LESSONS ON THE HAGUE
Published in In Chancery (Contra Costa County Family Law Section Newsletter)
By David M. Lederman, Esq.
On January 24, 2014, Japan became the 91st Contracting State to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction ("The Convention"). The Convention becomes effective in Japan on April 1, 2014 (NOTE as of this writing the State Department has not updated its country specific information for Japan showing accession to this convention).
From time to time I am invited to meet with visiting judges or attorneys to discuss the US (or more specifically California) application of The Convention. In the beginning of February I met with a Japanese delegation of attorneys taking a State Department sponsored tour visiting with "Hague Convention" attorneys and judges across the country. A couple of years ago I met with a delegation of South American Judges.
I learned that each country applies the convention differently. From the South American delegation, I learned that some countries do a "best interest" of the child analysis under the guise of an Article 13 analysis to determine whether the exception exposes the child to a "grave risk of harm." In my view making this analysis the rule as opposed to an exception undermines the point of the convention.
In the US, a Hague claim can be brought in Federal or State court. Japan is doing this a bit different. Japan established 2 jurisdiction specific Hague Convention Courts, one in Tokyo and one in Osaka. The Tokyo Court will handle all convention cases in East Japan and Osaka will handle the West. In expectation of implementation, all family law judges in Japan are being trained in the convention.
When crafting custody orders it is important to understand the risks of international child abduction. To state the obvious, foreign countries are not bound by the full faith and credit clause of the US Constitution. A drafting attorney needs to at least understand the tools available (or not available) to return a child to the United States, if there is any risk child abduction.