International family law is not a traditional field of law in the way that contract law, personal injury law, or even domestic family law are. Rather, it is a comparatively modern and constantly evolving discipline that has developed in response to one simple reality: the world is becoming increasingly interconnected, people are more mobile than ever before, and families increasingly have ties to more than one country.
Not every country has had to develop this field of law to the same extent. Countries with relatively little immigration or emigration may encounter cross-border family disputes only occasionally. By contrast, countries such as the United States, with large immigrant populations and families maintaining close ties to foreign countries, have little choice but to confront these issues on an increasingly regular basis. Every day, courts across the United States are called upon to resolve disputes involving parents of different nationalities, children with ties to multiple countries, marriages celebrated abroad, foreign court orders, and international relocations. This is particularly true in state family courts, but in certain matters, such as Hague Convention return proceedings, these disputes may even find their way into the U.S. federal courts, something rarely encountered in traditional domestic family law.
The demographics speak for themselves. In New York, for example, approximately 35% of children have at least one immigrant parent, while nearly one in four New Jersey residents was born outside the United States. Many other states with significant immigrant populations tell a similar story. These are not merely demographic statistics. They help explain why courts across the United States are increasingly required to resolve family disputes involving more than one country, more than one legal system, and more than one set of competing legal principles.
The result has been the steady development of a distinct body of law that has come to be known as international family law, where the answer to a particular legal question may require consideration of state law, federal law, the law of one or more foreign countries, international treaties and conventions, principles of comity, and conflict-of-laws doctrines. Which of these bodies of law ultimately applies depends entirely upon the facts of the particular case.
In family law matters with an international element, procedural issues frequently become just as important as the substantive dispute itself. Questions concerning jurisdiction, forum selection, service of process abroad, recognition and enforcement of foreign judgments, parallel proceedings in different countries, interim relief, and the interaction between courts in different jurisdictions often determine the course of litigation long before the underlying custody or divorce issues are ever decided.
The field encompasses a remarkably broad range of legal issues. For example:
- Which country’s courts should decide the dispute?
- Can a divorce granted in one country be recognized in another?
- Can a child be relocated to another country?
- What happens when one parent removes or retains a child across international borders?
- Can a foreign child custody order be recognized or enforced in the United States?
- Does the Hague Abduction Convention apply?
- How does immigration status affect family law proceedings?
- Can proceedings concerning the same family continue simultaneously in two different countries?
- Which country’s law should govern the dispute?
Questions such as these often cannot be answered by looking at the law of a single jurisdiction. Even determining which court has jurisdiction may itself become one of the most contested issues in the case. A dispute may require consideration of multiple legal systems before a court can even begin addressing the merits.
The scope of international family law is therefore remarkably broad. A seemingly simple question such as, “I am not a U.S. citizen. Can I get divorced in the United States?” or, “My child is a U.S. citizen. Can I relocate with him to my home country?“ often has no straightforward answer precisely because of the nature of the case. The legal analysis may involve multiple jurisdictions, multiple legal systems, competing public policies, immigration considerations, international conventions, and the practical realities of cross-border litigation. The answer may differ depending upon the countries involved, the state in which proceedings are commenced, the child’s habitual residence, the existence of prior proceedings elsewhere, or a host of other factors.
International family law encompasses matters including international divorce, international child custody, Hague Convention return proceedings, non-Hague international child abduction cases, international child relocation, jurisdictional disputes, recognition and enforcement of foreign judgments, international service of process, the Hague Service Convention, cross-border enforcement of child custody and support orders, anti-suit injunctions, expert evidence on foreign law, and numerous other legal issues arising whenever family relationships extend beyond national borders.
Therefore, given the complexity of international family law matters and the potential involvement of multiple legal systems, individuals facing cross-border family disputes should consider seeking advice from attorneys experienced in this specialized field.