Sleeping Child (circa 1893) by Rosina Emmet Sherwood.

An important term of art arises in Hague analysis, but the definition of the term varies depending on which treaty is being applied, and depending on who is defining it.  Both the Hague Adoption Convention (1993) and the Hague Child Abduction Convention(1980) are in force in the United States.  Both are intended to harmonize disparate legal doctrines in countries with different systems.  And both are intended to provide certainty in the legal protection of children.

In U.S. practice, however, they function quite differently.

The Abduction Convention requires member states to establish procedures for returning a child to his or her country of habitual residence after being removed from that country or wrongfully retained in another country.  Pretty straightforward stuff there– imagine a little girl was born in Korea, but has spent her entire six-year life in Illinois.  Her mother decides to take her back to Korea– and stay there– without her father’s consent.  Korea would be obliged to return the child to the U.S. pursuant to a valid Hague request.  If a German mother sends her son to spend the Christmas holiday with the father in Vermont– but Dad refuses to let him go home to Germany, U.S. authorities should force the boy’s return.  Not a lot of gray area there, although courts occasionally go beyond this straightforward analysis (see here for Fox Rothschild’s excellent criticism of a Third Circuit decision that reached a proper result– but with far too deep an inquiry into best interest).

“Habitual residence” is a pretty straightforward question if plain meaning still carries any weight in statutory construction.  Where does the kid live– or put another way, where does he lay his head each night?  We must read in deeper questions, of course… where did Mom & Dad intend for him to live?  Where has he spent his life?  Has there been a certain event that evidences a change to that location?  Of course, it’s a fact-specific analysis, but the analysis isn’t extraordinarily difficult.

The Adoption Convention uses the same terminology to define what constitutes an “intercountry adoption”.  If a family in Australia seeks to adopt an orphan from Italy, then permission must be sought from the Italian government via a Hague request.  But if the child’s mother emigrates with her to Australia and puts her up for adoption several months later, no such permission is necessary.  The child’s habitual residence changes upon the mother’s entry into Australia, and the Italian Central Authority for the Adoption Convention would rightly scratch its head in wonder, declining to even respond to a Hague request sent by an Australian magistrate.

But that same child is not afforded the same consideration if the mother emigrates to the United States.  U.S. authorities (specifically, the State Department) define habitual residence in a decidedly odd way.  In virtually all cases, the child’s country of habitual residence is deemed to be the child’s country of birth.  A preposterous reading, given the plain meaning of the words.  And that is precisely the way the rest of the world views the United States: preposterous.

In an average state family court, this really isn’t a problematic question.  If a child is in Missouri, and his parents aren’t around to take care of him, he’s under the jurisdiction of Missouri courts– regardless of his national origin or citizenship.  His domicile is Missouri.  As such, if an aunt or uncle or cousin seeks to adopt him, it’s very unlikely that the state would object, and it’s even more unlikely that any of the lawyers involved would invoke the Hague Adoption Convention to slow down the procedure.  Congratulations, new parents, on your new son or daughter.

But when those new parents seek permanent resident status or citizenship for the child, they run into a buzzsaw– a very preposterous buzzsaw.  The Department of Homeland Security (parent organization of the various customs & immigration services) will undoubtedly invoke the Adoption Convention– and the State Department’s incredibly warped definition of habitual residence– to refute the validity of the adoption and, consequently, dash any hope that the child can become an American citizen.

Why is this?  I can only speculate, because the logic put forth in the State Department’s criteria offers little guidance (they say what the criteria are, not why those criteria exist).  But it isn’t hard to reach some very sad conclusions.

I hate to be the guy who breaks this to you, I said to the client, but there is no chance that you’ll be able to get that notice of hearing served in time.  Not properly, anyway.

Poor fellow was a first-year associate, trying to get a notice of a guardianship hearing served on an absent father.  The judge insisted that he have the guy served personally.  By Tuesday.  “So, please get this done for us.”

The problem:  absent father is in the People’s Republic of China.

Sorry, I said.  It can’t be doneThe Hague Service Convention has to be observed, and when you’re serving in China, that means a request to the government in Beijing (same as in Mexico or Germany or Switzerland or India).  That’ll take months to get through—not hours or days like we’ve come to expect in America.

“Okay,” he said.  “Let me go talk to the partner running the case.”

The story took an unexpected turn when he called me a half hour later to say “the partner told me that you just need to hire a Chinese courier to do it & then send an affidavit.  So can you get it done?”

Oh, where to begin?

For starters, and setting aside the mandatory nature of the Hague Service Convention, China is not a common law country—Hong Kong S.A.R. excepted—and they prohibit service by anybody but judicial officers (this is a characteristic of civil law jurisdictions).  If a courier tried to do what the partner wanted, the courier would be subject to criminal penalties under Chinese law.  You can’t just usurp the government’s authority and walk away clean in such a situation.

If this thing is going to be properly served, we have to file a Hague Request.

The junior associate’s response:  “No, you don’t.  The partner says that because the father isn’t a party to the case, we can serve him ‘normally.’  The Hague Service Convention only applies to process.”

Process?  Just have the partner call me, wouldja?  He didn’t.  And he probably won’t, which is too bad for his client.  And his malpractice carrier.

Normally?!  Does he mean that in China they don’t do things normally?

Folks, this is a massive misconstruction of the Convention, and one I had heard of before, but hadn’t seen actually in play.  To be sure, there is caselaw out there that distinguishes between process and other notification in a Hague context, and those cases hold that Hague strictures don’t apply unless process is being served.*  But those holdings are wrong– or at least arguable– and you don’t want to be the fellow on the losing end when they get overturned.  That’s expensive and unnecessary.  My reasoning…

The word “process” doesn’t even appear in the text (seriously, click here and run a word search on the page).  It doesn’t delve into jurisdictional questions, which is a very big deal if something deals only with process.  In fact, the only mention of jurisdiction in the entire treaty is the flat denial of jurisdiction as a basis for a country’s refusal to serve.

The name of the treaty is the Convention on the Service Abroad of Judicial and Extrajudicial Documents, not the Convention on Service of Process.  And it applies to just about any sort of court-related document you can think of, if that document must be served.**

  • Summons?  Slam dunk.  (“Citation” to our colleagues in the Lone Star State.)
  • Complaint or Petition?   Yep.  They go right along with the summons.
  • Notice of Hearing?  Yeah, buddy.  It’s a judicial document Even if it doesn’t compel someone to show up in court or assert jurisdiction over him, it must still be conveyed to a recipient in a formal, demonstrable manner, in full observance of due process.  The fact that the recipient isn’t a defendant or respondent is immaterial.

Bottom line, if the thing has to be served, then you have to observe Hague Service Convention procedures wherever the Convention applies.

Says who?  Says this lady:

Source: National Archives.
Source: National Archives.

And eight of her friends.

* It isn’t completely unreasonable to conclude what my prospective client did.  Ted Folkman points to dicta from the Schlunk decision as a basis for arguing that the HSC does only apply to process.  He’s a whole lot more diplomatic than I am– although he disagrees with the Hyundai decision he described back in 2012 and in his excellent follow-up column last month (for an even more thorough discussion, see Ted’s chapter in the latest ABA deskbook, International Aspects of U.S. Litigation).  Ted calls it a difficult question, but I see it as pretty straightforward, and Ted’s been at it a whole lot longer than I have.  Still, the Hyundai court bungled it.  You don’t start parsing legislative history and its parallel language to determine intent when there’s no ambiguity in the very text you’re working in.  The HSC is unambiguous– it applies to service.  Rule 4 requires service.  Rule 5 requires service.  If the document has to be transmitted to another Hague member country for service, the Convention applies.  Full stop.

** One huge exception to “just about any sort of court-related document”:  subpoenas.  You can’t serve them abroad.  Full stop.  For my reasoning on that issue, see here.




[Originally published at]

Immigration attorneys seeking Special Immigrant Juvenile (SIJ) status for their clients must seek an order of guardianship in state court before an Immigration Court will confer SIJ classification.   In order to establish that guardianship, they (or co-counsel who practices family law) must put the child’s biological parent(s) on notice of the proceedings—and that implicates a host of procedural barriers.

In many states, parental rights are constitutional in nature—the best interests of the child take a back seat— and that doctrine isn’t going away.  Even where the best interests of the child are paramount, notice must still be served in order to vindicate an absent parent’s constitutional rights.

The constitutional standard applicable to the manner of service of process comes from Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950): notice by a “means reasonably calculated… to apprise” the defendant (respondent) of the action and to give him/her an opportunity to oppose it.

Where that defendant is outside the United States, the law of the foreign jurisdiction must also be respected.  In many countries, even in Latin America, that may implicate the Hague Service Convention—which is mandatory doctrine under Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988).

Application of the treaty complicates matters in serving guardianship notices, but even where it is not applicable, service may be impossible.  That does not, however, allow a court to simply deem a respondent served.  It also does not mean that mail or a fax or email or Facebook Messenger are appropriate.

Mexico is signatory to the HSC, and it has declared its opposition to all of the alternative methods of service listed in Article 10.  This leaves but one legally appropriate method of service: a formal request to the Ministry of Foreign Affairs in Mexico City.  This process takes several months—in many cases up to a year (no, that is not a typo).

In other Latin American countries, most notably Guatemala, Honduras, and El Salvador, service is all but impossible without extraordinary cost and risk.  But, again, that does not relieve counsel of the duty to take reasonable steps to serve.

And therein lies the key idea: reasonable steps.

Once we have accomplished a few steps, alternatives can be suggested to the court hearing the guardianship request:

  • A diligent attempt to ascertain the respondent’s location. If he’s in a village in the mountains with no address, we simply cannot reach him by traditional means.
  • If you have an address, try to serve. This is especially true in Mexico, where service is frequently effected, but usually after a lengthy wait.
  • If no address is available, there are other options, but every case is—like every jurisdiction—different.

In all cases, honest attempts at service must be initiated, lest the entire quest for SIJ status unravel.  Above all else… do it the right way.


[In a later post… we will discuss the Hague Adoption Convention, the State Department’s erroneous interpretation of it, and the way in which SIJ status overcomes the error.]