The Delvoye Standard - Essay Example

However, it is an imperfect answer as neither states nor foreign countries trust in the convention. Keywords: custody, jurisdiction, paternity, place of residence, Discussion It is true that only 49 out of 50 United States have ratified the UCCAIA. But among them, there are some State courts that do not trust another country to abide by it either. Such was the case in In re Sigmar, found at No. 10-08-00328-CV (Tex. App.--Waco 2008, orig. proceeding). In this case the family court judge found there was sufficient reason to issue an injunction to prevent the father removing the child to Mexico because the court did not believe a court in Mexico would adhere to the HCCAIA.

The Texas Court of Appeals did not believe the court had abused its discretion in doing so. It should be noted that the Court of Appeals was also upholding the lower courts’ though there was nothing entered into the evidentiary record to support the holding. Other U.S. Courts have upheld the UCCAIA, such as Appellate Court of Florida in the much-publicized case of Elian Gonzalez. Though that case was largely decided on Administrative Law through the (then) Immigration and Naturalization Services, in a statement of January 5, 2000, they relied on the basic international laws of residential placement when deciding the status of the boy from Cuba who had washed into U.

S Waters (para. 2). Though Commissioner Doris Meissner does not specifically mention the HCCAIA, she uses much of the same logical analysis as does the Hague Convention, namely that the boy had a principle place of residence in Cuba with his father (para. 5). Though there is much case law around the primary residence of the infant and older child, the case law around the neonate is scant and varied. Discussions of habitual. It is true that only 49 out of 50 United States have ratified the UCCAIA.

But among them, there are some State courts that do not trust another country to abide by it either. Other U.S. Courts have upheld the UCCAIA, such as Appellate Court of Florida in the much-publicized case of Elian Gonzalez. Though there is much case law around the primary residence of the infant and older child, the case law around the neonate is scant and varied. Discussions of habitual residence obscures the reality of the neonate. It is at those moments when the HACAIA becomes of paramount importance, beyond the high regard for habitual residence.

Indeed a newborn to sixth-month old infant can hardly be said to have a habitual place of residence. Where lies the venue for the newborn? Schwartz (2004) provides list upon list of international custody cases. Here, however, it is appropriate to understand what happens within State courts when they fail to follow the UCCAIA. HCCAIA and the UCCEA presume that there is a custody order or some valid authority to express parental rights. Therefore they skip over that part on move on the venue.

I would happily provide a citation here but its very absence from case law suggests there is a dearth of such cases at the appellate level and the UCCAIA holds no sway with the United States Courts in light of the UCCJEA, at a time when the international guidelines would be at their highest use.