Every U.S. state except Massachusetts has adopted a uniform statute, promulgated by America’s Uniform Law Commission, known as the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”). The UCCJEA authorizes the registration and enforcement of a foreign court’s “child custody determination” and provides, once registered, the foreign order must be enforced and cannot be modified. There are certain requirements and limitations which I cannot outline fully here but this article is intended to provide a brief and introductory overview.

In essence, for a foreign court order to be registrable in a U.S. court, the foreign court must have had jurisdiction within the meaning of Article 2 of the UCCJEA. The most important element of such jurisdiction is the concept of the “home state.” This is a connecting factor that is entirely different from both habitual residence and domicile.

The “home state” is the state or country in which the child lived for at least six consecutive months with a parent or a person acting as a parent immediately prior to the commencement of an initial child custody proceeding. There are special provisions concerning periods of temporary absence, and concerning children who are less than six months old.

The foreign court is deemed to have had child custody jurisdiction for the purpose of the UCCJEA if the custody case was commenced during the six-month period. The foreign court also will have had jurisdiction if the case was commenced within six months after the child left the home state provided that at least one parent was then continuing to live in the foreign state or country. There are other jurisdictional provisions that apply in circumstances in which the child had no home state.

The UCCJEA provides that it is a defense to registration if the child custody determination sought to be registered has been vacated, stayed, or modified by a court of a state or country having jurisdiction to do so under Article 2 of the UCCJEA, or if the other parent did not receive notice of the case such that they could not appear in the case.

If the UK is the home state of an allegedly abducted child and a favorable custody order was issued by a court in the UK. after proper service upon the abducting parent prior to the child’s removal or in a case commenced within six months after that date, the resulting order concerning custody can then normally be registered in the U.S.

A proceeding can then be initiated in the place where the child is currently located in the United States to register and enforce the UK sometimes by means of an expedited “pick-up” procedure.

Note, however, that if the taking parent claims that the child or parent faces immediate abuse, that parent might commence a proceeding in the American court by means of asserting “temporary emergency jurisdiction” that might cause a delay in the return of the child unless and until the American court is satisfied that the authorities in the UK have taken reasonably sufficient measures to provide any necessary protection.

The standard version of the UCCJEA expressly provides that foreign countries are to be treated exactly as if they were sister U.S. states, subject only to an exception if the foreign country’s child custody laws “violate fundamental principles of human rights.” In New York, that “escape clause” is expanded by the addition of the words “as written or as applied.” The escape clause has been applied in a very limited way by U.S. courts, reserving its use thus far to some limited cases in which decisions were clearly based on arbitrary rules of age, gender or religion.

Using the UCCJEA registration and enforcement provisions might perhaps be a preferable method to secure an abducted child’s return to the U.K. in the following circumstances:

• If it might be difficult to establish that the U.K. was the child’s habitual residence, but it is clear that it was the child’s home state. While the definition of “home state” is relatively clear, the U.S. definition of “habitual residence” established by the U.S. Supreme Court in Monasky v. Taglieri, 140 S.Ct. 719 (2020), is that of “the totality of the circumstances.”

• If a petition has not been filed under the Hague Convention within one year of the wrongful removal or retention, since, if the child were currently settled in its new environment, that would authorize a refusal to return the child pursuant to Article 12 of the Convention.

• If the left-behind parent might be deemed to have failed to have been exercising their rights of custody, or if the taking parent might have a viable claim that the left-behind parent consented or acquiesced to the removal or retention, thus triggering the exceptions contained in Article 13(a) of the Convention.

• If the child might be deemed to be of sufficient age and maturity and might object to being returned, thus triggering the exception in such a case that is provided in Article 13 of the Hague Convention to the obligation to return an abducted child.

• If the taking parent is likely to assert that the child, if returned, would face a grave risk of physical or psychological harm or of an intolerable situation, thus triggering the exception in such a case that is provided in Article 13(b) of the Hague Convention to the obligation to return an abducted child.

Furthermore, a UCCJEA case might well be far cheaper and far faster than a Hague Convention case. 

Hague cases in the United States are typically litigated intensely and at great length in the U.S. federal courts. The six-week target date for resolution of such cases that is contained in Article 11 of the Convention is invariably disregarded by American courts. Most Convention cases in the U.S. require extensive pre-hearing discovery and court appearances, and the hearings are generally conducted by means of live testimony with full and extensive cross-examination. Extensive pre-and post-hearing briefing is also often required. Appeals of Convention cases often take very many months.

In sharp contrast, UCCJEA registration and enforcement cases are brought in the local state courts and, although they can sometimes be dragged out for more than the periods of time anticipated by the UCCJEA they are generally completed far quicker and far less expensively than Hague Convention cases.

On the other hand, the Hague Convention will generally be necessary or preferable in the following circumstances:

• If the UK was not the child’s home state within the meaning of the UCCJEA.

• If the UK order was made without the notice that is required by the UCCJEA to have been provided to the taking parent.

• If there is no clearly helpful UK custody order and it is not possible to obtain one promptly that will be registrable under the UCCJEA, perhaps because more than six months have elapsed since the removal of the child.

• If the left-behind parent no longer lives in the UK, since that would then open the door to the U.S. state having child custody jurisdiction under the UCCJEA.

• If, most unusually, the parent who removed the child might make a viable public policy argument that the UK order violates the public policy of the American state or that arises under the U.S. Constitution concerning the rights of the child or of that parent. Thus far, such claims have been restricted to exceptional circumstances.

• If the left-behind parent wants to compel the losing respondent in a Hague Convention cases to pay all of the legal fees and expenses incurred in such a case, as is required in most U.S. Hague Convention cases but not necessarily in UCCJEA cases.

It is also most important to note that the two remedies are not mutually exclusive. A petitioning parent might have “two bites of the apple.” Merely because a Hague Convention is brought and lost does not mean that a UCCJEA registration case cannot subsequently be initiated. The converse is likewise true. However, the two cases may not proceed simultaneously, since Article 16 of the Convention would require the stay of the UCCJEA case.

Accordingly, before selecting the best strategy in any such case, consultation with experienced international family counsel is essential.

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Jeremy D. Morley is an English-educated New York attorney of long-standing, and a dual US and UK citizen, who previously lectured at the University of Sheffield’s Faculty of Law. His website, www.international-divorce.com, contains a wealth of information concerning international family law. He works collegially with family lawyers throughout the UK and throughout the United States. He may be reached at jmorley@international-divorce.com  This article was previously published in Family Law Week.