International Judicial Monitor
Published by the American Society of International Law and the International Judicial Academy
September 2008 Issue






Global Judicial Dialogue



By James R. Zazzali

Litigation of custody cases occurs with predictable regularity when the residential parent intends to move with a child or children to another city or state. That is not a recent jurisprudential phenomenon. But courts are beginning to confront a new and more difficult problem -- removal to another country. A decision of the New Jersey Supreme Court last year illustrates the challenge and the conundrum. Although the opinion, MacKinnon v. MacKinnon, 191 N.J. 240, did not become a cause celebre, it did capture the attention of the wire services and was reported in disparate places from Maine to Oregon. The opinion was also the subject of discussion by the Judicial Academy last September at the Hague Conference on Private International Law.

Ronald MacKinnon was stationed in Okinawa as a Marine when he met Erika MacKinnon. Although they were married in the United States in 1991, Erika MacKinnon never changed her citizenship. After their child, Justine, was born in 2000, the marriage deteriorated and the mother remained the primary caregiver. She returned to work as a babysitter, housekeeper, and in-home massage therapist.

Erika MacKinnon filed for divorce in 2004, claiming that relocation to Japan with Justine would enable her to earn more money and provide a better life for herself and Justine. She said she has no family in the United States and few friends, but in Okinawa she has both. She also alleged that her job prospects are better there. Her lawyer proposed a visitation schedule that allowed the father time with his daughter in both Japan and the United States.

The trial court approved the move to Japan with several conditions, including New Jersey maintaining sole jurisdiction over the child and the family establishing telephone and webcam communication between the father and daughter when she is in Japan and the same between mother and daughter when the youngster is in the United States. The New Jersey Supreme Court affirmed.

That is the easy part. The proverbial elephant in the room was the concern that the mother in Japan may deny visitation rights to the husband when he visited or, far worse, simply disappear, not a difficult thing to do in Japan with its many islands and 127,000,000 people. Mr. MacKinnon’s fear, a legitimate one, was that because Japan is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, he would have no redress under United States, Japanese, or international law if Mrs. MacKinnon wrongfully withheld visitation. The Hague Convention, a multilateral treaty with seventy-nine contracting nations, seeks “to secure the prompt return of children wrongfully removed to or retained in any Contracting State” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Because of Japan’s status as a non-party to the Hague Convention, Mr. MacKinnon may have limited remedies, if any, if Mrs. MacKinnon violates the court’s order.

The Supreme Court found
no merit in Mr. MacKinnon’s contention that Japan’s status as a non-Hague Convention country should automatically defeat Mrs. MacKinnon’s request for international removal. The trial court properly assessed Japan’s non-Hague Convention status as a consideration … We appreciate Mr. MacKinnon’s concerns about the enforceability of New Jersey visitation orders in Japan and … that it is in Justine’s best interests to maintain a familial relationship with both her mother and her father. To be sure, Mr. MacKinnon may have limited remedies if Mrs. MacKinnon attempts to deny him access to Justine for court-ordered visitation time. … Nonetheless, we have no reason to believe that Mrs. MacKinnon would choose that ill-advised path. The trial court found Mrs. MacKinnon to be ‘credible’ and ‘sincere’ in her desire to facilitate Mr. MacKinnon’s continued parental relationship with Justine, and the record indicates that Mrs. MacKinnon has obeyed all court orders. We reiterate that ‘fear along is insufficient to deprive’ a custodial parent of the ability to relocate with a child if the parent has a good-faith reason for the move and has shown that the child will not suffer from it.

But there are no guarantees that the father will see the child, particularly because, as the Court concluded, “increased international familial disputes” no doubt will occur. There are possible solutions: “In future proceedings, when a parent raises concerns regarding enforceability, the trial court should pursue alternative solutions to such problems by, for example, encouraging the parties to obtain appropriate orders in the foreign nations or enter into contractual agreements, enforceable overseas, governing visitation arrangements.” The best answer is for nations like Japan to adopt the Hague Convention.

Courts, in custodial battles, always must engage in a balancing process. In these relocation cases, judges must weigh the custodial parent’s right to relocate with the other parent’s right to meaningful access to the child, and “flexibly and properly address the myriad, nuanced issues created by family ties that cross international boundaries.” Above all, we must pay profound attention to the child’s need for stability.

In sum, the reader must view this case as limited to its specific facts; one or two changed circumstances could have altered the result. The opinion is not an open sesame for parents to “go back home” with their children. Courts, attorneys, and litigants must be wary of relocation to any nation, particularly a non-Hague Convention country, if the parent left behind is ever to see his or her children again. As one commentator noted, this case stands for “the proposition, amply emphasized by the New Jersey Supreme Court, that each case must be viewed individually on its own particular facts …”

* Mr. Zazzali is a former Chief Justice of the New Jersey Supreme Court and the author of the McKinnon opinion. He presently practices law in New Jersey with Gibbons P.C., with which Judge John J. Gibbons, former Chief Judge of the United States Court of Appeals for the Third Circuit, is affiliated. Judge Gibbons argued the Rasul and Al Odah matters before the United States Supreme Court in 2004.

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