Simultaneous Proceedings in Two Countries and How Courts Sort Them
When a child moves, two courts often end up holding files about the same family. The uniform custody jurisdiction act tells a court what to do when it learns of the other case, and the answer is usually to stop and place a call.
The rule in short
The Uniform Child Custody Jurisdiction and Enforcement Act, a uniform act adopted state by state and renumbered into each state's own code, directs a court not to exercise custody jurisdiction where a proceeding was already commenced in another court exercising jurisdiction substantially in conformity with the act. The court must examine the pleadings, stay its case, and communicate with the other court. Foreign countries are treated as states for this purpose.
When a family separates across a border, two courts frequently end up holding cases about the same child. One parent files where the child now is; the other files where the child came from. Neither court is doing anything improper by opening a file, and neither is required to guess. The rules tell each court what to do once it learns of the other.
Two tracks that are often confused
A return proceeding and a custody case are different animals. The return proceeding asks only which country should decide custody, and it is described in the return petition and what the applicant must prove. A custody case asks who the child lives with and on what terms. They can be pending at the same time in different courts, and often are.
Article 16 keeps them from colliding. Once a court in the country the child was taken to has notice of a wrongful removal, it may not decide the merits of custody until the return application has been resolved or a reasonable time has passed without an application being made. A custody order made in breach of that rule carries little weight elsewhere.
The rule when two custody cases are open
The Uniform Child Custody Jurisdiction and Enforcement Act supplies the sorting rule for custody cases. It is a uniform act, which means it was drafted once and then enacted separately by each legislature, with its own section numbers and occasional local variations. Nearly every state has adopted it, so the pattern below describes the common form rather than any one code.
A court may not exercise custody jurisdiction where, at the time the proceeding was commenced, a proceeding concerning the child had already been commenced in another court exercising jurisdiction substantially in conformity with the act. The exception is where that proceeding has been terminated, or stayed because the second court is the more appropriate forum. The rule is about which case started first, not which parent is more sympathetic.
Courts examining the file and talking to each other
The act requires a court to examine the pleadings and any information statement before exercising jurisdiction. If it determines that a proceeding was commenced elsewhere, it stays its own case and communicates with the other court. That communication is not informal gossip: the parties must ordinarily be given notice and an opportunity to be heard, and a record of the exchange is made, except where the exchange concerns only scheduling or the contents of records.
Direct judicial communication is more established internationally than most parties expect. Many countries designate liaison judges for exactly this purpose, so a judge who needs to know whether a case is live abroad, or what protective orders exist there, has a route to ask.
The most useful and least known feature of the uniform act is that a foreign country is treated as if it were a state of the United States for the jurisdictional rules. That means the priority rule, the home-state analysis and the recognition provisions all operate with a foreign court on the other side. The narrow exception is where the foreign law on child custody violates fundamental principles of human rights, which is invoked rarely.
| Situation | What the second court does | What the first court keeps | Source of the rule |
|---|---|---|---|
| Earlier custody case pending abroad | Stays its case and communicates | The case, unless it declines | Uniform act, simultaneous proceedings |
| Return petition pending | Refrains from deciding custody merits | The return question only | Abduction Convention, Article 16 |
| Child in immediate danger, no other basis | Enters a temporary protective order | Continuing jurisdiction over the merits | Uniform act, emergency jurisdiction |
| Another forum clearly more suitable | May decline after considering listed factors | Nothing; the case moves | Uniform act, inconvenient forum |
| Jurisdiction created by wrongful removal | Normally declines and may assess fees | The case, as the wronged forum | Uniform act, unjustifiable conduct |
Declining a case the court could have kept
Two provisions let a court step aside. The inconvenient forum provision allows it to decline where another forum is more appropriate, after considering factors that include domestic violence, the length of time the child has lived outside the state, the distance between the forums, the location of the evidence, and each court's familiarity with the facts. The other court must be given the chance to take the case.
The unjustifiable conduct provision is aimed at exactly the situation these articles describe. Where a court has jurisdiction only because a party removed or retained the child wrongfully, it declines to exercise it, and may assess necessary expenses against that party. The reasoning is the same as the Convention's: a move should not improve a legal position. The same instinct appears in commercial litigation, described in forum objections and parallel proceedings abroad.
What happens to the orders each court has made
Sorting out jurisdiction does not erase orders already entered. A temporary order made under emergency jurisdiction and temporary orders remains in force on its own terms until the court with continuing jurisdiction acts. An order from the other forum is given effect through registration, which is the subject of registering and enforcing an order from another state.
Where the order comes from a foreign court rather than another state, the recognition analysis differs in its conditions but not in its shape, and is described in enforcing a custody order from another country. In each case the practical question is the same: which order will a police officer or a school actually act on.
Points to carry away
- The uniform act treats a foreign country as if it were a state for jurisdictional purposes.
- A court learning of an earlier case elsewhere must stay its own and contact that court.
- Parties must ordinarily be given the chance to participate in communication between judges.
- Article 16 bars a court from deciding custody merits once it has notice of a wrongful removal.
- A court may decline jurisdiction where another forum is more appropriate for the child.
- Jurisdiction obtained through unjustifiable conduct is normally declined.
Questions readers ask
What does a party have to disclose when filing?
The uniform act requires the first pleading, or an attached affidavit, to state where the child has lived, with whom, and whether the party knows of any other proceeding concerning the child or any person claiming custody rights. The duty is continuing: a party who learns of another case afterward must inform the court. Courts take an incomplete statement seriously, because the whole scheme depends on each judge knowing whether another judge already holds the case. Concealing a foreign proceeding invites both sanctions and an adverse jurisdictional ruling.
Can a parent file abroad to defeat a return petition?
Filing abroad does not defeat it. Once a court hearing a return petition has notice of the wrongful removal, Article 16 prevents it from deciding the merits of custody until the return application is resolved. A custody order obtained in the new country during that period is entitled to little weight, and courts in the country the child left generally decline to recognize it. The strategy tends to harm the filing parent, because it reads as an attempt to create jurisdiction by moving.
Do the same rules apply if the other country is not a Convention partner?
The custody jurisdiction rules do, because the uniform act treats a foreign country as a state regardless of any treaty. What disappears is the return remedy, which depends on the Abduction Convention being in force between the two countries. A parent in that position is left with the custody route: obtaining or keeping a home-state order, seeking its enforcement abroad under the other country's own law, and asking the court to weigh the other parent's conduct in the custody decision.
Sources
- Cornell Legal Information Institute — 28 U.S.C. 1738A, Full Faith and Credit Given to Child Custody DeterminationsThe federal rule requiring states to honor another state's custody determination and not modify it.
- HCCH — Convention on the Civil Aspects of International Child Abduction, full textArticles 16 and 17 bar a merits decision while a return application is pending.
- HCCH — Convention on Jurisdiction, Applicable Law and Recognition in Respect of Parental Responsibility, full textJurisdiction based on habitual residence and the rules for transfer between authorities.
- Cornell Legal Information Institute — 22 U.S.C. 9003, Judicial RemediesConcurrent state and federal jurisdiction over petitions and the effect of a pending petition.
- Cornell Legal Information Institute — 22 U.S.C. 9001, Findings and DeclarationsCongress's statement that return proceedings are not custody proceedings.
- HCCH — Child Abduction SectionGuidance on direct judicial communications and the network of liaison judges.
Liberty Law Library is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in International Family Law
The Return Petition and What the Applicant Must Prove
Under Article 3 of the Abduction Convention and 22 U.S.C. 9003, a petitioner seeking return must show by a preponderance of the evidence that the child was habitually resident in the requesting country, that the petitioner held rights of custody under that country's law, that those rights were actually being exercised, and that the removal or retention breached them. The court decides location, not custody.
Mirror Orders and Undertakings Before a Child Travels
Where one parent asks to take a child abroad, courts commonly condition permission on protective devices: an order in the destination country mirroring the home order, undertakings given to the home court, a bond or other security, and passport conditions. Undertakings depend on the goodwill of a court that may never see them. A mirror order exists as an enforceable order in the place it will need to work, which is why courts prefer it.
The Hague Maintenance Convention and Foreign Support Orders
The Convention on the International Recovery of Child Support and Other Forms of Family Maintenance establishes Central Authorities in each party state and a set of applications a parent may make through them: recognition and enforcement of an existing decision, enforcement of a decision made locally, establishment of a decision where none exists, and modification. Free legal assistance is required for most child support applications, and the deciding authority may not review the merits.