Journal Article

Choice of Law in International Child Support Obligations: Hague or Vague, and Does it Matter?– An American Perspective

David S. Rosettenstein

in International Journal of Law, Policy and the Family

Volume 22, issue 1, pages 122-134
Published in print April 2008 | ISSN: 1360-9939
Published online February 2008 | e-ISSN: 1464-3707 | DOI: https://dx.doi.org/10.1093/lawfam/ebm016
Choice of Law in International Child Support Obligations: Hague or Vague, and Does it Matter?– An American Perspective

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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.

Journal Article.  6150 words. 

Subjects: Family Law ; Marriage and the Family

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