Tenth Anniversary Post: Melissa Kucinski on the Future of IJA—Family Law Edition
Posted on January 18, 2021
I am truly honored to write this guest blog post celebrating the anniversary of Letters Blogatory. Ted asked that I provide my thoughts on the future of international judicial assistance in the field of family law. I struggled writing this blog post, because nearly every family lawyer would immediately ask, “what is international judicial assistance?”
Family law is one of the best examples of a purely domestic legal practice. Outcomes are achieved in local courts and focus heavily on the family’s local experiences. U.S. family court jurisdiction is typically based on a family member’s local connections. For most family lawyers, when a client from another country walks in our door, it is exciting and exotic… and way above our paygrade. Perhaps I am exaggerating. There have always been clients who have connections to other countries, but I truly envision this growing over the next ten years. COVID has caused many of us to realize the importance of spending time with our families and has us missing time with those in our family who are far from us. It has also shown us that we can work from virtually anywhere and remain connected to colleagues and friends no matter where we sit. I anticipate many more of these international, and domestic, families will seek out opportunities overseas and more routinely travel to spend time with loved ones in far corners of the globe. Coupled with a new administration in Washington, D.C., we may see changing immigration policies, and more movement across our U.S. border. This mobility and multi-jurisdictional lifestyle will complicate the domestic family law practice. It will demonstrate the increasing need for domestic lawyers to seek out education and resources around issues of international judicial assistance. It will create a venue for platforms, like Letters Blogatory, to expand and reach lawyers who have never anticipated needing to know how to serve a litigant in a foreign country, depose a witness overseas, or authenticate a foreign public document for their trial.
Because family law is a purely domestic practice, the outcomes in divorce, custody, or support proceedings can vary dramatically, depending on the jurisdiction where the family proceeds. With a scarcity of private international law instruments ratified by the United States in the field of family law, we are often left with multiple jurisdictions claiming authority to resolve a family’s dispute. The concerns over the enforceability of our local family court orders will only grow. Over the past year, I have seen an increasing number of my family law colleagues realize that they must consider things that they never previously addressed in their cases, such as proper service of process using an international treaty. The education is already starting. The cases are coming in the door. The next step is to increase awareness, platforms, resources, and set expectations. For a domestic lawyer who has only ever had to call his or her local sheriff’s office to take divorce papers a few blocks away to be served, the thought of waiting six months to receive a certificate of service (or, non-service) from a foreign government is unfathomable. What do you do with a temporary domestic violence protective order, which is required to be served on the other party within seven days, or else the case will be dismissed? It is frustrating to have a family court summons expire before it can be served. It seems unfair that a foreign divorce proceeding hastily filed might be able to proceed in lieu of a U.S. proceeding, filed first, simply because it is easier to serve someone in the United States than the aforementioned foreign country. These processes are complex enough for a skilled domestic lawyer, but, in family law cases, most litigants are self-represented. What happens if a Husband obtains a copy of a basic court form to request a divorce, and when he is filing it, asks his local family court clerk what to do next? And, what if his local family court clerk, tells him to put the papers in the mail to his spouse? Or, because of COVID, tells him to simply e-mail them to his spouse because the court passed a temporary rule change during the pandemic? His spouse, unbeknownst (or, perhaps, known) to the clerk, is in Mexico (or, Germany, or China… insert the country of your choice).
There is an opening for family lawyers to join the ongoing IJA debates, and there is a genuine need for more practical information for family lawyers, judges, and court administrators. International service of process is fundamental. Family law touches upon the most important aspects of one’s personal life. It is crucial for the family law community to have this information to ensure that cases proceed fairly and are brought to rapid conclusion for their clients.
Thanks to Ted for ten years of sharing this information with the legal community around the globe. I look forward to the next ten years where I anticipate family lawyers will start engaging in this discussion more eagerly and add their diverse perspective to the debates already begun.