Vietnam’s National Assembly struggles to answer a familiar but labyrinthine question: how do you create an international adoption framework that doesn’t allow for abuse?

Last month, an adoption fraud trial opened in Vietnam, naming sixteen charity and medical workers as defendants. All of the individuals were found guilty of fraud in over 266 adoptions, generating fake documents for adoption agencies to facilitate foreign adoptions. (The official charge was “abuse of official position”, and six of the defendants were sentenced to jail time.) In some cases, the infants’ parents had not actually given their consent.

The widespread nature of the fraud has persuaded many countries (including the United States) to halt Vietnamese adoptions without exception. Ireland has said that an adoption of a Vietnamese baby under the current law “might not be recognized” by the state. The international attention has granted a renewed sense of urgency to the National Assembly’s pending revisions of its adoption law.

The significance of foreign adoptions in Vietnam can be put into context by sheer numbers: of the 20,000 infants adopted in the last five years, 7,000 were adopted by international petitioners. To ensure the legitimacy of future foreign adoptions, changes are being considered for both the structure and oversight of the process. Under new law (Draft Article 15), a child will first be eligible for adoption within Vietnam. After a 30-day period, if the child has not found a placement, foreign families may pursue adoption of the child. The only children for whom this regulation would not apply are those suffering from specific disabilities, HIV/AIDS, or another serious illness. The new law would also increase the involvement of the Ministry of Justice and other state agencies; the former would be inserted in the process as a liaison between foreign parents and domestic, eligible infants. Some disagreement remains, particularly as to whether or not the Ministry of Justice is well-suited for this proposed role.

Solangel Maldonado offers some intriguing thoughts on a post at Concurring Opinions: International Child Abductions and Children’s Best Interests. An author of the forthcoming edition of Family Law in the World Community, Prof. Maldonado is an expert on situations such as 8-year-old Sean Goldman’s.

The facts are succinct - in 2004, Sean’s mother Bruna took then 4-year old Sean to her native Brazil on vacation. Sean’s father David was planning to join them a week later. Instead, Bruna informed David that she was divorcing him and would stay in Brazil with Sean. Bruna later married the Brazilian lawyer who represented her in the subsequent custody proceedings and died following complications in the birth of their daughter. Following his mother’s death, the Brazilian Family Court judge gave custody of Sean to his stepfather and denied Mr. Goldman’s visitation request.

In Maldonado’s mind, the ‘best interests of a child’ may cover a multitude of sins.

Although Mr. Goldman is certainly not to blame for the loss of his child, the Brazilian family court’s decision to deny him custody might actually be in Sean’s best interests. Most U.S. states recognize that parents have a fundamental right to the care and custody of their children and will not award custody to a non-parent over a parent unless it would be detrimental to the child’s welfare. This might be one of those cases where a child will suffer serious psychological and emotional harm if the court awards custody to a parent over a non-parent. Sean did not see his father once in almost four and a half years, and a return to the U.S. where he has not been since he was 4 years old (he is now 8), far away from his 7 month-old sister, his stepfather, and maternal grandparents would likely be detrimental. Children are resilient and Sean will probably be able to bond with his father once again, but it would be foolish to ignore the potential harm to a child if he is removed from his home and the people (such as his stepfather and grandparents) who may have become his psychological parents.

Very little can be said to defend the actions of Sean’s mother in this case. By taking Sean to Brazil under the pretext of a vacation and keeping him there, she deprived Sean of his relationship with his father and deprived David Goldman of his relationship with his son. Without some evidence of extraneous circumstances, that action was almost certainly not in the best interests of the child.

From an ex ante perspective, it’s difficult to see how the Brazilian court has not effectively condoned international child abduction and has not thereby encouraged such acts by others in the future. There is no incentive in such a world for divorcing parents to seek a mutually-acceptable custody solution or to respect the child’s right for a relationship with the other parent.

That set of incentives is not in the best interest of that child or any other.

Only if we take an overly narrow view of ‘best interests’ can we justify ignoring such effects. Maldonado speculates that it would be detrimental to remove Sean now that he has been settled in Brazil for almost four and a half years and has relationships with his 7 month-old sister, his stepfather, and maternal grandparents. Shouldn’t we weigh this against the continuing detriment of being deprived with his relationship with his father? Sean has already been harmed in a nearly identical way. He has already been deprived of important familial relationships, moved away from a country he had known for 4 years and to a new nation which he would have to adapt. Was it merely overestimating the value of the status quo?

The Brazilian court implicitly condones that harm by justifying its custody decision on avoiding a nearly identical harm. The standard for effectively terminating parental rights based on the best interest of the child must be much higher if the jurisprudence in this area of the law is to make any sense.

The Supreme Court is considering a case on whether a violation of a ne exeat clause (prohibiting one parent from removing a child from the country without the other parent’s consent) is a “wrongful removal” under Hague Convention on International Child Abduction.

We’ve added a new Subject Briefing with updates an analysis: Abbott v. Abbott (international child abduction)

The Center for Children, Law & Policy at the University of Houston recently brought together a group of leading scholars to explore the connections and the tensions between “feminist jurisprudence” and “child-centered jurisprudence.” Audio from the conference is now available and video podcast will follow shortly. Publications from these presentations will be published next year in the Houston Law Review.

Agenda

Listen to Audio of the Presentations Below:

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Polygamy and Child Welfare, Prof. Martin Guggenheim, Fiorello LaGuardia Professor of Clinical Law, New York University School of Law

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Five Generations: Child Sexual Abuse and the Search for Transformative Justice, Prof. Angela P. Harris, Professor of Law; Executive Committee Member, Center for Social Justice, Boalt Hall, UC Berkeley

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Voice, Vulnerability and Dependency: Politicizing Childhood, Prof. Annette Appell, Associate Dean of Clinical Affairs and Professor of Law, Washington University School of Law

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Vulnerability Theory: Beyond Equality in Assessing the Interests of Mothers and Children, Prof. Martha Albertson Fineman, Robert W. Woodruff Professor of Law, Emory University School of Law

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“A World Fit for Everyone:” The Role of Economic and Social Rights in Resolving the Tensions between Child-Centered and Feminist Jurisprudence, Prof. Barbara Bennett Woodhouse, David H. Levin Chair in Family Law, Director, Center on Children and Families, Fredric G. Levin College of Law

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With Commentary by Prof. Ellen Marrus and Prof. Laura Oren of the University of Houston Law Center.

David S. Rosettenstein, Choice of Law in International Child Support Obligations: Hague or Vague, and Does it Matter?- an American Perspective, International Journal of Law, Policy and the Family, Vol. 22, Issue 1, pp. 122-134, 2008.

This article explores, through American eyes, the choice of law rules associated with the child support aspects of the proposed Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. It considers the role these rules play in capturing the construct that is the family for the purposes of child support by implicitly determining who is an acceptable claimant and who is an appropriate obligor. In addition, the rules determine which jurisdiction’s law will establish the amount of support and thus, implicitly, they determine which jurisdiction sets the standards for family performance . American constitutional law demands a connection between the individual to be burdened and the jurisdiction imposing that burden. The proposed rules seem designed to take this into account, but doing so requires the scheme to abandon a preference for relying on the law of the creditor’s habitual residence. American child support proceedings use pre-established guidelines to determine the amount of any child support award. These guidelines, which are premised on economic conditions in the individual states, are not suited to dealing with international disputes. The cases suggest that American courts are reluctant to abandon the efficiency of the guidelines in favor of detailed fact based analysis, even if the result is an inappropriate order - certainty comes at a price.