Case Update (31 Oct 2024): In re. Marriage of Sims; parents with a foreign custody order may seek enforcement under the UCCJEA, in lieu of an Abduction Convention return
The parties are parents to 3 children. The entire family resided in Japan, even though no one was a Japanese citizen. Their children were born in Japan. In December 2018, the Mother petitioned for mediation in the Japanese family court. The process failed, so, in April 2021, the Father petitioned for a contested divorce in the Japanese family court. While the case was pending, in June 2021, the Father agreed for the children to travel to Colorado, with a return date of August 2021. In August 2021, only the daughter, but not the 2 sons, returned to Japan. The Father having subsequently secured a Japanese custody order granting him full custody of the children, filed, in April 2022 in Colorado, to register the decree under the Uniform Child-Custody Jurisdiction and Enforcement Act, as enacted in Colorado. He filed the requisite paperwork in the local Colorado family court, and then sought the registered decree’s enforcement. The Mother objected, arguing that she was to be permitted certain arguments against returning the 2 children under the Hague Abduction Convention. The Colorado court held a hearing in January 2023 to address the registration of the order, and confirmed that the Father had met the requirements to register the order. On July 26, 2023, the court enforced the decree and ordered the 2 children returned to Japan.
The Colorado Court of Appeals addressed the Mother’s appeal. Essentially the court concluded the Mother had “abandoned her contention that the district court disregarded the applicability of the Hague Convention.” The Court also stated that the Mother was wrong when she argued that she had been precluded from arguing the Hague Convention “because at the July 2023 status conference, she had the opportunity to do so but chose not to.”
In an unpublished opinion, the Colorado Court of Appeals dismissed the Mother’s appeal, and affirmed the order to return the children to Japan.
This court opinion misses an obvious argument - the UCCJEA and the Hague Abduction Convention are two entirely separate proceedings. The Father/Petitioner, in this case, apparently never filed a request to return the children using the Hague Abduction Convention. Therefore, that issue was never before the court. This case should not argue or reference the Abduction Convention. It is irrelevant as to whether to register and/or enforce a foreign court’s custody determination under the UCCJEA. Parents who have a final custody determination from a foreign court may bring that order into the U.S. state where they seek to enforce it, and seek that order’s registration and enforcement quickly, and with many fewer arguments than that available under the Hague Abduction Convention. The Hague Abduction Convention, on the contrary, is not a proceeding to enforce a foreign order. This case conflates the two proceedings, which is not uncommon. The end result, however, appears to have been un-impacted.
