An early pitch for the Hague Maintenance Convention

In private international family law, a party (an obligee, that is) may face a legal maze when enforcing a foreign spousal support/maintenance order against a former spouse (an obligor). The U.S. state courts offer an illustrative example.

But before heading Stateside, I will mention some private international law instruments on this topic.

The Hague Conference on Private International Law has completed the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Maintenance. However, with only two signatories (the U.S. and Burkina Faso) and no ratification, this convention has not entered into force.

Nor do previous instruments offer much help. The predecessor 1973 Hague Conventions on the topic garnered relatively meager support. Some reciprocal agreements exist between the U.S. or U.S. states and other countries, but careful analysis reveals little uniformity among these agreements.

Thus, private international law agreements do not—yet—provide much clear help on this subject.

So in the U.S., domestic courts play the leading role, and the first issue in the domestic courts will be recognition. For those readers yearning for the “good old” private international law days, we now turn to the familiar subjects of comity and jurisdiction-specific law.

Based on comity, U.S. courts may recognize foreign maintenance orders. Comity—very generally—is a largely judicial doctrine whereby foreign court orders were obtained through proceedings in a foreign state that do not offend a strong public policy of the recognizing state.…

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Habitual Residence in the EU?

Habitual residence faces considerable uncertainty in the EU.  Regulation 2201/2003—also known as Brussels IIbis (“BIIbis”)—establishes jurisdiction in parental responsibility disputes among EU Member States. (Here is an overview of EC Regulation 2201/2003).   Habitual residence is the key factor in determining jurisdiction.  This post analyzes a recent ECJ case and then contrasts its holdings with two subsequent UK cases.

a.  Habitual Residence in the ECJ

The ECJ has endorsed a fact-based habitual residence test for cases under BIIbis in one decision so far.  The case, A (C-523/07), involved a parental responsibility dispute between a mother and a public child welfare agency.  Three children who lived with their mother and stepfather in Sweden since 2001 traveled as a family to Finland in the summer of 2005 to spend their summer holiday.  While still in Finland in October 2005, they applied for public housing.

In November, a local welfare agency removed the children to a childcare unit.  The mother unsuccessfully challenged this action in a Finnish court.  On appeal, a Finnish appellate court submitted four questions to the ECJ.
In the central question, the Finnish asked how to determine the children’s habitual residence, considering their peripatetic lifestyle in Finland.  The Advocate General’s (“AG”) opinion framed the issue with the need for a precise definition of habitual residence in light of the spirit and purpose of BIIbis and the best interests of the child.  Distinguishing between presence and habitual residence,…

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Child abductions and treaty interpretation

Private international law is, of course, a huge topic.  A leisurely flip through the 1390 pages of Cheshire and North’s comprehensive text reveals the subject’s breadth.  As society becomes more mobile and borders more porous, e.g. the European Union, private international law will only likely continue to grow.

One of the most “private” areas of private international law is international family law (which is, oddly enough, my focus area—see, e.g., my blog).  Just this month, the United States Supreme Court heard a case involving a major private international family law convention, the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

The Convention’s name tends to confuse some lay readers—it only deals with jurisdiction in cross-border custody disputes, not the more sinister cases that the words “child abduction” connote.  The Convention primarily preserves jurisdiction in child custody disputes by providing an immediate return if a parent wrongfully removes a child from its country of habitual residence.

The father in the case before the U.S. Supreme Court, Abbott v. Abbott, contended that the mother wrongfully removed their child from Chile.  The cases focuses on the ne exeat issue under the Convention.

Courts use ne exeat orders to preserve jurisdiction in custody disputes by forbidding a custodial parent from taking a child outside of a court’s jurisdiction without the express consent of the other parent or the court.  However, ne exeat orders have an uncertain status under…

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