Legal Scholar: American Laws for American Courts Does NOT Interfere with International Child Adoptions

By Karen Carpenter Lugo

Question: Whether the American Law for American Courts (ALAC) Act, as adopted by state legislatures, will interfere with international child adoptions:

 

Short Answer: If implemented as written, ALAC will simply reinforce American constitutional protections and will not complicate legal processes like those involved in international adoptions:

1. ALAC will not interfere with the American judicial practice, as appropriately exercised, of granting comity to foreign legal constructs, including international adoptions

2.ALAC is designed to support, not interfere with, prevailing international adoption regimes that emphasize themes like the prevalent “best interest of the child.”

3.ALAC will not interfere with properly considered choice of law decisions.

4. ALAC will simply reinforce current constitutional protections like that of due process when determining venue if international disputes involving an American party are presented to American courts.

 

Discussion: What is American Law for American Courts and would the statute play a direct role in foreign adoptions?

 

The American Law for American Courts Act (ALAC) proposes to reinforce the principle that American constitutional provisions supercede a competing claim arising from a basis in foreign law, including Islamist Shariah law, in American courts.[1]

 

The adoption of foreign law in American courts is presently checked by whether recognition of the foreign legal process would offend American notions of sound public policy. American judges are empowered to recognize the validity of certain judicial decrees of foreign governments where they are found to be valid under the law of the foreign state and where such recognition is harmonious with the public policy of the state. This process, called comity, allows appropriate practices or standing agreements to be incorporated into American legal determinations without re-adjudicating the element in question.

 

So far, there have been a few instances — usually in family law settings — where judges have either accepted the foreign law terms without testing them for alignment with American policy objectives, or judges have used questionable rationale to justify a decision that public policy concerns have been met.

 

A complicated Massachusetts family law decision illustrates how American judges sometimes err in assessing disputes that involve competing international legal theories. In this case, a couple was married in Massachusetts according to an Islamic ceremony. Husband was Jordanian and wife was a dual citizen of Jordan and the U.S. They then moved to Israel and lived for 22 years in East Jerusalem. Wife returned with minor children to Massachusetts and filed for custody of the children in state court. Husband wanted custody determined in Jerusalem by an Israeli Sharia Court. The trial court deferred to the jurisdiction of the Israeli Sharia Court. But the appellate court appropriately returned the matter to the trial court with instructions to address several concerns, including “the nature and the composition of the Sharia Court and of the substantive law and principles which would be applied” and “the wishes, intentions, and purposes of each of the parties and of each of their minor children with respect to their continued residence in Massachusetts and in the United States.”  The appellate court instructed the lower court to inquire as to “whether and to what extent the law which the Sharia Court should apply is consistent with Massachusetts law . . . (in addition to due process requirements concerning such procedural matters as notices, representation by counsel, and opportunity to be heard).” Tazziz v. Tazziz, 26 Mass.App.Ct. 809, 814-15 (1988).

 

Implementation of ALAC would simply underscore the necessity of review to consider both constitutional protections and deviations from American legal standards.

 

Another family law case from Michigan involves a husband and wife who were married in India. Husband obtained an Islamic summary divorce by verbally performing a talaq renunciation (repeating “I divorce you” three times) against his wife. The wife, possibly without knowing about the talaq, filed for divorce in Michigan. The trial court granted comity to the talaq verbal divorce that the husband pronounced in India and dismissed wife’s complaint.

 

The appellate court reversed the trial court, holding that the talaq divorce ritual violated wife’s right to due process because: (a) she had no prior notice of the talaq pronouncement; (b) she had no right to be present at the pronouncement and did not have an attorney; and (c) the talaq provided no opportunity for a hearing.  The Michigan appellate court also held that the talaq violated equal protection because women do not also enjoy the right to pronounce talaq. Additionally, the appellate court held that talaq violated Michigan public policy because, upon divorce, Islamic law allows women to recover only the property that is in their names while Michigan law provides for an equitable division of the marital estate. Tarikonda v. Pinjari, No. 287403 (Mich. Ct. App.  2009).

 

Again, it should be noted that the ALAC Act simply expresses the constitutional foundations that underlie this proper public policy analysis: “No U.S. citizen or resident should be denied the liberties, rights, and privileges guaranteed in our constitutional republic.” ALAC provides guidance “when the application of a foreign law will result in the violation of a right guaranteed by the constitution of this state or of the United States, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.”[2]

 

When it comes to international adoptions, American judges must test whether a matter wrapped in a foreign custom or legal construct should be re-adjudicated by an American judge according to American legal standards. ALAC allows for the existing practice of comity where American courts are obliged to respect the expressions of a proper legal construct with the proviso that the acknowledgment of the practice involves a test to ascertain that American legal protections were not violated.

 

The test for granting comity to an agreement or policy rests on the established “public policy” inquiry as to whether the arrangement:

 

conflicts with the morals of the times or contravenes any established interest of society . . . . We must look to the Constitution, statutes, and judicial decisions of the state, to determine its public policy and that which is not prohibited by statute, condemned by judicial decision, nor contrary to the public morals contravenes no principle of public policy.

 

In re Marriage of Witten, 672 N.W.2d 768, 779-80 (Iowa Sup. Ct. 2003).

 

When an Ohio appellate court considered the merits of granting comity to a foreign divorce, the act of adopting a foreign decree was analyzed according to American due process procedures:

 

The term “comity” refers to an Ohio court’s recognition of a foreign decree, and it is a matter of courtesy rather than of right taking into consideration all of the relevant facts of the particular case. A decree of divorce will not be recognized by comity where it was obtained by a procedure which denies due process of law.

 

Mir v. Birhandi, Unpublished, Nos. 2006 CA 63, 2006 CA 71, 2006 CA 72 (Ohio Court of Appeals, 2^nd Dist. 2007)

 

Again, the goal of the ALAC Act is to establish a threshold behind the “consistent with public policy” analysis ensuring that no U.S. citizen or resident is denied the liberties, rights, and privileges guaranteed by the U.S.  Constitution. These constitutional imperatives are also expressed as American legal objectives like fair bargaining, equal rights, due process notice and hearing, and informed consent. While these notions should already be included in an analysis of whether extending legal comity to a foreign determination offends American public policy imperatives, ALAC would provide reinforcement.

 

International adoptions are governed by 1.) international conventions; 2.) adoption laws in child’s country of domicile; 3.) U.S. immigration law; and, 4.) family law in state where adoptive child will reside.

 

I. Foreign adoptions may be governed by treaties, international conventions, or direct agreements between the countries and the parties.

 

Treaties, as consistent with principles provided in the Constitution, are effective as domestic law. The ALAC Act just restates the premise that treaties cannot create obligations that violate constitutional guarantees and. See State of Missouri v. Holland, 252 U.S. 416 (1920), Reid v. Covert, 354 U.S. 1 (1957) (“this Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty,”).

 

Therefore, when American families pursue adoptions governed by international agreements in foreign countries, like those established in the Hague Adoption Convention on the Protection of Children and Co-operation in Respect of Inter-Country Adoption (Hague Adoption Convention)[3] there are provisions for international standards and best practices. United States participation in this convention, or any international framework, does not require that American citizens forego essential constitutional protections when they elect to engage in activity under these agreements.

 

In the case of foreign adoptions, American agencies have agreed to work with other convention signatories to offer predictable processes, reliable systems, and basic consistency. Each country is expected to establish a Central Authority to act as point of contact and authoritative source of information. Signatories have agreed to approve accredited adoption agencies for the purpose of itemizing and disclosing in writing the fees and estimated expenses associated with the adoption. Importantly, authorities oversee the provision of the child’s medical records to include at least 2 weeks for parental review. Also, each country must develop a system for certifying the adoption and determining whether the child appears to meet the criteria for visa eligibility. All of these provisions are consistent with the goals of American contract standards and constitutional due process and passage of the ALAC would only provide reinforcement of these protections.

 

Adoptive child eligibility, as probably the most daunting concern related to an extra-country adoption, poses the risk of a parent later claiming that the child had not been relinquished officially for adoption or asserting an interest in reclaiming the child. This is the most troubling aspect of foreign adoption and one that involves the legal claims of the biological parents, adoptive parents, and the child.

 

The sending state technically bears the burden of certifying that children are eligible for adoption and that consent from all necessary parties has been freely obtained without any “illicit inducement.” Since the term “adoptable” is not defined anywhere in the Hague Convention, there has even been some confusion in convention countries on the issue of how a child is certified as adoptable.

 

Finally, a potentially more hazardous foreign adoption experience may be found in the countries that have not agreed to the Hague Adoption Convention. In these cases, government oversight, retention of records, or guarantee of orphan eligibility must be investigated and often assured at the level of less-accountable agencies.

 

There have also been past issues with children from badly run orphanages who developed emotional, medical, and psychological problems that presented grave financial hardship and emotional stress for adoptive families. While incidence of these adoptions has been diminished by recognition of regional poverty and political strife in originating countries like Romania, parents have had to resort to legal methods to reverse some adoptions.

 

American courts have addressed all of the above issues within existing legal frameworks that address jurisdiction, venue, validity of claim, and best interest of the child. Passage of the ALAC Act cannot be expected to complicate adoption proceedings since the measure only exists to underscore constitutional protections in creating contracts and addressing potential disputes resulting from the agreement. Furthermore, in light of the vagaries and risks mentioned, ALAC could be expected to reinforce the due process protections that parents expect under current statutory schemes if the process goes awry.

 

II. United States Citizenship and Immigration Services

 

Every adoptive child coming to the U.S. to live must qualify for a visa according to immigration law and must complete the entire immigration process to become a U.S. citizen, which takes six months to a year. The U.S. Citizenship and Immigration Services division oversees the process to determine the eligibility and suitability of the prospective adoptive parents as well as the eligibility of the child to immigrate to the United States.[4]

 

III. Domicile state law and international adoptions

 

As with federal law, the two concerns that interest states are also whether the family is eligible to adopt and whether the child is eligible to be adopted.

 

While federal law governs whether a child may enter and reside in the United States, state courts determine whether the child is the adoptive parents’ child under the eyes of the law.

 

Since a foreign adoption decree, like any foreign decree, is not entitled to the same “full faith and credit” acceptance that U.S. law accords domestic adoptions, states have codified their own requirements. Almost half the states do recognize foreign adoption decrees as a matter of comity. Some states base state recognition of foreign adoptions on presentation of adoption reports from the foreign country where the adoption took place. Finally, adoption laws of several states specifically address foreign adoptions and their courts validate adoptions based on the best interests of the child.

 

Certainly parents in process of adopting a foreigner may face a more complicated process when the state evaluates the best interests of the child according to cultural norms.  However, this deliberation has usually already been undertaken in the originating country since most countries consider it in the “best interest of the child” to remain in the familiar culture. At least theoretically it is only when the benefits of foreign adoption outweigh the priority that the child is considered eligible for extra-country adoption.

 

When issues surrounding foreign adoptions as they relate to the state of domicile land in the courts, again public policy is the default determination. Although the decision was not reported for publication, this example of a difficult result and the reasoning process is instructive. An Iowa appellate court was asked to determine whether an adoptive mother, although she had not completed the required state adoption, was “parent” of a Vietnamese child, for purposes recognizing status as a “child as in need of assistance.” The court first embraced the “best interests of the child” as being of “paramount concern” when construing an Iowa statute. Then the court turned to the overriding public policy concern and concluded that the benefit was not available since “the legislature did not intend a result that defeats the avowed pubic policy of this state.” In re D.N., unpublished, 671 N.W.2d 531, 534 (Iowa Ct. of Appeals 2003).

 

Here again, the reasoning demonstrates an established process that upholds legislative or policy objectives. While there was no competing foreign law claim at issue, the result illustrates the importance of policy themes backed by clear standards.  States that have passed of the ALAC Act have done so to fortify the standards behind declarations that seek to uphold policy imperatives.

 

IV. International adoption and choice of law and venue considerations

 

Whether adoptions are government by international conventions or agency agreements, a dispute will often begin with claims regarding what country’s law will apply and whether the location of the venue, or court, is fair.  American cases are replete with arguments on these issues and how to balance competing demands. The determination in an American court will turn on notice and hearing concerns based in constitutional due process guarantees.

 

In this example where a trial court refused the jurisdiction of a Moroccan court to resolve a custody dispute, the appellate court reversed, and then the New Jersey Supreme Court reversed again, finding jurisdiction in the New Jersey court system. The New Jersey Supreme Court faulted the appellate court for “defer[ring] to the Moroccan court” by “relying not on principles of forum-non-conveniens, but of international comity.” The Supreme Court cited New Jersey state law to require the family court to communicate “directly with the Moroccan court to obtain any information needed to determine whether New Jersey or Morocco is the more convenient forum.” Knowing that the outcome may provide that Morocco was the appropriate forum, the Supreme Court stressed application of American legal process to reach the result, also saying that a dismissal by the family court would not “preclude a New Jersey court from subsequently reviewing the enforceability of the Moroccan custody decree. For example, if the Moroccan court denies the father procedural due process or refuses to consider Lina’s best interests, the Family [Court] may then refuse to enforce the Moroccan decree.” Ivaldi v. Ivaldi, 685 A.2d 1319, 1327 (1996).

 

American constitutional guarantees rely upon the methodical legal processes that uphold them. Judges and courts are charged with the responsibility to vindicate American constitutional standards by taking care to respect the processes. Although these laborious processes do require precise focus and a valuable share of what we call judicial economy, they are the method by which Americans inspect judicial reasoning to learn if the rule of law prevails. The ALAC Act reasserts guidance for judges who must determine if incorporating foreign law by way of comity is anchored in sound constitutional principles.

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Karen Lugo is Co-Director of the Center for Constitutional Jurisprudence. An Adjunct Professor and graduate of the Chapman University School of Law, Ms. Lugo sits on the Board of Directors of the David Horowitz Freedom Center and is Chapter President Emeritus of the Orange County Lawyer Chapter of the Federalist Society.