International Family Law Issues
The Hague Convention
Regarding international family law, if one partner in the marriage or intimate relationship is a foreign national, or holds dual citizenship (U.S. and another country), certain provisions of the Hague Convention may apply to the family unit.
The Hague Convention is an international treaty that addresses multiple international family law issues, including a country’s authority to notify an individual of another country’s order, and to enforce it. The provisions of the Hague Convention applicable to most family units include: (a) child abduction; (b) spousal maintenance and support; (c) enforcement of child support orders (link to after the divorce); (d) the use and enforcement of discovery between countries; and (d) international process of service.
The specific Hague Convention provision applies to a citizen of a country only if the citizen’s country has ratified that specific Convention. Even if the citizen’s country has ratified the specific Convention, it may have exempted itself from certain aspects of it.
Once the country ratifies the specific Convention provision, it is called a “signatory” to the Convention. For a spouse/parent to invoke the protections/rights of a specific Convention, both countries (the invoking spouse/parent and the responding spouse/parent) must be signatories to the specific Convention.
The next step is to compare each country’s ratification, including any reservations that one or both countries made when the Convention topic was ratified. A “reservation” means that the country has elected not to adopt a specific provision, or has added conditions or restrictions to it. The scope of a spouse/parent’s rights is determined by what each country will and will not enforce.
In international family law, when child custody/visitation/access involves a parent who is a foreign national, failure to research the applicable Hague Conventions can have devastating consequences upon a child. For example, Japan is not a signatory to the Hague Convention against International Child Abduction. A U.S. citizen parent involved in a divorce (link to divorce litigation) or paternity (link to paternity litigation) case must make the U.S. trial judge aware that a Japanese trial judge will not recognize the rulings in the U.S. order as to custody and visitation. Otherwise, the Japanese citizen parent has the ability to transport the child to Japan and later refuse to return the child, leaving the U.S. citizen parent with no realistic options.
Under this situation, the U.S. temporary and final orders should include the following orders for the child’s optimum protection: (a) The Japanese citizen parent is prohibited from applying for a U.S. passport for the child; and (b) the Japanese citizen parent is prohibited from removing the child from the continental U.S. borders with either a Japanese or U.S. passport. An order prohibiting the issuance of a U.S. passport and prohibiting the child from being transported outside of the U.S. continental borders must be filed and forwarded to the U.S. State Department’s Office of Children’s Affairs to ensure federal enforcement of the state order.
In a situation involving a paternity matter with a U.S. citizen mother and a Vietnamese citizen father on a temporary work visa, the implications are twofold. Vietnam is not a signatory to either the Convention against International Child Abduction or the Convention for International Enforcement of Child Support. Even with the safeguards of the passport and restricted travel orders, the child could suffer significant emotional and financial consequences.
For example, if the Vietnamese citizen father is not granted another work visa when his original visa expires, he must return to Vietnam. The U.S. citizen mother will be unable to enforce any child support order that she receives in a U.S. court or administrative hearing. Most importantly, the child will be unable to have any meaningful relationship with the Vietnam citizen father, unless the U.S. citizen mother is willing to accept the risk of traveling to a country that does not recognize the U.S. order’s provisions for custody, visitation, and support.
Another example is Iran. It, like Vietnam, is not a signatory to the two child-related Hague Conventions. More importantly, unless the U.S. citizen parent is a practicing Muslim, the U.S. citizen parent has no access to the Iranian court system, whether or not he/she is married to the Iranian citizen parent. It is particularly perilous in a situation involving an Iranian citizen father and a male child.
Even when a country is a signatory to the specific Convention topic (e.g. child abduction), the critical factor for the spouse/parent invoking it is whether the country of the responding spouse/parent has a consistent history of enforcing the specific Convention. For example, Mexico has a very poor history of honoring the provision of the Hague Convention against International Child Abduction.