August 30, 2012
I wrote about the Supreme Court’s grant of review in a case involving parental rights across international borders and the Hague Convention on Civil Aspects of International Child. I mentioned there that the Hague Convention does not deal with the underlying custody determination. So, the question remains, what law does apply?
One starting point lies with the Uniform Child Custody Jurisdiction and Enforcement Act. The UCCJEA has been adopted nationwide. While typically this applies to situations where parents reside in different states within the U.S., it has also been applied in the international context. For an excellent starting point, see 66 A.L.R.6th 269, “Applicability and Application of Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to International Child Custody and Support Actions.” The UCCJEA replaced the UCCJA (Uniform Child Custody Jurisdiction Act), so as you research these issues, you may see that predecessor act turn up as well.
The UCCJEA can tell you where custody must be initially determined (UCCJEA § 201), where it can be modified (UCCJEA §§ 202, 207), and whether full faith and credit must be accorded to a custody order from another jurisdiction (UCCJEA § 303, 313). So far so good, but this is only the beginning. For the custody determination itself, you must then turn to the law of the state with jurisdiction.
For cases dealing with custody disputes involving international issues, try the following search on WestlawNext or Westlaw Classic:
modif! chang! award! /s child /5 custody & “foreign country” international
Running this search in All States, I retrieved 1,877 results. My top result on WestlawNext was Guzman v. Sartin, 31 So.3d 426, a Louisiana case where the court determined that it had jurisdiction of a parent’s action to modify a custody determination by a Venezuela court. Contrast that with Poluhovich v. Pellerano, 861 A.2d 205, where a New Jersey court held that it did not have jurisdiction to modify a custody determination in a divorce decree from the Dominican Republic.
To view the text of the Uniform Child Custody Jurisdiction and Enforcement Act, on WestlawNext type ULA into the search bar and select Uniform Laws Annotated from the drop-down “Looking for this?” menu. Or on Westlaw Classic pull up the database ULA (Uniform Laws Annotated) and click on Table of Contents. From the ULA table of contents, you can select the act by name. If you’d like to see a list of adopting states included dates of adoption, go to the Refs & Annos section at the beginning of the act.
If you’d like to view the UCCJEA as adopted in your jurisdiction, search your state statues for “uniform child custody jurisdiction” as a plain language / natural language search. Or in the statutes index go to Uniform Laws, and find the listing for Child Custody Jurisdiction and Enforcement Act.