Article 17 of the Hague Abduction Convention provides that the existence of a custody order is not dispositive in determining whether a child should be returned. Indeed, in many countries, when commencing a Hague return application through the relevant Central Authority, a custody order is generally not even among the documents that must necessarily exist.
But what if there is already a custody order from the country from where the child was wrongfully removed (in most cases – for UCCJEA purposes) the “home state” of the child?
If a child has been removed to the United States from a Hague Convention country that is also a U.S. treaty partner, and a custody order is already in place, could proceeding under the UCCJEA to enforce the foreign custody order sometimes be a better route than commencing a Hague return proceeding?
Knowledgeable and well-respected experts have suggested that, at least with respect to certain countries such as the United Kingdom, it can be a plausible option. The potential advantages are significant. It may save time and money. Establishing a child’s “home state” under the UCCJEA may, in an appropriate case, be more straightforward than litigating “habitual residence” under the Hague Convention, a concept that can be considerably more nuanced. And proceeding under the UCCJEA may avoid opening the door to certain defenses available under the Hague Convention that do not have direct equivalents under the UCCJEA.
There is, of course, considerably more to each of those propositions.
I would add another distinction: age. The Hague Convention ceases to apply once a child reaches 16. The UCCJEA’s definition of a “child,” by contrast, generally extends to an individual who has not attained 18 years of age.
There are, however, important counterpoints.
1. The UCCJEA has its own exceptions to enforcement.
The UCCJEA is not simply an automatic enforcement mechanism. Depending upon the particular state’s enactment, there may be statutory grounds or exceptions that can complicate recognition or enforcement of a foreign custody determination. Those exceptions do not necessarily correspond to the defenses available under the Hague Abduction Convention.
In other words, avoiding the Hague defenses does not necessarily mean avoiding defenses altogether. The nature and scope of the possible objections simply change, and the particular state’s version of the UCCJEA must be examined carefully.
2. Judicial communication may itself create practical difficulties.
The UCCJEA contemplates direct communication between courts in a number of circumstances. That may work relatively seamlessly when the two courts are in different U.S. states. It can be considerably more complicated when one of those courts is located in another country.
In certain Hague signatory and treaty-partner countries, direct judge-to-judge communication may simply fall outside the ordinary day-to-day functions of the foreign court, or may have to occur through procedures quite different from those contemplated by a U.S. state judge. What appears procedurally straightforward under the UCCJEA may therefore become a practical impediment in an international case.
3. What exactly is the foreign “custody order”?
The nature, finality and enforceability of the foreign order present another issue.
What constitutes a foreign child-custody determination capable of recognition, registration or expedited enforcement under the UCCJEA may not always be straightforward. And in certain Hague signatory and treaty-partner countries, securing the kind of custody determination that can effectively be enforced abroad may itself take months, or even years.
A Hague proceeding presents a very different proposition. The left-behind parent generally does not need to arrive in the United States armed with a pre-existing custody order. The central inquiry is whether the removal or retention breached the petitioner’s “rights of custody” under the law of the child’s habitual residence.
4. Fees and costs matter too.
A successful petitioner in a U.S. Hague proceeding has another potentially significant advantage under ICARA.
The statute provides that a court ordering the return of a child shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, transportation costs and costs related to locating the child, unless the respondent establishes that such an award would be “clearly inappropriate.”
That fee-shifting provision can materially alter the economics of choosing between the two proceedings.
5. Judicial familiarity cuts both ways.
There is also the practical question of which judge will hear the case.
A Hague proceeding may be commenced in federal or state court. When filed in federal court, the assigned judge may not routinely preside over family-law or custody disputes. Hague cases are, of course, not custody determinations, but the factual setting, foreign-law questions and highly specialized Convention jurisprudence can nevertheless make them unusual cases on a federal docket.
At the same time, Hague proceedings have their own specialized body of federal precedent and an international judicial framework, including the International Hague Network of Judges, which can facilitate judicial communication and cooperation in appropriate cases.
The UCCJEA presents almost the reverse consideration. A state family-court judge may deal routinely with interstate custody jurisdiction and the recognition and enforcement of custody determinations from sister states. Because the UCCJEA generally requires a qualifying foreign country to be treated as though it were a U.S. state for purposes of applying the Act, much of that familiar statutory machinery can potentially be used to enforce a foreign custody determination as well.
So judicial familiarity can cut in either direction: greater familiarity with Hague jurisprudence and international return proceedings on one side; greater day-to-day familiarity with custody orders and UCCJEA enforcement machinery on the other.
Which brings me back to the original question:
Hague or UCCJEA?
Where both avenues are potentially available, the answer may depend far less on which remedy is theoretically “better” and far more on the particular foreign country, the particular custody order, the child’s age, the available defenses, the U.S. state involved, and what the left-behind parent actually needs the American court to accomplish.