UPDATE ON INTERNATIONAL CHILD SUPPORT HAPPENINGS
by Mary Helen Carlson
The past few months have seen a great deal of progress on U.S. efforts to improve international cooperation for the enforcement of child support obligations. From June 7-18, 2004, the Hague Conference on Private International Law held the second Special Commission to consider the development of a new global convention for the international recovery of child support. The United States is taking a leading role in the negotiation of this new treaty, which will likely be used by most countries for the next 25-50 years. The U.S. Department of State, the federal Office of Child Support Enforcement and NCSEA all attended the June meeting, along with more than 50 other countries and about a dozen non-governmental organizations.
Where the first Special Commission, which was held in 2003, was a forum for an exchange of views, this year's meeting produced a draft text which reflects an emerging consensus on several of the key issues to the United States. Nothing in the text will be final until Chairman Fausto Pocar (an Italian jurist who is also a judge on the Yugoslav War Crimes Tribunal now underway in The Hague) has gavelled the final Special Commission to a close, probably sometime in 2006. However, the delegates appear to be in agreement that the legal structure of the convention, including the jurisdictional rules on which countries will agree to recognize and enforce child support decisions from other countries, must be "flexible." "Flexible" is the codeword for a text with jurisdictional rules that the United States can accept. The United States is the only country in the world that does not recognize the residence of the custodial parent and child as a constitutionally appropriate forum to enter a child support order against a non-custodial parent who has no other connection with the forum state. The consensus of the delegates was that a State Party should be able to opt out of accepting the residence of the custodial parent and child in the forum state as a jurisdictional basis. The delegates also agreed that the new convention must emphasize administrative cooperation and good practices. One important unresolved issue is costs. Many countries, including the United States, believe that it is essential that the new convention provide that the core services necessary to the establishment and enforcement of maintenance decisions must be provided by the Requested Party at no cost to the Requesting Party or to the applicant. Some countries, especially countries with strictly judicial systems that handle child support cases much like they handle any other civil case to enforce payment of a debt, do not provide free legal and administrative services and are opposed to such a requirement. The Drafting Committee, which has two U.S. members (Robert Keith from the HHS Office of General Counsel and Mary Helen Carlson from the State Department's Office of the Legal Adviser), will meet in October to continue work on the draft text. The next Special Commission will be held in the spring of 2005.
The United States has also made progress with its bilateral child support efforts in recent months. The United States-Switzerland child support agreement was signed on August 31, 2004. An agreement with Costa Rica should be signed before the end of the year. Agreements with Brazil, El Salvador, Finland, Hungary, and the United Kingdom are close to completion. Finally, as a follow up on the successful Meeting of the Americas held in Orlando, Florida in August 2003, NCSEA again joined with OCSE and the Department of State in organizing a United States/CARICOM (the Caribbean Community) negotiation in San Juan, Puerto Rico, Sept. 28-30, 2004. More than a dozen Caribbean nations, participated, along with representatives from CARICOM, the Organization of Eastern Caribbean States (OECS) and UNICEF. Progress was made toward the negotiation of a model child support agreement that will be endorsed by CARICOM and hopefully adopted as bilateral agreements between the United States and individual Caribbean nations.
[Mary Helen Carlson is an attorney with the Office of the Legal Adviser for Private International Law at the U.S. Department of State. She directs U.S. negotiation of bilateral and multilateral child support agreements.]