The Dual Citizen Child & the “Hague” Question
An interesting non-precedential decision issued from the Superior Court on October 28 in a world where married couples have the opportunity to provide their offspring with dual citizenship with a country aside from the United States. The parties in Sabakar v. Stacy married in 2007 and divorced in 2018 after giving birth to a then eight year old child. In their property settlement agreement, husband agreed that he would cooperate in helping wife secure dual citizen ship for the child in her native country; the Russian Federation. In 2023 wife filed an action to enforce that provision. Husband resisted. The opposition was premised upon statements mother had made about relocating to Russia (where she had lived until 2002) with the child and the fact that the Russian Federation has never acceded to the Hague Convention on the Civil Aspects of International Child Abduction. After several days of hearing an Allegheny County court denied the specific enforcement of the agreement.
The wife’s appeal turned on a prior Superior Court ruling which upheld dual citizenship. Nagle v. Nagle, 2005 Pa. Super 102 involved two children, one born in the United States and the other in Republic of Ireland. The parties had filed a stipulation in Bucks County stating, in part, “[M]other agrees to maintain United States citizenship for Devlin; and, to file application for United States citizenship of their yet unborn child at the United States Embassy in Dublin within thirty (30) days of the birth of said child.” The trial and appellate courts found that this language did not preclude a request for the children to become dual citizens. The court also noted that there are often benefits to the children arising from access to dual citizenship and absent a showing of possible danger to the child dual citizenship should be liberally viewed. In the present case wife had offered testimony that certain health benefits, such as orthodontic care, are offered without charge in Russia.
Curiously, this 12 page opinion takes a circuitous route where there was a decisive direct path. The Court notes that in 2020 it had published a decision in O.G. v. A.B., 234 A.3d 766 (Pa.S.) with quite similar facts except that the children there involved were already dual citizens, albeit with expired passports. In that case the court also noted Russia’s election to not be a party to the convention against abduction of children in a child custody context and was not persuaded by mother’s offer to post a bond with security to assure her travel to Russia would conclude with the return of the children.
The new opinion in Sabakar v. Stacy (305 WDA 2024) travels many different roads. It notes that father was without counsel when he agreed to dual citizenship. It noted the deterioration in US-Russian relations after Russia invaded Ukraine in 2022. It references a case where relocation was granted to Canada over one parent’s objections. These trails of thought tend to invite more appeals. What was needed was a precedential decision holding that as a matter of public policy dual citizenship requests or agreements will not be countenanced in a setting where the “other” state is not a party to the Hague Convention. Dual citizenship invites dual passports and a foreign passport is a medium by which one parent can take a child to a non-Hague country where there is no effective mechanism to recover the child. In Sabakar, the court invokes the correct standard. The Commonwealth’s parens patriae authority allows the courts to refuse enforcement of agreements which could endanger the welfare of the child. Mumma v. Mumma, 550 A.2d 1341 (Pa.Super. 1988). The testimony related to mother’s intentions relative to permanent return to Russia is interesting and augments the reason to deny enforcement of the dual citizenship agreement. But why should courts entertain requests to take children to countries that will not sign a treaty to provide for those same children to be repatriated to their place of habitual residence.
Parenthetically, we note that in 2020 the United State Supreme Court took up the matter of defining “habitual residence” (a Hague term for “home state”) in Monasky v. Taglieri.