This post also appeared in the LACBA Family Law ENews.
A recent Hague Abduction Convention case out of Mono County illustrates how the defenses to return under the Convention can be stretched to defeat the core purpose and policies of the treaty. In Escobar v. Flores (2010) __ Cal. App 4th __, 2010 WL 1347107, the DCA3 applied the deferential abuse of discretion review standard to uphold a family law judge’s refusal to return an eight-year-old boy to Chile under the Abduction Convention based upon the child’s stated “mature” preference to remain with his father in the U.S.
The Hague proceedings in Escobar represent one installment in a self-help international moveaway case involving never-married parents. Apparently without consulting counsel, the father agreed that the mother could take then 4-year-old Cesar to Chile in 2004. Dad testified that he agreed to a seven-month visit to relatives, and expected Cesar to return with his mother to Mammoth Lakes. Mom testified that it was to be a permanent move. When mother and child did not return, Dad did not petition for Cesar’s return under the Convention. In 2005 Mom obtained a custody decree in Chile. Dad married, and moved to North Carolina.
Mom sent the now eight-year-old Cesar to visit a maternal aunt in California in 2008. She did not register the Chilean custody orders for enforcement in California under Cal-UCCJEA. When Dad found out Cesar was in California, he sought emergency custody orders from the Mono County family court, and received permission to take his son to his new home in North Carolina. Mom responded with a Hague Abduction Convention petition for return Cesar to Chile. The family court concluded that the 8-year-old Cesar’s testimony about his experiences living with each parent established his mature objection to returning to Chile – a defense to return under Article 13 of the Abduction Convention.
The lesson for international custody practitioners is that an action to register and enforce a foreign child custody decree under California’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (Cal-UCCJEA) is usually the better course of action, because there are fewer defenses, and because American family law judges are apt to be more familiar with Cal-UCCJEA principles. If Mom had registered the Chilean order for enforcement by the Mono County family law court, the judge could not have considered Cesar’s wishes. Chile had exercised jurisdiction under factual circumstances consistent with Cal-UCCJEA, so California would be obligated to enforce the Chilean orders and refrain from modifying them unless Dad proved that Chilean custody law violates fundamental human rights. (Fam. Code §3405).
On the other hand, when a parent seeks return of a child from California under the Hague Convention on the Civil Aspects of International Child Abduction, the action may be brought by the District Attorney, sparing the party the expense of private counsel.
The Abduction Convention and Cal-UCCJEA each require jurisdictional determinations be made without regard to the child’s best interests. Each was adopted to deter forum shopping and competing child custody orders. While Cal-UCCJEA provides for international recognition and enforcement of child custody orders, the Abduction Convention merely offers the summary remedy of returning the child physically to the country of the child’s habitual residence. The U.S. is not a party to any treaty or bi-lateral agreement for recognition and enforcement of custody orders.
The policy underlying both the Abduction Convention and Cal-UCCJEA is that the court deciding which court has jurisdiction to decide custody must not make its own “best interests” determination. Understandably, family courts accustomed to making best interests determinations find this very difficult to do in practice.
Under the Convention, a court must order a child returned to the nation of the child’s habitual residence where the child has been wrongfully removed, or retained in violation of a parent’s rights of custody. The purpose of return is so that the court in the child’s place of habitual residence can make or enforce custody orders.
However, it is clear that the nations negotiating the Convention were reluctant to give up the power to decide not to return children on a case-by-case basis. Article 13 contains a number of defenses to return – and permits the court to deny return based upon the child’s “mature” objection.
Here the exception has swallowed the rule. The International Child Abduction Remedies Act (ICARA) directs American courts to construe those defenses narrowly and return children promptly. (42 U.S.C.A. § 11601; England v. England (200) 234 F.3d 268). Typically the cases where the defense succeeds involve teenagers, not second-graders. See de Silva v. Pitts (2007) 481 F.3d 1279 for a more detailed discussion of the child’s mature objection defense cases.
Moreover, a young child’s expressed preferences need to be assessed and interpreted in context, ordinarily as part of a full child custody evaluation. (See the discussion at p. 15 of the ACFLS Comments to the Draft Recommendations of the Elkins Family Law Task Force (www.acfls.org/Elk) and Warshak (2003) Payoffs and Pitfalls of Listening to Children, 52 Family Relations, 373–384. Eight-year-olds do not have a mature concept of time or the capacity to assess their long-term best interests. Typically their most recent experiences shape their views. Moreover, children in contested custody disputes are subjected to intentional and unconscious parental influence. Once can’t determine whether their views are independent without a comprehensive child custody evaluation. This child’s preferences were properly a matter for the Chilean Court, not the California Court, to assess when it considered custody on its merits.
Of course, denying the return petition based upon the child’s objection doesn’t end the case. Thereafter, an American state must exercise jurisdiction under Cal-UCCJEA criteria, and make a best interests determination based upon all of the best-interests factors, not just Cesar’s preference. At least theoretically, a hearing on the merits could result in an order for this child to live in Chile with his mother. Since neither parent, nor Cesar lives in California, it is likely that North Carolina would end up with jurisdiction over custody.
By not sending Cesar back to Chile, the court has made it impossible for the child’s time to be divided between his parents’ homes. It seems probable that if Cesar was physically present in Chile, Chile would prohibit further removals to the U.S. because the U.S. has failed to honor its jurisdiction. One wonders whether Chile would return Cesar if the father was the parent bringing a subsequent Abduction Convention petition. The U.S. would be the child’s habitual residence under the Convention.
There’s also an embedded, and unanswered jurisdictional question. Does a court’s decision not to return a child under the Abduction Convention thereby terminate the foreign jurisdiction’s exclusive and continuing Cal-UCCJEA jurisdiction so as to permit California or North Carolina to make custody orders on the merits?
Consensual Dispute Resolution (CDR) might have saved this family a lot of grief and expense. The National Council for Missing and Exploited Children is working with the University of Pennsylvania Law School and the University of Miami Law School that is studying the suitability and effectiveness of mediation in cases involving international child abduction. Teams of mediators are available in the pilot project to assist families.