Cross-border family law issues pose complex challenges that might not be immediately apparent to attorneys who primarily practice domestic family law.
For the purpose of illustrating the challenges of international family law, it is helpful to consider a hypothetical, albeit very realistic, international family law situation.
A client from a foreign country contacts a lawyer because his wife brought their two children to the United States 11 months ago without his consent and refuses to return. A family law practitioner experienced in handling domestic, but not international, cases might be inclined to handle the case as he or she would handle a standard domestic family law case by filing a complaint for child custody in the local trial court and serving the children’s mother with a summons. Or, if a child custody case has been filed by the mother and the father has been served, the domestic family law practitioner might advise the client to file a responsive pleading. Before proceeding any further, however, the attorney might best represent the client by considering another potentially more advantageous and appropriate alternative.
The family law practitioner should have considered whether the client’s children were taken from a country that has ratified the Hague Convention on the Civil Aspects of International Child Abduction (the Convention) done at The Hague on October 25, 1980. If the foreign country has not ratified the Convention with the United States, pursuing relief under the Convention would not be an option. On the other hand, if the Convention was ratified between the foreign country and the United States, the client must be advised of the need to seriously consider filing a petition for return of the children pursuant to the Convention rather than commencing or participating in a custody case in the United States. The object of the Convention is to secure the prompt return of children wrongfully removed or retained in a state that has ratified the Convention. The client might be better served by having the children returned to his country to pursue child custody relief on his home turf.
To further illustrate the intricacies of international family law practice, it is helpful to focus on the particular facts of this hypothetical case. If seeking return of the children pursuant to the Convention is a viable option, it is important not to overlook certain extremely important facts provided by the client. One of the first things the client mentioned in the hypothetical situation was that the mother removed the children from the foreign country 11 months ago. That fact will immediately trigger alarm bells in the mind of the international family lawyer.
Pursuant to Article 12 of the Convention, if the case is commenced within the one-year time frame, the Convention provides for the return of the children if the father can prove that they were wrongfully removed. In contrast, if the proceeding is commenced after one year, the court does not have to return the children if the wife demonstrates that the children are settled in their new environment. The chances of winning a case brought pursuant to the Convention are dramatically reduced if the case is not commenced within one year of the children’s removal from the foreign country. The distinction may ultimately determine whether the client will continue to have a relationship with his children or whether that relationship will be permanently severed.
If the mother has already initiated her own child custody case in the United States, which is a common strategy to gain a home field advantage, advising the father to file a responsive pleading in that case could also have irreversible negative ramifications.
While it may seem counter-intuitive, filing a response—even a motion to dismiss for lack of jurisdiction—in the child custody case may not advisable if the client wishes to preserve his right to seek the return of the children under the Convention. Instead, it may be preferable to file a notice to stay the child custody proceeding in accordance with Article 16 of the Convention.
The issues raised in relation to this hypothetical situation are just two examples of the myriad complex problems associated with international family law cases. Representing clients in international family law cases requires knowledge of international treaties and familiarity with the case law interpreting the Convention in courts throughout the United States. Rule 1.1 of the American Bar Association Model Rules of Professional Conduct provides that lawyers “shall provide competent representation to a client” and that competent representation “requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” In order to provide competent representation to clients in international family law cases, it may be advisable to seek the advice and assistance of an attorney experienced in those matters.
Stephen J. Cullen and Kelly A. Powers have established one of the leading international family law practices in the United States. As co-leaders of Miles & Stockbridge’s family law and private clients practice in D.C., they work on complex international divorces, custody, and financial relief in the United States and around the world. They also are well-known for their work in addressing child abduction issues. To learn more, visit the practice’s blog.
Disclaimer: This is for general information and is not intended to be and should not be taken as legal advice for any particular matter. It is not intended to and does not create any attorney–client relationship. The opinions expressed and any legal positions asserted in the article are those of the author and do not necessarily reflect the opinions or positions of Miles & Stockbridge, its other lawyers, or Best Lawyers.