For children (who may be subject to divorce custody order) removed from another country, there are two (2) bodies of law that may apply to obtain their return. The first is the Hague Convention on the Civil Aspect of Child Abduction. Typically, these are countries with Western-type values and legal systems.
Where two countries have signed and ratified the treaty, this body of law aids parents in obtaining a return order to return the child(ren)1 to their country of habitual residence. This blog post focuses on divorce and custody order issues by non-Hague countries if the children are brought to the United States without the consent of one parent and an exception to comity that required Indiana to enforce the custody order under comity and return the children.2
The body of law is the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). This body of law focuses on interstate disputes over custody. However, there is a provision that applies to foreign decrees and is sometimes used for removal of children from non-Hague countries. This forum selection and enforcement scheme provide that “An Indiana court shall treat a foreign country as if the foreign country were a state of the United States for purposes of applying [the UCCJEA].”3
There is a provision as it relates to the enforcement of a foreign custody order, namely to enforce it to ensure the children’s return, if the Indiana court finds “the child custody laws of a foreign country violates the fundamental principles of human rights.” This has been described in some cases as the “escape clause.” In a key case just decided by the Indiana Court of Appeals, it took a narrow application of the “escape clause” and provides a key decisional law for the future.
In this case, marital fault still existed in the law and female genital mutilation was rampant in the case where mother fled Mali with the children for the United States. The Court of Appeals affirmed the enforcement of the Mali order and return the children to Mali incorporating other jurisdictional comments that in looking at a foreign order, the Indiana court should focus on the foreign country’s substantive law, not its legal system or how the law is implemented.
Effectively this decision means to prevail under the UCCJEA’s exception and defense to return, a litigant must show that the law as applied in his or her case was in a manner that violates that parent’s or child’s fundamental human rights, not, for instance, that the legal system is corrupt. Thus, to avoid enforcement and raise a defense to comity under the UCCJEA, a litigant must show the legal process in the foreign country violated the parent’s or children’s fundamental human rights. That term is not well defined in any body of law, so there is significant room for development in these cases. Thus, the “escape clause” seems to be closing. With language and reporting (how the trials are recorded) barriers, this appears to be an onerous burden.
Dixon & Moseley, P.C. handles custody disputes throughout the United States and those abroad under the Hague and UCCJEA. This blog post is intended for general informational purposes only and is not a solicitation for legal services. It is an advertisement.