Jurisdictional Determination involving Foreign Nations
by Jaime Culotta & Larry Chamberlin
Sometimes we have clients who have immigrated to the United States but were divorced and have child custody orders from another country. This article will discuss the application of the Uniform Child Jurisdiction and Enforcement Act (UCCJEA) and Texas Family Code (TFC) in the modification of custody orders involving one parent that is living here in the United States, and the other in certain foreign countries.
When both parents live in the same state or country, it is relatively easy for one to initiate the modification of custody orders, due to the fact that the jurisdiction of the court is determined quite easily, as it is the court in which the parents were divorced or the current custody agreement was reached. We call this the Court of Continuing Jurisdiction. However, when one parent still lives outside the country, it is necessary for the court to determine whether they have jurisdiction over the child and the authority to order a modification of the current custody orders. This determination is also applicable to adoption cased where the rights of the absentee parent must be terminated.
The Uniform Child Custody Jurisdiction and Enforcement Act is incorporated as Chapter 152 of the Texas Family Code (TFC) which states that “except as otherwise provided in Section 152.204, a court of this state may not modify a child custody determination made by the court of another state unless a court of this state has jurisdiction to make an initial determination and the court of the other state determines it no longer has exclusive continuing jurisdiction under section 152.202 or that a court of this state would be more convenient forum under section 152.207 or if the children, the parents, or any other individual involved in the action does not live in the other state.” [i] Also, under the UCCJEA “A court of this state shall treat a foreign country as if it were a state of the United States” for the purpose of determining jurisdiction in child custody disputes. [ii]
In such a case where one parent remains in the home country, the Texas Judge will attempt to visit with the other Judge. This procedure is complicated in cases where the other country has no single Court of Continuing Jurisdiction, or where the other Court simply will not take part in communication. The “other state” i.e. the foreign nation’s court system, is not able or willing to declare that they no longer have exclusive jurisdiction or that the United States would be a more convenient venue.
One of the under looked exception to the UCCJEA’s restrictions occurs when “the child custody law of [the] foreign country violates fundamental principles of human rights.”[iii] For the purpose of demonstrating this exception, we will consider the child custody laws of the United Arab Emirates (UAE), a nation that is not a signee of the 1980 Hague Convention on the Civil Aspects of International Child Abduction and are not a party to any bilateral agreements with the United States regarding jurisdictional and other family matters.
The Judicial system of the UAE mandates that the courts’ interpretation of family law provisions be guided by the Principles of Sharia Law (PSL), which governs all aspects of custody, guardianship and maintenance of the children. Custody law under the PSL assigns specific and vastly different roles to the mother and father of the children. Most notably, the mother is almost always granted “custody” unless she is deemed otherwise unfit, while the father is granted “guardianship”. This means that the mother is responsible for the daily needs of the children but the father is solely responsible for the expenses of the child, as the father is awarded sole control of the finances. Under the PSL the father has the exclusive power to determine where the mother and children will live, where and how the children will be educated, and what their expenses are. Under PSL Article 156, the mother automatically loses custody of the children, regardless of her actions, when the children reach a certain age – 11 years old for boys and 13 years old for girls.
The aforementioned laws are condemned under U.S law as discriminatory and violates the fundamental principles of human rights. Additionally, the unequal treatment of the children based on their gender also gives reason to believe that their human rights have been violated. Specifically, the educational training of the children is determined solely by the father who has no legal duty to educate his daughter. Under the PSL, the father is not required to educate his daughter at any age. Additionally, his obligation to support his daughter is terminated upon her marriage, whereas his obligation to support his son is terminated upon the completion of his son’s education. The rights regarding the upbringing of children in the UAE are founded explicitly on gender discrimination and thus violate the Fundamental Principles of Human Rights granting equal treatment under the law.
Upon demonstrating that one or more Fundamental Principles of Human Rights are violated by the child custody laws of a foreign nation, the court must determine that it should not apply the jurisdictional analysis of the TFC section 152.105 to that country. If the court rules in your favor, it will then have the authority to modify the custody orders of the foreign nation. This authority includes the termination of rights of the absent parent, subject to the requirements of any termination procedure.
Additional factors not mentioned here can bear on your own case. For more information regarding the modification of child custody orders, set up a free consultation with our office using the “contact us” link on our website.