Treating internal U.S. conflicts and international conflicts law the same, without distinguishing between them, has always puzzled non-U.S. lawyers and scholars. Europeans often do not understand how we can treat transnational choice of law decisions as if they were between two domestic states in light of the inherent differences between legal systems and traditions. Nowhere today is this contrast between international legal cultures and purely domestic matters more evident than in the realm of family law and in particular issues relating to children, where religion, culture, ethnicity, and morals help shape decisions. And nowhere is the question of whether domestic and international conflicts should be treated the same more pressing than in the current work of the American Law Institute (“ALI”).
The ALI is currently in the process of preparing a new Restatement of Conflicts (Third) and is faced with the issue of whether and how to address cross-border family law cases. This decision is complicated by the fact that the ALI is at the same time preparing a new Restatement of Foreign Relations Law (Fourth). Many observers are uncertain about where private international law aspects of private law matters such as family law should be covered—in the Restatement of Conflicts (Third), the Restatement of Foreign Relations Law (Fourth), or both. One often thinks of the Restatement of Foreign Relations as being addressed primarily toward issues of public international law. For example, when faced with a choice of law question involving a foreign custody order, few judges, and even fewer lawyers, would know to consult the Restatement of Foreign Relations Law (Third) about how to treat the foreign judgment. Indeed, there are almost no cases relying on Section 485 of the Restatement of Foreign Relations Law (Third). The dearth of references reflects in part the lack of familiarity by the U.S. bar and judiciary with the Restatement of Foreign Relations Law (Third) and the attendant need to incorporate different concerns when cross-border elements are involved.
More importantly, the Restatement of Conflicts (Third) is confronted with the overall question of how to incorporate international conflicts within rules for interstate conflicts. This question of how different “foreign” as opposed to “domestic” conflicts are treated pervades the entire project. The current draft takes the position that international and interstate conflicts are generally to be treated the same:
c. International conflicts. For purposes of conflict of laws, the interstate and international contexts are broadly similar. The rules in this Restatement are also usually applicable to cases with contacts to one or more foreign nations. This is properly so since similar values and considerations are involved in both interstate and international cases . . . .
There is of course some irony in the fact that the “founding” Conflicts scholar, Justice Joseph Story, imported international public law concepts into domestic application in the concept of territorialism, which ensures sovereign control of all within the borders.
This essay looks at the Restatement of Conflicts (Third) within the context of family law involving children. Although the realm of family law involving children is vast, for purposes of this essay I have chosen to focus primarily on examples based on child custody, visitation, and related issues, and to exclude issues involving marriage and divorce. Within this category, I will focus on three general aspects of the question whether interstate and cross-border/international cases are the same and ought to be treated alike in the area of family law related to children. First, much of cross-border family law is covered by treaties and by regional instruments, including the work of the United Nations, the Hague Conference on Private International Law, and regionally by the European Union. Domestically, cross-border family law is addressed by uniform state law and some federal law. Second, cross-border family law, especially those areas dealing with custody and visitation, may have significant cultural, ethnic, and religious dimensions that raise problems distinct from domestic cases; particularly in connection with cases involving personal law and religious courts. Third, an interrelated issue in the United States is the use of foreign law, the importance of which the new Restatement of Conflicts has recognized with draft provisions on proving foreign law. The proliferation of state foreign law prohibitions and anti-Sharia laws threaten to remove from courts the ability to resolve conflicts of law decisions in the cross-border context.
This essay advocates a pragmatic approach to family law matters involving children with international connections. These matters demand special attention as the number of children crossing borders increases exponentially under the continuous influence of globalization. Specifically, I argue for addressing international conflicts involving children within the Restatement of Conflicts (Third)—where most lawyers would expect to find this analysis—but separately from purely domestic cases. International/ cross-border cases are different from purely interstate cases in conflict of laws problems related to child custody, visitation, and measures of protection. The international component introduces a variety of elements, including different legal, cultural, religious, social, and moral values that are not usually present in purely domestic cases, or at least not as prominent. While it is possible for religious issues to arise in purely domestic cases (particularly those involving marriage or divorce), in the international context, the religious issue is often government sanctioned, with the personal law being religious law and the family law courts being the religious courts, such as in Jordan or Egypt. The impact is evident in dealing with questions of jurisdiction and recognition and enforcement involving Islamic countries. Even within the Islamic countries, the means and the extent of the permeation of Sharia varies by country. Family law pertaining to the role of women within the family structure, divorce, and child custody differs significantly from that in the Western legal tradition and in the United States.
Certain aspects of situations concerning children touching on more than one country argue in favor of special treatment for such international conflict of law problems; these problems are distinct from wholly domestic cases. Acknowledging these aspects will produce more consistent results that will support harmonization in this critical area and allow children to move seamlessly from one country to another without raising significant issues of private international law. In the bigger picture, United States decisions are more likely to gain respect and recognition outside of the United States when they reflect and embrace transnational norms rather than rely on purely domestic and sometimes parochial viewpoints. In the end, we need to evaluate what role the new Restatement of Conflicts (Third) can play in helping continue the harmonization of private international law in crossborder family cases. We need to decide whether that role is best served by integrating the cross-border cases with interstate/domestic cases or whether a dual approach will be more successful, looking at the question in the context of end-users: courts, governmental entities, practitioners, and academics.
© Louise Ellen Teitz, Children Crossing Borders: Internationalizing the Restatement of the Conflict of Laws, 27 Duke Journal of Comparative & International Law 519-540 (2017)
Full article available at: http://scholarship.law.duke.edu/djcil/vol27/iss3/7