Expert testimony: Chinese Family Law and Potential International Child Abduction to China
In what the Court described as a “very difficult case” between two Chinese parents living in Georgia -- one of whom (the child's mother) faces deportation to China for lack of an immigration visa and had asked the Court to give custody of the parties' child to her and to authorize her to relocate the child to China – the Court relied upon my expert testimony as to Chinese law and practice concerning child custody and child abduction in cases of an international dimension. Zhang v. Zhang, DeKalb County Superior Court, 7-14-11.
The Court stated that it was giving “great weight” to my testimony.
Thus it stated that, “from what the Court has heard from Mr. Morley, whom the Court has given great weight” and “I have to also balance that with the facts presented by the defense by Mr. Morley -- who the Court gives great weight to his testimony –.”
The ultimate decision gave custody to the father in the United States and followed my suggestion that any visitation with the mother outside the United States should be in a country such as Singapore or Hong Kong with a reliable legal system and which was a party to the Hague Abduction Convention.
The case shows that those countries who have not signed the Hague Convention on child abduction and who do not have an independent and reliable family law system are rendering a grave disservice to their own citizens. Since the Chinese legal system cannot be trusted to return internationally abducted children, Chinese nationals who reside with their children outside China should normally not be permitted to take their children to visit China if the potentially left-behind parent objects.
CHINA AND INTERNATIONAL CHILD ABDUCTION
We were recently asked to research the issue of potential child abduction in China and the remedies for securing the return from China of a child if the Chinese national parent kept her in that country. The results of our research were depressing. China is not a party to the Hague Convention on the Civil Aspects of International Child Abduction (except for Hong Kong and Macau). Nor are there any signs that China is about to join the Convention or is even considering doing so. There are no international or bilateral treaties in force between China and the United States dealing with international parental child abduction. Furthermore it is unusual for foreign court orders to be recognized in China and that is most especially so when it comes to foreign child custody orders. Chinese law requires the existence of a treaty or de facto reciprocity in order to enforce a foreign judgment; neither exists between the United States and China. (Clarke, Donald C.,The Enforcement of United States Court Judgments in China: A Research Note (May 27, 2004).
China is also reported to have an enormous problem of domestic child abduction and child trafficking, with numerous articles on the topic printed even in the communist party newspaper, China Daily.
Finally, China has effective exit controls -- which is usually a good thing since it can prevent child abduction -- but children with Chinese passports, including dual national children, are reportedly barred from leaving China without the consent of both parents. Since that requires the consent of the allegedly abducting parent, the left-behind parent's opportunity for self-help may be denied.
All of this means that U.S. courts should be most reluctant to sanction trips to China by dual national children accompanied by a Chinese national parent if the other parent raises genuine and well-founded fears that the child may not be returned.