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Determinig jurisdiction in international child custody cases

Document Citas 2 Citado por Relacionados
Vincent
AutorJurgita Grigiene y Paulius Cerka
Páginas137-143

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Introduction

In recent years people are traveling a lot and changing their residence more frequently. The movement of people are especially increasing in the European Union. Migration of refugees also increases due to political reasons in some corners of the world. Disputes occur not only among locals but foreigners, too. Each country has its own rules, how disputes are solved by applying its own material law, which is decided by a competent court. So the very important question is to determine which court would be competent to solve a particular dispute because a court will apply its owns rules how to determine applicable law. Consequently the jurisdiction of a court is the deceive factor. In order to avoid conflicts of jurisdiction international convention regulating issues of jurisdiction are signed. But there is no worldwide convention were all states participate, so the determination of jurisdiction is left to domestic rules of conflicts of jurisdiction. Material family law is quite different in each country, it has its own traditions and roots, thus unification of family law is not possible. When people are moving more and more and changing their residence, more and more international family disputes arise. One of the family disputes is solving a child custody. In such cases a very important question is which court is competent to deal child custody cases. Of course, parents fight for their rights of custody, but one more fight occurs when parents fight for a competent court. Each of them try to fight for a more convenient court. A convenient court could be chosen according to the residence of a parent, or applicable material law, which could favor one

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parent. For example, in some countries were parents of child are not married, so custody belongs only to single mother, however in some countries there is possibility to have shared custody while other countries have no shared custody at all.1 As each court applies is own material law in family cases so depending which country court will solve the dispute the different law (custody for single mother, share custody or not) could be applied and the case outcome will differ. Sometimes it happens that the State must interfere in a family and determine custody of a child not with parents but with other guardians. A child cannot execute his right because of his of his age and the execution of his rights depends on either on parents or guardians. The rights of custody2 has a direct influence on rights of a child. Depending on how a custody issue is solved rights of a child will be influenced. And the jurisdiction of a court influences the determination of custody as each country has different rules for custody of children and different criterion determining custody for one or another parent or even state. This could be illustrated by one very landmark case where Lithuanian single mother with her son moved to Norway and where Norwegian governmental institution “Barnevernet” decided to limit the mother’s custody right and transfer custody of son to guardians. The article analyze what main jurisdiction criterions are used to determine jurisdiction in child custody cases, how these criterion are set in international and national legal acts how they are applied and interpreted and which of the criterion could be most suitable to determine jurisdiction in international child custody cases.

International regulation of jurisdiction in child custody cases

Jurisdiction could be based using different grounds such as domicile, habitual residence or citizenship. Jurisdiction rules must guarantee relationship between a state and a dispute. Hague Conventions are one of the main sources unifying conflicts of jurisdiction rules in child custody.

Article 8 of Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction3 (hereinafter Hague Abduction Convention) provides that disputes over child’s removal or retention in the breach of custody rights (which includes the right to determine child’s inhabitation)

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are decided by competent Central Authorities of a child’s habitual residence. A criterion of determining child‘s habitual residence is also provided by the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures...

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