The New Jersey State Bar Association joined a consortium of bar associations in support of a petition for a writ of certiorari to the nation’s highest court. In Patterson v. Baz, the U.S. Supreme Court is being asked to resolve a conflict among federal circuit courts regarding the enforceability of custody agreements and stipulation clauses regarding habitual residence and forum in international custody disputes.
The matter stems from a contentious dispute between parents in Illinois regarding custody of a minor . Patterson is appealing a Seventh U.S. Circuit Court’s ruling that rejected a consent order where the parents stipulated to Illinois serving as the exclusive forum for custody issues and as the child’s habitual residence. The habitual residence stipulation was made with knowledge that the child would temporarily relocate to Germany with Baz. Patterson argued that the circuit’s reliance on one factor in the habitual residence analysis diverts from the other Circuits that considered the right of parents to forego their non-exclusive Hague Convention rights to designate a forum for custody matters.
“[P]atterson’s Petition is crucial to the uniform treatment of jurisdictional stipulations to resolve questions of forum in international custody disputes,” argued amici in its brief. “It is also fundamental to resolving the equally important issue of custodial arrangements between parents without litigation, which is favored by the Convention and public policy. Without certainty as to whether such stipulations will be enforced, settlement between parent litigants will be impeded significantly and litigation will increase as well as forum shopping.”
The Uniform Law Commission (ULC) published commentary during the briefing of this matter articulating the differences between subject matter jurisdiction for custody disputes and habitual residence under the Hague Convention’s return requirement, which is a provisional remedy that fixes forum for custody proceeding. Once determined, upon the child’s return, custody adjudication proceeds in that forum, according to the ULC citing to Monasky v. Taglieri, 589 U.S. 68 (2020). Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), if there is an existing custody order and at least one parent remains in a jurisdiction, that jurisdiction “shall be the sole place where custody matters are determined,” citing again to Monasky. Amici agreed with ULC’s commentary pointing out that the conditions existed to designate Illinois as the forum state under the Hague Convention and the parties’ stipulation was “not a private contract for subject matter jurisdiction.”
Baz argues in papers that adjudication of habitual residence did not reflect the child’s circumstances at the time when the return order was sought. Baz argues that there is no split even with a dissent in the circuit opinion.
Also weighing in as amicus is the International Academy of Family Lawyers (IAFL) in support of Patterson’s argument that a court-ratified parental agreement regarding a minor’s habitual residence should be considered an affirmative defense against a consent claim under the Hague Convention. In the alternative, IAFL argues that such agreements should be afforded considerable weight and a failure to do so will discourage parents from reaching child custody agreements.
The petition is under review. Click here to review the pleadings in Patterson v. Baz, Docket No. 24-390.