U.N. Convention on the Rights of the Child, which entered into force in 1990.
“One of the major concerns of the convention was to make sure adoptions were carried out with ethical transparency and that reliable procedures were in place to avoid problems of trafficking of children,” says Ann Laquer Estin, a professor at the University of Iowa College of Law in Iowa City whose focus is international family law. “It's clear there is some percentage of cases where the processing before the adoption occurs isn't proper, and there's sometimes outright kidnapping to make children available for intercountry adoption.”
More recently, the Hague Conference drafted the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (PDF), along with a protocol for laws applicable to maintenance obligations (PDF). A key purpose of the convention is to facilitate recognition and enforcement of support and maintenance decisions outside the jurisdiction in which they were issued. The treaty was signed by the United States on the day it was adopted, although it still needs Senate ratification to have effect in this country. No other countries have signed the treaty.
The child support convention could be a boon for parents in the United States seeking to enforce support and maintenance orders in foreign jurisdictions, says Morley. “Here in the United States, support jurisdiction is where the debtor is located,” he says. “Almost the entire world has the opposite, where there's jurisdiction where the creditor is located. Bridging that gap has been very tough, and the treaty is the result of years and years of intense negotiation. The United States is in the forefront of getting others to join that convention, but we're the only country to have signed it.”
The growing structure of international treaties addressing international family law issues was given a boost on May 17 when the U.S. Supreme Court issued a ruling in Abbott v. Abbott (PDF) that reinforces key provisions of the child abduction convention. In 1992, Timothy Abbott, a British citizen, married Jacquelyn Vaye Abbott, a U.S. citizen, in the United Kingdom. The couple was living in Hawaii when their son A.J.A. was born in 1995. They were living in Chile when they separated in 2003. A Chi lean court awarded Jacquelyn custody and Timothy visitation. Later, the court issued an order prohibiting either parent from removing A.J.A. from Chile without the other parent's consent. In 2005, while legal proceedings were still pending in Chile, Jacquelyn left the country with A.J.A.; a private detective hired by the father located her in Texas.
At that point, both parents initiated legal actions in the Texas courts. Jacquelyn sought full power to determine their son's place of residence, while Timothy requested an order for her to show cause why he shouldn't be allowed to return to Chile with A.J.A. After the state court denied Timothy's requested relief, he turned to the federal courts, but he was unsuccessful, both in district court as well as the 5th U.S. Circuit Court of Appeals at New Orleans. The Supreme Court granted a writ of certiorari last year and heard arguments in January.
In deciding Abbott, the court focused on the meaning of a key term in the child abduction convention. The convention states that the removal of a child is wrongful where it is in breach of a parent's “rights of custody” under the law of the country in which the child regularly resided. The Chilean court granted the mother and father a joint right to decide their child's country of residence, known as a ne exeat right. The question that the U.S. Supreme Court addressed was whether that right articulated by the Chilean court is the equivalent to a right of custody under the convention. The answer is yes, the majority decided in the Supreme Court's 6-3 ruling in favor of Timothy Abbott.
The majority opinion written by Justice Anthony M. Kennedy emphasized the importance of finding uniform meanings for terms in the child abduction convention. “That a ne exeat right does not fit within traditional notions of physical custody is beside the point,” wrote Kennedy. “The convention defines ‘rights of custody,' and it is that definition that a court must consult. This uniform, text-based approach ensures international consistency in interpreting the convention. It forecloses courts from relying on definitions of custody confined by local law usage, definitions that may undermine recognition of custodial arrangements in other countries or in different legal traditions, including the civil law tradition.”
Kennedy's opinion also noted that the court's decision reinforces the purpose of the convention. “Inter national law serves a high purpose when it underwrites the determination by nations to rely upon their domestic courts to enforce just laws by legitimate and fair proceedings,” Kennedy wrote. “To interpret the convention to permit an abducting parent to avoid a return remedy, even when the other parent holds a ne exeat right, would run counter to the convention's purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial cases.”
Cullen, who wrote an amicus brief in Abbott with Miles & Stockbridge associate Kelly Powers on behalf of the Hague Conference, is enthused by the Supreme Court's ruling. “Now we have the highest court in this land emphasizing how important this treaty is, what a scourge on our society child abduction is, and how this remedy is to be construed very liberally,” Cullen says. “It's great that we have a bright-line clarity that a ne exeat order, which is used by courts in this country all the time, is a right of custody.”
Law professor Singer, however, is more reserved in her judgment of the decision. “Both the majority and the dissent made some very valid points,” she says. “The majority looked primarily at the words of the treaty and found that the text defined rights of custody broadly, and that was consistent with the drafters' report to define the scope of the treaty broadly.” But as the dissent written by Justice John Paul Stevens (with Justices David H. Souter and Clarence Thomas concurring) points out, that broad interpretation gives essentially the same powers to parents with rights of access to the child as those held by parents with rights of custody.
“The problem with the majority's decision is that it eviscerates that distinction,” Singer says. “By operation of law, the rights of access have been converted into rights of custody under the majority decision, and that's problematic.” As a result of the Abbott majority's broad interpretation, Singer says, “this decision makes the treaty more applicable in more cases. It expands the treaty's reach.”
PATIENCE IS A VIRTUE
Even as international treaties relating to family law grow in reach and credibility, they are not a cure-all—at least not yet—for the many difficult issues that can arise in a family law dispute that crosses national boundaries. As the Supreme Court's decision in Abbott shows, one ongoing issue is how to achieve some semblance of uniform interpretation of treaty language by the courts of various member nations.
“Even where there's a fairly well-defined international framework, enforcement isn't always a given,” Singer says. “Since there's no international child custody court, there are issues about whether a country will live up to its obligations. Even countries that have signed treaties, when they're faced with cases involving one of their citizens, sometimes may favor their own citizens.”
Further difficulties arise from the fact that some nations—or even entire regions—have not ratified one or more of the international family law conventions. Generally, the conventions have effect only in nations that have ratified them. Neither the child abduction convention nor the international adoption convention has been ratified by China, India, Russia or many countries in Africa and the Middle East.
Japan has not ratified the treaties either, which helps explain the difficulties Savoie has encountered in his efforts to contact his children after his Japanese ex-wife took them to her homeland. Savoie also must contend with Japan's distinct approach to family law. Under traditional Japanese law, a child may be a member of only one family, Morleysays. “When a child is born, the child's name is placed upon a family register called a koseki,” he says. “It's of key significance in the life of people in Japan.” When Japanese citizens marry, they create their own koseki and have their own legal status as a family, according to Morley. If they divorce, children are assigned to one parent's family; the Japanese koseki system simply has no mechanism for sharing children between two families. Reflecting that custom, Japan's civil code has no provisions for shared custody or visitation.
Morley adds, “There's an enormous problem in Japan of a lack of understanding and suspicion of foreigners. In the real world, there's little chance a foreigner will get custody of a child instead of a Japanese person.”
There are barriers in other regions, as well, to adopting the uniform approach to family law matters embodied in the conventions. “In the Muslim world, Shariah law is pre-eminent and has particular rules about the assignment of custody of children to one parent or another based on their gender or age,” Morley says. “Most Middle Eastern countries aren't part of the Hague Convention because they feel it's not consistent with Shariah law. I've represented people who have lost their children to countries there, and it's very hard to get the kids back, and often impossible.”
Morocco, which is predominantly Muslim, announced in March that it would become the first country in North Africa to sign the adoption convention, but experts in the field don't necessarily view the action as the start of a trend in that region. “With Middle Eastern countries, eventually there will be progress, but there are always going to be certain things that stand in the way,” says Robert G. Spector, a professor at the University of Oklahoma College of Law in Norman and a vice-chair of the ABA International Law Section's International Family Law Committee. Some U.S. lawyers give clients blunt advice if they are dealing with family law matters that involve countries outside the reach of international treaties. “Sometimes people come to me and say, ‘My spouse wants to take my child to this country for a holiday, and I want to know if I'm allowed to keep that from happening,' ” says Marcia M. Maddox, founding partner of the Maddox Law Firm in Vienna, Va. “Once you get into a country that's not a signatory to the Hague Convention on abduction, I tell them, ‘No, don't let that happen. Take the child's passport, whatever you have to do.' If these couples are having marital problems, the spouse isn't going to see the child again.”
Despite the difficulties, many experts are confident that the process for dealing with international family law cases is headed in the right direction, but they also caution that patience will be a virtue for people working in the field. “This is a long-term process,” Spector says. “Negotiating and working on international treaties of any kind, and family law in particular, isn't for those who need instant gratification.”