You Must Go Home Again: Friedrich v. Friedrich, The Hague Convention and The International Child Abduction Remedies Act
Abstract
The increasing globalization of society, due to technological innovation and political cooperation, has effected profoundly the nature of international divorce and child custody and has highlighted the necessity of a multi-national solution to the legal, practical and emotional problems associated with international custody disputes. Jurisdictional differences and national sovereignty issues have inhibited the development of such solutions, however, and in fact have encouraged "child-snatching." In many instances, an abducting parent is able to take the child to another nation, re-open litigation, and be awarded custody in the new jurisdiction.I The Hague Convention on the Civil Aspects of International Child Abduction (Convention) is an international effort to reconcile the competing policies of national jurisdictional discretion and the deterrence of parental abduction. The Convention has two stated objectives: "to secure the prompt return of children wrongfully removed or retained in any Contracting state; and to ensure that the rights of custody and access under the laws of one Contracting state are effectively respected in the other Contracting states." The overriding goal of the Convention is the prompt return of the abducted child to the country of his or her "habitual residence." An international analysis of "the merits of any custody issue" specifically is precluded. The United States adopted the Convention in 1988 in the International Child Abduction Remedies Act (ICARA). Since that time, several state courts have ordered the return of children abducted to the United States. Yet, few appellate courts have considered ICARA cases. In Friedrich v. Friedrich, however, the Sixth Circuit reversed the district court in an ICARA matter and remanded the case for consideration under appropriate German law. In doing so, the circuit court strictly adhered to the essence of the Convention and its emphasis that the merits of the custody struggle be analyzed "under the laws of the country of habitual residence." This Note will examine the reasoning behind the court's decision in Friedrich, the potential effects of the holding, and its relation to the ancillary policies of the Convention and ICARA. This Note concludes that the court's resolution of the case is vitally important to the continuing success and reciprocity of the Convention, and ultimately reinforces this nation's commitment to deterring future abductions.