Return to Machu Picchu?

In the Florida case, a Father and Mother married in Peru in 2012. One child was born during the marriage, and all three are Peruvian citizens. They divorced in 2015, had joint custody, but the child lived primarily with Mother.

In 2021, Mother wanted to visit Florida. The parents signed a travel authorization for the trip from September 2021, through October 2021. However, the Mother and Child never returned. More than a year later, Father filed a state court petition for return of the child to Peru.

The trial court found that Father had rights of custody, had been exercising his rights at the time of the wrongful retention and Peru was the child’s habitual residence.

However, the trial court found that the Father was aware that the Mother was not returning to Peru with the Child before the October return date and that the Mother established, by a preponderance of the evidence, the “well settled” or “now settled” recognized exception under the Hague Convention. The Father appealed.

Florida and the Hague Convention

I have written and spoken on international custody and child abduction under the Hague Convention. The Convention’s mission is basic: to return children to the State of their habitual residence to require any custody disputes to be resolved in that country, and to discourage parents from taking matters into their own hands by abducting or retaining a child.

The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

However, a child need not be returned if it is demonstrated that the child is now settled in the new environment. The U.S. State Department’s interpretation of what “settled” means includes factors such as the child’s age; the stability and duration of the child’s residence in the new environment; whether the child attends school or day care consistently or inconsistently; friends and relatives and participation in school activities, such as team sports, youth groups, or school clubs for example.

Unsettling

The appellate court found that the “well settled in her new environment” exception to the Hague Convention, is not specifically defined in either the Convention itself or in the federal implementing statute ICARA.

But, a child has been considered to be “settled ‘within the meaning of the Convention when a child has significant connections to their new home that indicate that the child has developed a stable, permanent, and non-transitory life in their new country to such a degree that return would be to child’s detriment.

The appellate court reviewed the extensive testimony and the record which adequately shows that the trial court received competent substantial evidence. Accordingly, the appellate court held that Father failed to establish that clear error was committed by the trial court in finding that Mother met her burden of proof on this exception and in thereafter exercising its discretion to not return Child to Peru. Accordingly, the final order denying Father’s petition for return of Child to Peru is affirmed.

The opinion is here.

In the Unites States, once a court of a state has entered a child custody or child support order, the state keeps control of the custody and child support matter unless specific things happen. This exclusivity is true in international child support orders and recently came into play in a case starting in Australia.

Foreign Child Support

A Blunder Down Under?

In 2010, an Australian court awarded two parents equal timesharing of their daughter and incorporated their binding child support agreement. But then in 2018, the Australian court entered another consent order. The parents agreed that the Mother and their daughter could relocate permanently to the United States.

As part of their agreement, the court ordered a long-distance timesharing schedule and added their previous 2018 Child Support Order which provided:

The parents agree to terminate their child support agreement requiring the Father to pay support while the daughter remained in the U.S.

The Father stayed in Australia and the Mother and daughter moved to North Carolina. Soon after, Mother and daughter moved to Florida. This time, they relocated without providing Father with their new address, preventing him from exercising his timesharing rights and contact with their daughter. The Father filed an action in Florida seeking to register and enforce their Australian timesharing order under the Uniform Child Custody Jurisdiction and Enforcement Act.

The Mother filed her own petition asking the Florida court to modify timesharing and child support because the Father had not exercised his timesharing rights, resulting in increased timesharing on her part. The Father moved to dismiss her modification petition, arguing that the Australian court had continuing, exclusive jurisdiction under the Uniform Interstate Family Support Act. The trial court allowed Mother to file an amended petition and denied Father’s motion to dismiss. The Father then petitioned for a writ of prohibition to prevent the trial court from exercising jurisdiction over Mother’s petition to modify the Australian support order.

Florida and Exclusive Jurisdiction

I have written on international custody and support issues before. The Uniform Interstate Family Support Act is one of the uniform acts drafted by the Uniform Law Commission. First developed in 1992, UIFSA resolves interstate jurisdictional disputes about which states can properly establish and modify child support and spousal support orders.

The UIFSA also controls the issue of enforcement of family support obligations within the United States. In 1996, Congress passed the Personal Responsibility and Work Opportunity Act, which required all U.S. states adopt UIFSA, or face loss of federal funding for child support enforcement. Every U.S. state has adopted some version of UIFSA to resolve interstate disputes about support.

One of the more important purposes of UIFSA is to determine the “controlling” order in the event of multiple orders being entered in multiple states and countries. What distinguishes UIFSA is that all states will be enforcing the same amount because there is only one controlling order. Another important feature is that UIFSA adopted a concept that there should be only one court with the exclusive jurisdiction to modify a current support order. The UIFSA uses the term continuing, exclusive jurisdiction.

Back to the Billabong

On appeal, the district court ruled that under UIFSA, Florida courts may modify foreign orders only when a foreign country lacks or refuses jurisdiction to modify its child support order pursuant to its laws or lacked or refused jurisdiction.

In this case, the Mother never alleged that Australia lacked jurisdiction or refused to modify nor did she seek modification in Australia. Because Australia did not lack jurisdiction or refuse to exercise jurisdiction to modify support, the Florida court could not exercise jurisdiction under UIFSA to modify the Australian child support order.

Additionally, the court noted that the Father never waived his objection to the Florida court’s jurisdiction to modify the Australian child support order. Because the Australian court has continuing, exclusive jurisdiction to modify its support order, the Florida court lacked jurisdiction over Mother’s petition to modify child support. The appellate court granted prohibition, and the case was remanded with directions to grant Father’s motion to dismiss Mother’s petition to modify the foreign child support order.

The decision is available here.

Month: November 2024

Hague Convention Now Settled Defense