Friday, February 8, 2013

International Child Abduction Remedies Act

Deference to Foreign Custody Judgments as a Principle of International Comity

By Christopher Honeywell
Chris Honeywell, a 2012 graduate of Albany Law School, is currently an Associate Attorney with Girvin & Ferlazzo in Albany, where he practices in their litigation department. He did his undergraduate work at St. Lawrence University.
While in law school, Chris served as a judicial intern to Hon. Eugene P. Devine, Supreme Court, Albany County. He also served as Executive Director of the law school's Moot Court Program and, in recognition of his contributions, he was inducted into the Albany Law School Chapter of the National Order of the Barristers.
Chris prepared this paper for Prof. Alexandra Harrington's course in International Child Rights, Spring 2012.

The International Child Abduction Remedies Act does not require courts to grant deference to a foreign custody order. In a country where American superiority is at minimum a subconscious thought of many Americans, do United States courts give foreign judgments deference under the principle of international comity even though the full faith and credit clause does not require it?

Child custody is never an easy issue for courts to determine. The ever-evolving standards and criteria upon which to base custody, as well as the emotional toll the proceedings alone can have on a family, cause child custody decisions to be contentious and heart wrenching endeavors. Only complicating these proceedings are the technological advancements in travel during the second half of the 20th century, which make it easier for people to travel abroad, work in other countries, and even marry and settle down in a foreign country.

When the marriage is successful, the child has the tremendous opportunity of being exposed to a variety of cultures and opportunities. However, when the marriage fails, differing views on child rearing, gender roles, and what is best for the child make child custody cases a nightmare to determine. Complicating it even further is when one parent takes the child and flees the country, either returning to their home country to raise the child, or escaping the country where a custody agreement handed down was not in that parent’s favor.

International disputes of any nature often raise questions of which State and court should decide the issue and which State’s laws will be controlling in the case. One more added layer of controversy is that of culture. Disputes will arise because of cultural differences in childrearing and the courts may be in a position where they have to weigh the cultural values of a society they have no experience with and even a culture they may disagree with against a familiar culture. Lacking stable guidelines on dealing with international custody disputes, courts were coming to different conclusions and interpretations, allowing for parents to more easily abduct their child and forum shop for the appropriate location to raise their child out of reach from the other parent.
To read the paper, open HERE.