Transcript Children - Shandong University

Children
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Introduction
Jurisdiction
Choice of Law
International Abduction
Other Developments
• Introduction
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Courts in many countries speak of parental rights and duties, and of the custody of
and access to children.
• Children Act 1989
• Until relatively recently, many of the private international law rules in this field
were provided by an unclear and inconsistent mixture of statutory provision and
common law decisions.
• It was increasingly to be realized that, in an age of great mobility, a situation in
which there are no rules for the recognition of other countries’ parental
responsibility and similar orders, at least on a reciprocal basis, was capable of
engendering great anguish for parents and for children who might be shuttled from
country to country.
• The European rules on Jurisdiction
• Council Regulation No.2201/2003 (Brussels II bis, or the revised Brussels II
Regulation) came into effect on March 1, 2005, The revised Brussels II Regulation
replaces the Brussels II Regulation (Council Regulation 1347/2000) in providing
uniform jurisdictional rules for the attribution, exercise, delegation, restriction or
termination of parental responsibility, and almost automatic recognition of
judgments throughout the European Union.
• Unlike its predecessor, the revised Brussels II Regulation covers all decisions on
parental responsibility, including measures for the protection of the child,
independent of any link with matrimonial proceedings, in order to ensure equality
for all children.
• The Regulation does not, however, apply to the establishment or contesting of a
parent-child relationship, adoption, a child's name, emancipation, maintenance,
trusts or succession, or criminal offences committed by children, although it does
apply to a public law decision to take a child into care.
• With regard to the child's property, the Regulation only applies to measures for the
protection of the child: measures concerned with the child's property but not
concerned with the protection of the child continue to be governed by the
Judgments Regulation.
• Article 8 establishes the primary jurisdictional rule in matters of parental
responsibility, giving jurisdiction to the Member State in which the child is
habitually resident at the time the court is seated. This primary rule is
supplemented by two additional grounds of jurisdiction, and is subject to two
special rules. Provision is made cases of lis pendens, and there exists a residual
jurisdiction allowing the application of national law. These matters will be with in
turn.
• Jurisdiction based on the child's presence
• Habitual residence is not defined in the Regulation but falls to be determined on
the basis of factual elements in accordance with the objectives and purposes of the
Regulation. Jurisdiction founded on the habitual residence of a child has proved
problematic particular when considering the habitual residence of a very young
child or that of a refugee or internationally displaced child.
• The revised Brussels II Regulation addresses this difficulty by providing that where
the child's habitual residence cannot be established and jurisdiction can not be
founded on art.12, then the courts of the Member State in which the child is
present shall have Jurisdiction.
• Choice of Law
• There is no doubt that in almost all contexts, an English court seeking to resolve
issues concerning children will apply English domestic law. "Almost all" for the Child
Abduction and Custody Act 1985, giving effect to two international conventions,
refers certain questions to the law the foreign country concerned; this is examined
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• Filiation
• Child support
• Child custody
• Pecoraro v. Rostagno-Wallat
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In Pecoraro v. Rostagno-Wallat, a Michigan court refused to recognize a New York filiation
order that held that the plaintiff, a New York domiciliary, was the father of a child born in
Michigan. The child was conceived and born during the mother’s marriage to another man,
both Michigan domiciliaries, but the mother admitted that the plaintiff, her law school
classmate at the time, was the biological father.
After graduating from law school, the plaintiff filed a filiation action against the mother in
New York. The mother contested the court’s jurisdiction over her, but the New York court
ruled that it had jurisdiction because she engaged in sexual intercourse in New York and the
child may have been conceived by that act. The husband filed a special appearance
contesting the court’s jurisdiction over him. The New York court conceded that he was a
necessary party and that it did not have jurisdiction over him. Nevertheless, the court
allowed the action to proceed and granted the plaintiff’s paternity order. The plaintiff then
filed the present action in Michigan asking for recognition and enforcement of the New York
order. The trial court granted the action, but the appellate court reversed.
Under Michigan law, a child conceived and born during marriage is presumed the legitimate
child of that marriage, and the mother’s husband is presumed to be the child’s father. A third
party may not rebut this presumption unless there first exists a judicial determination
between the husband and the mother that declares that the child is not the product of the
marriage. The Michigan court held that the New York proceeding did not meet this
requirement because it was not a proceeding between the husband and the wife. The court
also held that the Full Faith and Credit clause did not mandate recognition of the New York
order because it was rendered by a court that did not have jurisdiction over the husband.
• Taylor v. Taylor
• In Taylor v. Taylor, a Texas domiciliary filed an action in Louisiana seeking to disavow
his paternity of a child conceived and born during his marriage with the defendant.
The child was born while the parents were domiciled in Texas but lived in Louisiana
with her mother for ten years, following the parents’s divorce. The disavowal action
was timely under Texas law, but not under Louisiana law. The court noted that the
presumption that the husband of the mother is the father of the child has been
referred to as “the strongest presumption in the law” and that Louisiana had a
“substantial interest, if not ultimate responsibility, in determining the parentage of
this child who has been a domiciliary of this state for most of her life.” The court
held that Louisiana law governed, barring the action.
• Child Support in USA
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Under both the Uniform Interstate Family Support Act (UIFSA) and the Full Faith and
Credit for Child Support Orders Act (FFCCSOA), a child support order may be modified in
another state if the issuing state no longer has jurisdiction because it is no longer the
domicile of the child nor of any of the individual contestants. In such a case: (1) UIFSA
provides that the forum state may modify the order if: (a) a petitioner “who is a
nonresident of this state” seeks modification; and (b) the forum state has jurisdiction
over the obligor; and (2) FFCCSOA provides that the forum state may modify the order if
it has jurisdiction “pursuant to subsection (i),” which provides that the party seeking
modification shall register the order in a state “with jurisdiction over the nonmovant.”
The difference between the two Acts is that, under UIFSA the petitioner must be a nonresident of the forum state, whereas FFCCSOA is silent on this issue. Is this a conflict? If
FFCCSOA is viewed as a jurisdictional statute, then there is a potential conflict in the
sense that FFCCSOA (unlike UIFSA) does not require that the petitioner be a
nonresident of the modifying state. The better view is that FFCCSOA is not a
jurisdictional statute because federal statutes do not grant jurisdiction to state courts.
The function of FFCCSOA is simply to delineate the obligation of states to give full faith
and credit to judgments of other states. State courts have the jurisdiction granted by
state law (in this case UIFSA), as long as the grant is constitutional. Under this view,
there is no conflict between the two Acts. Indeed all the evidence is that Congress
intended to strengthen and complement the UIFSA, not to contradict it.
• Bowman v. Bowman
• Be that as it may, in Bowman v. Bowman, a New York court took the opposite view.
The court found a conflict between the two Acts and held that FFCCSOA preempted
UIFSA. In Bowman, the child support order was issued in Washington when both
parents and the child lived there. Subsequently, the mother and the child moved to
New York and the father moved to California.
• The mother filed a petition in New York seeking to modify the father’s visitation
rights and the father cross-petitioned seeking sole custody. In the meantime, the
mother registered the Washington support order in New York and filed an
• action seeking an upward modification.
• The father argued that New York did not have personal jurisdiction over him nor
subject matter jurisdiction to modify the Washington support order. The court
rejected both arguments. The court held that New York had personal jurisdiction
because the father had acquiesced in the child’s relocation to New York, visited the
child there, and invoked the aid of the New York courts and protections of its laws
by cross-petitioning for modification of the Washington custody order. The court
acknowledged that New York did not have subject matter jurisdiction under the
UIFSA, but concluded that it had jurisdiction under the FFCCSOA. The court held
that the FFCCSOA preempted the UIFSA.
• Child Support, In re Scott,
• In In re Scott, the Supreme Court of New Hampshire held that a New Hampshire
court could not modify the duration of child support obligations under a
Massachusetts decree because duration was a non-modifiable part of the decree
under Massachusetts law. The court also held that New Hampshire could modify a
provision of the decree regarding college expenses because that provision was
modifiable under Massachusetts law.
• However, the court also held that this modification was governed by New
Hampshire law rather than Massachusetts law despite the existence of a
Massachusetts choice-of-law clause incorporated into the decree. The court
reasoned that to honor such a clause would "violate New Hampshire public policy,
as reflected in [the] UIFSA.” Noting that both the parents and the children no
longer lived in Massachusetts and the father lived in New Hampshire, the court
concluded that New Hampshire had a "materially greater interest than
Massachusetts" in applying its law.
• INTERNATIONAL CHILD ABDUCTION
• The courts treat international abduction (or "kidnapping") cases as a special
category, or at least one in which the special circumstances have a strong influence
on the manner in which the welfare principle is to be applied. In many cases the
kidnapping is in defiance of a custody order made by a foreign court,but the same
principles apply to any unilateral kidnapping of a child by one parent from the other.
• The time factor is particularly important in kidnapping cases: a full consideration of
the merits of the case may take a long time, since much of the evidence may have
to come from abroad, and during that time the child may develop roots in England,
a fact which will strengthen the claim of the kidnapper and threaten a grave
injustice to the innocent parent. To minimise this risk, the English courts are
prepared to make orders for the peremptory return of a kidnapped child without
making a full examination of the merits of the dispute.
• Hague Convention on the Civil Aspects of International Child Abduction
• The Hague Convention on the Civil Aspects of International Child Abduction, or
Hague Abduction Convention is a multilateral treaty developed by the Hague
Conference on Private International Law that provides an expeditious method to
return a child internationally abductted from one member nation to another.
• Proceedings on the Convention concluded 25 October 1980 and the Convention
entered into force between the signatory nations on 1 December 1983. The
Convention was drafted to ensure the prompt return of children who have been
abducted from their country of habitual residence or wrongfully retained in a
contracting state not their country of habitual residence.
• The primary intention of the Convention is to preserve whatever status quo child
custody arrangement existed immediately before an alleged wrongful removal or
retention thereby deterring a parent from crossing international boundaries in
search of a more sympathetic court. The Convention applies only to children under
the age of 16.
• As of February 2012, 87 States are party to the convention.
• Procedural nature
• The Convention does not provide any substantive rights. The Convention provides
that the court in which a Hague Convention action is filed should not consider the
merits of any underlying child custody dispute, but should determine only that
country in which those issues should be heard. Return of the child is to the
member nation rather than specifically to the left-behind parent.
• The Convention mandates return of any child who was a “habitual resident” in a
contracting nation immediately before an action that constitutes a breach of
custody or access rights. The Convention provides that all Contracting States, as
well as any judicial and administrative bodies of those Contracting States, “shall act
expeditiously in all proceedings seeking the return of a children” and that those
institutions shall use the most expeditious procedures available to the end that
final decision be made within six weeks from the date of commencement of the
proceedings.
• Wrongful removal or retention
• The Convention provides that the removal or retention of a child is “wrongful”
whenever:
• "a. It is in breach of rights of custody attributed to a person, an institution or any
other body, either jointly or alone, under the law of the State in which the child
was habitually resident immediately before the removal or retention; and
• "b. at the time of removal or retention those rights were actually exercised, either
jointly or alone, or would have been so exercised but for the removal or retention."
These rights of custody may arise by operation of law or by reason of a judicial or
administrative decision, or by reason of an agreement having legal effect under the
law of the country of habitual residence.
• "From the Convention's standpoint, the removal of a child by one of the joint
holders without the consent of the other, is . . . wrongful, and this wrongfulness
derives in this particular case, not from some action in breach of a particular law,
but from the fact that such action has disregarded the rights of the other parent
which are also protected by law, and has interfered with their normal exercise.”
• Habitual residence
• The Convention mandates return of any child who was “habitually resident” in a
contracting nation immediately before an action that constitutes a breach of
custody or access rights. The Convention does not define the term “habitual
residence,” but it is not intended to be a technical term. Instead, courts should
broadly read the term in the context of the Convention’s purpose to discourage
unilateral removal of a child from that place in which the child lived when removed
or retained, which should generally be understood as the child’s “ordinary
residence.”
• The child’s “habitual residence” is not determined after the incident alleged to
constitute a wrongful removal or retention. A parent cannot unilaterally create a
new habitual residence by wrongfully removing or sequestering a child. Because
the determination of “habitual residence” is primarily a “fact based” determination
and not one which is encumbered by legal technicalities, the court must look at
those facts, the shared intentions of the parties, the history of the children’s
location and the settled nature of the family prior to the facts giving rise to the
request for return.
• Limited defenses to return
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The Convention limits the defenses against return of a wrongfully removed or retained child.
Those defenses are:
(a) by preponderance of evidence, that Petitioner was not “actually exercising custody rights
at the time of the removal or retention” under Article 13; or
(b) by preponderance of the evidence, that Petitioner “had consented to or acquiesced in
the removal or retention” under Article 13; or
(c) by preponderance of the evidence, that more than one year has passed from the time of
wrongful removal or retention until the date of the commencement of judicial or
administrative proceedings, under Article 12; or
(d) by preponderance of the evidence, that the child is old enough and has a sufficient
degree of maturity to knowingly object to being returned to the Petitioner and that it is
appropriate to heed that objection, under Article 13; or
(e) by clear and convincing evidence, that “there is grave risk that the child’s return would
expose the child to physical or psychological harm or otherwise place the child in an
intolerable situation,” under Article 13(b); or
(f) by clear and convincing evidence, that return of the child would subject the child to
violation of basic human rights and fundamental rights, under Article 20.
• Interpretation of article 13b
• The principal purpose of the Abduction Convention is to cause the prompt return
of a child to his or her "habitual residence." In certain exceptional cases under
Article 13b, the court's mandatory return obligation is changed to a discretionary
obligation, specifically, "the judicial or administrative authority of the requested
State is not bound to order the return of the child if the person, institution or other
body which opposes its return establishes that there is a grave risk that his or her
return would expose the child to physical or psychological harm or otherwise place
the child in an intolerable situation." The duty to return a child is however not
abrogated by a finding under Art. 13(b) but merely changes from mandatory to
discretionary. Since the general intent of the Convention is to cause the return of a
child to his or her "habitual residence," unless there are some powerful and
compelling reasons otherwise the court should normally and routinely exercise its
discretion and return the child to his or her "habitual residence”.
• In the primary source of interpretation for the Convention, the Explanatory Report,
Professor E. Perez-Vera noted the following:
• "it would seem necessary to underline the fact that the three types of exception to
the rule concerning the return of the child must be applied only so far as they go
and no further. This implies above all that they are to be interpreted in a restrictive
fashion if the Convention is not to become a dead letter. ”
• In fact, the Convention as a whole rests upon the unanimous rejection of this
phenomenon of illegal child removals and upon the conviction that the best way to
combat them at an international level is to refuse to grant them legal recognition.
The practical application of this principle requires that the signatory States be
convinced that they belong, despite their differences, to the same legal community
within which the authorities of each State acknowledge that the authorities of one
of them - those of the child's habitual residence - are in principle best placed to
decide upon questions of custody and access. As a result, a systematic invocation of
the said exceptions, substituting the forum chosen by the abductor for that of the
child's residence, would lead to the collapse of the whole structure of the
Convention by depriving it of the spirit of mutual confidence which is its inspiration.
• In spite of the spirit and intent of the Convention as conveyed by the Convention
itself and further reinforced by the Perez-Vera report, Article 13b is frequently used
by abductors as a vehicle to litigate the child's best interests or custody. Although
Article 13(b) inquiries are not intended to deal with issues or factual questions
appropriate for custody proceedings, many countries use article 13b to request
psychological profiles, detailed evaluations of parental fitness, evidence concerning
lifestyle and the nature and quality of relationships.
• State parties
• The map shows the Contracting States to the Convention as October 2011.
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State parties to the convention (members of the HCCH)
State parties to the convention (non-members of the HCCH)
• Non-compliance
• Noncompliance with the terms and spirit of the Hague Convention has been a
particularly difficult problem in the practical implementation of the Convention. In
2009, the United States declared Brazil, Chile, Honduras, Greece and Mexico
displayed "patterns of non-compliance" or "noncompliance".In late 2011 after
almost 30 years of pressure from 8 different nations including the United States the
Parliament of Japan finally began to legalize the Hague Convention.
• The case of Sean Goldman, a four year old boy abducted to Brazil, gained
widespread media attention after the abducting mother died during the birth of
another child and her new husband and family, powerful lawyers with links to the
Brazilian elite, attempted to adopt the child and deny access to the legitimate
father in contravention of the Convention.
• Goldman child abduction case
• The Goldman child abduction case refers to the international child abduction of
Sean Goldman and the international petition for his repatriation by his father,
David Goldman, over the objections of the family of his mother, Bruna Bianchi
Carneiro Ribeiro, and her widower, João Paulo Lins e Silva.
• The child abduction case
• The child abduction case evolved around application Hague Convention on the Civil
Aspects of International Child Abduction..
• Sean Goldman was born in the year 2000 in the United States, to an American
father and Brazilian mother. In 2004, at four years old, Sean went to Brazil with his
mother for a 2-week vacation. However, his mother refused to return to the United
States. The father David Goldman vowed to have his son back and lawsuits and
counter-lawsuits ensued both in the United States and in Brazil.
• Bruna Bianchi eventually filed for, and was granted, a divorce by a Brazilian court.
She then married Brazilian lawyer João Paulo Lins e Silva in 2007, and subsequently
died while giving birth to their child in 2008. After Bruna's death, the Brazilian
husband obtained a custody order for the child from the Brazilian courts by failing
to inform them of Bruna's death and requesting a new Brazilian birth certificate be
issued that listed himself as the father under the Brazilian concept of socioaffective paternity, on the basis of which, he refused to return the boy to David
Goldman, Sean's father.
• Based on a decision of Brazil’s Supreme court, Sean was handed over to his father
on December 24, 2009. As of January, 2010, his Brazilian family was hoping to
regain custody. Sean‘s grandmother Silvana Bianchi Carneiro Ribeiro has vowed to
continue the battle through the Brazilian courts. New Jersey courts have denied
visitation rights for both grandparents months before the grandfather’s death.
• Child Custody, the Supreme Court, and the Hague Convention
• Abbott v. Abbott is a major decision of the U. S. Supreme Court interpreting the
Hague Convention on the Civil Aspects of International Child Abduction. The
Convention provides that, when a child has been "wrongfully removed" from a
country in which the child was habitually resident at the time, the country to which
the child has been removed must "order the return of the child forthwith,“ unless
certain exceptions apply. A removal is "wrongful” when the child is removed "in
breach of rights of custody.” The Convention defines "rights of custody" to
"include . . . the right to determine the child's place of residence.” The Convention
also recognizes "rights of access,” such as visitation rights, but offers no return
remedy for a breach of those rights.
• The Abbots were domiciled in Chile, a country which, like the United States, is a
party to the Convention. When the Abbots separated, a Chilean court awarded
custody of their minor son to Ms. Abbott and “access” or visitation rights to Mr.
Abbott. According to Chile‘s Minors’ Law, a parent who has visitation rights also has
an automatic ne exeat right, namely a right to prevent the child‘s unilateral removal
from Chile. Without Mr. Abbott’s consent or knowledge, Ms. Abbott removed the
child to Texas. The question in Abbott was whether the father‘s ne exeat right was
equivalent to “rights of custody“ within the meaning of the Convention.
• If yes, then the child‘s removal from Chile was ”wrongful” within the meaning of
the Convention, and the child should be returned to Chile “forthwith.” If not, the
child’s removal would still be wrongful under Chilean law, but not under the
Convention, and thus the child would not have to be returned to Chile under the
Convention. Four federal circuit courts of appeal had previously answered this
question in the negative and one in the affirmative.
• In a 6-3 opinion, the Supreme Court resolved the split among the circuit courts by
answering the above question in the affirmative. The Court held that the father's
ne exeat right was equivalent to "rights of custody" within the meaning of the
Convention, thus according him the right to demand the child's return to Chile. The
Court reasoned that this answer was most consistent with the Convention's
purpose, which is to protect the best interest of the child and deter parental
abductions of children:
• To interpret the Convention to permit an abducting parent to avoid a return
remedy, even when the other parent holds a ne exeat right, would run counter to
the Convention's purpose of deterring child abductions by parents who attempt to
find a friendlier forum for deciding custodial disputes ....Denying a return remedy
for the violation of such rights would legitimize the very action-removal of the
child-that the home country, through its custody order or other provision of law,
sought to prevent and would allow parents to undermine the very purpose of the
Convention.
• The Court also based its answer on the text of the Convention, the views of the U.S.
State Department,“ and the positions taken by a few other contracting states. The
Court noted that, in interpreting a Convention, the views of other contracting
states are entitled to "considerable weight," especially when the "uniform
international interpretation of the Convention is part of the Convention's
framework.”
• The Court cited decisions from England, Scotland, Israel, Austria, South Africa, and
Australia that had interpreted the Convention in similar fashion, as well as
decisions from Canada and France that had reached a different conclusion. In his
dissent, Justice Stevens noted that this was hardly an "international consensus-let
alone broad acceptance"“ of the Court's chosen interpretation.
• The case of England
• An update on child abduction and the Hague Convention
• I:\An update on child abduction and the Hague Convention.pdf
• "Illegal Children" Abducted by Chinese Authorities and Trafficked Abroad
• According to a report in the Caixin Century magazine, population control officials in
the Chinese province of Hunan seized at least 16 babies born in violation of the
one-child policy, sent them to state-run orphanages, and then sold them abroad for
adoption. In the words of Steven W. Mosher, China expert and president of the
Population Research Institute, “if this is true (which we at PRI believe it to be based
on our own research in China), then this act represents a serious human rights
violation and a clear instance of human trafficking.”
• “Before 1997, they usually punished us by tearing down our houses for breaching
the one-child policy, but after 2000 they began to confiscate our children,” the
magazine quoted villager Yuan Chaoren as saying.
• The children, reportedly from Longhui county near the city of Shaoyang, were
abducted by local authorities who accused their parents of breaching the one-child
policy or illegally adopting children. Then, according to Caixin Century, the local
family planning office sent them to local orphanages, which listed them as being
available for adoption. The report added that the office could get 1,000 renminbi or
more for each child. The orphanages in turn receive $3,000 to $5,000 for each child
adopted overseas, money that is paid by the adoptive parents. The magazine
reported that at least one migrant worker said she had found her daughter had
been adopted abroad and was now living in the United States.
• According to Steven Mosher, this report is heartbreaking, but not surprising.
• “This report,” says Mosher, “is corroborated by research that PRI conducted on the
ground in China back in 2009. In Lipu county, located in northern Guangxi province,
we were told by a village official that ’at the present time, if you don't pay the fine,
they come and abduct the baby you just gave birth to and give it to someone else.’
It is also worth noting that these two reports come from the same general area of
China and occurred in neighboring provinces. “
• “Of course,” Mosher continues, “local officials deny any involvement in child
trafficking. But it is well known that the so-called ‘job responsibility system’
requires them to rigorously enforce the one-child policy, and that their success (or
failure) in this area will determine future promotions (or demotions). Abducting
and selling an ‘illegal’ baby or child would not only enable an official to eliminate a
potential black mark on his record, it would allow him to make a profit at the same
time.
• “In this way,” Mosher concludes, “the one-child policy, through its system of
perverse and inhumane rewards and punishment, encourages officials to violate
the fundamental right of parents to decide for themselves the number and spacing
of their children.”
• For Adoptive Parents, Questions Without Answers
• IN almost any adoption, the new parents accept that their good fortune arises out
of the hardship of the child’s first parents. The equation is usually tempered by the
thought that the birth parents either are no longer alive or chose to give the child a
better life than they could provide.
• On Aug. 5, this newspaper published a front-page article from China that contained
chilling news for many adoptive parents: government officials in Hunan Province, in
southern China, had seized babies from their parents and sold them into what the
article called “a lucrative black market in children.”
• The news, the latest in a slow trickle of reports describing child abduction and
trafficking in China, swept through the tight communities of families — many of
them in the New York area — who have adopted children from China. For some, it
raised a nightmarish question: What if my child had been taken forcibly from her
parents?
• And from that question, inevitably, tumble others: What can or should adoptive
parents do? Try to find the birth parents? And if they could, what then?
• Yang Qinzheng cooks dinner with two of his grandchildren in Longhui County,
Hunan Province. In 2005, Mr. Yang said, Chinese family planning officials seized a
third grandchild because Mr. Yang's son had not registered his marriage.
• At least 16 children were seized by family planning officials in Longhui County,
above, from 1999 to 2006. The abduction of children is a continuing problem in
China.
• Expert testimony: Chinese Family Law and Potential International Child Abduction
to China
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In what the Court described as a “very difficult case” between two Chinese parents living in
Georgia -- one of whom (the child’s mother) faces deportation to China for lack of an
immigration visa and had asked the Court to give custody of the parties’ child to her and to
authorize her to relocate the child to China – the Court relied upon my expert testimony as
to Chinese law and practice concerning child custody and child abduction in cases of an
international dimension. Zhang v. Zhang, DeKalb County Superior Court, 7-14-11.
The Court stated that it was giving “great weight” to my testimony.
Thus it stated that, “from what the Court has heard from Mr. Morley, whom the Court has
given great weight” and “I have to also balance that with the facts presented by the defense
by Mr. Morley -- who the Court gives great weight to his testimony –.”
The ultimate decision gave custody to the father in the United States and followed my
suggestion that any visitation with the mother outside the United States should be in a
country such as Singapore or Hong Kong with a reliable legal system and which was a party
to the Hague Abduction Convention.
The case shows that those countries who have not signed the Hague Convention on child
abduction and who do not have an independent and reliable family law system are
rendering a grave disservice to their own citizens. Since the Chinese legal system cannot be
trusted to return internationally abducted children, Chinese nationals who reside with their
children outside China should normally not be permitted to take their children to visit China
if the potentially left-behind parent objects.
• The Case of Christopher Savoie in Japan
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Most recently, the custody dispute of an American father and Japanese mother received
worldwide headlines when the father was jailed in Japan for trying to enforce his courtordered parental rights. Japan is not a signatory to the Hague Convention. The parties in
this case had lived in Japan from 2001 to 2008 and moved to Tennessee in 2008.
In January of 2009, they entered into a court-ordered joint custody agreement (under
which the mother had primary residential custody, with liberal access time provided to
the father). However, in August of that year, the mother flew to Japan with the children
without consent of the father, immediately enrolled them in school, and retained them
in that country in violation of the joint custody agreement. That September, the father,
Christopher Savoie, flew to Japan in an attempt to get his children back, but when he
grabbed them on the street, the mother notified the police and the father was arrested
for kidnapping, just before reaching the offices of the U.S. Consulate. He was finally
released in October of 2009 after spending about twenty days in jail. Since Japan is not
a signatory to the Hague Convention, the father's remedies are quite limited,
notwithstanding the mother's having violated court orders.
The worldwide publicity surrounding the case of Christopher Savoie has created new
diplomatic pressure on Japan to become a signatory to the Hague Convention.
Ambassadors from the U.S. and seven other countries (namely, Australia, Britain,
Canada, France, Italy, New Zealand and Spain) have since met with the Japanese Justice
Minister in an effort to get Japan to address a growing number of international child
custody disputes.