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The Long Arm of Family Law

Making Foreign Divorce Judgments, Orders, and Decrees Valid and Enforceable California Court Orders

People from every country come to California to pursue their dreams and to escape financial and personal problems. They bring with them the baggage of unsatisfied obligations for support, unresolved child custody disputes, and unpaid property settlements. Ex-spouses and lovers follow the scofflaws here with their foreign court orders to collect what is owed. Stolen children, unpaid support, and unsatisfied money judgments are the fallout from a litigious and peripatetic populace. The challenge for the California lawyer is to enforce a foreign court order issued under an alien court system with different rules, procedures, and standards.

Before California law can be utilized to enforce foreign(3) divorce judgments the foreign court order(4) must first be established as a California order. To establish the order as a California order, it must be recognized by our courts as valid.

The full faith and credit clause of the United States Constitution prescribes that a state must recognize the public acts, records, and judicial proceedings of every other state.(5) However, this mandate does not apply to the decrees of foreign countries. Even without the assurance of the full faith and credit clause, our courts may give recognition to the judgment of a foreign nation as matter of comity. The comity doctrine holds that, as a courtesy, a court may recognize a foreign court order, but is not compelled to do so. This extension or denial of comity is discretionary and is reviewed on an abuse of discretion standard,(6) allowing the trial court wide latitude. Because the comity doctrine is discretionary, it is undependable.

Due to the comity doctrine's unreliability, business and government agencies have lobbied successfully for legislation that will ensure that support orders, money judgments, and custody decrees issued in foreign countries will be recognized by our courts in the same manner as they would recognize the judgments of the other states. The statutes that serve this purpose were drafted by the National Conference of Commissioners on Uniform State Laws. The Uniform Child Custody Jurisdiction Act is primarily designed to enforce custody decrees(7) and the Uniform Interstate Family Support Act enforces support orders(8) between the states. They each, however, include provisions that allow for the recognition of foreign country court orders. The Uniform Foreign Recognition of Money Judgments Act(9) ("UFMJRA") was drafted specifically to ensure that money judgments from other countries will be recognized by California courts.

The uniform laws relating to support and custody permit the registration of foreign court orders and objections to registration and enforcement issues are resolved in the Family Law Department of the Superior Court. Registration simplifies the process because the order becomes a California court order at the time of registration. On the other hand, to obtain recognition of orders for the payment of non-support foreign money judgments under UFMJRA, a complaint must be filed to establish the judgment in the Superior Court. The issues raised under UFMJRA relating to jurisdiction and enforcement are resolved in the Civil Department of the Superior Court, even though they may arise out of a family law judgment.(10)

The statutes described above cover most orders in a divorce decree — custody orders, support orders, orders for the payment of money to equalize the division of the marital property, and orders for attorney's fees.

Foreign orders for the division of California real property are not covered by any uniform law. The comity doctrine is the only recourse in obtaining recognition of the foreign court order. The party enforcing a foreign court order to divide California real property may bring an action for partition in the Civil Department of the Superior Court. When these actions are filed, a lis pendens is often filed and recorded con-currently in the county where the property is located.

Whether the foreign order is recognized as a California order utilizing the common law comity doctrine or is being established pursuant to statute, the same constitutional jurisdictional prerequisites apply.(11) Thus, the California court must first determine whether the foreign country had jurisdiction over the parties when the order was issued. To make this determination, the part of the judgment that is being enforced must be examined. For the purpose of determining whether the foreign court had jurisdiction, a divorce judgment is not treated as if it were one court order. The divorce judgment is unique in that it contains separate court orders for support, custody, children, and property, each having different jurisdictional requirements. This division of the divorce judgment into separate orders with different jurisdictional requirements is called the doctrine of divisible divorce.(12) Thus, for a court to recognize an order or enforce a divorce judgment it must have the requisite jurisdiction over the part of the decree that must be enforced.

To properly terminate marital status requires the court to possess subject matter jurisdiction over the res; child custody orders require subject matter jurisdiction over the children; orders for the payment of money require in personam jurisdiction; and orders regarding property division may require both in rem and in personam jurisdiction. For example, if a child of divorcing parents were legally living in California for six or more months(13) at the date the divorce is filed, the California court would have subject matter jurisdiction to make custody orders, but if the parent who is obligated to pay support for the child were living in Scotland, and our court did not have personal jurisdiction over him, a support proceeding would have to be commenced in Scotland.

Once the California court has determined that the foreign court had proper jurisdiction to issue the order, it must then determine if the defendant had notice and an opportunity to be heard in the foreign country.(14) Only after these constitutional requirements are met and the order is recognized, can it be enforced in California.

Recognition of Foreign Custody Orders

Foreign custody orders are enforced in California pursuant to California's version of the Uniform Child Custody Jurisdiction Act ("UCCJA"), codified as Family Code  3400 et seq. To register a foreign judgment, a certified copy(15) of that judgment must be filed in the superior court of the county in which it is to be enforced,(16) along with a translation of that judgment(17) and a declaration filed under the UCCJA.(18) This declaration provides information to the court that may assist it determining whether it has jurisdiction. The declaration notifies the court where the child or children lived in the last five years, if there is another action pending in another court, and if any other parties claim to have custody of the child.

Once the custody order is registered, it can be enforced using the same procedures as would any other California court order. Notice of the registration is not required. When the enforcement is sought on the registered order, the type of notice given will depend on the remedy sought. In the case of a kidnaping, often no notice is required. The defendant may challenge the registration on the basis that the foreign court's orders are invalid by filing a motion to quash. If the order was rendered in a country whose institutions are similar to those of other states and a "reasonable notice and opportunity to be heard was given to affected persons,"(19) that order will be recognized by the California court.

In re Marriage of Malak(20) is significant in that it affirms that our courts will recognize court orders from countries with laws different from our own. The trial court in Malak refused to recognize the child custody orders of the Sherei Sunnit Court of Beirut, Lebanon, because the court believed that the Islamic court issued an interim custody decree without notice, that the order did not afford Mrs. Malak "notice and opportunity to be heard," and because the Islamic court did not appear to hold the "best interest of the child a central consideration in its determination of custody."(21) The appellate court reversed the trial court and found that Lebanese law provided for reasonable notice and an opportunity to be heard and was not unlike California's ex parte procedure authorized by former Civil Code section 4600.1.(22) Further, since the Lebanese court acted when Lebanon was homeland of both parties(23), had significant connections with the family(24) and its laws looked to the best interests of children, it acted under statutory provisions substantially in accordance with our uniform custody laws(25).

In situations where different countries issue valid conflicting custody orders, priority is given to the first person to file their custody action.(26) An instructive example of how this type of conflict was resolved is described in In re Stephanie M.(27) In Stephanie M. it was held that a California dependency court properly refused to recognize the custody order of a Mexican court when the Mexican court order was issued after the dependency court issued its order terminating the parental rights of a Mexican couple living in Long Beach. The child's grandmother (who lived in Mexico) and the child's foster parents both requested that they be appointed guardians of the child. After a thorough investigation and numerous hearings, the trial court granted the foster parents guardianship. Only after the California court entered its final order did a Mexican court issue a conflicting order granting the guardianship of the child to the grandmother. The Mexican consulate wrote a letter advising the California court that there was a guardianship decree from a Mexican court and that pursuant to the Multilateral Vienna Convention on Consular Relations and Optional Protocol on Disputes of April 23, 1963,(28) the California court had to recognize and enforce the Mexican court order.(29) The California dependency court refused to vacate its order and enforce the Mexican order. The California Supreme Court affirmed the trial court's decision and held that although California courts may enforce foreign custody orders of other countries, they are not obligated to do so.(30) The Supreme court further held that the letter from the Mexican consulate informing it there was a guardianship decree from a Mexican court does not bind the California court where there was a prior California judgment terminating the parental rights of a Mexican child.(31) Moreover, the Supreme Court held that the Multilateral Vienna Convention does not apply, since that treaty recognizes the jurisdiction of a court in the receiving state (in this case California) to apply its laws to a foreign national and does not make jurisdiction dependent on notice (the Mexican consulate claimed it was not given notice). The Supreme Court held that the trial court properly applied the Uniform Child Custody Jurisdiction Act,(32) which states that international custody orders are to be enforced to the same extent that the order of a sister state would be enforced.(33)

One of the purposes of the Uniform Child Custody Jurisdiction Act is to "deter abductions and other unilateral removals of children undertaken to obtain custody awards."(34) To recover stolen children requires quick and decisive action on the part of the attorney. After registering the certified copy of the foreign order (with the translation), a warrant in lieu of writ of habeas corpus can be filed to order the release of the child.(35) The assistance of the District Attorney can be used to locate the party and the child and to bring the child to the hearing.(36) The party detaining the child may attempt to persuade the court to conduct a hearing to determine the best interest of the child. This attempt to relitigate the issue of custody must be vigorously resisted. The only issues that should be addressed at the hearing are whether there is a valid foreign court order, whether the order was made by an institution similar in nature to ours, and whether the party had notice and opportunity to be heard in the foreign jurisdiction.(37)

The party detaining the child is also likely to argue that the California court should assert "emergency jurisdiction" under Family Code 3403(a)(3) because "the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent which includes a child who has a parent who is victim of domestic violence...." Emergency jurisdiction should only be asserted for the purpose of insuring that the child is safely returned to the country that issued the custody order and not for the purpose of modifying the foreign country's' court order.(38)

The party seeking to enforce a foreign custody order can also request that the party violating the order pay attorney's fees, travel costs, and other expenses to the party and their witnesses.(39)

Foreign Support Orders and Paternity Judgments

The Uniform Interstate Family Support Act ("UIFSA")(40) was enacted as California law on January 1, 1998 to more efficiently enforce the child and spousal support orders, as well as paternity judgments, of other states and countries.(41) The prerequisite to enforce another country's orders under UIFSA is that the country of origin must have a "law or procedure substantially similar to UIFSA's, or one of UIFSA's precursors — the Uniform Reciprocal Enforcement of Support Act ('URESA') and the Revised Uniform Reciprocal Enforcement of Support Act ('RURESA')."(42) UIFSA does not require that there be reciprocity between the foreign country and California for a foreign support order to be enforced.(43)

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