EUPillar L. v B - 2013/JR/124 - Bruxelles, 16 December 2013

Summary

Ms L. is American, Mr B. has Belgian nationality. They have one child, L. In February 2004, Ms L. went back to live in the States with the child. Mr B. initiated return proceedings under the Hague Convention, and initiated divorce proceedings before the Court of First Instance of Nivelles. During the divorce proceedings, the President of the Nivelles Court of First Instance took provisional measures. In an interim judgment, the judge of Nivelles decided to grant joint parental authority and primary custody to the mother. L would stay with the father during the holidays. The judge also confirmed an agreement on maintenance reached by the parties themselves. In 2009, Ms L. wanted to obtain an increase of the maintenance contribution and seised the Family Court of New York to that effect. However, the New York court agreed with Mr B. that the Belgian court of Nivelles was still seised of the case because the case was not definitively closed. The New York court declined its jurisdiction. On 10 July 2012, Ms L. seised the Juvenile Court of Nivelles to obtain a modification of the custody regime and an increase of the maintenance contribution. She later decided to withdraw her claim for modification of the custody regime, but Mr B. had already lodged a counterclaim to obtain primary custody, ie a reversal of the current regime. The first judge decided that the laws of New York are applicable to the issue of parental responsibility and custody, while Belgian law is applicable to the issue of maintenance. Ms L. appealed. Like the first judge, the Court of Appeal applies Brussels IIa. The habitual residence of the child is in New York. If no court of a Member State has jurisdiction pursuant to Arts 8 to 13 Brussels IIa, jurisdiction shall be determined, in each Member State, by the laws of that State, in Belgium that is the Code of Private International Law (cf. Art 14 Brussels IIa). However, the first judge established jurisdiction on the basis of Art 12 Brussels IIa. He thought the child L. had a substantial connection with Belgium because she has Belgian nationality and her father, holder of parental responsibility, is habitually resident in Belgium. The acceptance of the jurisdiction of the Belgian courts by Ms L. appears from the fact that she herself seised the court of Nivelles. Ms L. disagrees and says that seising the Belgian court was a mistake, she never wanted to deal with the whole case before the Belgian courts, which is why she later retracted her claim relating to parental responsibility. The Court of Appeal agrees with the first judge. By lodging her claim before the Belgian courts, Ms L. expressly accepted the jurisdiction of those courts. Mr B. was allowed to lodge a counterclaim based on the same facts, even if that counterclaim could heavily impact the current life of the child. Ms L. did not foresee the consequences of her claim, but that does not change her acceptance on the day the court was seised. It is also in the best interests of the child that the case is examined further in Belgium. Ms L.’s objections to the current custody regime are based on difficulties encountered during the exercise of the access rights of the father when the child stayed in Belgium. The father thinks this is due to the image the mother created of him in front of the child, while the mother says he creates a toxic environment for her child. An investigation of the family environment on the father’s side is in order, which is why the Belgian courts are better placed to deal with this than the courts in New York. The Court establishes jurisdiction on the basis of Art 12(3). The courts have jurisdiction over the maintenance claim on the basis of Art 3(a) Maintenance Regulation. The applicable law must be determined in accordance with the Hague Protocol (see Art 15 Maintenance Regulation). Pursuant to Art 4(3) of the Protocol, Belgian law is applicable.