If your client’s family has connections to multiple countries, then any family dispute is much more complicated. Each country has its own laws, practices, courts, and solutions. Your client may achieve a dramatically different outcome in one country over another. There may be clear rules on what country’s courts must resolve your client’s legal problems, or, at times, the rules are unclear, uncertain, or not followed. In most situations, the speed with which you act is vital. In other situations, delays may benefit you best. I routinely work with lawyers to provide expert services on complex international family law cases. Some of the most frequent questions I receive include:
How do I serve the Defendant when they are sitting in another country?Depending on the country where the Defendant is located, your client may need to take additional steps to comply with international treaties or bilateral agreements in order to serve your U.S. legal process. This may require additional steps in your courts, paperwork that must be filed with a foreign government, and throwing your idea of what service should look like out the window. See MK Family Law’s blog post on a Hague Service Convention case.
Can I request discovery of information located in a foreign country?There may be ways to request information, like bank or employment records or take oral or written depositions of a person or party, located in a foreign country, but there may be additional steps you need to take in your court to comply with international legal obligations. For some countries, where privacy laws are particularly stringent, foreign legal counsel may also be necessary to determine what can be requested, how, and the precise process to maximize your efforts. These steps may take more time, often requiring filings in your court, potential discovery disputes, and then filings in a foreign court. See MK Family Law’s blog post on obtaining evidence in the United States for use in a foreign divorce proceeding.
Can my U.S. family lawsuit proceed if the other party claims to have immunity?It is possible that representatives of foreign countries who are stationed in the United States enjoy a certain amount of immunity from lawsuits. This immunity may extend to their family members, and any time a potential client asserts that they have “diplomatic immunity,” their situation requires another layer of analysis. Different diplomats and dignitaries may enjoy different levels of immunity, and some clients may misunderstand the immunity available to them. Immunity also has a geographic scope, and may not negate a lawsuit brought in the diplomat’s home country. It benefits the lawyer and client to have a robust understanding of the client (or their spouse’s) precise immunity, if any, so that a comprehensive strategy can be exacted at the first stages of the case.
How do I obtain an authenticated document for use in trial if it is overseas?It is necessary for a lawyer to authenticate a foreign public document to use it at trial in the United States. This may be relatively straight forward if a treaty or bilateral agreement is in place between the United States and the foreign country. If there is none, then it often involves a maze of navigating consulates and government offices.
How do I register a foreign custody order (or agreement) in the United States?While there are going to be variations depending on what U.S. state, in general there are relatively streamlined rules to follow under the Uniform Child Custody Jurisdiction and Enforcement Act (with, of course, Massachusetts still using the UCCJA). There may need to be some preliminary steps, however, before attempting to register this order, including ensuring that the order you obtained was from a court that had proper jurisdiction, that due process was met, and ensuring that you obtain the right copy from the foreign court to present to the U.S. court. The other complicating factor may be that some foreign courts, if the parents are in agreement about custody, do not incorporate that agreement into a court order, which could present challenges for the parents who wish that document to bind them in the United States. See MK Family Law’s blog post on the attempted registration of a foreign custody order in the United States.
How do I put my client’s child on a “No Fly” list?There is no such thing as a “No Fly” list to prevent your client’s child from leaving the United States. In fact, there are no controls to prevent a minor child from exiting the United States with only one of their parents. There are two useful government programs, however, that could help in some situations where a parent is fearful of their child being abducted overseas. It is also vitally important to secure a proper custody order with the correct language in it, to provide the best protections, and to know where to send that custody order after you secured it on behalf of your client. You may also need some information from different consulates or government offices to understand what travel documents parents may obtain for the child and whether they can do that without your client’s knowledge. See MK Family Law’s blog post on child abduction prevention.
Can the U.S. Department of State get my client’s child back from a foreign country after that child was abducted?The U.S. Department of State is the designated Central Authority for two international treaties, ratified by the United States, that address issues in family law: the Hague Abduction Convention and the Hague Adoption Convention. As the Central Authority, the office provides resources to aid parents in a variety of ways, including help in securing lawyer referrals, help in locating a child within the United States, or sending letters to parents to try to broker voluntary agreements. The U.S. Department of State, however, is not authorized to initiate litigation in U.S. courts to request the return of an abducted child back to that child’s habitual residence. There are some complicated rules as to what steps a parent can take to seek their child’s return, where, how, and under what circumstances. There may also be additional, parallel, options for a child to be returned, and there is a lot of strategy behind which path a parent takes.
How do I enforce my child support order overseas?The U.S. is a treaty party to the Hague Child Support Convention, and has entered into bilateral arrangements with yet other countries. There may be several paths that a parent can take, including through various government offices, to enforce their U.S. child support order. In fact, U.S. state child support agencies may play an integral role in managing these cross-border child support cases, alongside companion agencies in the foreign country. There are also some nuances in the Uniform Interstate Family Support Act that relate to the rules for when you can modify that child support order, and where, in the future. See MK Family Law’s blog post on the enforcement of a foreign child support order in the United States.
Am I including the correct language in my client’s parenting plan or marital settlement agreement?A multi-jurisdictional family may need their settlement agreement recognized and enforced in a foreign country. The language in the document may need to reflect both the law in your U.S. state and in the foreign country. The agreement may need to be broken into multiple separate agreements, addressing topics individually, to help with future enforcement issues. There may also be other considerations, such as whether the child’s voice was heard in the agreement’s negotiation, and how.
Can I ask a Court to Order my client’s co-parent to sign the child’s passport application?A court can order a parent to sign a minor child’s (under the age of 16) passport application, but in some circumstances, that might not be enough. If the parent then refuses, the client is back in court seeking an order of contempt. The Code of Federal Regulations dictates in what circumstances a parent is able to apply for a child’s U.S. passport without the other parent’s signature and participation, and a judge has the authority, in their discretion, to order that a U.S. passport be issued for a child without both parent’s signatures. The court order’s language must be clear and provide the proper legal authority for the U.S. Department of State to issue a passport without both joint legal custodians’ participation. This question also implicates whether a parent is refusing to renew or obtain a child’s U.S. passport out of concern that the parent who wants the passport may abduct the child. A judge will weigh whether that is likely, and has the discretion to institute measures to prevent the abduction, in its order. See MK Family Law’s blog post on U.S. passport issuance for a minor child.
How do I know if the “Hague Convention” applies in my client’s case?Many lawyers misunderstand the Hague Child Abduction Convention. This treaty provides a mechanism for seeking the return of a child who was removed from their “habitual residence” or retained outside of their “habitual residence.” It is not, however, the end-game in an international custody suit – it is the first step in some international custody suits. The treaty only returns, or does not return, a child to their habitual residence, and only applies in certain circumstances. For instance, the treaty only applies when two countries are treaty partners (which involves an understanding of treaty law), and only when the child is under the age of 16. The treaty does not, however, determine which court has jurisdiction to hear the underlying custody suit (which is determined by domestic and conflicts of laws (and, in some cases, another “Hague Convention” that is not currently ratified by the United States) and it does not determine which parent has residential or legal custody of their child (which is determined by the courts of the proper jurisdiction). Again, this treaty is only meant to resume some type of status quo for the stability of the child and to try to deter forum-shopping. [And be careful when calling this treaty the “Hague Convention” – there are actually over 40 “Hague Conventions” on a variety of private international law issues, many of which the U.S. has not ratified or acceded to]. See MK Family Law’s video on when the Hague Child Abduction Convention applies.
If I hire Melissa to testify, can she also provide litigation support, and vice versa?Every lawyer needs something different for their client’s case. If you intend to use an expert for litigation support, such as drafting, research, and client consultation, this expert’s work product is protected. They are, in many ways, co-counsel in your case. A testifying expert, however, may be required to disclose their work product, sit for a deposition, respond to a subpoena, or share their methodology in a written report. For international family law cases this can be a particularly difficult line to skirt for many clients, and it will need to be a strategic decision made by the client’s lawyer, recognizing the potential pitfalls if the expert crosses this line.