Friday, September 9, 2005

Case Law Development: Nations are "States" under UCCJA

In a case of first impression, the Maryland Court of Special Appeals navigates the UCCJA in a case involving international marriage, simultaneous court proceedings in India and the United States, and allegations of domestic abuse of Mother and Child.  The court holds that a foreign country is a "state" for purposes of the UCCJA.

Garg v. Garg, 2005 Md. App. LEXIS 179 (September 2, 2005)

Opinion on the web at http://www.courts.state.md.us/opinions/cosa/2005/1707s03.pdf  (last visited September 9, 2005 bgf)

The case involved a couple who were married in India and lived alternately in India and the United States throughout their marriage.  Their child was born in India.  Mother became a naturalized US citizen and claimed a resulting citizenship for her child.  The couple separated while they were living in India, and Mother and child returned to the United States, allegedly to escape Father's violence.  Father filed for custody of the child in India (but not for divorce).  Mother then filed for divorce and custody in Maryland.  Father moved to dismiss the action relying on the pending custody action in India and claiming that Mother had "abducted" child from India to Maryland.  Mother argued that she had not removed the child in violation of any court order and that Maryland was the child's home state.  She asked that the trial court appoint counsel for her child.  The trial court did not appoint counsel for the child, but took extensive testimony from experts regarding Indian child custody standards and regarding the allegations of abuse (much of the testimony is excerpted in the opinion).  The trial court then dismissed Mother's action for lack of jurisdiction, based on the pending Indian custody action and the court's conclusion that the testimony regarding abuse was not credible and that mother had wrongfully removed the child from India.

The appellate court reversed because, even if India properly had jurisdiction over the custody case, the trial court erred in dismissing the divorce action and in not appointing counsel for the child in an action in which child abuse was alleged.

For the benefit of the trial court on remand, the appellate court provided an extensive analysis of the application of the UCCJA in international custody disputes.  Mother had argued that India could not be a "state" under the UCCJA.  In interpreting the meaning of "state" under the UCCJA, the court made reference to the UCCJEA to determine legislative intent.  The court concluded that "the plain meaning of the UCCJEA makes clear that the term "state" applies to foreign nations, so long as the foreign custody law does not offend our public policy."   Moreover, the court noted that "We have found no support in the UCCJA for the court's determination that home state jurisdiction is lost when a child has been impermissibly removed from one jurisdiction to another."

http://lawprofessors.typepad.com/family_law/2005/09/case_law_develo_11.html

Custody (parenting plans) | Permalink

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