The parties are parents to one child, born on January 1, 2016. In December 2016, the parties divorced in Michigan. The Father lives in Maryland and the Mother in Michigan. The divorce decree included an agreement for the parties to share joint legal custody, Mother (Aziz) to have sole physical custody, and a prohibition on any parenting time in any country “not a party to the Hague Convention on the Civil Aspects of International Child Abduction.” [Note: Pakistan acceded to the treaty in 2017, and the U.S. accepted its accession in 2020]. Also see * below.
In March 2017, Aziz filed a motion to modify requesting permission to relocate (change domicile) the child to Pakistan, arguing that Pakistan had become “a party” to the Child Abduction Convention. Due to certain procedural appeals, Aziz filed another motion to modify on September 27, 2017. The Father (Safdar) argued that “Pakistan’s accession to the Convention had not made it a treaty partner with the United States or a ‘party’ in accordance with [Michigan statute].” The court rejected Aziz’s motion, finding it not in the child’s best interest to relocate to Pakistan. There was an appeal that revolved around the definition of being a “party” to this particular treaty, with a focus on whether the U.S. must accept Pakistan’s accession to make Pakistan a party to the treaty. The court concluded that because “[t]he protective procedures and rules of the Convention are not binding between the United States and Pakistan … Pakistan is not a ‘party’ to the Convention as contemplated by [Michigan law]”
In August 2020, Aziz filed a motion to relocate the child to Pakistan, because, in July 2020, the United States accepted Pakistan’s accession, to be effective on October 1, 2020. Most of the parties’ trial in early 2021 revolved around “whether Pakistan would comply with its treaty obligations or enacted sufficient local legislation…” The court deferred to the other branches of the U.S. government that clearly felt Pakistan had taken all appropriate steps to comply with the treaty’s requirements. The court analyzed whether it would be in the child’s best interests to relocate to Pakistan, and concluded that it would not. Given the fact intensive inquiry made by the trial judge, and the deference to those factual findings and credibility determinations, the Court of Appeals affirmed.
When a treaty becomes effective with regard to the United States can be a complicated analysis. In reality, Pakistan became a party to the Convention when it acceded in 2017, not when the U.S. accepted its accession in 2020. But, Michigan has a statute that doesn’t account for this anomaly in treaty law where other treaty parties must actively accept the country’s accession. See * below for Michigan’s statute. The court likely encapsulated the drafters’ intentions of ensuring that no parenting time be held when there is no treaty in place between the U.S. and the other country, despite the language of the statute.
*MCL 722.27a(10) specifically provides, “Except as provided in this subsection, a parenting time order shall contain a prohibition on exercising parenting time in a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. This subsection does not apply if both parents provide the court with written consent to allow a parent to exercise parenting time in a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.”
Also note that other Hague Conventions related to other family law issues have different rules for when they become effective. Do not assume those Conventions become effective with the United States under the same process as that described above.